Environmental Protection

RELEASE: Court Rewrites Clean Water Act to Protect Private Land Development at the Expense of…Clean Water

WASHINGTON, DC – Following the Supreme Court’s announcement of its decision in Sackett v. EPA, Constitutional Accountability Center Appellate Counsel Miriam Becker-Cohen issued the following reaction:

As Justice Kavanaugh and Justice Kagan explained in their separate opinions concurring in the judgment, the Court’s interpretation of the Clean Water Act today puts “a thumb on the scale for property owners—no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting.”

In other words, the Court abandoned the text of the law because it “believes Congress went too far.” This is not the first that we have seen the Court’s conservative majority take this atextualist approach to interpreting environmental protection statutes, and it is not, as Justice Kagan noted, “how the Constitution thinks our Government should work.” That the Court’s conservative majority would choose to substitute its policy judgments for those of Congress is deeply concerning.

Equally concerning is Justice Thomas’s concurrence, which construes Congress’s power to regulate the waters of the United States in an exceedingly narrow fashion. The understanding of the Commerce Clause that Justice Thomas presents is at odds with the Clause’s text and history, as we explained in our brief.

We are deeply disappointed with this decision and hope that Congress acts promptly to correct the Court’s offensive weakening of this landmark statute.



Case page in Sackett v. EPA: https://www.theusconstitution.org/litigation/sackett-v-epa/

Joie Mills, Defending the Environment with Constitutional and Statutory Text and History, https://www.theusconstitution.org/blog/blog-defending-the-environment-with-constitutional-and-statutory-text-and-history/

Brianne Gorod, How Far Will the Supreme Court’s Conservatives Go in Dismantling Anthony Kennedy’s Legacy?, Slate, https://slate.com/news-and-politics/2022/09/supreme-court-anthony-kennedy-affirmative-action-dobbs.html


Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.


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