Three years ago, the Supreme Court ruled that a federal law banning workplace discrimination on the basis of sex also applies to gay and transgender workers. Justice Neil Gorsuch crafted a narrow ruling that drew upon the statute’s text and the court’s precedents on how it applied to gender and sex. In dissent, Justice Samuel Alito effectively accused Gorsuch of betraying conservative legal principles.
“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled,” Alito wrote in his scathing dissent. “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated.”
On Thursday, the statutory interpretation shoe found itself on the other foot. Alito wrote the majority opinion in Sackett v. Environmental Protection Agency, a case involving the Clean Water Act of 1972. He adopted a narrow definition of when the EPA could regulate pollutants in certain wetlands. “Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” he wrote.
This time it was Justice Brett Kavanaugh who effectively accused Alito of betraying textualism, a method of reading statutes championed by many conservative federal judges. While the justices were unanimous on the outcome for the plaintiff in question, the decision reads more like a 5–4 split thanks to four justices—Justice Brett Kavanaugh and the court’s three liberals—rejecting Alito’s new test for deciding what the EPA can regulate under the CWA.
“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote in a concurring opinion joined by the three liberals that functioned more like a dissent.
Justice Elena Kagan also added a concurrence-turned-dissent of her own, expressing her enthusiastic support for Kavanaugh’s criticism of Alito while also adding her own twist to it. “The majority shelves the usual rules of interpretation—reading the text, determining what the words used there mean, and applying that ordinary understanding even if it conflicts with judges’ policy preferences,” she wrote. In different but complementary ways, the two justices argued that Alito’s adherence to textualism is a sham.
The origins of the case itself trace back to 2004, when Michael and Chantell Sackett bought land near Priest Lake in Bonner County, Idaho. The small lot was roughly 30 feet away from a fen that, via an unnamed tributary, fed into the lake. Eight years earlier, the Army Corps of Engineers—the other federal agency tasked with enforcing the CWA—had found that the property included wetlands that were covered by the statute and told the lot’s then owner how to apply for a permit to build on it.
The Sacketts, who own a construction business, did not apply for a permit after purchasing the lot. They instead promptly began to backfill it with rocks and gravel so they could build a home on the property. That drew the wrath of the EPA, who found that the wetlands on the lot “improve Priest Lake’s water quality through sediment retention, contribute base flow to the Lake with beneficial effects to fisheries, and provide flood control,” according to its brief for the justices. The Sacketts disagreed: For one thing, there was a road that separated their lot from the tributary in question. They sued the EPA to block it from enforcing an order to remove the backfill.
Thus began a long legal battle that has already reached the Supreme Court once before, where the court sided with the Sacketts on a procedural question. Once that question was resolved, the case returned to the lower courts. The Sacketts argued that the wetlands on their property didn’t count as the “waters of the United States,” a key term found in the Clean Water Act. The EPA disagreed, as did the federal district court that heard the case and the Ninth Circuit Court of Appeals that reviewed its decision.
WOTUS cases—that’s the common legal term for “waters of the United States,” not a joke on my part—can have high stakes for environmental policy. The Clean Water Act generally forbids any discharge of pollution into “navigable waters.” Its definition of that phrase is broad: “The term ‘navigable waters’ means the waters of the United States, including the territorial seas.” So what counts as the “waters of the United States,” then? When the dispute with the Sacketts began, the EPA defined them to include—among many, many, many other things—wetlands that are “adjacent” to waters of the United States.
So what counts as “adjacent” under the CWA? Before today, the EPA could regulate water pollution in wetlands that were separated from another body of water by various natural and non-natural features: Kavanaugh noted in his own opinion that this could include dikes and flood barriers, natural river berms, beach dunes, and so on. The lower courts accepted what was known as the “significant-nexus test” as a proper way to read the statute. Nature does not always configure itself in clean and simple ways for the ease of legislators. So Congress wrote in broad terms and the EPA followed its lead.
“‘Adjacent’ was defined [by the EPA] to mean not just ‘bordering’ or ‘contiguous,’ but also ‘neighboring,’” Alito noted, referring to EPA regulations on wetlands. “Agency guidance instructed officials to assert jurisdiction over wetlands “adjacent” to non-navigable tributaries when those wetlands had ‘a significant nexus to a traditional navigable water.’ A ‘significant nexus’ was said to exist when ‘wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity’ of those waters.”
But the justice disagreed with this reading of the statute, and he and the majority instead concluded that the EPA can only regulate wetlands if they have a “continuous surface connection” to a WOTUS. “Because the adjacent wetlands in §1344(g)(1) are ‘includ[ed]’ within ‘the waters of the United States,’ these wetlands must qualify as ‘waters of the United States’ in their own right,” Alito argued. “In other words, they must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.”
Kavanaugh disagreed strenuously with Alito’s reading of the law on textualist grounds. “In my view, the Court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents,” he wrote. “The Court’s test narrows the Clean Water Act’s coverage of ‘adjacent’ wetlands to mean only ‘adjoining’ wetlands. But ‘adjacent’ and ‘adjoining’ have distinct meanings.”
To make his point, he cited multiple dictionary definitions and noted that Congress had specifically amended the CWA in 1977 to add a reference to “adjoining” wetlands, in contrast to other references in the statute to “adjacent” things. “The difference in those two terms is critical to this case,” Kavanaugh explained. “Two objects are ‘adjoining’ if they ‘are so joined or united to each other that no third object intervenes.’ As applied to wetlands, a marsh is adjacent to a river even if separated by a levee, just as your neighbor’s house is adjacent to your house even if separated by a fence or an alley.”
Nor was Kavanaugh persuaded by Alito’s logic on the two words. “To bolster its unorthodox statutory interpretation, the Court resorts to a formula: ‘A minus B, which includes C,’” he wrote. “That just seems to be a fancier way of arguing (against all indications of ordinary meaning) that ‘adjacent’ means ‘adjoining.’ But again the Court is imposing a restriction nowhere to be found in the text. In the end, the Court has no good answer for why Congress used the term ‘adjacent’ instead of ‘adjoining’ when Congress enacted §1344(g) in 1977.” As if to prove Kavanaugh’s last point there, Alito addressed the dissents in a single blithe paragraph where he declared that nothing his dissenting colleagues had written had “undermine[d] our analysis.”
“Justice Kavanaugh claims that we have ‘rewritten’ the CWA, and Justice Kagan has leveled similar charges,” Alito countered. “These arguments are more than unfounded. We have analyzed the statutory language in detail, but the separate opinions pay no attention whatsoever to §1362(7), the key statutory provision that limits the CWA’s geographic reach to ‘the waters of the United States.’ Thus, neither separate opinion even attempts to explain how the wetlands included in their interpretation fall within a fair reading of ‘waters.’ Textualist arguments that ignore the operative text cannot be taken seriously.” This does not refute the other two justices’ points on Alito’s reading of “adjacent” so much as it ignores them.
Why the divergence between the two conservatives? One explanation could be that Alito is unmistakably sympathetic to the plight of property owners who might be affected by the law. One portion of his opinion is devoted entirely to their plight if the EPA uses the enforcement mechanisms given to it by Congress. “Many landowners faced with this unappetizing menu of options would simply choose to build nothing,” he opined after describing how the CWA works in practice. A casual reader might reasonably conclude that Alito’s own viewpoints are affecting the outcome of the case. Kagan, who is not a casual reader, suggested the very same thing.
“In the majority’s view, the Act imposes unjustifiably ‘crushing consequences’ for violations of its terms,” she wrote. “And many of those violations, it thinks, are of no real concern, arising from ‘mundane’ land-use conduct ‘like moving dirt.’ Congress, the majority scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of landowners.’ Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”
Abandoning textualism in certain circumstances is now a recurring theme of sorts, Kagan noted. She pointed to the court’s decision in West Virginia v. EPA last term, where the court’s conservative majority invoked “major-questions doctrine” to limit the agency’s authority to curb carbon emissions from power plants. In her dissent from that ruling, Kagan argued that the conservatives’ stated preferences for textualism were incompatible with using new doctrinal rules, “magically appearing as get-out-of-text-free cards,” to substitute Congress’s policy agenda for its own.
“There, the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way,” she wrote on Thursday. “Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy.”
This might be blunt by judicial standards, but it is also measured compared to what she could have said. A more personal rebuttal would have simply repeated what Alito himself once claimed in another dissent: that no one should be fooled by the majority’s textualism, that it flies under a metaphorical pirate flag, and that it actually represents something more sinister—the usurpation of Congress’s policy preferences by the editing pen of a justice who doesn’t like what the nation’s elected representatives have chosen to do.