Supreme Court Split on Clean Water Protection

Groups call on Congress to reaffirm that Clean Water Act applies everywhere


Joan Mulhern / David Baron, 202-667-4500

In one of the most important clean water cases in decades, the United States Supreme Court today issued a fractured decision on the reach of the federal Clean Water Act. At issue was whether the law protects wetlands next to tributaries of rivers and lakes, areas that face increasing threats from pollution and development. While five justices voted to require lower courts to revisit their application of the law to the two specific wetland areas at issue in the case, the justices could not agree on the reasons for doing so.  Moreover, a majority of the justices rejected a position that would strip clean water protection from intermittent or ephemeral streams.

“Clearly the court is not speaking with one voice,” said Joan Mulhern, senior legislative counsel at Earthjustice. “Unfortunately, this split decision will likely spur more litigation efforts by  industry and polluters to continue to try to strip away Clean Water Act protections for many of the nation’s streams, wetlands, rivers, and other waters. This opinion underscores the need for Congress to step in and reaffirm that the Clean Water Act applies everywhere to keep poison out of our drinking water supplies and all other waters of the United States.”

The Supreme Court vacated previous rulings by the Sixth Circuit U.S. Court of Appeals that certain wetlands in Michigan were adjacent to navigable waters and therefore protected under the Clean Water Act. Justice Scalia, joined by Chief Justice Roberts, and Justices Thomas and Alito, voted to overturn the lower court rulings. Justice Kennedy wrote a concurring opinion agreeing to overturn the Sixth Circuit rulings, but disagreeing with most of Justice Scalia’s reasons for doing so, voting instead to send the cases back on limited grounds. In fact, Justice Kennedy agreed with four dissenting justices — Stevens, Souter, Ginsberg, and Breyer — that the Clean Water Act applied to a broad range of rivers, streams, tributaries, and adjacent wetlands. Justices Scalia, Kennedy and Stevens all spoke from the bench about their differing views, an unusual occurrence that underlines how fractured the Court is on this issue.

“While this decision does not rewrite the law, it will almost certainly lead to further efforts by polluters to cut off clean water protections for rivers and creeks throughout the nation,” said Earthjustice managing attorney David Baron. Earthjustice wrote a ‘friend of the court’ brief on behalf of American Rivers, Environmental Defense, National Audubon Society, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, Tip of the Mitt Watershed Council and Waterkeeper Alliance.

An extraordinary collection of 33 state attorneys general and the District of Columbia, four former Environmental Protection Agency administrators, nine former members of Congress who helped pass the 1972 Clean Water Act, state wetland and floodplain managers, over three dozen environmental advocates and hunting and fishing groups sided with the Bush administration to support continued protections for our nation’s wetlands, streams, tributaries and rivers. 

The Clean Water Act is one of the nation’s premier environmental laws designed to protect the waters of America that provide drinking supplies, recreational activities and wildlife and aquatic habitat for many different species. The position urged by the developers threatened to strip clean water protection from waters that provide drinking supplies for more than 110 million Americans, nearly 60 percent of the total length of U.S. streams, excluding Alaska, and tens of millions of acres of wetlands.

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