Gotta admit I don’t know much about this stuff, so like what is legal now? Building houses on marshes/swamps? Dumping mercury in them?
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it depends on whether Alito likes you or not
It’s genuinely hilarious (and also tragic obviously) that Republicans spent like 30 years being like “wow the Supreme Court is a super legislature let’s go all in to capture it” and Dems were like “the sanctity of the institution shall not be besmirched!”
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At this point the eDems are all-in on protecting the reputation of the institution precisely because rulings just like this one make their wealthy donors very happy.
Need a geography whiz here, what are the main wetlands impacted by this? Like seems salt marshes/mangroves would generally still be protected as they continuous with the ocean. Or does ocean count?
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the court would impose a different standard: Only wetlands with “a continuous surface connection” to larger bodies of water merit protection under the Clean Water Act.
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Can someone ELI5 this for me? It was 9-0, right? Different reasoning, but they all voted the same way?
I can’t, but it was 5-4. The Government took your house sold it and kept the profits case was 9-0.
All I see is Majority and a bunch of Concurrences. Is this not the same case?
Tidal areas that are dry in low tide are impacted, or where a sandbar is exposed at low tide. If the surface of the water isn’t connected at all times, the wetland is no longer protectable.
At least that’s my understanding.
The 9-0 was to reverse the lower court.
Supreme Court
Certiorari was granted in the case on January 24, 2022, and the court heard oral arguments on October 3, 2022.[4] The decision was handed down on May 25, 2023.[5] The court voted unanimously to reverse the Ninth Circuit, but split 5-4 on the opinion. The majority opinion, written by Justice Samuel Alito, introduced a new test to define wetlands, which reversed five decades of EPA rule making and limited the scope of the Clean Water Act’s authority to regulate waters of the United States. Justice Brett Kavanaugh joined the three liberal Justices in agreeing that the CWA did not apply to Sackett property, but argued that the new definition by the majority will have significant effects on regulated waters.[6]
Another feather in the cap for the notorious RBG.
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Yeah, that’s what was so confusing. It seems a bit weird to report a 9-0 as a 5-4, although I realize that both are accurate characterizations. Generally when I see a vote count, I assume it to be just a tally of votes for each of the two parties in the case. Now I’m wondering how many other times I have just assumed that when it may not have been the case.
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The Slate article had a good explanation of this:
This all feels very much in theme, like, this week’s 5-4 was talking about how many legal standards have come out of total dogshit cases. Strict scrutiny came from Korematsu, and this week’s case (U.S. v. O’Brien) is a bedrock of free speech law due to a test SCOTUS created to justify their support of banning the burning of draft cards. And this EPA case is just batshit, they had 9 votes to give the plaintiffs what they wanted but that wasn’t enough for the psycho conservative brigade.
Interesting. I don’t know too much about this but I believe through some sort of common law type understanding all tidal lands are owned by states in the US unless there is some sort of direct claim to a family upholding the stipulations on the original Kings grant in which case they can own the land all the way to the low tide mark. So I think vast majority of those tidal lands will still be owned by states?
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The US Supreme Court determined in 1876:1
…each state owns the beds of all tidewaters within its jurisdiction, and may appropriate them, to be used by its citizens as a common for taking and cultivating fish, if navigation be not thereby obstructed.
State ownership is not limited to submerged lands in the Tidewater zone. The General Assembly has established state ownership of the land underneath rivers and streams, except under two conditions. If a parcel of land was included in a grant issued prior to 1792 in that part of the State draining to the Atlantic Ocean, or a grant issued prior to 1802 in that part of the State draining toward the Gulf of Mexico, then the private landowner rather than the state may claim the submerged land.2
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Navigability is only a part of the ownership puzzle. Virginia asserts ownership to submerged lands below the Mean Low Water mark on all navigable and non-navigable streams. Despite that state claim, riparian landowners who can trace private ownership back to a pre-1802 or pre-1792 grant may establish ownership of the submerged bottom
A state or private individual owning the submerged land doesn’t preclude federal jurisdiction for CWA purposes.
But isn’t what this is changing? Previously even If you did happen to have king grant right to tidally submerged land you couldn’t develop it due to the federal wetlands regulation but now seeing as it not always ocean contiguous the federal restriction wouldn’t apply so they could build on that marsh if they have the king grant?
Oh yeah, what about the moments when the little tidal pools become separated from the larger body of water???!
Trump Tidal Tower
(I actually don’t know anything about this but curious what the implications are)
Sort of, but ownership of the land doesn’t really factor in for CWA purposes. It’s wholly concerned with the nature of the water and physical characteristics of its location.
I just skimmed the decision, I’ll have to do a deeper dive later, but it appears Alito has redefined what kinds of “waters” the statute governs. He’s effective said that only “wetlands” that are adjacent to a navigable water and have a continuous surface water connection fit within the CWA’s reach. It’s an absurd definition on its face, because if it has a continuous surface water connection, it’s part of the same body of water. In one view I think it could be argued that he effectively eliminated wetlands as a distinct category under the statute.
It’s tough to say what the implications will be. People will certainly be able to make credible arguments that impacts to land that is only inundated during high tides or whatever is not within the jurisdictional reach of the CWA. It’s insane, but it’s a plausible interpretation of Alito’s opinion as I currently understand it.
But if someone owns this tidal land/marsh if these federal restrictions no longer exist can the owners go wild building? Or have states/local governments already made duplicate (in some ways) regulation that would prevent you from building a hotel in the middle of the marsh if it lost its federal protection?