SMOUSE & MASON FILES AMICUS BRIEF IN MAJOR SUPREME COURT CLEAN WATER ACT CASE WITH ARGUMENTS LARGELY FOLLOWED IN THE COURT’S OPINION.
On April 13, 2022, Smouse & Mason, LLC submitted an Amicus, or “Friend of the Court,” Brief in support of Plaintiffs Michael and Chantelle Sackett in the United States Supreme Court Case Sackett v. EPA, 598 U.S. — (2023) (https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf ) with arguments largely followed in the Court’s May 25, 2023 opinion. The brief was filed on behalf of the National Stone Sand and Gravel Association and the American Road and Transportation Builders Association raising the concerns of these major industries providing vital infrastructure to the nation. In general, Amicus Briefs are filed by a non-party person or organization to contribute relevant information or arguments to assist judges in decision-making.
The case involved the EPA’s finding that the Sackett’s property, located near but separated by a road from a tributary of Priest Lake, a large recreational lake in Northern Idaho, was a regulated wetland under the Clean Water Act. The Court addressed whether the “significant nexus” test from Justice Kennedy’s opinion in the Supreme Court’s 2006 case of Rapanos v. United States, 547 U.S. 715, applied to the Sackett’s property, was the proper test for finding Clean Water Act jurisdiction. Justice Kennedy’s test differed from Justice Scalia’s plurality test in Rapanos that required a relatively permanent surface connection between a wetland and a navigable water. The brief was authored by Smouse & Mason attorneys Lawrence Liebesman and Zachary Howerton.
Contributors to the Amicus Brief
Lawrence Liebesman is a nationally renowned environmental lawyer and litigator with more than forty years of experience including negotiating both Clean Water Act and Endangered Species Act permits and approvals for commercial, residential, public works, and environmental restoration projects. He has authored numerous Amicus briefs in the Supreme Court cases under the Clean Water Act and Endangered Species Act. Prior to entering private practice, Mr. Liebesman was a senior trial attorney at the Department of Justice for more than a decade and litigated landmark cases under the Comprehensive Environmental Response, Compensation, and Liability Act or “Superfund” Act, the Clean Water Act and National Environmental Policy Act. Mr. Liebesman continues to speak and write extensively on environmental issues and has previously served as an adjunct professor at both The George Washington University Law School and the University of Baltimore Law School.
Zachary Howerton is an associate attorney at Smouse & Mason. He earned his law degree from Vermont Law School, where he was articles editor of the Vermont Law Review and student clinician of the Environmental and Natural Resources Law Clinic. During law school, Mr. Howerton served as a judicial intern to the Honorable Paul L. Friedman in the United States District Court for the District of Columbia and as a law clerk in the Environmental Enforcement Section at the Department of Justice. He previously served as a law clerk to Senior Judges in the District of Columbia.
Alicia Koble is a paralegal at Smouse & Mason who also worked on the brief. She earned her undergraduate degree from Widener University and went on to receive a Master of Arts degree in anthropology with special focus on international development from The George Washington University. Prior to joining Smouse & Mason, Ms. Koble worked with a boutique employment law firm in Washington, D.C.
Understanding the Brief
In support of the Petitioners, Smouse & Mason argued five basic points: (1) the use of the significant nexus from the Rapanos case, the test and adopted by the Ninth Circuit, created confusion as to when a permit is required under the Clean Water Act. By using the significant nexus test, the Clean Water Act often causes unnecessary delay in obtaining permits for important, vital infrastructure projects; (2) the significant nexus test presumed that the Clean Water Act has jurisdiction that is nearly impossible to refute; (3) the significant nexus test created due process issues jeopardizing reasonable business decisions; (4) to follow the Clean Water Act properly, there must be evidence of surface water connection and foreseeable harm from discharges to the water quality of a navigable water. The significant nexus test does not specify what kind of evidence is needed to establish such harm; and (5) the significant nexus test violates the principles of federalism and the authority of state and local governments over land and water use specifically reserved under the Clean Water Act.
Our Amicus brief made several arguments that were remarkably similar to the reasoning and analysis in Justice Samuel Alito’s majority opinion:
| Amicus Brief | Sackett v. EPA Opinion |
| “A landowner contesting jurisdiction is faced with bringing an expensive, time consuming, and likely unsuccessful administrative appeal of a Corps jurisdictional determination, not to mention future litigation.” (p.14) | “… a property owner may find it necessary to retain an expensive expert consultant who is capable of putting together a presentation that stands a chance of persuading the Corps. And even then, a landowner’s chances of success are low as EPA admits that the Corps finds jurisdiction approx. 75% of the time” (p. 13) |
| “The significant nexus test essentially creates a presumption of CWA jurisdiction that is virtually impossible to overcome.” (p. 14) | “…Jurisdictional determinations could be challenged in court but only after delay and expense… And once in Court, the landowner would face an uphill battle under the deferential standards of review that the agencies enjoy…” (pp. 13-14) |
| “The significant nexus test raises serious due process problems … The application of the significant nexus test implicates the void for vagueness doctrine raising discrete due process concerns” (p. 19) | “The CWA is a potent weapon. It imposes what have been described as “crushing consequences even for inadvertent violations.” (p. 3) |
| “The significant nexus test violates the fundamental principles of federalism… in enacting the CWA, Congress never intended to impinge on the traditional and primary power of state and local governments over land and water uses expressly preserved under CWA section 1251(b).” (p. 30) | “Regulation of land and water use lies at the core of traditional state authority…An overly broad interpretation of the CWA’s reach would impinge on that authority… (p. 23) |
| “The fundamental problem with significant nexus, a term that does not appear anywhere in the CWA, is that is has no inherent limiting principles. It empowers the agencies to assert CWA jurisdiction over any wetland adjacent to a water feature with an intermittent, remote or indirect connection to a navigable water…” (p. 21) | “The CWA never mentions the significant nexus test, so EPA has no statutory basis to impose it.” (Citing Rapanos plurality) (p. 24) |
Outcome
The Supreme Court unanimously rejected the significant nexus test holding held that the Clean Water Act only extends to “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” Sackett v. EPA, 598 U.S. — (2023) (quoting Rapanos, 547 U. S., at 742, 755 (plurality opinion) (emphasis deleted)). In so holding, the Court adopted Justice Scalia’s test from the Rapanos case. Thus, the Court reversed the Ninth Circuit Court’s holding and found that the wetlands on the Sacketts’ property were, in fact, distinguishable and separated from Priest Lake, the closest navigable water. Thus, the Government could not regulate the wetlands under the Clean Water Act.
On September 8, 2023, the Government issued a revised “Waters of the United States” CWA rule to implement Sackett.Vol 88 Fed. Reg. 61964-61969.(https://www.govinfo.gov/content/pkg/FR-2023-09-08/html/2023-18929.htm). The rule was made immediately effective. It eliminates the significant nexus test and limits CWA jurisdiction to wetlands that are “inseparately bound up” with flowing streams, rivers, oceans, and relatively permanent tributaries. The agencies will issue guidance and hold workshops with the regulated community and the public on implementation.
Our Firm will continue to provide advice to our clients on the future interpretation and application of Sackett and the recently issued rule .