On the contrary, the court ruling in Sackett vs. EPA it has resulted in a win for a number of industries, legal experts say, and could allow many projects to escape federal scrutiny altogether. The decision once again showed the power of the court’s conservative majority to make sweeping changes to federal policy at a time when narrow partisan divisions in the House and Senate hamper Congress’s ability to act.
“sackett it is not a promised land. You didn’t clarify everything. But the guy clarified a lot,” said Molly Cagle, a senior counsel at the law firm Baker Botts that advises infrastructure developers on permitting.
The court decision addressed what has been one of the biggest regulatory hurdles for a wide range of projects: obtaining a Clean Water Act permit to fill streams and wetlands.
The ruling stripped the Clean Water Act’s protections from wetlands without a « continuous » water connection to larger streams, lakes and rivers — a far narrower interpretation of the law than the Supreme Court or even the Trump administration had applied previously. Conservative Judge Brett Kavanaugh joined the three liberals on the court oppose this outcomeaccusing the majority of having « rewritten » the words of Congress.
Now, legal experts say, hundreds of projects will likely no longer need Clean Water Act permits. Other projects will still need to go through the water permit process, but will likely face far fewer requirements to reduce their impact on areas wetlands or pay to rebuild wetlands elsewhere.
The ruling could also limit the ability of Democratic-led states to use their authority under the 1972 Water Act to shut down energy infrastructure, as states like New York and Washington have done in recent years with pipelines and a terminal for the export of coal.
Before the ruling, even relatively minor development projects like freeway ramps had to go through the complex and expensive wetland permitting regime, said Cagle, who works in Baker Botts’ Austin office.
« Anything you want to build that’s more than an eighth of an acre – you want to build a mall, you want to build a highway – anything bigger than a breadbox that historically you wanted to put on God’s green Land, you had to do a zoning wet. You may never have to do it again, » she said.
The Biden administration is still deciding how to implement the court decision. The EPA did not respond to a request for comment but earlier said it was reviewing the ruling. The Army Corps of Engineers has temporarily halted nationwide wetland reviews while agencies « consider next steps, » a spokesman said.
But a now-defunct 2020 Trump administration wetlands regulation offers a preview of the effect the ruling could have.
The Trump-era rule, which didn’t come until a new high court decision to reduce federal authority, cut the number of wetlands subject to the law in half and led to more than 300 projects no longer needs permission. Such projects included solar farms, energy pipelines, residential developments and mining.
For example, the developers of a long-fought copper and critical minerals mine outside Tucson, Arizona, dropped their Clean Water Act permit and began construction after the Trump rule went into effect, because the Army Corps of Engineers discovered that the area did not contain federally protected waters under the narrowest definition.
A 135-mile pipeline transporting natural gas through southeastern New Mexico and west Texas was able to do this completely give up water permitting. That’s because the desert’s multiple streams it traverses typically flow only during the region’s rainy season, meaning they weren’t subject to federal permits under Trump’s rule.
The new Supreme Court ruling, like the Trump rule, will likely have the greatest impact in the arid West, where many wetlands typically lack continuous surface connection to federally protected bodies of water. The ruling also questions whether rain-dependent desert streams — which make up the vast majority of streams in Arizona, New Mexico, Nevada and Utah — fall within the scope of the law.
But the effects of Trump-era rule weren’t limited to the West Bank of the Mississippi River, showing that the new Supreme Court ruling is also poised to have ramifications across the country.
For example, the developers of a vast open pit mine on the edge of the Okefenokee Swamp in Georgia obtained a determination that their project that sought to unearth titanium and zirconium from hundreds of acres of wetlands was not subject to federal permits. under the Trump Rule.
Now, massive refineries and other petrochemical plants in southeast Louisiana, where wetlands provide vital protection from storms, may also be able to avoid federal clearance under the new high court ruling. water because levees separate the wetlands on their property from the Mississippi River.
If project developers can design their plans to avoid federally protected wetlands, it would not only absolve them of the need for a Clean Water Act permit, but in many cases it could also allow them to opt out of environmental review. under the National Environmental Policy Act.
That half-century-old law requires government to lay out the environmental and social consequences of major federal actions and explore alternative approaches that could be less harmful. It also provides a key mechanism for communities to understand and evaluate projects that affect them.
But developers and Republicans have long complained about the time and expense the NEPA process can add to projects and have made « streamlining » its requirements a top priority, even in negotiations over raising the debt ceiling.
Now, some projects may be able to avoid this process altogether. For renewable energy farms, residential and industrial facilities, state highways, and even pipelines, federal water permits were often the only federal decision triggering NEPA. For example, with Georgia’s sprawling titanium mine, permitting the Clean Water Act was the only federal action that necessitated NEPA review, said Nick Torrey, a senior attorney at the Southern Environmental Law Center, who said. fought the project.
Avoiding both the water permit and NEPA review could substantially speed up the process for those infrastructure projects and significantly reduce costs, but it also removes the legal tools that community and environmental groups have used to challenge the projects.
“As you drastically reduce the jurisdiction of the Clean Water Act, it certainly hinders the ability of local citizen community groups to help enforce the law and have a voice,” Torrey said.
Torrey argued that the Supreme Court’s curtailment of federal jurisdiction over wetlands will exacerbate the changes to NEPA that Congress included in the debt ceiling bill. In addition to limiting the duration of environmental reviews, such legislation also means that some actions such as federal loan guarantees no longer trigger NEPA, and the agreement codified a narrower range of effects that environmental reviews must address.
Lawyers say smaller projects will have an easier time avoiding NEPA review following the wetlands decision. While larger projects may avoid harming federally protected waters now, they are likely to involve other federal actions that trigger the NEPA review, said Chris Thomas, partner in Perkins Coie’s Phoenix office who led the brief of the friend of the court of the mining industry in the sackett case.
While the West may now have less federally protected waters to worry about, it still has plenty of federal land, he noted.
The shrinkage of federally protected waterways also limits the ability of states to refuse or condition permits using their authority under the 1972 Water Act. If projects no longer need Clean Water Act permits, states will have no opportunity to intervene. And for those still applying for the permits, a separate Trump-era regulation limits the types of environmental harm states can consider when deciding whether to approve or reject a project, said Dave Owen, a professor of environmental law at the US. University of California.
Reducing federal water protections could benefit large electric transmission projects, a top priority for Democrats who want to connect massive amounts of renewable energy to the grid. But the Supreme Court’s decision does nothing to appease the cost issues and local objections that have primarily stymied those projects.
