Is The Admin State An Endangered Species of Governance?
Obviously I’m being a bit facetious. The Admin State isn’t going away, but … It’s hard to get away from the strong impression that the Admin State as we know it looks to be in for a major do over in the not too distant future. The latest signal came today in a decision with the opinion written by Justice Alito. I haven’t read the opinion and my go to guy Turley is MIA on this, so far. However, my initial understanding is that this decision greatly limits the EPA’s ability to wield its wetlands club—which means the ability of the federal government to assert itself in local matters is proportionately cut back.
Sackett v. Environmental Protection Agency, No. 21-454 [Arg: 10.3.2022 Trans.; Decided 5.25.2023]
Holding: The Clean Water Act extends only to wetlands that have a continuous surface connection with “waters” of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters, 33 U.S.C. § 1362(7) — making it difficult to determine where the water ends and the wetland begins.
Beyond that result, however, I think this is one in a series of decisions over the last few years that signal that the SCOTUS is willing—and even eager—to reexamine the constitutional basis of the Admin State and to restructure it. This restructuring may come in several forms. The case today (see below) seems to reflect federalism concerns—restoring the balance of authority between the states and the federal government. This will have Progs up in arms. They’re totally uninterested in balances of power.
Although there were no outright dissents, there were quite a few concurrences that disagreed with Alito’s view of why the 9th Circuit should have been overruled. From that standpoint you could say that this was a 5-4 decision. The presence of Roberts in the 5 is good news.
All the justices seemed to want to have a say:
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment, in which SOTOMAYOR and JACKSON, JJ., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
Environmental activists are wailing and gnashing their teeth. This decision doesn’t have a direct bearing on Chevron—that will be coming up later in this term. Again, this is my impression based on just a few articles rather than the whole opinion, but it seems to me that this decision could be viewed as another victory for federalism. The practical result of the decision appears to be that state and local authorities will have a much greater say in managing waters, pollution, etc.—Justice Thomas sees the decision as getting back to “the traditional balance between federal and state authority over navigable waters” as, he says, originally envisioned by the Clean Waters Act.
The best summary of the case I’ve seen so far is here:
In Sackett v. EPA, the Supreme Court Cuts Back Federal Regulatory Authority Over Wetlands
The Clean Water Act decision was a unanimous win for the Sacketts, and a 5-4 victory for Justice Scalia's 2006 Rapanos v. United States plurality.
This "win' will have significant impact across the non-elected bureaurocratic agencies in DC. This is best news today. AND 9-0.
To give this some real world context, in our real estate development business, the Army Corps of Engineers determined that a permit was required to fix an outlet on an old, likely man made farm pond in the middle of a planted field. This triggered a review by the state historic board, who demanded that we conduct a thorough archeological investigation on the entire site (well over a hundred acres) to determine if there were any artifacts of Pre-Contact native americans. This in turn required chisel plowing and shovel testing which only turned up a couple of artifacts (arrowheads) in an area we were leaving as untouched open space. Now the state board wants a “visual impact assessment.” The Corps won’t release a permit until the state commission is satisfied. Tens of thousands of dollars. Delay. I am hoping that the end of this “it’s all jurisdictional waters, man” policy will mean real change in this particular niche of the over reaching bureaucracy/Admin State. And trust me, there is still plenty of regulation, for example, the stormwater management rules get more onerous every year and more bureaucratized with ever more byzantine regulations - you can wait months for a permit.