Stay on the Lookout: Sackett v. EPA’s Implications on Illinois’s Preservation Efforts

written by Michael Gergeni

As is tends to be the case, the courts are digging at the Environmental Protection Agency again. In Sackett v. EPA, it’s another attack on the strength of the EPA by the Supreme Court.

The case centers around a specific provision of the Clean Water Act of 1977, defining what is and isn’t considered “waters of the United States”. This provision, also called the “navigable waters” provision, was written to outline which lands qualify as wetlands, and are therefore protected by the CWA. Over recent years, we’ve seen quite a flip-flopping of expansion and decline in the power of this provision, with an expansion in the Obama years and a subsequent restriction during the Trump administration. Nowadays, the Biden administration mostly enforces the Obama rules.

This case takes us all the way back to the dark ages of 2004, when Michael Sackett and his wife, Chantell Sackett, decided to buy a patch of land out by Priest Lake, Idaho. Upon their purchase, however, the EPA swiftly notified them of nearby wetlands, which are protected by the CWA. This included a lake and a stream, both within 300 feet of their property. They sued the EPA, got their case thrown out, then appealed to the 9th Circuit court, and then the US Supreme Court. So, wait a second, if this case has already gone to the Supreme Court and been debated over (the Court decided it was filed wrong), why are we writing about this?

Well, that was Sackett I, this is Sackett II. Sackett II is now a question of the definition of wetlands, whether the CWA should be enforced according to a less environmentally friendly definition set forth by former Justice Antonin Scalia, or the more progressive and protective definition that former Justice Anthony Kennedy used that would strengthen the scope of the EPA to enforce the CWA. The Sacketts seek to make the courts abandon the use of Kennedy’s definition.

Pending the Supreme Court’s decision, this could have major consequences for environmental preservation efforts nationwide. In a brief filed by the Biden administration about the case, they argue that Scalia’s definition “has no grounding in the CWA’s text, structure, or history.” The Natural Resource Defense Council has called Sackett “the most important water-related U.S. Supreme Court case to come along in a generation.”

In Illinois, the effects could be particularly damaging. Our state has already lost an estimated 90% of its original wetlands – most states in the Midwest have lost over 50% – and if Sackett goes through, we could see major trimming to the current methods protecting the few wetlands we have left.

The future is uncertain for wetland preservation and all eyes should be on the outcome of Sackett this summer. If the Supreme Court constricts the EPA any more, we could see some of the most important and vital ecosystems in the world under attack, and preservation efforts seriously encumbered.

However, there are many ways in which the fight to preserve wetlands will persist. The Illinois River Valley has recently seen a massive restoration at the Emiquon Preserve ever since it was first undertaken in 2007. Native plants and thousands of endangered birds have returned since the wetland was first given a true shot at preservation. At the Emiquon Preserve alone, over 93% of Illinois’ endangered bird species have been observed, and many have returned in the thousands. The conservationists that oversaw that project say that it presents a very promising example of what could happen if we put more effort into preserving our region’s wetlands.

Sources

Just, R. (2022, August 10). Sackett v. EPA and the Definition of Waters of the United StatesEnvironmental & Energy Law Program Harvard Law School Retrieved February 2, 2023, from https://eelp law harvard edu/2022/06/sackett-vepa-and-the-definition-of-waters-of-the-unitedstates/

Ramirez-Franco, J (2023, January 30) The Supreme Court could end protections for some wetlands, threatening water and wildlife. STLPR. Retrieved February 1, 2023, from https://news.stlpublicradio.org/2023-01-30/thesupreme-court-could-end-protections-for-somewetlands-threatening-water-and-wildlife

Turrentine, J. (2022, September 19). What You Need to Know About Sackett v. EPA. NRDC. Retrieved February 2, 2023, from https://www.nrdc.org/stories/what-you-needknow-about-sackett-v-epa

Three-Minute Legal Talks. (2023, January 3). Three-Minute Legal Talks: Sackett v. Environmental Protection Agency UW School of Law https://www law uw edu/newsevents/news/2023/sackett-v-epa