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

[Note: This story was also published at Forbes.com]

Michael Regan, administrator of the US Environmental Protection Agency (EPA), speaks during a news conference in Washington, DC, US, on Wednesday, April 12, 2023.

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.