In this episode of our Environmental Law series, host Craig Williams is joined by Professor Jody Freeman, the Archibald Cox Professor at Harvard Law School and a leading expert on administrative law and environmental law. Jody & Craig spotlight SCOTUS’ Sackett v. EPA ruling, and its impact on the EPA’s powers, Clean Water Act protections, and the regulation of wetlands.
Jody Freeman: Cutting back EPA’s authority it means that the agency really can’t protect those waters from pollution. It’s a severe, severe restriction of the Clean Water Act, which has been a hugely successful law. And the Supreme Court did it in a way that I think is really indefensible by reading the law in a way that’s contrary to what the text says and clearly contrary to the purpose that congress was trying to achieve in 1972 when it passed the act.
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Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams, coming to you from Southern California. I have two books out titled ‘How to Get Sued’ and ‘The Sled’ and my blog, may it please the court, is finally back up.
Well today on Lawyer 2 Lawyer, we’re continuing our series on environmental law, where we covered cradle to grave treatment of chemicals and our laws on environmental biology. On May 25, 2023, earlier this year, the Supreme Court issued a five-four decision in the case of Sackett versus Environmental Protection Agency, the EPA limiting the scope of the federal Clean Water Acts protection for the nation’s waters, the water that we drink. So how will this ruling ultimately affect our wetlands and water? In this episode, we’re going to spotlight SCOTUS’ Sackett versus EPA ruling and its impact on the EPA’s powers, Clean Water Act protections and regulation of wetlands. And to speak more on this topic, we’re joined today by our guest professor, Jody Freeman. She is the Archibald Cox Professor at Harvard Law School and an all-around goddess, along with a leading expert on administrative and administrative law. She is the founding director of Harvard Law School’s Environmental Energy Law Program and established the Law School’s Emmett Environmental Law and Policy Clinic.
Professor Freeman served as counselor for Energy and Climate Change in the Obama White House in 2009 and 2010 and she worked with the Biden transition team on its climate action plan. Jody recently discussed today’s topic on the Clean Law podcast Sackett versus EPA decision, what justices said and what this means for water with Richard Lazarus and Steph Ty. Welcome to the show, Jody.
Jody Freeman: It’s a pleasure to be here. And I have to tell you, Craig, that’s the single best introduction I’ve ever had, thank you.
J. Craig Williams: Well, you’re quite welcome and quite deserving of it. Why don’t you give us a little bit of background about how you first got involved in environmental law and how you found your way to Harvard.
Jody Freeman: Well, this is interesting to me because I don’t have a standard story of being captivated in sort of my younger years by the environment and nature. I did grow up in a gorgeous place in Vancouver, and we skied and we scuba dived and we played tennis and we sailed and we did everything, we hiked, but really this was an intellectual interest of mine. As I got older and I went to graduate school, I started to think about social change and regulation and environmental agencies and how the process worked and who got involved in it, and it just fascinated me. I was interested in governance and government and environmental issues, and environmental regulation seemed to me a really active, interesting place to look. So I came at it that way in graduate school and started to study it closely and this was a time when environmental issues were important, air pollution, water pollution, but we really weren’t seeing a lot of research, a lot of study about climate change in academia yet, this was the early 90s. And so, I got into it just really at the most interesting time, and then climate change made everything take off.
J. Craig Williams: Well, you’re also the director of Harvard Law School’s Environmental and Energy Law Program. And you established law school’s Emmett Environmental Law and Policy Clinic. Tell us a little bit about that.
Jody Freeman: Well, I came to Harvard after about ten years as a professor somewhere else. I started out at UCLA and I started their Environmental Law program along with one of my colleagues there. And when I came to Harvard, Elena Kagan, who’s now on the court, on the Supreme Court, was the dean, and she what do you want to do if you come here? She was recruiting me to come, and I said, “you know, I want to build the world’s best environmental law program.” And she said, “okay, let’s do it.” It was fantastic. And we established for the first time a clinic at the law school working on environmental issues. We’d never had an environmental law clinic at Harvard. And there the students work on live cases with clients on issues that range from public lands protection, to climate change, to clean energy, to protecting subsistence fishing in Alaska. There’s a whole variety of topics and issues and clients that we serve. And I also created our program, our research program that is called the Environmental and Energy Law Program.
And you can think of that as kind of a law school based think tank and a kind of program that engages on all of the leading climate regulations that are being worked on by the federal government. We work with stakeholders to try to strengthen those rules, make sure they’ll survive judicial review, we help stress test them along with environmental groups. And we work with industry partners too, to help bring their perspectives in, to make those regulations more durable. We do a lot of research, we put out white papers. We have an army of students working in our program helping us, and we’re engaging on lots of things across Harvard University. Harvard just started, launched the first university wide institute, the Salada Climate Institute. And we at the Law School with our students and our staff of attorneys and researchers. We work across university with the business school and the Kennedy School and the college on a variety of really important climate and energy issues. So we’re fully engaged. It’s a lot of fun and I’m really, really proud of our program.
J. Craig Williams: You should be, and that’s a fantastic description and what an amazing program. I went in the clinic in law school. So as much as I want to get into Sackett, I want to just ask a quick question for you about the clinic. I know that cases, especially environmental cases, last years. How do you transition between students handling cases that last longer than they’re going to be in law school?
Jody Freeman: Well, it’s interesting because that’s why it’s important to have both our clinic and our program. The two work together synergistically. So imagine we might have students on a case that is a piece of litigation. They might participate in it, writing briefs, et cetera. Or they might be participating in a rulemaking, they might write comments on the rulemaking or something like that. But then, of course, the course ends, right? It’s a semester long. But our research program, the Environmental Energy Law Research Program, can pick up where that leaves off. We can sustain multi-year projects.
And so if we have to rethink something like, say, how we manage fires on the public lands, fire suppression on public lands, something that’s a project that requires a lot of legal reform, or if we have to think, through how to remove legal obstacles to building new transmission lines. To bring wind and solar energy into the large cities where they need to consume that energy. If we have to think through these big problems, we can take that up in the research program. Even if those projects last more than a semester, more than a year or two. So we have these sort of wonderful capabilities both short term and long term. And together I think we really deliver huge value for our students. But also I think we have an impact on the world of environmental law and regulation.
J. Craig Williams: You certainly do. And that’s where I’m going to go next, so let’s talk about Sackett.
Jody Freeman: Sackett, wow. You say Sackett and it feels like a gut punch. This is the biggest setback in environmental law that I can think of in many, many years. The Supreme Court in Sackett really dealt a body blow to the Clean Water Act. I’m borrowing that phrase from my wonderful friend and colleague Richard Lazarus who was describing this on a podcast we did in our program. We also have a podcast called Clean Law in our program, and he said it was a body blow and it is. The Supreme Court severely cut back the Environmental Protection Agency’s jurisdiction, its authority over the waters of the United States and it read that authority very narrowly.
And so it really removed from protection a huge percentage of waters and adjacent wetlands where we see pollution as a very serious problem. And by cutting back EPA’s authority, it means that the agency really can’t protect those waters from pollution. It’s a severe, severe restriction of the Clean Water Act, which has been a hugely successful law and the Supreme Court did it in a way that I think is really indefensible by reading the law in a way that’s contrary to what the text says and clearly contrary to the purpose that congress was trying to achieve in 1972 when it passed the act.
J. Craig Williams: There has been an undercurrent since this more conservative Supreme Court has been reversing and narrowing and limiting government functions in the same way it did here with Sackett. But on a general basis, you think people are going to start disregarding these opinions because they’re such outliers?
Jody Freeman: Yeah, I don’t think that people are going to start disregarding them. And in fact, if you think about it, government lawyers in particular who have to pay attention to these opinions and follow their prescriptions, they’re very serious about adhering to what the Supreme Court says. So I have no doubt that the Department of Justice and the agencies, the Environmental Protection Agency, Department of the Interior, all the environmental and natural resource agencies are going to hew closely to what the Supreme Court says to do. They follow the law.
And the trouble is that means they’re going to have a much harder time protecting clean air, protecting clean water, because the court seems systematically devoted to limiting the regulatory authority of the federal government generally, but especially the environmental regulators. There’s something about environmental regulation I think that makes the court very skeptical and even I would say hostile, which is I think it touches upon property rights, environmental rules do, and they also land at the intersection of federal and state authority. And I think the court is always prepared to raise its eyebrows and look very carefully at anything the Environmental Protection Agency does that touches on states and touches on property.
J. Craig Williams: Let’s take a jump from the lofty Supreme Court and go boots on the ground. What’s the practical outcome of this opinion as it relates to this dream that’s behind my house?
Jody Freeman: Right. Well, so for decades and under both Republican and Democratic administrations, the view of the scope of the Clean Water Act was that it covers the big water bodies like lakes and rivers that we all recognize as waters of the U.S., but it also covers adjacent wetlands. And adjacent means that the wetlands can be separate from the larger structures, the larger water bodies, because we all know that dropping pollution in one area that is hydrologically connected to the larger water bodies will mean that pollution can find its way to the larger water bodies. So for decades, it was accepted that adjacent wetlands had to be regulated too, because they can be the source of the pollution that winds up in our aquatic systems.
And with this decision, I think what we’re going to see is far less coverage out in the real world, that is far less environmental protection out in the real world for the water bodies that clearly congress wanted protected. And let me just explain that a bit. So if it turns out, and the Supreme Court said this, only wetlands that are indistinguishable from permanent free flowing, continuously flowing bodies of water are covered. That in some locations means that 90% of what we would have thought of as covered waters won’t be covered anymore. In other locations, it may be as much as only 50%, but it’s still a very significant amount of area that could be polluted, and that is hydrologically connected either through the surface or underneath the surface to the larger water bodies, where you won’t be able to set standards. There won’t need to be permits and so it really cuts back on EPA’s ability to protect our water from pollution.
Just to go back a moment for context, the Clean Water Act was a revolution in the sense that it said, for the first time, you cannot pollute the waters of the United States without a permit. And so what that means is, if you’re going to pollute, you have to obey the limits of a permit that’s granted by either the EPA or the Army Corps of Engineers. And the Army Corps of Engineers is the agency that has authority over wetlands. If you want to fill the wetlands to develop your property, you have to get a permit from the Army Corps. And by saying when the Supreme Court says, well, the only wetlands that are covered are literally indistinguishable from lakes and rivers, it means, practically speaking, wetlands shrink to nothing. And that means you don’t have to get a permit for filling a lot of areas that you would normally have had to get a permit to fill.
J. Craig Williams: That’s a shame. I just have to say it’s a shame. Well, let’s take a quick break to hear a word from our sponsors. We’ll be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Jody Freeman from Harvard Law School and a leading expert on administrative and environmental law.
How does the Sackett opinion affect vernal pools as it relates to what happens in the spring when the rains come and the grounds come up from the groundwater?
Jody Freeman: This is a great question. When the says, well, you know, the only waters that EPA can regulate are these sort of freestanding, always wet areas and adjacent wetlands defined as indistinguishable and connected to them at the surface. What it’s really saying is any areas that are intermittently wet that may wash pollution into those other waters, well, they just don’t count. They’re just not covered, and you can’t regulate them. And so there are lots of areas of the country where we see sometimes wet wetlands. They’re seasonally wet, but they’re huge contributors to water pollution in other water bodies. And now the court seems to have decided that they’re simply not covered. And practically speaking, that’s going to make it much harder to protect the waters that are covered, the larger water bodies, because, of course, pollution moves.
And what really matters is that aquatic systems are connected either at the surface or underground. And the Supreme Court decision just totally ignores this. So it’s a terrible decision in the sense that it’s really science free, and it also seems almost purposefully intended to undo what Congress was trying to accomplish when they passed the Clean Water Act. It was clear from the legislative history, if you go back and look at it, it was clear congress was trying to push the boundaries of the authority that Congress has to regulate to the outermost regions of its commerce clause power to give the EPA and the corps of Engineers a kind of maximalist authority to protect the waters of the U.S. including wetlands. And in this sense, the Supreme Court has really ignored the history of the law and I think really misread the text in a way that’s glaring.
J. Craig Williams: Well, they’ve also overlooked some knowledge and some research of scientists.
Jody Freeman: Well, that’s for sure. And there were briefs in the case from scientists trying to say, “hey look you know, we, through our modeling and through our physical testing, can show you that if you drop pollutants in an area that’s even miles away from a lake or a stream or an always wet area, that pollution can reach those larger water bodies. And so if you don’t regulate them, if you don’t require permits for dumping pollution, you’re going to make it impossible to keep these larger water bodies clean.” And yet it seems like those scientific briefs that really showed how aquatic systems work, they fell on deaf ear. The decision is really dismissive of the purpose of the Clean Water Act. If you read the opinion by Justice Alito, it sorts of dismisses what the Clean Water Act is all about. And there are places in the opinion where Justice Alito calls it a powerful weapon that imposes crushing consequences. I mean, it’s as if the federal government is punishing people.
Instead of talking about the benefits of this law, which has been hugely successful. I mean, as a result of the Clean Water Act, rivers don’t explode into flames anymore as they did before congress passed this law, because they were so highly polluted. And there’s really no reference to the value of these wetlands, they perform all these ecosystem services. The scientists brief tried to point this out. They filter pollutants, they provide a buffer against storms. I mean, they perform all these valuable functions, but you wouldn’t know it from reading the opinion.
J. Craig Williams: You know, I get the chance to rant a little bit later in the podcast, and I will, but I grew up in Pennsylvania in a small little town that had a dye factory upriver, and at times the river was purple, green, blue, red, yellow, brown. And that was pre-Water Act. That was pre before this happened. What’s going to happen now?
Jody Freeman: Yeah, I think it’s going to be very difficult for the Environmental Protection Agency and the Army Corps of Engineers to work out what they can now regulate, because the court sort of dropped vague hint about sometimes if there are dry spells, that doesn’t disqualify a wetland. So if it’s sufficiently connected to a larger water body, but it’s sometimes dry, maybe it’s covered. There are still some unanswered questions about the scope of the agency’s power, and they’re going to have to work that out. But no matter what, this severely cuts back the scope of what the Clean Water Act protects. No matter how you slice it, this is a real limitation on what we can do to protect the nation’s waters. And I think it’s so serious because in an interesting way, I think it’s an even more tragic case than the big West Virginia case that came the year before it, which was seen as a very important climate change case.
In West Virginia, the Supreme Court rejected the Environmental Protection Agency’s standards for power plant emissions of greenhouse gases. They rejected an old approach called the clean power plan that dated all the way back to the Obama administration. The Court went out of its way to take the case, even though that regulation, that clean power plan, had never been implemented. But they took the case anyway and struck it down just as a kind of warning to EPA, don’t do this kind of thing again. And people interpreted that case as a really serious setback for the climate agenda because now EPA can’t take the same approach, which was a very ambitious approach to regulating power sector emissions based on how much clean energy could be substituted in on the grid for dirtier, fossil energy. And the court said, no, that looks to us like you’re deciding how much coal is allowed and that’s too much power. You can’t do that without explicit new authority from congress.
And everybody interpreted that case as a very significant setback. I don’t think, environmentally speaking, it is as big a setback as sac it is for clean water. And the reason I say that is while in West Virginia, it’s true that the message TPA is don’t use the clean power plant approach. They still have authority to regulate power plants, just in a narrower sense. And the market in clean energy is already moving in the electric power sector. There’s already a shift to wind and to sun. They’re coming on like gangbusters and replacing coal and natural gas, and natural gas is replacing coal. So we’re going in a clean direction anyway. But that trend. There’s no trend like that in the area of clean water. And the significant constraints the court put on the agencies in Sackett, they can’t be overcome in the same way that we can deal with the setback in West Virginia.
So I think the West Virginia case has other far reaching implications, which if you want to talk about, we can in terms of setting out a doctrine, a principle that’s going to reach all the agencies of the federal government and restrict everything they want to do from a regulatory perspective. So it’s a really important case, West Virginia, but from an environmental point of view, strictly speaking, I actually think Sackett is a much bigger setback.
J. Craig Williams: Definitely is. Well, Jody, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.
And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Professor Jody Freeman from Harvard Law School and a leading expert on environmental law and environmental law. We were going to jump into another subject, but I just really want to ask about that 2006 case Rapanos, because I can’t wrap my head around it.
Jody Freeman: Yes, well, it was the precursor to this Sackett decision. It couldn’t get a majority of votes, so all we got in Rapanos was a mix of opinions with no clear majority view. There were four justices, including Justice Scalia, who believed that the Clean Water Act should only cover relatively permanent standing or continuously flowing bodies of water and they could garner only those four votes. And it was Justice Kennedy who refused to go along with that view and said, “no, the test that should be used is a significant nexus test.” That is, if a wetland has a significant nexus to a lake or a stream because he was aware that pollution flows. He said if there’s a significant nexus, then EPA and the Army Corps can regulate.
And so by denying them a fifth vote, there was really no majority view to cut back the Clean Water Act so severely. And there were four justices in Rapanos that dissented and said, no, the agency should have fuller authority, much larger authority. We should defer to the agencies that they can regulate wetlands that in some cases are very far away because of their connections and the impact on these larger waters. And so if you take the four dissenters and you take Justice Kennedy together, that was five votes for a view that says if you can show significant nexus, you can regulate. Well, that was the sort of prevailing view since Rapanos, and until the Supreme Court composition changed and we got three new justices, that was really the prevailing view. But now we clearly have a different Court. And the petitioners who wanted to bring this case back were waiting for it, and they were ready. And they brought this case right back to the court, raising the same issue and saying essentially they weren’t even shy in doing it. They basically said, look, back in Rapanos, there were four votes for this restrictive view of the Clean Water Act, and we think we’ve got at least five now because of the new justices. They’re conservative, they’re very likely to vote with us, and so we want you to revisit it. And the court took the case. And what Sackett does is it makes the plurality opinion in Rapanos, the four justice opinion, for a very limited authority, it makes that a majority view.
And so that’s now the law. And that was what Scalia wanted. Although Scalia has passed away Justice Scalia, that is what was achieved in the Sackett case.
J. Craig Williams: Well, Kavanaugh gave us a surprise.
Jody Freeman: Yeah, it was really interesting how this broke out, because this was a unanimous case in one sense, perhaps surprisingly so. All the justices, including Justices Kagan, Sotomayor, and Jackson, they all concurred in the outcome, meaning that the Sackett’s property, the Sackett’s in this case, owned a piece property near a lake called Priest Lake that they wanted to build on. And all the justices agreed on the outcome, that the Sackett’s property wasn’t covered as a wetland, but they did so for different reasons. Justice Kavanaugh wrote a concurrence that said, yeah, I agree with the outcome, but I don’t agree with this severely restrictive test.
He seemed to appreciate that wetlands sometimes miles away could serve as conduits for water pollution and that the aquatic systems are interlinked. He seemed to get the science, and he also seemed to get the idea and respect the idea that administrations, both Republican and Democratic, over the decades have adopted this view that the Clean Water Act covers adjacent wetlands, that you shouldn’t treat those wetlands as having to be literally indistinguishable from the larger water bodies. And he went on and on, Kavanaugh did. Justice Kavanaugh saying, “adjacent is not the same as adjoining.” His opinion basically says this over and over again. You, the five Justices, you, the majority, are treating adjacent wetland as if it means adjoining wetland. It’s just not English. It’s just not true. And so it was very interesting because he disagreed with them. He wrote a concurrence disagreeing with them. And actually, the three other Justices Kagan, Sotomayor and Jackson joined his concurrence just to reinforce it.
J. Craig Williams: Amazing. Well, Jody, we just about reached the end of our program. It’s time to wrap up and get your final thoughts in this kind of a preview. Can you talk to us a little bit about the CleanLaw Podcast.
Jody Freeman: The CleanLaw Podcast. I’m so excited about that. I know you will empathize with this, Craig. You’ll probably agree that if I could do this for a living, if somebody offered me a full podcast gig, full might, I might have to quit my Harvard job because I love it so much. We launched the CleanLaw Podcast some years ago. There wasn’t a really good podcast, we thought, doing deep dives on Supreme Court cases on mental law and climate change and clean energy, including deep dives on certain rules that the federal government and states were considering issuing. It’s pretty nerdy, but we get in there and analyze them in real detail with experts who know a lot about them. We talked about the Inflation Reduction Act recently and its incentives, along with the infrastructure bill to get funding and subsidies out to promote clean energy in the economy. And so we do these really interesting pieces on the kinds of policies that we see coming from both the federal government and the states that are really important for environmental law.
J. Craig Williams: So how can our listeners reach out to you, find out more about what you do at Harvard and get involved if they’d like to?
Jody Freeman: Well, they can find me on the Harvard Law School website. They can find our program at [email protected]. They can look up our clinic. The Emmett Environmental Law and Policy Clinic. And once you land on one of our pages, it will take you everywhere you need to go. And the only other thing I want to mention is we also have a new Salada Institute at Harvard University wide and that’s a place to go look for really cool stuff we’re doing across the university. All these projects that I’m involved in with my colleagues across university on methane reduction and just transition and corporate net zero targets. I mean, there’s so much interesting work going on at Harvard and in particular the law school. I’m really proud of it, really excited that our students get to be involved in it. So come check it out.
J. Craig Williams: Well, I hope everyone will. I’ve checked it out and it’s been amazing and it’s been a pleasure having you on the podcast. But I want to ask one last quick question more so, what can regular, everyday people do now that our government’s not helping us on this point?
Jody Freeman: Well, I think there’s still reason for optimism, right? I mean, we did see some really historic clean energy legislation, so I wouldn’t lose hope. But I do think people have to continue to press for environmental protection. They have to continue to sort of let their representatives know both at the local and state, but also the federal level, that they care about these issues. And in our daily lives, we make lots of choices about what we eat, what we drive, what we wear, how much we consume. We can make decisions at a personal level that make a difference, but we have to keep working. That’s what motivates me. Keep working for positive social change, not just in our own personal patterns, but also the government’s got to do its job. Government’s got to step up and protect clean air and protect clean water and respond to climate change and do it in a just and equitable way. I get up every day thinking about that, and I hope it makes a difference.
J. Craig Williams: I do, too. Well, as we wrap up, thank you very much for our guest, Professor Jody Freeman, for joining us today.
Jody Freeman: Thanks for having me. Really appreciate it.
J. Craig Williams: Well, here are a few of my thoughts about today’s topic, if you didn’t pick it up already from my commentary in the podcast itself, which I apologize for because I try to keep it somewhat neutral. But obviously this is a major setback for wetlands protection, for our water protection, in the water that we drink, the water that we swim in, and the water that we use every day. It is disappointing, and it’s disappointing to see the interaction of the climate change with it. As I think Professor Freeman said, the best step to take is to let your legislators know that things need to be done to get changed.
Well, that’s it for Craig’s rant on today’s topic. Let me know what you think, and if you like what you heard today, please rate us on Apple podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.
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