Thursday, December 1

Supreme Court opens new term with murky wetlands dispute and Justice Jackson on the bench



WASHINGTON — The Supreme Court, with Justice Ketanji Brown Jackson on board as its newest member, opens its nine-month term on Monday by hearing a conservative challenge to the federal government’s authority to regulate wetlands under a landmark environmental protection law.

The case marks the debut Supreme Court oral argument for Jackson, the first Black woman to serve in court. Nominated by President Joe Biden, Jackson was sworn into office over the summer. The oral argument also marks the first time in history that four women justices will sit together on the bench.

Jackson replaced fellow liberal Justice Stephen Breyer, who retired in June. She is one of three liberals on the nine-justice court, which looks set to continue its conservative trajectory in the new term.

The court has already agreed to hear major cases that could end the consideration of race in college admissions and make it easier for Republicans to impose voting restrictions ahead of the 2024 presidential election. With a solid 6-3 conservative majority in place, Jackson is unlikely to be a key vote in many of the major cases.

For the first time since the Covid pandemic hit Washington in March 2020, members of the public will be allowed into the courtroom for Monday’s case as the risk-averse court returns somewhat to pre-pandemic procedures, even if the public’s access to the building remains limited.

The justices return to action after a tumultuous end to the court’s most recent term in which the conservative majority overturned the landmark Roe v. Wade ruling that gave federal protection to abortion rights, leading some to question the court’s legitimacy.

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The court’s conservative majority is skeptical of broad assertions of federal agency power, which could align with the arguments being made in Monday’s case. In the court’s term that ended in June, the justices issued a major ruling that limited the ability of the Environmental Protection Agency to tackle climate change by regulating carbon emissions under the Clean Air Act.

The same agency is in front of the court this time, with the scope of the Clean Water Act, aimed at protecting water quality, now under the microscope.

It also sees the return of Idaho couple Chantell and Mike Sackett to the Supreme Court after the justices ruled in their favor in an earlier case in 2012. Both cases involve the same underlying dispute: the Sacketts’ effort to build a property on land they own in Priest Lake, Idaho, parts of which the EPA has deemed to be a protected wetland, meaning the land is subject to federal jurisdiction and building on it requires a permit.

The first case concerned whether the Sacketts could challenge an EPA compliance order in court after they had filled the affected area with gravel and sand without obtaining a permit. The fight, which began in 2007, continued over whether the land was a wetland at all.

The Sacketts turned to the Supreme Court for a second time after the 9th US Circuit Court of Appeals, headquartered in San Francisco, ruled last year in favor of the federal government in its determination that the area did constitute a wetland.

The law on how to define a wetland — of key interest to property developers and other business interests — has long been muddled and was not resolved when the Supreme Court in 2006 decided an earlier case on the issue. Then, four justices said the Clean Water Act covered land with a “continuous surface connection” to a waterway but there was not a clear majority. Justice Anthony Kennedy, who provided the fifth vote in the 5-4 ruling, came up with his own test, which said the law provided jurisdiction over wetlands with a “significant nexus” to a waterway. The new case gives the court a chance to revisit the earlier ruling, with some observers believing the majority may embrace the more stringent test proposed by the four justices in 2006.

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Successive presidential administrations have sought to bring clarity to the law, with Democrats generally favoring greater federal power and Republicans, backed by business interests, saying that Clean Water Act jurisdiction should be limited.

The Biden administration is currently finalizing a new federal rule. In court papers, Solicitor General Elizabeth Prelogar, representing the administration, said Kennedy’s “significant nexus” test is preferable because it “covers those adjacent wetlands that significantly affect the chemical, physical and biological integrity of the nation’s traditional navigable waters.”


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