In a Bloomberg Law article, real estate partner Peter Alpert shared his perspectives on Sackett v. EPA, currently before the U.S. Supreme Court. The outcome will determine whether a wetland is subject to the jurisdiction of the Environmental Protection Agency (EPA) and the Army Corps of Engineers under Section 404 of the federal Clean Water Act.
Sackett has played out for two decades, resulting in differing Supreme Court opinions by justices Antonin Scalia and Anthony Kennedy related to the 2006 decision Rapanos v. United States. Peter commented that the current court’s “conservative majority naturally could be expected to sympathize” with Justice Scalia’s opinion, “but at oral argument, justices across the spectrum appeared equally uncomfortable with both the Scalia and Kennedy tests—the former as too narrow in view of the purpose of the Clean Water Act, and the latter as too vague.”
“The court’s term is loaded with ideologically freighted cases that will provide ample opportunity for the conservative super-majority to rattle environmental and other progressive communities. Sackett might yet turn out to be one of those cases, but the oral arguments suggest that the case may end with a whimper,” Peter wrote.
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