On Monday morning, Justice Ketanji Brown Jackson participated in her first oral argument after joining the Supreme Court on June 30. There is no “easy first case” at the high court, but hers was particularly technical: Monday’s case, Sackett v. EPA, seeks to hobble federal protection of wetlands under the Clean Water Act. She came loaded for bear. With precision and confidence, Jackson punctured legal theories designed to let landowners destroy crucial wetlands on their property. She will probably still wind up in dissent. But she is ready to go down swinging.
Sackett asks the Supreme Court to rewrite a provision of the Clean Water Act that has, for years, shielded wetlands as long as they are near large bodies of water. The CWA was written to protect “navigable water” like oceans, lakes, rivers, and streams, which it defines as “the waters of the United States.” But it also protects “wetlands adjacent to” these larger bodies of water. The Environmental Protection Agency safeguards all water covered by the CWA, strictly limiting discharge, dumping, and other pollution to maintain water quality.
The Sackett saga began in 2007 when Michael and Chantell Sackett—who operate a commercial construction company—dumped gravel and sand into wetlands on a parcel of land near Priest Lake, Idaho. The EPA found that this portion of the property included protected “wetlands,” and halted the Sackett’s dumping, citing the possible destruction of the ecosystem. The EPA explained that the CWA shielded these wetlands because they are 30 feet from a tributary of Priest Lake and 300 feet from the lake itself. Because of their proximity, they help preserve Priest Lake’s water quality by, among other things, retaining sediment and controlling floods.
Michael and Chantell Sackett disagreed. Now represented by the conservative Pacific Legal Foundation, they argued that the wetlands couldn’t be “adjacent to” Priest Lake under the CWA. Why? Because a road separates the wetlands from the tributary leading to the lake, so the two waters cannot be “adjacent to” each other.
This is not a particularly unique conflict. Wetlands are frequently separated from neighboring waters by construction or natural structures, like a dune. These ecosystems have befuddled SCOTUS in recent years: In 2006’s Rapanos v. United States, the Supreme Court split badly over which wetlands are truly “adjacent to” protected waters. Justice Antonin Scalia’s plurality opinion demanded a “continuous surface connection,” whereas Justice Anthony Kennedy’s concurrence sought only a “significant nexus” between the waters. Kennedy rejected Scalia’s bright-line rule, safeguarding wetlands that help maintain the quality of nearby waters even if there’s no ongoing “surface connection.”
It’s safe to assume that the Supreme Court’s conservative supermajority took up Sackett to overrule Kennedy’s test and let landowners obliterate wetlands as long as there’s no direct, permanent surface-level link to other waters. There’s no value in pretending that the Republican-appointed justices have serious reservations about blowing a hole in the CWA. There is, however, still value in revealing the shoddy, anti-textualist logic behind this assault. And that’s what Jackson, a former champion high school debater, did on Monday from start to finish.
The first blow came after the Sackett’s lawyer, Pacific Legal Foundation’s Damien Schiff, tried to argue that “adjacent” meant “physically touching.” The problem with this position is that before the CWA, the government defined “adjacent” to include “neighboring,” and Congress incorporated that definition into the law. As Jackson asked Schiff: “Isn’t the issue what Congress would have intended with respect to “adjacency”? She then reminded him there was a pre-CWA regulation that defined adjacency to include “neighboring”, concluding that “as far as I know,” Congress did not add “the touching requirement that you say was intended by the term.”
Schiff tried to pivot by claiming that the provision of the CWA shielding wetlands “is unenlightening” when it comes to protected waters. “Let me try to bring some enlightenment to it by asking it this way,” Jackson cut in. “Why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the ‘chemical, physical, and biological integrity’ of the nation’s waters?” In other words, why would Congress exclude wetlands that lie next to nearby waters—but do not flow straight into them—when these wetlands have a major impact on the quality of those waters?
In attempting to answer the justice this time, Schiff turned to a states’ rights argument: “One of the purposes of the act,” he said, “is to preserve traditional state authority over land and water resources.” Jackson shot back: “I didn’t read that as a purpose. Congress said: ‘Our objective is to address or make sure that we maintain the integrity of the waters.’ ” A few minutes later, she pressed again: “Why is it that your conception of this does not relate in any way to Congress’ primary objective?”
When Schiff pushed back that Congress wanted to limit federal power, too, Jackson was not phased. “So why didn’t Congress say ‘immediately adjacent’? If they were trying to achieve something different than what the [previous] regulations had said about adjacency, if they were balancing their concerns about protecting the integrity of the navigable waters with the property interests and the states’ rights to control it, why didn’t they say ‘immediately adjacent’ in terms of the wetlands coverage?”
Schiff then declared that if Congress had intended to protect wetlands, it would have put that language in a different section of the law. Jackson sounded incredulous, pointing out that the language appears in a provision explaining “what is left to the states”—“exactly where they would have made clear” that wetlands don’t count unless they’re “touching” larger waters. Put simply: Congress put wetland protections exactly where you’d expect them to be, and courts have no business narrowing the scope of these protections by adding words (“touching,” “abutting”) that don’t exist in the statute.
When Principal Deputy Solicitor General Brian Fletcher got up to defend the EPA’s position, the conservative justices jumped down his throat. Justice Neil Gorsuch—whose mother tried to dismantle EPA while leading it in the 1980s—performed outrage over the plight of homeowners persecuted by government bureaucrats. How, he asked, does “any reasonable person know” if wetlands on their property are “adjacent to” protected waters? Would 3,000 feet be close enough? How about three miles? Fletcher tried to explain that the EPA has to study the actual ecosystem to decide if wetlands affect nearby waters, but Gorsuch wasn’t deterred: “If the federal government doesn’t know,” he pressed, “how is a person subject to criminal time in federal prison supposed to know?”
This line of questioning is classic Gorsuch: shallowly persuasive and easily refuted. Jackson then asked Fletcher: “Is there a process by which a homeowner can ask?” Which, of course, there is: Homeowners can request a free determination from the Army Corps of Engineers. “And so,” Jackson continued, “you’re not really facing criminal liability without the opportunity to get an assessment from the government regarding your particular circumstances.” You could almost hear the air going out of Gorsuch’s balloon.
Throughout Monday’s arguments, the usual battle lines revealed themselves: The three liberal justices were concerned about the environment; the six conservatives were worried about landowners. The three liberals sought to enforce the text of the statute that Congress wrote; the six conservatives suggested that vague concerns about federalism gave them a license to rewrite the law to their liking. What’s different now is that unlike her predecessor Stephen Breyer, Jackson is a sharp interrogator, fast-paced and adroit, adept at drawing out the feeble reasoning propping up meretricious logic. There was an exciting rhythm to Monday’s arguments, especially when Justices Sonia Sotomayor and Elena Kagan teamed up with Jackson to knock down Schiff’s weakest claims. Breyer had a habit of bringing arguments to a standstill with endless, convoluted questions that failed to move the needle. So far with Jackson, there’s no self-indulgent wheel-spinning, just rapid-fire questions that cut to the heart of the case.
This excitement will wear off quickly when Sackett comes down next spring and the Supreme Court dismembers the Clean Water Act by a 6–3 vote. But there’s value in the questioning—especially because right now, it’s one of the liberal justices’ few tools for confronting their conservative colleagues’ sophistry and falsehoods. Jackson may not play a decisive role in any of this term’s major cases. But she is already shoring up a newly energized three-justice minority that’s prepared to fight it out to the bitter end.
