U.S. President Richard M. Nixon signs two bills, the Water Quality Improvement Act and the creation of Point Reyes National Park in California, in Washington, D.C., April 3, 1970. (AP Photo)

The Chamber of Commerce, which has labored mightily for decades to use the courts to deregulate the United States, just won another battle. Last week, the Supreme Court did its bidding by eviscerating the Environmental Protection Agency’s authority under the Clean Water Act to protect vast swaths of wetlands, taking another whack at the agency specifically and regulatory authority in general. Just last year, the Court decimated EPA’s power to address climate change under the Clean Air Act. Both cases were ostensibly based on the doctrine of “textualism,” which purports to follow the text strictly—but both reveal the Court is rewriting statutes when it doesn’t like the text. 

As I wrote here a few weeks ago, the Republican project to remake the courts goes beyond ending reproductive freedom. It includes ignoring statutory texts to advance corporate interests and dismantle government regulations. In the recent case, big business hid behind small landowners Chantell and Michael Sackett, who wanted to build a house by an Idaho lake. Their case pitted them against the EPA and challenged central aspects of the Clean Water Act. Behind the plaintiffs were real estate developers, multinational corporations, and ideologues who didn’t want the EPA to issue reasonable regulations about our nation’s wetlands. When the Court ruled in favor of the Sacketts, the corporate titans came out of the shadows and openly gloated: “The Supreme Court has provided long overdue relief for companies and landowners across our nation,” said Marty Durbin, President of the Global Energy Institute of the U.S. Chamber of Commerce. 

In his opinion for five of the justices, Justice Samuel Alito wrote that the EPA does not have authority under the Clean Water Act to limit discharges into wetlands close to other bodies of water unless there is “a continuous surface connection” to those waters. The majority proved once again that “textualism” is discarded when regulation inhibits pollution or unfettered capitalism. Just as the justices have jettisoned the text of antimonopoly law when the words interfere with corporate consolidation, they have now junked the actual language of the Clean Air Act in favor of their tortured interpretation.  

Despite the law applying to all “waters of the United States” (which includes lakes, rivers, and streams) and “wetlands adjacent” to such waters, Alito took a black marker, similar to the one Donald Trump used to falsify the path of Hurricane Dorian, to cross out the word “adjacent,” ignoring the explicit congressional codification of EPA’s definition of “adjacent” to mean “bordering, contiguous, or neighboring.” This definition, also found in dictionaries—a favorite source of avowed textualists—would ensure that the EPA could protect wetlands that border a larger body of water without having to be linked directly. 

But Alito’s contempt for the Clean Water Act as it was enacted by a Democratically controlled Congress and signed by a Republican president, Richard Nixon, is apparent throughout the opinion as he takes jabs at the act’s “crushing” penalties on landowners, at how the half-century-old statute inhibits their ability to engage in “mundane” activities like “moving dirt.” and how it violates his view of “traditional state authority.” He’s shocked—shocked—by the EPA’s “truly staggering” regulatory authority, which it has exercised since the landmark statute was signed in October 1972. So, despite statutory text, only wetlands with “a continuous surface connection” to larger bodies of water are covered by the Clean Water Act. You will look in vain to find this language in the act.  

Such legislating from the bench proved too extreme for Justice Brett Kavanaugh, who joined the three liberal justices in a concurring opinion. (The court was ostensibly unanimous with respect to the outcome of the case regarding the Sacketts but not in the majority’s argument). His concurrence recognized that the Court’s interpretation would harm the government’s ability to safeguard our nation’s waterways. “By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.” Kavanaugh also accused Alito of not “stick[ing] to the text.”  

Justice Elena Kagan more forcefully criticized the five justice’s majority opinion for ignoring statutory language; she invoked last year’s decision limiting the EPA’s authority to prevent climate change. “There,” she wrote, “the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions most effectively. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision-maker on environmental policy.”  

As Kagan put it, the five justices think the Clean Water Act’s “plain instructions” go “further than preferred,” and thus, “something has to be done; and who else to do it but this court? It must rescue property owners from Congress’s too-ambitious program of pollution control.” The court’s majority—in this case minus Kavanaugh—has chosen to unilaterally make policy in a manner that would outrage the Founders, who constructed a system where legislators make law, not jurists. But if the Clean Water Act displeases the Chamber of Commerce or the Court’s majority, it must be curtailed. Text be damned. 

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Caroline Fredrickson is a Distinguished Visiting Professor of Practice at Georgetown Law and a senior fellow at the Brennan Center for Justice. She served as the president of the American Constitution Society from 2009 to 2019. In 2021, she was appointed a member of the Presidential Commission on the Supreme Court of the United States.