ETHAN: Next Tuesday will mark the 50th anniversary of the Clean Water Act. What’s its anniversary present? A 15 year long legal battle that is now being decided by the United States Supreme Court. Good Wednesday morning, I’m Ethan Brown, and this is Tip of the Iceberg, where I will break down some environmental news and then answer a question from our listeners on the air. Submit questions via Patreon, email, or social media. Patron questions go to the front of the line, so sign up at patreon.com/thesweatypenguin.

ETHAN: The Sweaty Penguin is presented by Peril and Promise: a public media initiative from The WNET Group in New York, reporting on the issues and solutions around climate change. You can learn more at pbs.org/perilandpromise. [END SONG]

ETHAN: The case in question is called Sackett v. EPA, and it has to do with whether or not Chantell and Michael Sackett were allowed to build a home on a wetland in Idaho, or if they first needed a permit under the Clean Water Act. My question is why would you want to build on a wetland? It really brings a whole new meaning to the mudroom. I guess one pro is you never have to mow the lawn, you just have to make sure it doesn’t rise up to the front door.

ETHAN: Now, there are 75.5 million acres of wetlands in the United States, and these are some of the most productive habitats on earth. Wetlands store carbon dioxide from the atmosphere in their plants, soils, and sediments, making them important tools in combating climate change. They provide habitats for thousands of fish, plants, and migratory birds, including hundreds of endangered species such as coho salmon, razorback suckers, and California tiger salamanders — which, if you didn’t know, are salamanders that live with Joe Exotic and refuse to mate because they only do situationships. Wetlands also act as barriers from flooding and are natural water filtration systems, which is very important. For example, humans eliminated 36.9 percent of wetland areas around the Pearl River in Mississippi from 1995 to 2015. This year, the Pearl River flooded, causing the failure of a major water treatment facility, which has led to a horrific water crisis in the city of Jackson that left 150,000 residents without access to safe drinking water. And on the coast, wetlands act as natural buffers from hurricanes. For example, a report from the Nature Conservancy found coastal wetlands prevented more than $625 million during Hurricane Sandy. Certainly after Hurricane Ian hit Florida, where 9 million acres of wetlands have been lost since 1845 — more than any other state in the country — I can’t help but turn my head when the Supreme Court takes up a case about wetlands.

ETHAN: So let me get you up to speed on Sackett v. EPA. To start, we’re going all the way back to 1787 to take a quick glance at the U.S. Constitution. Ah 1787 — America was still taking its baby steps, and a visit to the cobbler was sooo much more affordable. Seriously these days it’s at least six half pence! CLASSICAL  You may remember from Tip of the Iceberg 21 on West Virginia v. EPA when we discussed separation of powers, and no, that doesn’t have to do with The Avengers. Quick review: the U.S. government has three branches. The legislative branch is Congress, and they make the laws. The executive branch is the President and a number of agencies, and they approve and enforce the laws. And the judicial branch, which includes the Supreme Court and many lower courts, is in charge of interpreting the laws and determining if laws break the rules of the Constitution. The separation of powers is important for two reasons today. (1) We need to remember that the Supreme Court can’t write legislation here to protect or destroy wetlands. They are deciding how to interpret existing laws. Very different things. And (2) Like West Virginia, Sackett is also a case about the separation of powers — specifically if the executive branch overstepped its authority.

ETHAN: Now, one of those rules in the Constitution is called the Commerce Clause, which says that Santa is absolutely not allowed to sell any of the toys on his sleigh. They’re for free, Santa! HO HO But it also means the United States Congress shall have the power to regulate commerce among the several states. This clause turns out to be a big deal here. Waters like lakes, rivers, and oceans are, in fact, channels of commerce. Obviously you can transport goods on a boat from one state to another, and even beyond that, people might travel between states to fish, bird watch, do water activities, see nature, or take my annual bath in the Mississippi to absorb its powers and ensure a bountiful harvest. Come on, don’t tell me you’ve never heard of the Skinny Dippy in the Mississippi? You gotta go, it’s worth the 1200 half pence! Because of the interstate and commercial uses of these channels, Congress has the constitutional authority under the Commerce Clause to regulate these water bodies, ensuring you can navigate them, protect them from development, preserve important species, and prevent pollution.

ETHAN: So let’s fast forward nearly 200 years to 1972 when Congress decided to exercise this power and put forth the Clean Water Act. Or should I say jazzercise this power? And before you come for me it was a trend in the 80s but it STARTED in the 70s, so the joke works. 1970S The Clean Water Act’s stated objective is to restore and maintain the chemical, physical, and biological integrity of the waters of the United States. The Clean Water Act, though, is actually a remarkable feat of bipartisanship — President Nixon vetoed the Clean Water Act on October 17, 1972, and that night, the Senate was able to override the veto with a 52-12 vote. The next day, October 18th, the House managed to override the veto with a landslide 247-23 vote, or should I say, waterslide. [booing sound] Both chambers formed broad, bipartisan coalitions to get this bill signed into law, and on Tuesday, it will officially be fifty years strong, so from all of us at The Sweaty Penguin, happy golden anniversary to the Clean Water Act. 50 looks good on you. Go get that motorcycle. [vroom vroom]

As part of fulfilling the Clean Water Act’s goal, they set forth a couple permitting systems, one of which had to do with dredge or fill material. This would apply to builders who want to dump [truck backing up] materials like sand, silt, or gravel onto a particular area. If a builder wants to dump in an area that is regulated by the Clean Water Act, then they need to obtain a permit from the Army Corps of Engineers. So next time you’re feeling down in the dumps, stop it, you don’t have a permit for that. To successfully get the permit, applicants have to jump through some significant hoops, all designed to protect the water and surrounding ecosystem. If they don’t get a permit and they violate the Clean Water Act, they can face fines of up to $25,000 per day and even criminal charges, so this is high stakes stuff. Kind of makes you see the movie Holes in a new light.

There’s also a line buried in this random section of the Clean Water Act that, in mentioning the waters of the United States, says “including wetlands adjacent thereto.” If you think that term “adjacent wetlands thereto” is confusing, you’ll be happy to know the Supreme Court agrees. We’ll get to that later, thereto. Historically, courts have kind of ignored that whole phrase. They’ve just interpreted the phrase “maintaining the chemical, physical, and biological integrity of our water” to mean that wetlands are included. However, the fact that the word “wetlands” is in the law leaves no doubt that Congress intended to protect them five decades ago.

Whatever way you slice it though, it begs the question: which wetlands are regulated by the Clean Water Act? Is it all 75.5 million acres of them? Or does there have to be some clear relationship to a water body, like an ocean, lake, or river? And that question has perplexed the Supreme Court a few times, most notably in a case in 2006 called Rapanos v. United States, not to be confused with Rapinoe v. United States where Megan Rapinoe had to score a goal on every single one of her teammates at soccer practice. 2000s  A Michigan real estate developer named John Rapanos had filled several acres of wetlands he owned with sand to start construction of a mall, without first obtaining a permit. Megan Rapinoe would never do that — obviously she’d fill them with turf. The federal government brought a civil enforcement action against Rapanos for violating the Clean Water Act. But the wetlands were up to 20 miles from any rivers and lakes, and Rapanos believed he didn’t need a permit because the wetlands were isolated, aside from some drains and ditches. So he took the United States to court, and after a battle lasting over a decade, he made it all the way to the Supreme Court, who was ultimately faced with the question: Are isolated wetlands regulated under the Clean Water Act?

In this case, you could almost say nobody won, including environmental podcasters who had to read this whole case. Seriously, if someone uses the word jurisprudence again, I’m going to start crying. The justices failed to agree on a majority opinion, and here’s why. The plurality opinion — written by Justice Antonin Scalia and joined by Justice Samuel Alito, Justice Clarence Thomas, and now Chief Justice John Roberts — created a test for what constituted “waters.” In a historic diss to Dictionary.com, Scalia opened his Webster’s Dictionary and defined “waters” as permanent bodies of water, such as streams, lakes, rivers, and oceans. He then combined that with a precedent from the 80s and created an eye-test for wetlands. If a wetland has a continuous surface connection to a body of water where it’s not clear where the water ends and the wetland begins, then it is regulated under the Clean Water Act. Scalia and his colleagues then sent this case back to the lower courts, instructing them to use Scalia’s newly minted eye-test to reach a new verdict. [gavel]

Justice Anthony Kennedy, meanwhile, agreed that the case should be sent back, but disagreed on Scalia’s eye-test. Kennedy looked back at the Clean Water Act’s stated goal: to restore and maintain the chemical, physical, and biological integrity of the nation’s waterways. He wrote in a solo opinion that Scalia’s test was ignoring science! And, I mean, maybe modern science… I’m pretty sure pre-Galileo, eyeballing it was the foundation of the scientific method. How could the Sun be the center of the universe, it’s all the way over there! Using modern science, Kennedy pointed out that wetlands perform critical functions related to the integrity of other waters, such as pollutant trapping, flood control, and runoff storage. So he put forth his own criteria called the significant nexus test. The test is: does the wetland affect the chemical, physical, and biological integrity of the nation’s waterways? If it does, then it’s regulated. [gavel]

But as clear cut as it may seem, this outcome has led to ridiculous confusion for lower courts, agencies, and landowners. Which test are they supposed to use? Is it open book or closed book? Is it graded on a curve? Do they need one of those blue books to write their answers in or can they just mark up the exam? In most cases, agencies and courts have administered both tests. If the area fails Scalia’s eye-test and fails Kennedy’s significant nexus test, then it’s not regulated. If it passes either, then you need a permit. This tension between the two tests, though, has caused a lot of controversy and a lot of lawsuits, and now, the Supreme Court might finally be forced to make up their minds in Sackett v. EPA.

2020s For much of their lives, Chantell and Michael Sackett wanted to live on Priest Lake in Idaho. So in 2004, they bought a vacant lot near the lake, and in 2007, began constructing their home by filling the lot with gravel. I hear there’s a big bad wolf in the area, so they definitely didn’t want to use straws and sticks. [wolf howl] Quickly after, the EPA told the Sacketts to stop construction, they were in a regulated wetland, and they needed a permit from the Army Corps of Engineers. The Sacketts were in a trickier situation than in Rapanos. Their lot is 300 feet from Priest Lake, and 30 feet from a tributary that goes into Priest Lake, but there is actually a full-on road between the Sacketts’ lot and the tributary. The Sacketts argue the road separates their property from the lake, but I don’t know, I’m pretty sure I saw a chicken crossing it. [chicken sound] The Sacketts sued, but the EPA insisted that their orders were final and could not be appealed in court. This part of the case — whether or not the Sacketts could appeal in the first place — made it all the way to the Supreme Court in 2012, where the court ruled in favor of the Sacketts. [gavel] They could appeal the EPA’s order, and with that ruling in hand, they went straight back to court to do just that.

Now, nearly twenty years after the Sacketts bought their lot, they’re back in the Supreme Court for the first case of the 2022-2023 term: Sackett v. EPA Part 2: Electric Boogaloo. This time, the question is essentially the same unresolved question from Rapanos: What test is supposed to be used to determine if a wetland is regulated under the Clean Water Act? Is it Scalia’s eye test? Then the Sacketts are off the hook. Is it Kennedy’s significant nexus test? Then the Sacketts need a permit. Or, maybe, is it a whole new test entirely? In which case, I say they should try out the sniff test. If it smells like marsh, you need a permit. Or a shower. SNIFF

If you Google Sackett v. EPA and hit that News button, you’ll see a whole lot of articles with headlines saying the Supreme Court is poised to gut the Clean Water Act. That they’re all but guaranteed to adopt Scalia’s ruling, which environmental advocates say is not comprehensive, not based in science, and would leave half the nation’s remaining wetlands unprotected,. Now, with all due respect to the fact that this court ruled against the EPA a couple months ago and made sweeping ruling after sweeping ruling last summer, I read the oral argument from last Monday. All 136 pages. Did I sleep? No. Did I enjoy it? Yes. Would I do it again? … Probably. And while you can’t always tell how a justice will rule from the oral argument, I’ll tell you this: a majority of the justices seemed pretty dissatisfied with both the more conservative Scalia test and the more liberal Kennedy test. I don’t know how they’ll rule, but I really think Sackett v. EPA is, as they say in Vegas, a toss-up. I’m not predicting anything, but if FOX Bet Super 6 lists Sackett as the favorite, I’d certainly bet the spread. [slot machine sound]

With Kennedy’s significant nexus test, I don’t know if I can confidently say any justice would support it. Maybe Justice Jackson? Possibly Justice Sotomayor, though I wouldn’t count on it. And I don’t think Justice Kagan would support it, to be honest. The scientific basis of the test that seeks to measure if the wetland significantly affects the integrity of our waters is, no doubt, exciting. But it’s also costly. While eyeballing is totally free, The permits themselves can cost hundreds of thousands of dollars to complete, so it’s not as simple as just telling people to “get a permit.” You don’t want people jumping through hoops who legally don’t need to, unless it’s the Thanksgiving dog show but it’s also opposite day and now the dogs are judging the humans. Yeah, you go dogs! Teach us a lesson! [dog bark] And in the fringe cases where you’re not sure if the wetland affects the integrity of the water, you’re not sure if they need a permit or not — experts would have to do a long scientific test. They’d put tracing materials in the wetland and twiddle their thumbs for months to see if said materials end up in the nearby waterway. Which also seems kind of unscientific? W In all fairness, the Army offers this for free, but is it worth that much effort not even to grant a permit, but just to decide if someone needs to apply for one or not? Even calling the Army sounds like a lot of effort. Like, don’t they have Snapchat or something? All the justices were taking these concerns seriously, and there is absolutely merit to those questions.

As for the Scalia test where the wetland has to be basically indistinguishable from the waterway, remember, three of the sitting justices signed onto that opinion in 2006, and Scalia did write “no take backs” at the end. In all seriousness, it seems likely that Justice Alito is still in that camp. It seems likely that Justice Thomas is still in that camp, though I’ll get to him in a minute. Chief Justice Roberts might be a wild card, but we’ll see. Justice Gorsuch also seemed in that camp as far as I can tell. But that might be it. Justice Barrett seemed displeased with the Scalia test. And Justice Kavanaugh seemed to be taking the fate of wetlands very seriously. At one point, he said and I quote, “this case is going to be important for wetlands throughout the country and we have to get it right.” 

So if there’s not a majority for either test, could there be a group of five or six justices that agree on a third test? There seemed to be interest in that, but the Sacketts’ attorney actually made an interesting point about why this might be tricky. Remember separation of powers. The judicial branch is in charge of interpreting the laws, not writing the laws. Scalia based his test on an MUSIC 80s precedent and a dictionary. That’s the same criteria they use to determine the Spelling Bee. Kennedy based his on the stated objective of the Clean Water Act. What’s a third test based on? What text? If I may pitch again, the Sniff Test should obviously be based on the screenplay of the first Shrek movie.

And that’s where this gets really interesting. This is like Aven Jones asking Rachel Recchia on a date level interesting, so buckle up! Do you remember when I said a section of the Clean Water Act contained the phrase “adjacent waters thereto?” REWIND And how the phrase was too confusing for justices to even try to deal with because even they don’t know what thereto means? Well, that phrase came up a LOT in oral arguments. The word “adjacent” was said 106 times according to the transcript, in a session that lasted 108 minutes. You tell me. Do you think they might try to interpret the word “adjacent?”

I guess this podcast isn’t choose-your-own-adventure, so I’ll tell you. I think they will. A choose-your-own-adventure podcast would be awesome though, right? I start in on a rant about photosynthesis and a pop-up comes up saying “should he continue, or should he talk about Lyle, Lyle, Crocodile for 45 minutes?” In arguing what the word “adjacent” means, the EPA proposed a vaguer definition more in line with the hydrology, while the Sacketts’ attorney argued that adjacency means actually physically touching, and some justices poked a little fun at both of these definitions. But in contemplating where the court might lean, I again have to look to Barrett and Kavanaugh who seemed to agree Kagan, Jackson, and Sotomayor on the fact that in everyday use, “adjacent” means neighboring, not physically touching. That’s right, TGI Friday’s, when I asked for the bleu cheese to be adjacent, I did not mean dump it all over my chicken wings.

And not only that, Kavanaugh noted that in enforcing the Clean Water Act, seven straight prior presidential administrations did not define adjacent as physically touching. At the very least, wetlands separated from water bodies by barriers like berms or dunes were considered adjacent. So Kavanaugh asked the Sacketts’ attorney flat out, “why did seven straight administrations disagree with you?” Immediately after that question, Barrett then asked him, “​​can you explain to me why you wouldn’t lose?” Yeah. Again, I know they’re asking questions and you can’t tell their opinion off that. When I ask a waiter for the specials, there is maybe a 4 percent chance I actually order a special, so I get it. But I still think any headline suggesting wetlands are doomed is vastly misreading the way this case is playing out at the moment.

And if I can just shed some light on how bad this could have gone for wetland protection: I said I’d come back to Thomas. He asked a few questions that expressed some confusion about the fact that Priest Lake is considered a channel of interstate commerce when it is a lake entirely inside of Idaho. Remember, the entire Clean Water Act hinges on the Commerce Clause in the Constitution, which regulates interstate commerce. The constitutionality of the Clean Water Act has never been called into question by the court, but if we’re really talking about the worst case scenario, one could make a really draconian argument that Priest Lake, or any lake only inside one state, is not a channel of interstate commerce. I don’t think that would happen, over a century of precedent would suggest otherwise, but that’s what I think of when I think of “gutting” the Clean Water Act. I really don’t see this case gutting the Clean Water Act. At worst, it might buy a lot 300 feet away from the Clean Water Act and fill it with gravel without a permit.

So again, we have to wait and see, and a decision could come anytime between next week and next summer. But I think the justices are asking good questions. I think they’re asking narrow questions for the most part. And I really saw some common ground starting to form among liberal and conservative justices, which could lead to an interesting outcome. [SONG: Happy Diner Deals] That said, whatever the outcome may be, I will always go back to one thing: Congress makes the laws. If the court does rule in favor of a stricter interpretation of wetlands, Congress can go right ahead and amend the Clean Water Act, or make a law specific to wetlands. I know you think I’m naive when I say that, but look what happened last time. After West Virginia v. EPA, I said it was Congress’s job to tackle climate change, not the Supreme Court’s. A little over a month later, the Inflation Reduction Act was signed into law. That’s how Congress has to respond to these things. That’s their job. So while it is very important to follow, Sackett v. EPA alone does not decide the fate of wetlands. Congress can always pass new laws to manage and protect these crucial ecosystems, and if they do, we won’t have to spend more time listening to judges say the phrase “physically touching.” [END SONG]

SEGMENT 2

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[SONG: First Little Steps] Welcome back to Tip of the Iceberg. It’s time for “Ask Me Anything,” where our listeners get a chance to ask me any environmental questions they may have. Submit questions on our Patreon, email, or social media. Questions from patrons go to the front of the line, so be sure to sign up today at patreon.com/thesweatypenguin.

Today’s “Ask Me Anything” comes from Tony Seiler who asks “Obama bought on Martha’s Vineyard. Al Gore has oceanfront property. Are they stupid or what?” [END SONG]

I mean, kind of, yeah. Look, in all seriousness, this is a little different from you or I buying a beach house. The Obamas and the Gores both have multiple residences and a whole lot of money, so if their beach mansion gets destroyed in a hurricane, they can go live somewhere else and choose whether or not they want to rebuild it or not. I’d think they see these properties as places they can enjoy now, not real estate investments with a futuristic outlook.

That said, I respect that it sends a mixed message, but let’s also not blow it out of proportion. Sea level rise is very real and very concerning. Climate change drives it in two ways: (1) when water gets warmer, the molecules expand. Think about when you boil water to make pasta, the water level goes up as it goes from room temperature to boiling. And (2) warmer temperatures are driving ice melt in Greenland and Western Antarctica, which is allowing glaciers to fall into the ocean. The Thwaites glacier has been a particularly concerning one as of late — it’s a glacier in Antarctica the size of Florida that should fall into the ocean in the next few years. Check out our episodes on Ice Sheets and Ice Shelves to learn more about that.

But long before sea levels start engulfing mansions on their own, we’re going to see hurricanes. We’re going to see floods. In fact, we’re already seeing this happen. Look to the floods in Pakistan or the storm surge in Alaska or Hurricanes Ian and Fiona, all of which we’ve covered in the last few weeks. Long before we see coastal communities fall off the map, we’ll see these sorts of catastrophic events.

However, coastal communities can become resilient to floods, storms, and sea level rise. You can create manmade structures such as seawalls, jetties, and sand piles. But — and this is why I picked this question for today — you can also preserve and restore coastal wetlands! Remember, wetlands act as natural buffers against hurricanes and floods while also storing carbon, so they help with climate change from a few different angles. You mentioned Martha’s Vineyard in the question. Salt marshes and other wetlands are very common along the coast of Martha’s Vineyard, and if left to their own devices, would be able to thrive under climate change. The question is if we leave them to their own devices or not. As sea levels rise, these wetlands would want to migrate further inland, but if humans were try to block the wetlands from intruding on the island, then that starts to reduce the wetlands’ benefits. It’s also possible sea levels could rise too fast for wetlands to perform this migration, which is why mitigating climate change is important here as well.

Whatever the approach is though, if coastal communities do the work, they don’t have to be sitting ducks. I haven’t looked into this at all, but I would hope wealthy individuals buying property in these communities would also support these climate resilience efforts. At the bare minimum, you’d think they’d be paying some hefty property taxes on these mansions, and that’s money that could support such efforts. [SONG: Sunshine and Smiles] So yeah, it’s definitely stupid from an investment standpoint, maybe stupid from a public perception standpoint, but if they’re just buying the property to enjoy the beach and don’t care if it gets damaged or loses value, then I see no problem with it. I don’t think it’s any more complicated than that. But I really appreciate the question, I see it come up a lot, so thanks so much Tony, and thanks to all of you who listened to Tip of the Iceberg. Take two minutes, help out the show, and get a shoutout at the end of the show by leaving a five star rating and a review on Apple or Podcast Addict OR join our Patreon at patreon.com/thesweatypenguin. You get merch, bonus content, and your questions moved to the front of the line for Tip of the Iceberg. The Sweaty Penguin is presented by Peril and Promise: a public media initiative from The WNET Group in New York, reporting on the issues and solutions around climate change. You can learn more at pbs.org/perilandpromise. The opinions expressed in this podcast are those of the host and guests. They do not necessarily reflect the opinions or views of Peril and Promise or The WNET Group. Thanks so much for listening, and I’ll see you on Friday continuing our water theme with a deep dive on phytoplankton! [END SONG]