Longstanding difficulty determining the regulatory extent of the Clean Water Act.

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Case Decision/Opinion on WOTUS rule:

There has been a longstanding difficulty determining the regulatory extent of the Clean Water Act. The acts plain language has proven difficult in that it refers to the navigable waters of the US or WOTUS. The act clearly calls for federal regulation to protect the quality of these waters- what is unclear is whether the intention is to protect by only regulating the navigable waters, or if the federal government has the authority and legal obligation to regulate waters that feed the navigable waters of the US- in that they clearly affect the water quality of the navigable waters themselves.

Former President Obamas EPA Director Gina McCarthy adopted a new definitional rule that the EPA claimed at the time eliminated the confusion and clarified the EPA authority to regulate waters beyond just those determined as navigable. This rule was challenged by many as an overreach of authority and lacking in grounding in the plain language of the act. On October 9, 2015 the US Court of Appeals for the Sixth District stayed the new WOTUS rule pending further determination by the courts. New (former) EPA Director Scott Pruitt and his successor Andrew Wheeler are working to rescind the rule and reset the WOTUS rule to pre-2015. These efforts resulted in the Navigable Waters Protection Rule executed by then President Trump. As litigation carried on, the new President Biden vowed to restore the definition to the Obama-era rule. In May 2023, the Supreme Court of the United States of American ruled on Sackett v. EPA, significantly limiting the extent of WOTUS. The Biden administration then had no choice but to promulgate a new Revised Definition of WOTUS. But several environmentalists contend that the conservative majority of the Supreme Court was not overly balanced in their ruling and dismissed several avenues of scientific fact and longstanding legislative intent found in the plain language of the Clean Water Act.

Your assignment is to imagine you were one of the dissenting justices charged with writing a dissenting opinion on the Sackett v. EPA case. In your own words (and without using AI nor plagiarizing the actual dissenting opinions provided) tell me why the majority got it wrong. (It is okay if you actually think they got it right- it is a good exercise of legal thinking to walk a mile in the other sides shoes.)

Your opinion is not to exceed 3 pages of typed text (double-spaced) and must align in reasonable fashion to the following structure (following the judicial writing manual- consult the section Organizing and Writing the Opinion in HuskyCT):

(1)An introductory statement of the nature and procedural posture of the case

(2)A statement of the issues to be decided

(3)A description of the material facts

(4)A discussion of the governing legal principles and the resolution of the issue(s)

(5)Any necessary instructions on how to proceed

 

Sample Solution

Dissenting Opinion

Justice [Your Name Here]

Dissenting

I. Introduction

This case concerns the scope of the Environmental Protection Agency’s (EPA) authority under the Clean Water Act (CWA) to regulate “waters of the United States” (WOTUS). The majority opinion significantly restricts the EPA’s ability to protect vital waterways, jeopardizing the health of our nation’s ecosystems and the quality of our drinking water.

II. Issues Presented

This dissent addresses the following issue:

  • Whether the Clean Water Act’s definition of “navigable waters” encompasses wetlands with a significant nexus to traditionally navigable waters, even if there is not a continuous surface connection.

III. Material Facts

The Clean Water Act, enacted in 1972, aims to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” However, the Act does not explicitly define “waters of the United States.”

In this case, the EPA sought to regulate isolated wetlands on the Sackett property, arguing that these wetlands have a significant nexus to a nearby navigable water, Priest Lake. The majority opinion holds that the CWA only applies to wetlands with a continuous surface connection to navigable waters.

IV. Legal Analysis

The majority opinion misinterprets the CWA’s scope and undercuts the Act’s core objective of protecting water quality.

A. Statutory Interpretation

The majority prioritizes a narrow definition of “navigable waters,” focusing solely on the term’s historical meaning at the time of the CWA’s enactment. However, a static interpretation of environmental legislation fails to account for the evolving understanding of ecological interconnectedness. The CWA itself directs the EPA to consider “scientific and technological developments” (33 U.S.C. § 1314(a)(3)) when defining WOTUS.

Scientific evidence overwhelmingly demonstrates that isolated wetlands with a significant nexus to navigable waters play a vital role in maintaining water quality. These wetlands act as natural filters, removing pollutants before they reach navigable waters. They also serve as critical spawning grounds and nurseries for aquatic life, ultimately affecting the health of downstream ecosystems.

The majority opinion disregards these scientific realities. By focusing solely on navigability in the traditional sense, the majority prioritizes an outdated definition over the Act’s central objective: protecting the physical, chemical, and biological integrity of our nation’s waters.

B. Congressional Intent

The majority downplays the importance of Congressional intent in interpreting the CWA. Congress explicitly intended for the Clean Water Act to have a broad reach, aiming to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (33 U.S.C. § 1251(a)).

Limiting the EPA’s authority to regulate isolated wetlands with a significant nexus to navigable waters undermines this core intent. These wetlands play a crucial role in maintaining the overall health of our water systems.

V. Conclusion

The Clean Water Act empowers the EPA to protect vital waterways that significantly impact the quality of our nation’s waters. The majority opinion’s narrow interpretation of “navigable waters” ignores the scientific realities of wetland function, the evolving understanding of ecological interconnectedness, and the clear intent of Congress. This decision hinders the EPA’s ability to achieve the CWA’s core objective and leaves our nation’s water resources vulnerable to pollution and degradation.

Respectfully Dissenting,

Justice [Your Name Here]

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