Administrative agencies are the most functional aspect of the federal government—enacting an average of 50 “economically significant” rules each year, “hav[ing] an annual effect on the economy of $100 million or more . . . .”[1] The unique collaborative structure of agencies, which are granted authority by Congress and directed by the President, affords them greater mobility to act. This streamlining of legislative and executive powers is highly efficient when the subject matter assigned to an agency is technically complicated or requires rapid response.[2]

In 1984 the Supreme Court, recognizing the efficiency of agencies, held in Chevron v. NRDC that an agency’s reasonable interpretation of a statutory ambiguity would be given deference in court.[3] For decades, this doctrine of “Chevron deference” was controlling law, and it seems likely that Congress drafted and enacted laws granting agencies authority in intentionally ambiguous ways, an assumption shared by the Supreme Court.[4] After thirty-nine years of case law citing Chevron and granting deference to agencies, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo.[5]

Justice Roberts in the Loper Bright majority stated that even in cases involving a technical matter, the judiciary shall be the only relevant decisionmaker.[6] Justice Roberts went on to explain how courts can fulfill this expertise-heavy role, “The parties and amici . . . are steeped in the subject matter, and reviewing courts have the benefit of their perspectives . . . . [T]he court will go about its task with the agency’s ‘body of experience and informed judgment,’ among other information . . . .”[7] This derailment of established law, congressional procedures, and the implicit suggestion that experts are superfluous beyond their briefing capacity is absurd, especially in the context of an opinion released by the Supreme Court the day before, Ohio v. EPA.[8]

In Ohio, the majority mistakenly referred five times to nitrogen oxides (a class of potentially dangerous pollutants)[9] as nitrous oxide (a sedative used in healthcare procedures, commonly known as laughing gas)[10]—a mistake quickly corrected.[11] Despite the amici briefs, the Environmental Protection Agency’s (EPA) “body of experience and informed judgment,” and “other information,” somehow this technical and critical piece of information eluded the Supreme Court. The Ohio opinion illustrates the importance of deferring to subject-matter experts employed by agencies. No doubt, Congress understands the importance of deference, which is why they continued to draft legislation under Chevron rather than codifying different agency approaches to statutory interpretation before Loper.

Clean water, or water pollution, is one of many topics that require subject-matter expertise. This reality was acknowledged by Congress and the Executive when the Clean Water Act (CWA) was passed in 1948 and when it was reorganized and expanded in 1972.[12] The CWA expresses the explicit desire of the democratically elected branches of government to “restore and maintain . . . the Nation’s waters.”[13] Despite this, the Supreme Court has repeatedly limited the CWA’s scope.[14]

In Sackett v. EPA, the Supreme Court denied federal protection to a wetland, despite the CWA granting federal jurisdiction over “navigable waters . . . including wetlands adjacent thereto . . . .”[15] In his opinion, Justice Alito rewrote the CWA by altering the quote to instead read “includ[ed].”[16] This textual change tiers wetlands below “traditional navigable waters[17] and amounts to a legislative action, which is constitutionally reserved for Congress.[18] Alito went further to deny wetlands protection under the CWA by requiring indistinguishability or a “continuous surface connection” between the threatened wetland and what he deemed “traditional navigable waters.”[19] Justice Kavanaugh noted in his concurrence that the “continuous surface connection” requirement indicates that the majority confused the statute’s use of “adjacent” for “adjoining”—neighboring houses are adjacent to one another without adjoining, even if separated by a fence.[20]

Additionally, the legislative intent is detailed plainly in § 101 of the CWA and includes the “[r]estoration and maintenance of . . . [the] nation’s waters.”[21] Prior to the CWA, it is estimated that the United States lost an average of 380,000 acres of wetlands and deepwater habitats annually,[22] and it is estimated that without the CWA, 700 billion pounds of pollutants would enter waters of the United States annually.[23] Depending on the meaning of “continuous,” between 19-91% or 22-105 million acres of wetlands are predicted to lose protection[24] and that does not even consider connected streams.[25] Thus, the Supreme Court’s ruling in Sackett violates both the text and the purpose of the CWA.

The majority’s conflation of adjacent and adjoining would only have a nominal effect if the Court had a basic understanding of hydrology. “Water flows in all sorts of ways: aboveground; belowground; rapidly, down rivers and streams; and also slowly—through . . . the reeds, soils, and grasses that make up a wetland.”[26] Pollutants entering into a wetland “adjacent” to waters of the United States may very well end up infiltrating protected waters. Yet, the majority’s holding requiring a continuous surface connection is entirely uninformed of the scientific realities of how water and pollutants move. The Supreme Court utilized a scientifically divorced object permanence jurisprudence that places protected waters of the United States in danger of pollution while also exposing a vital, vulnerable ecosystem[27] to degradation simply because they do not appear “continuous” from the surface.

All nine Justices agreed with the judgment in Sackett because they believed that this particular wetland was “remote enough” to not be covered by the CWA.[28] This belief is discredited by available science[29] and will inevitably result in more wetlands becoming “remote enough” to lose protection. Our metamorphizing climate will cause wetlands to shift away from being “indistinguishable” from nearby waterways, exempting from federal protection more ecosystems that could be vital in counteracting the climate crisis.

The Supreme Court has bestowed the mantle of “expert” decision-makers upon themselves and lower courts.[30] Not only does EPA have an uphill battle to carry out their congressionally appointed duties under the existing CWA, but these protections are not enough—40% of all U.S. waterways are impaired and 86% of all rivers and streams have suffered ecological devastation.[31] In its current form, the CWA is, alone, not enough to “restore and maintain” the “Nation’s waters.”[32] The CWA must be expanded and EPA be empowered to act without improper judicial constraints if Congress, and the people they represent, hope for clean water in the future.[33] Unfortunately, given the Supreme Court’s treatment of the CWA, this is likely impossible without dramatic action from the Executive and Legislative Branches.[34]

 

 

[1] Reg Stats, The George Washington Univ. Regul. Stud. Center, https://perma.cc/Q25E-NPKG (last visited Mar. 10, 2025); see alsoEconomically Significant Final Rules Published by Presidential Year, The George Washington Univ. Regul. Stud. Center, https://perma.cc/VVF3-DZ64 (last updated Feb. 4, 2025).

[2] See, e.g., Early Detection and Rapid Response, U.S. Dep’t of the Interior, https://perma.cc/6K4L-5SFW (last visited Mar. 5, 2025) (webpage detailing the emergency response plan for endangered species management); Rapid Response Services, U.S. Dep’t of Lab.: Emp. and Training Admin., https://perma.cc/C68M-KHBL (last visited Mar. 5, 2025) (explanation of rapid response services offered to employees and employers); Paracoccidioidomycosis Basics, U.S. Centers for Disease Control and Prevention (Apr. 24, 2024), https://perma.cc/2KKY-LRF9 (CDC’s informational overview of a rare fungal disease).

[3] Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), overruled by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

[4] See Smiley v. Citibank (S. Dakota), N. A., 517 U.S. 735, 740-41 (1996) (“We accord deference to agencies under Chevron . . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency . . . desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”).

[5] Loper, 603 U.S. at 369.

[6] Id. at 402 (“[E]ven when an ambiguity happens to implicate a technical matter . . . Congress expects courts to handle technical statutory questions.”).

[7] Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

[8] Ohio v. Env’t Prot. Agency, 603 U.S. 279 (2024).

[9] See ToxFAQs^TM for Nitrogen Oxides, Agency for Toxic Substances and Disease Registry, https://perma.cc/L6YV-HL99 (last updated Mar. 25, 2014); Basic Information about NO2, U.S. Env’t Prot. Agency, https://perma.cc/A4AM-FVV4 (last updated July 16, 2024).

[10] See Nitrous Oxide (Laughing Gas), Cleveland Clinic, https://perma.cc/UFV5-F9HJ (last updated Nov. 20, 2023).

[11] See Alison Durkee, Supreme Court Corrects EPA Opinion After Gorsuch Confuses Laughing Gas With Air Pollutant, Forbes (Jun. 28, 2024, 5:59 AM), https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme-court-corrects-epa-opinion-after-gorsuch-confuses-laughing-gas-with-air-pollutant/.

[12] See Summary of the Clean Water Act, U.S. Env’t Prot. Agency, https://perma.cc/RL2T-3466 (last updated June 12, 2024) (originally titled the Federal Water Pollution Control Act).

[13] 33 USCA § 1251 (Section 1251 details the purpose and goals of the CWA).

[14] See, e.g., Sackett, 598 U.S. 651 (2023); City & Cnty. Of San Francisco, California v. Env’t Prot. Agency, No. 23-753 (U.S. Mar. 4, 2025).

[15] 33 U.S.C.A. § 1344 (emphasis added).

[16] Sackett, 598 U.S. at 675-76 (alteration in original) (emphasis added); 33 U.S.C.A § 1344 (emphasis added).

[17] Id.

[18] U.S. Const. art. I (“All legislative Powers herein granted shall be vested in a Congress of the United States . . .”).

[19] Sackett, 598 U.S. at 684.

[20] Id. at 718-19 (Kavanaugh J., concurring).

[21] 33 U.S.C.A. § 1251.

[22] W.E. Frayer et al., Status and Trends of Wetlands and Deepwater Habitats in the Conterminous United States, 1950’s to 1970’s, U.S. Fish and Wildlife Serv. (Apr. 1983), https://perma.cc/TND6-HG8B (totaling in a loss of 7.6 million acres).

[23] Clean Water Act 101, Nat’l Wildlife Fed’n, 1 (May 2022), https://www.nwf.org/-/media/Documents/PDFs/Waters/Clean-Water-Act-101#:~:text=It%20keeps%20700%20billion%20pounds,because%20our%20waters%20are%20healthier.

[24] Adam C. Gold, How wet must a wetland be to have federal protections in post-Sackett US?, 385 Science 1450 (Sept. 26, 2024), https://www.science.org/doi/10.1126/science.adp3222; Wetlands and Streams Most in Danger After the U.S. Supreme Court’s Sacket v. EPA Ruling, Earthjustice (May 14, 2024), https://perma.cc/9PYN-VH2U; see also Lisa Sorg, U.S. losing valuable wetlands, threatening flood control, wildlife habitat and clean water, Alabama Reflector (Mar. 28, 2024, 1:00 PM), https://alabamareflector.com/briefs/u-s-losing-valuable-wetlands-threatening-flood-control-wildlife-habitat-and-clean-water/#:~:text=116.4%20million%20acres%20%E2%80%94%20amount%20of%20wetlands%20in%20the%20contiguous%20U.S.&text=7%25%20%E2%80%94%20increase%20in%20pond%20area,urban%20and%20industrial%20stormwater%20ponds(the contiguous United States had 116.4 million acres of wetlands in 2024).

[25] Earthjustice, supra note 24 (“The downstream impacts of this staggering loss of protections are incalculable. Waterways are vast and interconnected . . . ”).

[26] Jeff Turrentine, What the Supreme Court’s Sackett v. EPA Ruling Means for Wetlands and Other Waterways, Nat. Res. Def. Council (June 5, 2023), https://perma.cc/NKU7-4KUV.

[27] Id. (Wetlands are among the most productive ecosystems in the world and store a massive amount of carbon in their vegetation, making protecting wetlands an effective avenue for slowing the impending climate crisis).

[28] Sackett, 598 U.S. at 684-728 (Thomas J., concurring; Kagan J., concurring; Kavanaugh J., concurring).

[29] See Jon Devine, One Year Later: Responding to the Supreme Court’s Attack on Clean Water, Nat. Res. Def. Council (May 24, 2024), https://perma.cc/8FCU-HMGQ.

[30] Loper, 603 U.S. at 402.

[31] Jake Moore, The Clean Water Act’s Midlife Crisis, Ctr. for Progressive Reform (Apr. 22, 2022), https://perma.cc/RK7K-LD6N.

[32] Id. (“[T]he Clean Water Act fails to regulate “nonpoint source pollution . . . such as agricultural runoff.”).

[33] Nonpoint Source: Agriculture, U.S. Env’t Prot. Agency, https://perma.cc/A3HK-6SZM (last updated Feb. 27, 2025) (“[A]gricultural runoff is the leading cause of water quality impacts to rivers and streams, the third leading source for lakes, and the second largest source of impairments to wetlands.”).

[34] See San Francisco, slip op. (in a decision released on March 4, 2025, the Supreme Court rules that section 1311(b)(1)(C) does not authorize EPA to include “end result” provisions for permits, further limiting EPA’s ability to restore and maintain federal waters).