Biden’s Green New Regulatory Agenda Runs Afoul Of The Supreme Court

A Huge Decision In Sackett v. EPA

The Supreme Court ruled last week that the Environmental Protection Agency (EPA) had overstepped its authority under the Clean Water Act in the case styled Sackett v. EPA. The case involved the agency’s interpretation of the law’s provision that defines what constitutes the “waters of the United States,” or WOTUS provision of the law.

The court’s nine justices ruled unanimously that the EPA had overstepped its authority by declaring seasonal ponds on the Sackett family’s property to be a “navigable water” under the traditional interpretation of the statute, and ruled more narrowly about the broader definition the agency has sought to enforce since 2006. Writing for the majority, Justice Samuel Alito said, “Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

In response, critics of the decision, including President Joe Biden, characterized the decision as an “attack” on the EPA, even though it simply upheld the traditional interpretation of the law that had reigned at the agency for four decades before it decided to attempt to dramatically expand its regulatory reach. In a classic bit of political hyperbole, Senate Majority Leader Chuck Schumer lashed out, saying, “This MAGA Supreme Court is continuing to erode our country’s environmental laws. Make no mistake – this ruling will mean more polluted water, and more destruction of wetlands.”

In his decision, Alito was more reasoned: “Understanding the CWA to apply to wetlands that are distinguishable from otherwise covered ‘waters of the United States’ would substantially broaden [existing statute] to define ‘navigable waters’ as ‘waters of the United States and adjacent wetlands,’” Alito wrote.

There is no question the Sackett decision will have a real impact on the aggressive Biden regulatory expansion that has been underway for the past two years. The decision effectively overturns the new WOTUS regulation EPA had finalized in January after a back-and-forth wrangling on how to properly interpret the clause that has extended across the last four presidential administrations. Thus, it is easy to understand why those who favor Biden’s attempt to dramatically expand the federal government’s regulatory reach into every facet of our daily lives were upset.

Implications For The Chevron Deference

Even more concerning to government command-and-control advocates is a broader question that will now come into increasing focus: Whether this Sackett decision presages a coming reversal by the Court of the so-called Chevron deference, a legal doctrine that has served as a key enabler of expansion of the regulatory administrative state for the last four decades.

Originating from another unanimous decision in a 1984 case styled Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Chevron deference holds that the federal bureaucracies should be allowed to compile regulatory actions without interference from the courts. The practical and inevitable outcome from this doctrine has been the exponential expansion of federal regulations and the bureaucracies that promulgate and enforce them.

In a case that will be on the Supreme Court’s docket for its 2023/24 session beginning in October, the question of the legitimacy of this doctrine will be at hand. The case, Loper Bright Enterprises v. Raimondo, involves a rulemaking by the National Marine Fisheries Service that requires commercial fishing boats to carry enforcement agents from the NMFS whose job is to police and prevent over-fishing, forcing the fishermen to pay the costs of the agents, including their travel expenses and salaries.

The plaintiff in the case is asking the Court to rule against the NMFS’s ability to regulate in such an apparently abusive manner, effectively rejecting the Chevron deference. This is a matter of great concern to advocates of the Green New Deal and the Biden regulatory agenda that seeks to incorporate many of its elements, given that so many aspects of that agenda require aggressive interpretations of environmental statutes like the Clean Water Act, Clean Air Act and National Environmental Policy Act by the EPA and other federal regulatory agencies.

Bottom Line

Of all the myriad factors that render the aggressive time lines being laid out for the ongoing “energy transition,” the complexities and requirements of the U.S. legal system and its inherent protections of the rights of all stakeholders are probably the most difficult to overcome. It took the Sackett case 17 years to wind its way through the litigation process to last week’s final decision.

Most observers agree that, even with the Chevron deference in place, the pace of the energy transition has already fallen well behind the pace required to reach the net-zero by 2050 goals advocated by the global community. A decision to abandon that doctrine that has been so crucial for the growth of the administrative state would inevitably set that calendar back even further.