Justice Jackson’s debut on the bench was sharp, forceful, and genuinely exciting.
saga began in 2007 when Michael and Chantell Sackett—who operate a commercial construction company—dumped gravel and sand into wetlands on a parcel of land near Priest Lake, Idaho. The EPA found that this portion of the property included protected “wetlands,” and halted the Sackett’s dumping, citing the possible destruction of the ecosystem. The EPA explained that the CWA shielded these wetlands because they are 30 feet from a tributary of Priest Lake and 300 feet from the lake itself.
This is not a particularly unique conflict. Wetlands are frequently separated from neighboring waters by construction or natural structures, like a dune. These ecosystems have befuddled SCOTUS in recent years: In 2006’s, the Supreme Court split badly over which wetlands are truly “adjacent to” protected waters. Justice Antonin Scalia’s plurality opinion demanded a “continuous surface connection,” whereas Justice Anthony Kennedy’s concurrence sought only a “significant nexus” between the waters.
to overrule Kennedy’s test and let landowners obliterate wetlands as long as there’s no direct, permanent surface-level link to other waters. There’s no value in pretending that the Republican-appointed justices have serious reservations about blowing a hole in the CWA. There is, however, still value in revealing the shoddy, anti-textualist logic behind this assault.
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