BLOG: Defending the Environment with Constitutional and Statutory Text and History
This Term, the Supreme Court is considering Sackett v. Environmental Protection Agency, an important environmental case in which individuals are challenging the Environmental Protection Agency (EPA)’s effort to enforce the Clean Water Act (CWA), a law designed “to restore and maintain the . . . integrity of the Nation’s waters.” The decision in this case could have significant ramifications not only for the preservation of waterways in the United States, but also for Congress’s power to address national problems that require national solutions. CAC filed in this case in support of the EPA—marking only the most recent example of our longstanding commitment to using arguments grounded in constitutional text and history to protect the environment.
Significantly, that longstanding commitment dates all the way back to CAC’s precursor organization, Community Rights Counsel (CRC). CRC was founded, in principal part, to combat efforts to distort the original meaning of the Takings Clause, which prohibits the government from taking property without providing just compensation, and then use that distorted meaning to strike down environmental regulations. CAC grew out of CRC, using the same approach of looking to constitutional text and history, but in the context of a broader set of issues.
Even as CAC took CRC’s insight that the Constitution is a fundamentally progressive document and applied it to a broader set of issues, we have continued to apply that insight in environmental cases. For example, in Sackett, we filed a brief that uses the Constitution’s text and history to combat the narrow view of the breadth of Congress’s power taken by those challenging the EPA. In that case, Michael and Chantell Sackett are arguing that certain wetlands on their property are not covered by the Clean Water Act and therefore that they can fill the wetlands with dirt and gravel without obtaining a permit. And according to the Sacketts, applying a test developed by Justice Kennedy many years ago in a case called Rapanos v. United States to determine what waters are wetlands within the meaning of the Clean Water Act would extend the federal government’s authority beyond what the Constitution’s Commerce Clause allows. (Notably, CRC filed a brief in Rapanos that, among other things, addressed the scope of Congress’s authority in this context.)
The Sacketts’ argument is not consistent with the original meaning of the Commerce Clause, which authorizes Congress to address problems that require a federal response. As our brief explains, the original meaning of “commerce” in the Constitution was not limited to economic activity or trade—it carried “a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets.” And the integrity of the nation’s waters fits within that broader meaning of commerce. For instance, the pollution of a waterway might impede the ability of that waterway to support commerce by rendering it unsuitable for fishing, unfit for commercial recreation, or even unnavigable. Such a problem requires a federal response when, as a result of the natural movement of waterways, the polluted water affects multiple states to a point that the states cannot address the issue separately.
Sackett is not the only recent environmental protection case at the Supreme Court in which CAC has filed a brief. In the previous Term, CAC filed in a case called West Virginia v. Environmental Protection Agency. That case involved the Clean Power Plan that the EPA issued in 2015 to limit carbon dioxide emissions from coal-fired power plants. Those challenging the Clean Power Plan argued that the Clean Air Act did not authorize the EPA to issue such a regulation. The Clean Air Act was passed to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare . . . of its population,” and the Clean Power Plan laid out a path to achieve exactly that, as it would have allowed Americans to “see billions of dollars in public health and climate benefits, now and for future generations.”
Even though the Clean Air Act gives the EPA the discretion to take action to implement that law, the Clean Power Plan’s challengers argued that the CAA did not authorize the CPP because of the so-called “major questions doctrine.” According to the CPP’s challengers, Congress must speak “with unmissable clarity” before authorizing an agency to resolve “major questions,” and this so-called doctrine is necessary to enforce a constitutional prohibition on laws that delegate legislative authority to agencies. In the brief that we filed on behalf of Michigan Law Professor Julian Davis Mortenson, we explained that under the original meaning of the Constitution, there is no prohibition on legislative delegations that needs to be enforced through a “major questions doctrine.” Unfortunately, the Supreme Court failed to engage with this history. Instead, it held that the major questions doctrine should apply in certain “extraordinary” cases, and that this was such a case.
CAC also files briefs that make arguments grounded in the text and history of the nation’s environmental laws. For example, in 2019, we filed a brief in County of Maui v. Hawai’i Wildlife Fund, another CWA case at the Supreme Court, and we rooted our argument in the plain text of the CWA. In that case, the County of Maui operated a waste treatment facility that released treated sewage into groundwater that led to the Pacific Ocean. The County argued that the CWA did not require it to have a permit for its activities. According to the County, although the Pacific Ocean constitutes navigable waters, the groundwater where the pollutants were initially released does not, so the County did not need a permit. In our brief, however, we explained that the CWA prohibits “any addition of any pollutant to navigable waters from any point source” without a permit. This language, we argued, covers indirect point-source pollution of the type that was occurring in that case. The Supreme Court issued a favorable ruling in this case when, in 2020, it decided that the CWA does require a permit for the type of activities in which the County was engaging. Just like our brief, the Court’s opinion emphasized the text and history of the CWA.
These cases represent only some of the work that CAC has done in the environmental protection sphere. In addition to filing briefs in the Supreme Court, we have also filed briefs in lower courts, addressing issues such as the protection of Alaskan coastal areas and President Trump’s unlawful efforts to reduce the size of national monuments.
Over the years, Congress has passed multiple laws to protect our environment, but there have been many efforts to limit the effectiveness of those laws and the general ability of the federal government to protect the environment. With so much at stake, we at CAC are committed to fighting back against such efforts, using arguments grounded in constitutional text and history and the text and the history of the relevant statutes to protect our environment. The challenge before us is as large as it is important.