Upcoming Supreme Court ruling could dramatically limit Clean Water Act, Tulane expert says

The U.S. Supreme Court could soon rule on a challenge to the Clean Water Act, dramatically affecting the quality of the nation’s waterways.

Haley Gentry, a water law expert at the Tulane University Law School, says that if the high court’s conservative majority curtails the scope of the law, states will have to navigate significant changes and overcome legal barriers to maintain protections for waters and wetlands.

The case, Sackett v. EPA, challenges federal authority to regulate certain waters and wetlands under the Clean Water Act. Filed 12 years ago, the litigation has touched on such topics as toxic pollution, states’ authority over land use and commercial development.

“Because a significant number of states have statutory or regulatory limitations within their water quality legislation, changes at the federal level could dismantle long-standing protections to waters and wetlands traditionally afforded by the Clean Water Act,” said Gentry, Senior Research Fellow at the Tulane Institute on Water Resources Law & Policy. The Institute provides law and policy analysis to decision makers and the public to ensure that water and the ecosystems it supports are maintained for future generations while providing for the needs of people. It recently released a paper titled "Supreme Consequences: Anticipating Barriers to Clean Water Act Administration at the Federal and State Levels Following Sackett V. EPA." The paper was authored by Senior Research Fellow Haley Gentry under the supervision of Director Mark Davis and Assistant Director Christopher Dalbom.

The paper provides a legal analysis as it relates to the history of the Clean Water Act and current state water quality laws. The Institute found a variety of immediate and long-term challenges that would arise if the Court alters the standard for what constitutes “Waters of the United States,” or WOTUS, under the Clean Water Act. The discussion focuses on state-level water pollution laws, amicus briefs for Sackett, and administration of federal programs to shed light on how the coming decision could present challenges to maintaining existing protections.

“Because a significant number of states have statutory or regulatory limitations within their water quality legislation, changes at the federal level could dismantle long- standing protections to waters and wetlands traditionally afforded by the Clean Water Act and other programs that are tied to WOTUS,” Gentry said. “The main purpose is to inform stakeholders of potential outcomes and barriers to state regulation and related water quality issues.”

Heightened concerns over the effects of climate change, from natural disasters to water supply to public health, play a central role in the issues surrounding Sackett. Due to the wide variety of state approaches to water quality regulations, multiple questions could arise in the immediate aftermath of a Sackett decision that shrinks the scope of WOTUS.

For example, political approaches and responses will vary by state and branch of state government as evidenced by competing views among governor, legislators and agency leaders. Also, if the Court announces an opinion inconsistent with the newest Clean Water Act regulations, it would almost certainly by challenged by a coalition of states and regulated industries, Gentry said.

“Any action taken, whether it be protective legislation, assumption of federal programs, or a reduction in water quality protection, would create different outcomes both within states and across watersheds.

“Regardless of the outcome,” she said, “the coming decision will affect state and
federal governments’ ability to plan for a future riddled with environmental uncertainty.”