Deep Dive Episode 236 - Sackett v. EPA: How Will the U.S. Supreme Court Define "Waters of the United States?"
Regulatory Transparency Project's Fourth Branch Podcast
Regulatory Transparency Project's Fourth Branch Podcast
One of the most controversial and long-standing environmental issues deals with what waters are regulated under the Clean Water Act. For decades, the EPA and Army Corps of Engineers have struggled to define “waters of the United States” (WOTUS) and the Supreme Court has not been able to provide clarity in its previous WOTUS decisions. Now though, the U.S. Supreme Court’s first case of the new term is Sackett v. EPA, which provides the Court another chance to provide some clarity. In this podcast discussion, the lead counsel for the Sacketts, Damien Schiff, and Georgetown University’s William Buzbee, delve into the legal issues of the case and its implications.
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Director of the Center for Energy and Environment and Senior Fellow, Competitive Enterprise Institute
Daren Bakst is Director of the Competitive Enterprise Institute’s Center for Energy and Environment and a Senior Fellow. In this role, he manages, develops, and leads the coalition, advocacy, and research activities of the Center, which is one of the most effective advocates for Free Market Environmentalism.
Before joining CEI as Deputy Director in March, 2023, Daren was a Senior Research Fellow in Environmental Policy and Regulation at the Heritage Foundation, where he played a leading role in the launch of the organization’s new energy and environment center, and created and hosted the Heritage Foundation’s energy and environment podcast the “PowerCast.” During his decade at Heritage, Daren wrote about energy and environmental policy, food and agricultural policy (including editing and co-authoring the book Farms and Free Enterprise), regulation, and trade among other topics.
Daren also worked on environmental policy and regulation at the U.S. Chamber of Commerce, where he was a policy counsel and served as the executive to the association’s Government Oversight, Operations & Consumer Affairs committee, which was responsible for issues such as regulatory process reform. Daren has significant state level experience, working for seven years at the Raleigh, N.C.-based John Locke Foundation, one of the largest state-based, free-market think tanks. As director of legal and regulatory studies, his broad portfolio included energy and environmental policy, regulatory reform, and property rights.
Daren has testified numerous times before Congress, regularly submits comments to federal agencies and has appeared in or been quoted by a wide range of media outlets such as The Wall Street Journal, USA Today, The Washington Times, CNN, Fox Business News, Al-Jazeera America, and U.S. News and World Report. He is a member of the Federalist Society’s Environmental Law and Property Rights Executive Committee and serves on the College Level Advisory Board for Constituting America, an organization that informs and educates about the importance of the U.S. Constitution.
Daren, who hails from Florida, received his bachelor’s and master’s degrees from George Washington University. A licensed attorney, he holds a law degree from the University of Miami and a master of laws degree from American University.
Professor of Law, Georgetown Law
William W. Buzbee is a professor of law at Georgetown University Law Center. In his teaching and scholarship, he specializes in environmental law, legislation and regulation, and administrative law. Recent publications focus on climate regulation, deregulation and law governing agency policy change, and federalism. He also offers seminars on advanced environmental, regulatory, and constitutional law subjects, with his most recent seminar focused on “The Art of Regulatory War.”
Professor Buzbee’s books include the recently published Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War that Transformed New York City (Cornell University Press 2014) and Preemption Choice: The Theory, Law and Reality of Federalism’s Core Question(Cambridge University Press, hardcover 2009, paperback 2011) (William W. Buzbee editor and contributor). He has been a co-author of the 5th , 6th, 7th and forthcoming 8th editions of Environmental Protection: Law and Policy (Aspen/Wolters Kluwer). Law review scholarship includes publications in New York University Law Review, University of Pennsylvania Law Review, Michigan Law Review, Stanford Law Review (co-authored), Cornell Law Review (co-authored), Duke Law Journal (forthcoming), George Washington Law Review, Iowa Law Review, The Journal of Law and Politics and in an array of other journals, books, news outlets, and blogs. Three of his articles have been named among the 10 best environmental or land use law articles of that year and republished in the Land Use and Environment Law Review. He regularly assists with appellate and Supreme Court environmental, federalism, and regulatory litigation, and also has testified before congressional committees on environmental and regulatory matters. He has published op-eds on regulatory and environmental issues with The New York Times, The Hill, CNN, and been quoted and interviewed by numerous press and media outlets.
Professor Buzbee joined Georgetown from Emory Law School, where he was a professor of law and directed its Environmental and Natural Resources Law Program. He also co-directed Emory’s Center on Federalism and Intersystemic Governance. He has been a visiting professor of law at Columbia, Cornell and Illinois law schools. He has also served as a professor for the Leiden-Amsterdam-Columbia Law School Summer Program in American Law. Professor Buzbee is a founding Member Scholar of the Center for Progressive Reform, a Washington D.C.-based regulatory think tank. Professor Buzbee was awarded the 2007-2008 Emory Williams Teaching Award for excellence in teaching. Professor Buzbee clerked for United States Judge Jose A. Cabranes, and before becoming a professor was an attorney-fellow at the Natural Resources Defense Council, and did environmental, land use and litigation work for the New York City law firm, Patterson, Belknap, Webb & Tyler. JD, Columbia Law School, 1986; BA, Amherst College, magna cum laude, 1983.
Senior Attorney, Pacific Legal Foundation
Damien Schiff is a senior attorney at Pacific Legal Foundation. He leads its environmental practice group, a unique initiative that draws broadly from PLF’s expertise and success in property rights and separation of powers litigation. Over the years, Damien has represented hundreds of landowners and property rights advocates to defend their liberties against heavy-handed and unwarranted environmental and land-use regulation. His litigation experience includes Sackett v. U.S. Environmental Protection Agency, a groundbreaking decision in which the U.S. Supreme Court upheld the right of landowners to challenge Clean Water Act compliance orders issued by EPA, and Contoski v. Norton, PLF’s successful effort to force the federal government to make good on its promise to delist the bald eagle from the Endangered Species Act.
Besides litigation, Damien has written academic articles on a variety of subjects, including the Endangered Species Act, the Clean Water Act, greenhouse gas torts, the duty to rescue, and international water law. He has appeared on a variety of television and radio programs and has been quoted in The New York Times, The Wall Street Journal, Harper’s Magazine, and The Economist, among other publications.
He obtained his law degree magna cum laude from the University of San Diego School of Law, and his undergraduate degree magna cum laude from Georgetown University. While at USD, he was a research assistant for Professor Bernard Siegan, a leading constitutional theorist and advocate for property rights and economic liberty. Immediately prior to joining PLF, Damien clerked for Judge (and former PLF attorney) Victor Wolski of the United States Court of Federal Claims. Damien credits the mentoring and examples of Professor Siegan and Judge Wolski for his decision to pursue a career in liberty-based public interest litigation.
Damien lives in Sacramento with his wife, two young sons, four chickens, and a cat named Princess. In his off hours he enjoys stamp collecting, Gregorian chant, and martinis—preferably at the same time.