States warn of high stakes in SCOTUS Clean Water Act case

A group of 17 states and the District of Columbia have waded into a landmark Supreme Court case, arguing that easing federal standards on wetlands would extract economic costs, undercut their ability to protect their waters and increase the risk of flooding.

The group of largely Democrat-led states who filed the amicus brief supporting the Environmental Protection Agency are lining up against a group of 25 largely Republican-led states that filed an April brief in favor of the petitioners seeking to narrow federal control. Led by West Virginia, the states in the earlier filing argued that a broader reading of the Clean Water Act would bring economic harm by biting into state revenues, stalling job creation, and stifling the growth of cities and towns.

The case, the Sacketts v. United States Environmental Protection Agency et al, is part of a long-running court dispute over whether certain wetlands are considered “waters of the United States” and therefore subject to the Clean Water Act. The ruling is expected to shape the EPA’s power under the Clean Water Act.

The question turns on two competing tests for defining waters of the United States, a more conservative one that was adopted by the Trump administration and a broader one that was used by the Obama administration and recently adopted by the Biden administration.  

Bloomberg News

The stakes are high for states, with both sides arguing the court’s final ruling will cost money and stifle growth.

Some states have filed their own briefs. Colorado argues that stakes are especially high for western states with isolated waterways, and polluted water imperils key industries like tourism and beer making. The beer industry itself filed a brief, arguing that reliable clean water is important to its success.

Alaska weighed in from the other side, arguing that as the state with “more land, water, and wetlands than any other state,” it regards the strict federal standards as “unchecked overreach.”

Infrastructure groups, such as the American Road & Transportation Builders Association, also filed briefs, arguing the broader definition is inconsistent and confusing and harms the delivery of vital infrastructure projects.

“There have been lots of different positions taken by different states and interest groups,” said Larry Liebesman, counsel at Smouse & Mason LLC who filed ARTBA’s amicus brief. “All the different groups have different economic analyses to present to the court and that’s where the record is right now,” he said. “Statistics are always in the eye of the beholder.”

The latest filing, from 17 states and the District of Columbia, argues that easing federal standards would bring back the patchwork of laws that failed to regulate interstate waterways and led to the creation of the Clean Water Act in 1972. Each of the 48 contiguous states has water bodies that are downstream of one or more other states, the brief notes.

“Downstream states and their residents would be forced to bear the regulatory and economic costs of, for example, improving the quality of waters that have suffered from upstream pollution and rebuilding after floods that were exacerbated by upstream dredging or pollution of wetlands,” the brief says.

Easing federal standards would spark a “race to the bottom” and hurt states like California, the state’s attorney general Rob Bonta said in a statement announcing the filing of the amicus brief.

“As California confronts a once-in-a-century drought, it is essential that our ability to protect our waterways remains intact,” Bonta said. “Wetlands have a critical and long-acknowledged role in maintaining the integrity of downstream waterways from upstate polluters.  Wetlands deserve federal protection.”

The case comes at an awkward time as the Biden administration has already embarked on new rulemaking for the EPA and the waterways question. The administration unsuccessfully asked the court to not take up the case given the ongoing rulemaking.

An interim rule released earlier this year relies on the broader interpretation used by the Obama administration. A final rule is expected later this year. But if a SCOTUS ruling — expected in early 2023 — relies on a narrower interpretation, as many expect given the court’s conservative majority, it would upend the new rule and send the administration back to the drawing board, Liebesman said.