Courthouse Steps Decision: Sackett v. Environmental Protection Agency

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Matt Leopold:  – [No audio 00:00:42] much for being here and joining us tonight. We have a fantastic panel of experts to talk to you about the Sackett v EPA decision. I'm Matt Leopold. I'm a Hunton partner here. And I'm just going to introduce our guests, and we'll get started.

 

So, we're very happy to have moderating tonight, Judge Tom Griffith.  As you may know, he was a circuit judge on the D.C. Circuit from 2005 to 2020, where he authored approximately 200 opinions covering a range of matters from administrative and environmental law, included. He retired from the D.C. Circuit in 2020 and is now special counsel here at Hunton. And he practices focusing on appellate litigation, congressional internal investigations, and other strategic counseling.

 

Also, tonight, we have our panelist, Deidre Duncan. She's a partner here at Hunton Andrews Kurth, where she leads our environmental practice group. Deidre represents companies including oil and gas, natural gas, pipelines, electric utilities, agricultural interests, state and local agencies and trade associations.  In 2005, Deidre helped found the Waters Advocacy Coalition, focusing on the definition of the waters of the United States.  So, she has a long history on this. And, before joining Hunton, she worked as an assistant general counsel of the Army at the Pentagon, advising the Army Corp of Engineers on civil works and in their 404 Program.

 

We also have tonight, Professor William Buzbee.  He is the inaugural chair, holds the Edward and Carole Walter Professor Chair, and is a professor of law at Georgetown University. He also is the faculty director of Georgetown's environmental law and policy program, and he specializes in environmental law, legislation and regulation, and he teaches a number of seminars on advanced environmental regulatory topics and constitutional law subjects.  And his most recent seminar was entitled "The Art of Regulatory War." So maybe we'll hear a little bit about that tonight.

 

Also, tonight, we have Tom Ward. Tom is the vice-president for litigation at the National Association of Homebuilders. Tom joined the Homebuilders litigation department in 1999, and now oversees all their litigation efforts, where he develops legal strategies and provides litigation support to local homebuilders' associations. And one of his first cases that Tom worked on for NAHB was U.S. v. Deaton, where they argued that Deaton Wetland was not a "water of the United States."  And, in regard to that case, Tom says, 20 years later, he was proven to be right. So, look forward to hearing more about that.  We should have listened back then, Tom.

 

And, last but not least, we have Sam Sankar. He is the senior vice-president of programs at Earthjustice. And Sam leads the Earthjustice program leadership team, where he develops Earthjustice strategy for carrying out its mission through lobbying, litigation, regulatory advocacy, and communications. And Sam's been working on environmental issues for a long time. I know Sam from our days back at the Justice Department, where he served as appellate counsel, and he also became deputy chief counsel of the presidential commission formed to investigate the 2010 Deepwater Horizon oil spill. He also served at General Electric, among other things. So, he has an extensive background. And he also clerked for Sandra Day O'Connor on the Supreme Court. So, please give a warm welcome to our panel. And I'll turn it to Judge Griffith.

 

Hon. Thomas Griffith:  Thank you, Matt.  And thank you for all those who are here. Thanks for those who put this together. It was Matt's idea. Garrett did the leg work for it. And I want to thank The Federalist Society for sponsoring this. I congratulate them for the work that they do putting together diverse panels on current topics, to see people reason with one another and disagree with one another and do so in a respectful and civil manner. And I think that's what you're about to experience.

 

      I'm going to give a bit of an introduction, for those of you who may not be aware of what the Sackett case is about. But I'll be very, very brief.  And when I finish with that, we'll turn it over to members of the panel who we've agreed upon an order ahead of time. And my primary role today is going to be, I have a smartphone. And on the smartphone it has a function of a stopwatch, and I will set it at five minutes for each. And I will be more like Chief Justice Rehnquist than I will Chief Justice Roberts, although I admire both. And I will cut you off mid-sentence, so we'll keep it to five minutes.

 

      Following that, we'll have a discussion among and between the panelists. And then, we're going to leave time at the end for questions from the audience. But first, let me set the table by a brief discussion of the Sackett case. So, since Congress passed the Clean Water Act in 1972, the federal courts have struggled to define its scope. The act makes it illegal to discharge pollutants into navigable waters, which are defined as "the waters of the United States, including the territorial seas."

 

      In 1977, Congress included some wetlands within the reach of the act. And courts have had a difficult time determining what that amendment means. And that's what the Sackett case is about. In 2006, in Rapanos v. United States, no majority of the Supreme Court could decide on a test to determine what wetlands were covered. In a plurality opinion authored by Justice Scalia, four justices argued that the act covers wetlands with "a continuous surface connection" to a body of water that is part of the waters of the US.

 

      But, in a solo opinion, Justice Anthony Kennedy argued that the act covers wetlands that have "a significant nexus" with navigable waters, whether or not they were physically connected. Which brings us to the case we'll discuss today, Sackett v. EPA. In 2004, the EPA ordered Michael and Chantell Sackett to stop backfilling property on which they planned to build their home. According to the EPA, the Sackett's property was wetlands, covered by the act because it was "adjacent to" a ditch that fed into a creek that fed into a large lake. The EPA threatened the Sacketts with fines of $40,000 a day if they did not take immediate steps to restore the wetlands on their property.

 

      Well, just a couple of weeks ago, on May 25^th of this year, a unanimous Supreme Court agreed that the EPA had overreached, and that the act does not cover the Sackett's property. All of them rejected Justice Kennedy's "significant nexus" test. But they didn't all agree on what should replace it. Writing for a majority of five justices that included the chief justice, Justices Thomas, Gorsuch, Barrett and himself, Justice Alito adopted "the continuous surface connection test." You'll be hearing more about that from our panelists. And he adopted that from the plurality opinion written by Justice Scalia in Rapanos.

 

      Writing for four justices, including Justices Sotomayor, Kagan, and Jackson, Justice Kavanaugh declined to join the majority's "surface connection" test, and instead read the act to cover wetlands contiguous to or bordering covered waters, or separated from them only by a man-made dike or barrier, natural river berm, beach dune, or the like. In the concurrence joined by Justices Sotomayor and Jackson, Justice Kagan admonishes the majority to, in her words, "stick to the text," and reiterates many of the criticisms that she leveled last term in West Virginia v. EPA.

 

She argues that, in this case, the Court has yet again substituted its own ideas about policymaking for those of Congress. "The Court will not allow the Clean Water Act to work as Congress instructed," Justice Kagan argues. "The Court, rather than Congress," she says, "will decide how much regulation is too much." That gives you a quick overview of the different opinions in the Sackett case. But it's important to remember that Sackett is a statutory interpretation case. The Court's decision puts the ball back in Congress's court. 

 

Now, many people are observing, Congress doesn’t play much. Maybe Congress plays too much and doesn't get real work done. But, if Congress wishes the EPA to have the power to regulate property like the Sackett's, it can amend the Clean Water Act. It's not the end of the dispute. That said, such an amendment would still face legal hurdles in the future. And I'll just mention one, perhaps a couple. Justice Alito writes that "Congress must use exceedingly clear language when it wishes to significantly alter the balance between federal and state power, and when the government is exercising power over private property."

 

I'm certain that some of our panelists will discuss what Justice Alito meant by that, and what it might signal. Furthermore, Justice Thomas, in his concurring opinion, which was joined only by Justice Gorsuch, wrote that "Congress has the power to regulate only waters that can be used as highways for interstate of foreign commerce, and can do that only for the purpose of removing obstructions to their navigability." I'm not certain we'll get to that. But I'd be interested to hear any of the panelists' view of that interesting approach by Justice Thomas.

 

So, I look forward to the panel's discussion. By agreement, we'll hear from the members of the panel as follows: we'll start with Tom Ward, then we'll go to Professor Buzbee, then we'll go to Deidre.  And then, Sam will have the last word of the timed portion. And, following those remarks, we'll leave it for the panel to have a discussion amongst themselves, and, finally, turn it over to the audience.  So, with that --

 

Tom Ward:  You start the timer?

     

Hon. Thomas Griffith:  I start the timer.  Go right ahead. 

 

Tom Ward:  Okay. Actually, I'm going to pick up on the private property part that you mentioned. So, my members are homebuilders. So, what do they do? They take raw land, and they develop it, and they build homes on it. So, they are private property owners. We like to say, as home builders, we get more permits than anyone. We get permits for stormwater. So anytime we do anything over an acre project, we have to get a stormwater permit under 402 of the Act. And, of course, if we've got jurisdictional waters, we have to get permits under 404.

 

      So, our members get permits for almost every project. Every little, tiny ten-house project that you see that's over an acre, they're getting a Clean Water Act permit for it. They usually get it from the state, but it's a Clean Water Act permit. So, the permit process is huge for our members. It's very expensive. We've got to hire consultants to figure out, is this water body covered by the Clean Water Act? If it is, we've got to get a permit, and we’ve got to do mitigation. And we get to pay for all that.

 

      It's also time-consuming. And so, a homebuilding project, any kind of big project like that, they take loans. They take what we call AD&C loans. And they have interest. So, when the Corps says, "Oh, I'll get around to that eight months from now," that's a lot of interest payments that our members have to pay. So, it's time-consuming. It's expensive. So, the permit process is a big deal. So why do we care about this? Well, obviously, if less property is covered by the Clean Water Act, we have to get less permits, and there's less time, and there's less mitigation.

 

      So, I know we're on a timeframe, so I'm going to be quick.  So, what did we get out of the Sackett case, the way we see it? Three things. So, for a wetland to be jurisdictional, it has to have a continuous surface-water connection to a water that's otherwise a "water of the United States." Continuous surface connection, it's got to be right next to it. "Indistinguishable," I believe, is what Alito, the term he used. That clarifies a lot for our members, a lot of clarification right there.

 

      Then, what's a "water of the United States"? It has to be relatively permanent. Three months? Probably not enough. Six months? Maybe it is. I don't know. That's one we're still going to argue about after this case. It's got to be relatively permanent, and it's got to be connected to a traditional navigable water. So, again, I think there are certain things that are apt. Ephemeral streams, streams that only run when it rains, the Corps would always regulate. Like, Arizona. They've got these little rivulets that come off the side of hills and stuff. And there's only ever water in it if it rains. But the Corps would regulate those as "water of the United States," just huge amounts of property. I think that's out. I think that's pretty clear, at this point.

 

      And then, finally, traditional navigable waters. And we might be the only ones saying this, but we think that the Court has narrowed the definition of "a traditional navigable water." In all the other cases, they never defined the term "traditional navigable water." The court used it. It created it. But it never defined it. It cited to things. But it never really defined it. But Alito, in his opinion, gives a definition of "a traditional navigable water." And he says "It's an interstate water that is used for commerce or can be used for commerce."  He calls it "an interstate water."

 

And that's a big deal, because the EPA would say, "No, it doesn't have to be interstate, as long as it's used for commerce." So, they would argue if I've got a lake in the middle of a state, and I drive a truck to it, it's got goods on it, and I move the goods across the lake, and I take another truck, and I go out of state, well, that water body, they would say, is "a traditional navigable water." But I don't think Alito reads it that way. He said it's "an interstate water." So, how can an intrastate water, that's only in one state, be "an interstate water"?

 

So, we are going to be arguing. I don't know that it makes a huge difference, jurisdiction-wise. But I think he did narrow the definition. He clarified it, which they had never done before. So, at that point, I think I'm probably pretty close.

 

Hon. Thomas Griffith:  You're under.

 

Tom Ward:  All right.

 

Hon. Thomas Griffith:  You've got 22 seconds.  Anyway, thank you very much.

 

Prof. William W. Buzbee:  Can you give me your time?

 

Tom Ward:  Yes, yes.  I will cede my time.

 

Hon. Thomas Griffith:  We'll turn to the professor, Mr. Buzbee.

 

Prof. William W. Buzbee:  So, first, thanks to Garrett, who did the lion's share of organizing this, and the firm here, and The Federalist Society, for organizing this. So, I'll offer a brief critique. The judge did a great job in describing the case, although, in a few places, I disagree a little bit, in ways that maybe do matter. The bottom line is -- and I should say, it counts against my time, but I've worked a lot on waters issues. So, I filed a brief in this Supreme Court case for 167 members of Congress in support of EPA's longstanding jurisdiction, and in the Rapanos case, a bipartisan brief for former EPA administrators, and testified in Congress on that stuff.

 

      So, I've been living with this a lot. So, this is a big case. There's no doubt.  And it's a big case with a lot of changes in the law that it achieves. And so, I'll -- first just a few minutes on how disruptive the case is. Then, I'm going to kind of offer some critique. So, first, the case doesn’t say it, but it is overruling at least three major points of law that exist in previous cases, maybe a fourth, if you're right about the interstate issue. So, first, in Riverside Bayview Homes, back in the 1980s, the Supreme Court unanimously protected adjacent wetlands, and said that this was an area where ecological judgements — the line between water and land — had to be left to regulators, and courts needed to defer.

 

So, it was both protecting wetlands, saying it was a science-based judgment, and it was to be made by agencies. All of those fundamental aspects of that case are largely jettisoned by Sackett. The Rapanos case that the judge mentioned, he referred to Justice Kennedy's opinion. So, there was no majority opinion. There were majority views on the Court. That's where I disagree. So, Justice Scalia wrote what's called the plurality opinion, that now is largely adopted in Sackett. And that never commanded a majority in support, in its limiting language.

 

But importantly, there were four dissenters who said, "Well, we would protect the waters Scalia would protect." And, importantly, they also said, "And we would protect the waters Justice Kennedy protects under the 'significant nexus test,'' meaning there was a five and eight justice majority about what was protected, so, two majorities. And then there was, further, a five-justice majority rejecting Justice Scalia's plurality opinion's limiting language. So, there were actually three different majority alignments in the Rapanos case. And that's just not my view. That was the view of EPA, DOJ, the Army Corp, and every court that assessed it after the case came down.

 

And so, that's where the law was understood to stand, prior to this. And that, too.  The Supreme Court calls it the opinion of a single justice, and then builds the opinion based on Justice Scalia. And that's just -- the Supreme Court can do that, but it isn't an accurate description of where the law stood. Now, also, as far as disruption, the Supreme Court didn't talk much in the majority opinion -- 45 years of Republican and Democratic administrations had consistently protected waters based largely on a water quality-based assessment of water features like wetlands, and what they functionally did.  And, also, similarly all had to be -- oh, I'm sorry I didn't turn this on. My bad. 

 

Hon. Thomas Griffith:  You get to restart your time.

 

Prof. William W. Buzbee:  So, start it again?  Anyone viewing it, sorry out there.  But also, 45 years of administrations had agreed that human barriers and other things like berms that can build up and go away did not destroy jurisdiction.  And this is based both on a very strong statutory argument, but, also, the criteria for the statute.  That too is largely rejected in Sackett. So, this is a big disruptive decision that changes a lot, and very substantially cuts back on waters protections.  Sam's going to probably talk about that more.

 

      So, is it a sound case?  Now, in my remaining 40 seconds, I'll tell you ways in which it's not. It's fundamentally unsound. Why? Words and statutes must be read and understood in their context, based on their surroundings, looking at other nearby provision's use of language. You need to look at the overall statutory scheme. You need to think about the statutory design. You need to make sure a statutory read can sensibly be encompassed within the regulatory program. You need to pay attention to statutory objects, which, in turn, drive different implementation strategies. You need to attend to regulatory structure. You can't transform programs and render them unworkable. You can't come up with calamitous consequences. 

 

      Now, just -- I know you're thinking "This crazy liberal professor. What's he saying?" Those are all Justice Scalia opinions. That's completely Justice Scalia's view of how you read statutes. And the reason you do that is you have to be careful of judges pursuing their policy preferences by ignoring what statutes actually do. And so, I'll stop there.

 

Hon. Thomas Griffith:  Thank you very much.

 

Prof. William W. Buzbee:  Thank you.

 

Hon. Thomas Griffith:  Thank you, counsel.  Deidre.

 

Deidre Duncan:  Okay, I'm going to pick up on a little bit of what each of the folks ahead of me talked about. But I also am interested in some of this discussion on what Professor Buzbee just said. So, the issue of how to define "the waters of the United States" is an issue near and dear to my heart. I've worked on it since I was an attorney at the Army, in the Army General Counsel's Office, where I was until 1996. At that time, the agencies -- and I'm going to kind of go back in time a bit from the judge's rendition of the history here, because it really does go back even further in time.

 

      In 1996, the agencies were employing the so-called migratory bird rule, to establish jurisdiction under the Clean Water Act. This really wasn't a science-based rule. But we can also disagree, potentially, about that. But the rule worked, essentially, by finding that anywhere a migratory bird could land, that water was subject to federal jurisdiction. In January of 2001, I started here at Hunton a few days after the Supreme Court decided the SWANCC decision. SWANCC definitively rejected the assertion of jurisdiction over isolated waters based upon the migratory bird rule and reminded the agencies of the use of the term "navigable."

 

      And this term in the statute is exceedingly important. People have tried to get it removed, and that term remains in the statute. So, after the SWANCC decision, as a young associate here, I watched, over the next five years, how the government took a decision that they had lost, and that had established limits on their authority, and then turned it into this great expanse of power. The theory at that time was the "any hydrological connection" theory of jurisdiction. It went something like this: SWANCC only addressed isolated waters. So anything that is not isolated, or is connected in any way, can be regulated.

 

      This was the theory at issue in the Deaton case that Tom talked about, and ultimately formed the basis of the next Supreme Court case, Rapanos.  And, actually, I'll just say I disagree with Professor Buzbee that there was actually another opinion that commanded five justices in the Rapanos decision. Both Kennedy and the plurality opinion rejected what the government was arguing before the Rapanos court: the "any hydrological connection" theory.

 

Unfortunately, they couldn't agree on what the standard should be, and Rapanos was issued in 2006. I always remember this date, because my son, Andrew was born the month after Rapanos, and he's going to be 17 years old next month. So, during those 17 years, the government, as they had done with SWANCC, deliberately looked for ways to maintain, and sometimes even increase, jurisdiction. Taking the view that they could apply dissenting justices' opinions in Rapanos to get a holding only made a complicated decision even more impenetrable. 

 

Also frustrating was that it took over a year to get guidance. And then they revised the guidance again, over a year later. And then, of course, we've also had three rules, issued by three different administrations, over those 17 years. During those 17 years, the "significant nexus" standard was employed, like the migratory bird rule, and "any hydrological connection" theory before it, to establish broad jurisdiction. Enter the Sackett decision. This court, I think, recognized that the issue had been percolating too long.

 

All the justices — liberal, conservative — rejected the government's reliance on Justice Kennedy's "significant nexus" standard. Ultimately, I think the majority recognized they needed to provide the public, the agencies, everyone, clear direction, and so they adopted the pluralities approach from Rapanos. So that's where we are today. I think the opinion is pretty clear, for a Supreme Court decision. The issue is really, based on the agency's track record, when are we going to see them implement it? And will they implement it fairly?

 

Hon. Thomas Griffith:  Okay. Thank you very much. Sam, you get the last word in this round.

 

Sambhav Sankar:  In theory, I have the last word. And that actually means that I have to figure out what to say, because so many of you have said already so many smart things about it. So I think the lineup is an interesting one. As we see, nobody adopted the position of the liberals from the Rapanos case. I think I know why, though. And that is because the Court was desperate to have a single rule. And I think that Justice Kagan, who is a canny player on this, was trying to help Justice Kavanagh drag a fifth vote over and recognized that writing a different test was not going to be attractive to those who wanted to actually create a majority.

 

      I disagree that there was a majority for this opinion. Justice Thomas' test is radically different. His test, if you read the test of the majority, it says, "A party asserting jurisdiction over adjacent wetlands has to establish that the adjacent water body is a relatively permanent water body connected to traditional interstate navigable waters." That is not what Justice Thomas thinks. He thinks a much narrower set of things applies.

 

      So, it's actually a test that only three justices believe in, and two justices are willing to go along with. It's not much different than Rapanos in that respect, in the sense that if Justice Thomas got some more votes, his would be the test, and it would be much more -- much more aggressive. As I said, I think Justice Kagan went along with an opinion, and the liberals went along with an opinion Justice Kavanaugh wrote, in an attempt to kind of get something out of it. I think that the test is, itself, pretty unclear.

 

We don't know what a "relatively permanent water body" is. We don't know what "connected to traditional interstate navigable waters" is, and this idea that the wetland has to have both a continuous surface connection and the difficult to determine where the water ends and the wetlands begin, as the scientists brief in the case shows, the scientists will tell you, "We absolutely can tell you where the water ends.  And it usually ends where the wetlands begin." And that means, no wetlands — if you take this argument — are connected.

 

So, from their perspective, it's a very, very aggressive test. And that brings me to another point. Nowhere in this opinion did the Court really talk about what the impact of the decision would be. That's clearly not the way the Court wanted to think about it. And the best assessment we have right now, the Court doesn't know what its test does.  Nobody's really analyzed what it means. There's over 100 million acres of wetlands in the continental U.S. And, right now, we just don’t know, and neither does the Court, nor does EPA, nor does anyone.

 

So we had a judicial opinion on this issue that absolutely, as Professor Buzbee said, really didn't have any scientific underpinnings at all. It was a pretty big decision on national environmental policy, fundamentally, that was not driven by science at all. On the statutory interpretation thing, I think the fact that Justice Kavanaugh walked off on this and said, "I'm not with this. This isn’t the way I read the statute," is telling. The exceedingly clear statement rule is Justice Alito's solution to, I think, what he recognized was a pretty difficult textual fight to fight. And that's an interesting piece of this.

 

For those who are actually watching the Supreme Court, I encourage you to look at the citations that Justice Alito uses for that. He cites a case called Cowpasture — it's a couple years old — by Justice Thomas. This is the statement that says you need an exceedingly clear statement in order to affect private property in an area of traditional federal, state, whatever. None of the cases, except for the Cowpasture case, which is just a couple of years old, actually talk about private property. Gregory v. Ashcroft, Bond v. United States -- these aren't property cases.

 

From my viewpoint, this is a fabricated rule that has been created, much like the major questions doctrine, with a deregulatory intent. What's interesting is that I think Justice Thomas is plain about what he's saying. He's like "Hey, I want to go back. I want to unroll the New Deal." I mean, he says it in so many words. "I don't believe in anything that's happened since 1945. I don't believe in that." He grounds it in originalism. But it's clear that nobody agrees what the originalist understanding is, in this point, and that's common.

 

We’ve seen that happen a lot. At the end of the day, the majority makes a decision that it doesn't want to go as far as Justice Thomas does. Why not? Unclear. Why do they not believe in those things? It seems to me to be a policy judgment. It seems to be their determination that going all the way to navigable waters is too much. But why? My view is they thought it was too much, which is kind of ridiculous. So, the whole point of originalist understanding and adherence to textualism is to say, "We don't want to leave it up to the judges." And yet, it appears to be up to the judges.  As Justice Kagan pointed out, "you're making this up. You're deciding where this goes."

 

Final point is that Congress has let this stand for a long, long time. The National Association of Homebuilders lobbied like heck for this, and couldn't get it for a long, long time, even though they had the Trump administration, even though they had Congress during the Trump administration, they couldn't get this. The Court did what Congress would not.

 

Hon. Thomas Griffith:  Thank you very much. Thank you to all of you for staying within your time and for giving us good material to discuss. Let's first turn to the panel. Should we just go with the same order? Tom, is there anything in particular that you'd like to respond to?

 

Tom Ward:  I'd like to respond to the fact that we have been arguing for this decision for 40 years. Got to be honest, this decision goes further than we had argued for, to be completely honest. I mean, this is narrower than probably even we would have argued for. But it is the clarity that we have been looking for for so long. And, again, I admit, there are clearly things in here we're still going to be arguing over what they mean.

 

But there's no way the Court could possibly write something that covers every single water body and every single situation that you could ever figure out. I mean, there's always going to be these areas that you've got to argue over. But I do agree with Deidre that it's clear, that we have a pretty clear opinion, as far as these things go.

 

Hon. Thomas Griffith:  Professor, would you like to --

 

Prof. William W. Buzbee:  So, I guess I'd say that there's another, just, interesting aspect to the opinion that I think Sam alluded to, that I just wanted to draw everyone's attention to, which is interesting. This case, like West Virginia v. EPA, the big blockbuster Clean Air Act case of the major questions doctrine last summer, is based very much on this tale of massive consequences. So, I think the two words, which are, if you did a word cloud, "crushing" and "staggering," Justice Alito kept referring, and then, synonyms for that, and then, also, a lot of references to how difficult the permit process is. 

 

And so, then the question is, "Okay, so show us the facts." In other words, the traditional world in which Judge Griffith worked for years is if you're reviewing an agency's action, both the agency and the courts are confined to the record and the facts and show us if there's hardship. Show us the record. What are the costs? What are the benefits of the action? This opinion does not cite at all to a regulatory record. It's entirely based on -- if you look, when it alludes to various hardships, it's based on just words, very frequently to other judicial opinions that talk about words, about hardship and burdens. But, in any event, it's an unusual case.

 

And so, an aspect of these cases is if consequences matter, and if that's what drive it — and I think, clearly, this is a claim of massive consequences needing judicial rectification — then the question is, where is the assessment of the consequences that the Clean Water Act cares about, namely water quality? And the Court explicitly says "We can't look at consequences, because ecological consequences are not what the jurisdictional provision is about.

 

So, the Court does not pay any attention to what the statute says. And so, there's an asymmetry of a focus on cost consequences, untethered to the law, and untethered to a record, and then, inattention to the factors that the Clean Water Act says matter. And so, as an administrative law decision, it's quite unusual.

 

Hon. Thomas Griffith:  Deidre, anything you want to add?

 

Deidre Duncan:  I have a lot to add.

 

Hon. Thomas Griffith:  Okay, go ahead.  Go.

 

Deidre Duncan:  Yeah, I guess I'd first like to deal with the clear statement issue and that somehow this was, like, made up, as it relates to property rights, because I think SWANCC — and I pulled it out from my little pile back here — "When an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result. The concern is heightened where the administrative interpretation alters the federal state framework by permitting federal encroachment on traditional state power." Land use -- land and water use.

 

So, I mean, that was like a bedrock within SWANCC. And so it's not like this was somehow invented in the West Virginia case. And it certainly wasn't invented in the context of borders of the United States in Sackett. So that's one point. The second thing I guess I would just like to talk about are the massive consequences, which, I haven't read all the briefs that were filed, but I am pretty sure that a lot of the industry and folks who have to operate under the Clean Water Act filed briefs explaining the consequences that occur. And Tom mentioned some of them.

 

But we have clients who have simply gone out and turned dirt and have been put through the wringer for years. And, actually, the Sacketts are probably the best example of that. These poor homeowners who go and try and buy a lot and build a house, and it's been years -- years, to get to a decision. And that wasn't a criminal case. But, certainly, the statute does carry criminal and civil penalties. And so, I think the consequences are really having to do with clarity.

 

And that's something that we, in the kind of regulated public, have always wanted, is some clarity from the agencies about what is in and what is out. And they've been given, time and time again, the opportunity to issue rules that provide clarity. And instead, oftentimes, they've adopted these broad amorphous standards that don't provide the public clarity. And, with that ambiguity, comes massive consequences. So, I'll just stop there.

 

Sambhav Sankar:  Do I have a time limit this time?

 

Hon. Thomas Griffith:  No, no time limit.

 

Sambhav Sankar:  Oh, wow.

 

Hon. Thomas Griffith:  It's hands-off, yeah.

 

Sambhav Sankar:  Well, you guys can go home.

 

Hon. Thomas Griffith:  A filibuster.

 

Sambhav Sankar:  Yeah, exactly. If that material was in the record, it's a sloppy opinion for not citing it. I think that's -- I mean, I wouldn't write a brief that's made an assertion where I had data, and I didn't put it in there. I don't think it's there. I worked at the Justice Department for years. And if somebody had brought a case to prosecute the Sacketts for this, I would have laughed them out of the office. I would have said "You've got nothing. Where's the intent?" Oh, wait, actually, they did own an excavation company. They did buy the property immediately after Rapanos.

 

So, I don't think holding the Sacketts up as innocent people who were subject to criminal liability is probably -- I was surprised that this was the vehicle. Remember, Michael Sacket was convicted shortly after, and sent to prison for a while for soliciting a twelve-year-old. These are not characters who I would identify as the most sympathetic folks on this kind of thing. That said, they won. There's no question about it. So, what are the impacts of this?

 

If you look at the state landscape, which is where I think a lot of this shifts now, about half the states out there -- this is just based on an informal analysis. I always love plugging our friends at the Environmental Law Institute. They wrote an article a couple years ago — this is not based on independent research — by James McElfish, if anybody knows him. There's a good article in there that talks about the status of the state regulatory regimes.

 

About half the states use the Section 401 definitions, the WOTUS definitions, for their state programs. So, in those states, things are very much in flux. About seven states have gap-filling provisions of their own that go a little further. So they have to figure out what their own statutes now mean. And a third group, about 19, have their own permitting systems that go beyond what the federal definition is. So there, we're going to see that's where a lot of action is going to be.

 

Do the states have the ability to actually do this? Politics is messy these days. I'd be lying if I said there was a high probability of an immediate change from Congress. On the other hand, I was looking at the Times this morning, and if you look at the 5-4 decisions of the recent Supreme Court and public support for them, this is a shocking outlier. This is actually one of the ones in which they're most out of step with public opinion.

 

The question the Times asked to poll it was, "The Clean Water Act is a federal law that prohibits the discharge of pollutants into navigable waters. Some people think this should be read broadly to include things like wetlands. Others think it should be read narrowly, to include only things like streams, rivers and lakes." Now that's a complicated question, or a question that could be read in different ways. But two-thirds of republicans said, "Read it broadly." And you can guess what the other numbers were like. But, overall, it was three quarters of the country said, "Read it broadly." 

 

So, I think, when we poll these things, in all the protections, water protection beats out climate change every time. This is the thing that most people care most about, is water protection, because it goes to drinking water. It goes to the fish that they catch. It goes to the things that they swim in. It's very personal. So, if the majority, if Justice Thomas' position is Priest Lake is no longer covered, I suspect a lot of landowners around Priest Lake are going to be surprised when, all of a sudden, sewer outfalls and whatever else go into there. And, again, it's not clear why the majority's professed allegiance to originalism doesn't lead them there. And, again, I think that's a policy decision that they have made. And I don't think that's what they're supposed to be doing.

 

Hon. Thomas Griffith:  Let me exercise my prerogative and raise a question, point out something. This was 9-0, right? 9-0 that the EPA had overreached. What does that tell us about --?

 

Sambhav Sankar:  As I said, I think this was strategic. I think if you're in the three-justice minority, you do what you can to assemble a majority opinion. And I think they recognize that another fractured opinion was not going to attract any attention, and they were better off standing with Justice Kavanaugh to peel off a fifth.

 

Hon. Thomas Griffith:  And that may very well be. Does Occam's razor tell us there might be another explanation? And that is there was a wide view that EPA overreached here, for the reasons that Tom and Deidre were saying: that somehow the Court recognized, or believed, that this was just too far, that it was too far. Wetlands next to a ditch, next to a creek, next to a -- it's just too far. How do you respond to that? Is that --?

 

Sambhav Sankar:  I find myself on the center of this panel, I think.  So, I'd want to let Professor Buzbee --

 

Hon. Thomas Griffith:  Well, let me start with this. Do you agree with the nine that, on these facts, that this was an unlawful overreach by the EPA? Professor Buzbee, do you have a --

 

Prof. William W. Buzbee:  Actually, I recommend people should look at it. You can go into SCOTUSblog.  Look at the United States brief, which, at the back, has a series, like, three pages or four pages of pictures of the site.  This was a very wet cite in a mapped wetland that, but for a highway, would have directly connected to something that flows straight into the river, and, but for houses, was also directly connecting to the lake. So, I think, one of the revolutions of -- so why did this happen? I find it puzzling why there wasn't a remand to apply it, in this.

 

Sambhav Sankar:  Yeah.

 

Prof. William W. Buzbee:  And so I think there was something strategic going on, and maybe an attempt to peel off votes. Usually, though, the justices change the opinions at the last second.

 

Prof. William W. Buzbee:  Right.

 

Prof. William W. Buzbee:  And so, they didn't. And so, I'm, frankly, puzzled by it. But I will say that there is another, just, big issue for people trying to figure it out, which ties into it, is that the Court granted cert just on wetlands. And so, the opinion, in some places, goes beyond wetlands. Nobody briefed, except in passing, the issue of these barriers, that is, where barriers, obstructions, sever jurisdiction. That was not part of the certified question. It was not briefed. No one brought in the record. How it was argued was just the assumption that it would be insane to protect waters where there is a road, or a row of houses. But that had been the uniform law, going back for almost 50 years.

 

Sambhav Sankar:  Including the Trump administration.

 

Prof. William W. Buzbee:  Right, including the Trump administration. And the Court, in the majority, went that route, and only says if an illegally built barrier severs jurisdiction, is jurisdiction protected. And it doesn't say what happens if they're legal, but clearly blocking a water. And so, I think that's going to be a very big question. America is a very urbanized environment.  There's very little to rivers and wetlands that remains uninterrupted in some way, so, levies, roads, houses, swales, people building other things. And then waters change with just storm events and the rest.

 

What happens if there is a barrier? Does that automatically sever jurisdiction? That's a big issue. And the Court doesn't say, "Definitely yes." It says, "Probably not, if illegal." But it leaves that question gone. But it definitely moves the law substantially towards saying, "No jurisdiction." But that wasn't part of the case.

 

Deidre Duncan:  Can I jump on that as well?  Oh, do you want to go?

 

Hon. Thomas Griffith:  It's fine. You go first.

 

Deidre Duncan:  I was surprised, at oral argument, to hear so much discussion about the definition of adjacency. I thought this was a "significant nexus" case. And there was hardly any conversation on "significant nexus." It was kind of just shoved to the side. And the discussion really focused on 404(g), where "adjacent wetlands" is referred to in the statute, and then the definition of "adjacent." And I asked my colleagues, "What happened?" Because the briefing was not in keeping with what the oral argument was focused on.

 

And my understanding is the government kind of shifted at the last minute — as they're wont to do in some of these proceedings where they think they may lose — to focus, really, more on the notion of these wetlands, in particular, being adjacent under their longstanding definition in their regulations. Because, of course, the statute does use the term "adjacent wetlands" in 404(g). And there is no mention of "significant nexus" in the statute. And so, it is somewhat unfulfilling.

 

I would agree with the Professor that it would have been nice to have more briefing on that issue, and, also, maybe more education to the justices, themselves, on what it is they were doing, what the implications are. We may have gotten better guidance from them, because they would have kind of had the benefit of more briefing on that issue. And so, I think what we're left to have is the agency go back to the drawing board, really.

 

And, just as a personal matter, I think there have been longstanding problems with that definition of "adjacent," which we have brought to their attention in many, many, many sets of comments over the years. Because the notion of something being in because it's neighboring is -- thankfully, they didn't go down the Kavanaugh road, because if they had adopted that approach, I fear that instead of the "any hydrological connection" test or the "significant nexus" standard, or the "migratory bird rule," we would have had the "neighboring rule," which would have just, again, put us back in the same position of going up again. Anyway, so, I'll stop.

 

Hon. Thomas Griffith:  Can I comment on what -- and this will take the form of a question. For someone who's not an expert in this area, the irony — and Professor Buzbee sort of led us to this by his long recitation of Justice Scalia's approach — the irony here that Justice Kagan seems to grab the high textualist ground here. We're at a Federalist Society event.  Most members of the Federalist Society are committed to textualism.

 

And yet, as one reads the opinions, that high ground here is seized by Justice Kagan and Justice Kavanaugh. Now, maybe that's just a rhetorical device she's using. But how do you respond to that? And it comes back to -- for those who haven't read it, she points out the statute says "adjacent." But her interpretation is that the majority has turned that into "adjoining" and has, therefore, amended the statute. So, how do you respond to that?

 

Tom Ward:  I don't think either Alito or Kagan or Kavanaugh really read 404(g), where they use the word "adjacent." The phrase is "traditional navigable waters, and wetlands adjacent thereto." So, I could make a textualist argument and say the only adjacent wetlands that are in are those that are next to traditional navigable waters. That is what the statute says.

 

And then, we get Alito with A and B, and minus C, and, you know, quadratic equations, and ay, ay, ay.  So, I look at both of them a little askew, and say, "You're a textualist. But you didn't really look at the text of the act and what it says." It says "wetlands adjacent to traditional navigable waters. But no one addresses why, all of a sudden, adjacent to anything is good enough. None of them address that.

 

Prof. William W. Buzbee:  I have a question for the panel. May I?

 

Hon. Thomas Griffith:  Oh, yes, absolutely.

 

Prof. William W. Buzbee:  So, the case is about wetlands. But it has big implications for at least a third of the United States, and, by population, probably more than half, namely, the entire West, Southwest, and much of California. So, in arid jurisdictions where water is most scarce, and most valuable, have those areas been written out of the Clean Water Act? So, they granted cert on wetlands. But then a lot of the language is broader. And, in several places, they seem to be -- I think a lot of the justices are from the East Coast. I think they have in mind an East Coaster's view of what waters look like.

 

And for people who live and who spend time in the West — if you're in Colorado or Arizona, Utah, parts of Texas — the most important water features, they perform their function, sometimes, for days of the year. And if you allow people to dump pollution in, it would be immensely destructive to drinking water supply, to recreational uses, to agricultural uses, it will be health concerns. And the question is, did the Supreme Court, I don't know, intentionally, unintentionally -- what's the effect on the West and Southwest?

 

Deidre Duncan:    Well, I'll jump in and say I don't think they were looking at -- they were looking at the statute, and trying to -- I would say, and I could talk about why I think Justice Alito actually spends the most time analyzing the statutory text and is probably truer to the statutory text than any of the others. But, with respect to, like, the desert Southwest, we actually have lots of clients in the desert Southwest.

 

And when you talk to them about the desert washes out there the way Tom was describing them, that they run off the mountains only when it rains, and only during big rains, all of that is managed through flood control -- flood control and other types of state and local laws. It's not a Clean Water Act issue, per se. It's not a state wetland. They don't have wetlands out there, very many.

 

So it's more of a flood-control function. And I guess that's what I would say about the state laws. Because it is true that attention is now going to turn to the states. And our country is a very diverse country with very diverse geography, very diverse laws. And I think they deal with it in different ways.  And just because a state doesn't have a 404 wetlands program doesn't mean that the resources themselves are going to go unprotected.

 

Tom Ward:  I can add to that. I know, in Arizona, the way they're protecting them, at least, from our industry, is they've enhanced what we call the BMPs, the best management practices that you have to do on site, around those things. So, call them whatever you want. But you, as a developer, have to do more things on site to keep the sediment out of those. So that's the way they've handled it in Arizona.

 

Sambhav Sankar:  You know, it seems to me that one of the things that the folks on the development side of this conversation are pointing out is clarity in the rule. "We want clarity in the rule." And it's interesting, because courts are sometimes good at providing clarity, but not necessarily good at providing educated clarity. And there are instances in which they've recognized that.

 

So, a couple of years ago, Earthjustice argued a case, The Sierra Club et al v. Maui County — Surfriders, I think, actually — and we represented a coalition of clients, that's why I don't remember precisely which one was on the caption — in a case where a wastewater treatment plant was injecting its effluent into the ground, and that water was reaching the ocean nearby. And it was no question that it was not going to surface waters, that it wasn't directly going into a navigable water, and there was some debate about it.

 

And the case went to the Supreme Court. Again, a conservative legal group took up the case. Again, we had a lot of the same lineups of who was arguing which side of it. And many observers predicted that would be a case in which the Clean Water Act -- but actually, it went quite the other way. And what Breyer wrote in the opinion -- you can guess what a Justice Breyer opinion looks like.  In that case, it actually looks a lot like a Justice O'Connor opinion looked like. "Hey, there's a lot to consider here. This is complicated. This is really -- wow, this is kind of beyond us. Here are some things the agency ought to consider. We might have taken this case, looking for a clean rule."

 

And all the parties were offering clean rules. The Trump administration was in charge of the Justice Department, and they said groundwater is absolutely out. Once it touches ground water, it's done. And, actually, the Court said, "Whoa." And you could tell, at argument, that they were like, "Oh, my God. We have no idea where this goes, exactly." And that same reasoning, and that same approach, I think, would have led you to a different result in this case. You would have said, "Whoa, we're getting in deep here, in an issue that's deeply scientific. And we don't know what the implications of this will be."

 

I think, in this case, they said "We want to give clarity. We don't know what the consequences are, but clarity is the goal here." And that, I think, is not what you see in the Clean Water Act, which was intentionally giving this to science. And if the agency wasn't clear, that's a point about clarity, or a point about the way the agency should be writing a rule. And you deal with that in individual cases. You don't necessarily say, "We're changing the entire definition of the statute to solve this clarity problem."

 

Hon. Thomas Griffith:  Okay, let's see.  Let's turn it over to you all. Questions from the audience that you have for members of the panel.

 

Questioner 1:  I'll make a point and then ask a question. [Inaudible 00:56:44] microphone throughout the room, you've got a couple these here. You just need to pick it up and press the button, and that will get you started, or it should. And now, a question. I'll ask a question. It's a more forward-looking discussion. What might EPA's new rule, which was issued before the case, before the decision dropped in Sackett, what might happen to that? What might the agency do, moving forward?

 

Tom Ward:  I'll go first. I don't see how that rule can survive after this. I know they have a section in the rule about severability. But this rule, and this opinion, I don't know. It could end up severing all of it. So, I don't really see how this rule can survive. I think what happens now, we wait for guidance from the agencies. Last time we waited a year from Rapanos.

 

Our association, and, I think, like-minded associations, are not going to put up with waiting a year. We want some kind of answer, so that permits and determinations can move forward. But, as for the rule, it's got to go. Like I said, I may be the only one arguing that they've changed the definition of TNW's, or traditional navigable waters. But that's the basis of the rule, so I don't know how you can sever anything from that.

 

Questioner 1:  Thank you.

 

Hon. Thomas Griffith:  Other questions?  Go ahead.

 

Questioner 2:  Hi, Susan [inaudible 00:58:21]. I actually wanted to tee off a few things Professor Buzbee said. One was the whole argument about originalism, and what did the Clean Water Act originally mean, in terms of water quality. Obviously, all the regulatory provisions of the Clean Water Act are all about protecting water quality. But it’s the quality of the water of the U.S. It doesn't answer the question of what's a “water of the U.S.”? And I think it's really interesting -- and, again, this is not dispositive legislative history, but it's really interesting that the environment and public works staff who wrote the 72 amendments for the Senate, and negotiated with the House, were actually thrilled by Justice Scalia's opinion in Rapanos.

 

This is Thomas Jorling, who worked for the Republicans, and Leon Billings, who was Muskie's staffer. They said it went further than they had ever dreamed. Because, of course, the definition was a last-minute punt. The House and Senate had different definitions. And they punted because they knew that President Nixon was going to veto the 1972 amendments over the funding provisions, and they had to get it out in time to do a veto, overturn both before they go to Congress.

 

Hon. Thomas Griffith:  Could you explain that a little bit more when you say it was a punt?  What was a punt? The definition?

 

Questioner 2:  At the end of the day, they defined navigable waters as "waters of the United States" --

 

Hon. Thomas Griffith:  I see.

 

Questioner 2:  -- and didn't have any idea what it meant.

 

Hon. Thomas Griffith:  I see.

 

Questioner 2:  -- and, according to the staff, simply left it to the courts. And, according to the republican and democrat staff lead counsel in the Senate, Scalia's opinion went far beyond — they were thrilled — what they had even imagined, in 1972. So, one point. Second point, Professor Buzbee, you point out accurately that the Court granted cert on the issue of what is an "adjacent wetland," adjacent to a "waters of the United States."

 

And then, if you go through the whole opinion — Justice Alito's opinion — at the end it says what is adjacent to a water of the United States is the holding.  In the middle, of course, there's language about adopting and quoting the Scalia test. Is that the holding, or is that dicta?  Is this case about tributaries? Or is it about wetlands that are otherwise adjacent to what might otherwise be a "water of the United States?"  Is that question closed?

 

Prof. William W. Buzbee:  So, I'm not sure. The bottom line is, you're correct, which is, as I've looked at the case and tried to -- on the second point first. So, the middle discussion the Court re-states the Scalia-Rapanos plurality limiting language, and, basically, kind of endorses it, but doesn't fully apply it. And then, you're correct, later on it kind of returns more to Sackett and applies it. 

 

So, I think there is a question that is left. I think, clearly, I think everyone will try to figure that out. Is it endorsing the Scalia test as overlayed on the facts and the certified question in the case? Or is it endorsing the test and applying it to all waters of all types? Those are very different answers, right? That one would foreclose a lot, and one would leave a lot open to debate.

 

Questioner 2:  And the only answer we have is that, because the United States chose to argue "significant nexus" to the ditch and not to Priest Lake, we know that the ditch is not a "water of the United States, nor is the, I guess, unnamed tributary going down to the lake, because we have all nine justices agreeing that there was overreach.

 

Prof. William W. Buzbee:  Yeah.  Frankly, I wish they had remanded, so we'd know what they thought was so clear about this land, because all I can say is, look at the pictures at the back. I was at one hearing where Senator Inhofe held up a big thing of a piece of dry land and said, "Is this a water?" You'd look at these pictures, you'd go, "Oh, yeah. This is water."

 

Sambhav Sankar:  Yeah. You would argue that this is adjacent to it, at least, you're saying.

 

Prof. William W. Buzbee:  Yeah, if not a water --

 

Questioner 2:  It depends on what you mean by "adjacent," which is an issue that they took cert on.

 

Prof. William W. Buzbee:  But the only thing is -- and Susan, you wrote an article about waters issues, right?  And so, there's, like, three or four really good historical articles that try to trace waters understandings. One you wrote. And I don't agree with it all, but a lot of it's really good material. And then, there was one by William Sapp and McElfish.

 

Deidre Duncan:  He's cited throughout.

 

Prof. William W. Buzbee:  And so, there are a bunch of good articles, people looking for historical -- the only thing I'd add is the '72 understanding, I think, is less important than the Clean Water Act, as amended in '77. And so, the question is --

 

Questioner 2:  Now amending the definition of "waters of the United States."

 

Prof. William W. Buzbee:  And the reason I say that is, when you read a statute — again, going back to fundamentals of textualism — you read a statute, as a whole, for what it does.  And if a statute is amended in a substantial way, you look at the statute as a whole, for its operational logic.  And then, on the issue about reading a water, totally apart from the operative provision's goals of water quality, I think that the approach you're taking is kind of the approach that was used in this case, which is that waters is antecedent to, and wholly apart from, consequences. And I think that argument succeeded here.

 

 But I cited a whole bunch of cases. There are, I'd say, about 10 to 15 major Supreme Court cases that engage in this kind of holistic textualism, where you look at provisions to see how they tie into the criteria for decision-making and the operative logic, which tends to sometimes shrink a statute. Sometimes it expands it. But, in this case, they don't do it at all. And that's what's notable to me, is they don't look at the criteria for decision-making. And I think the other cases will stand. That aspect of this is an oddity that I think is methodologically very unsound.

 

Hon. Thomas Griffith:  Deidre?

 

Deidre Duncan:  Yeah.  It reminded me, when you said they didn't look at the consequences. And I agree that Alito doesn't spend as much time, maybe, as he should have, talking about some of Kavanaugh's points. However, I do think that he is really kind of reprising Justice Scalia's plurality decision. And I spent the weekend rereading Justice Scalia's decision. And he actually does spend a fair amount of time addressing those consequences, looking at 402, looking at consequences of discharges into waters, finding their way, and pollution.

 

      And so, you go back, and if you think of Alito not necessarily writing completely on a clean slate — which he isn't — you have to really read those decisions together. And I do think the Maui decision kind of channeled Justice Scalia. And so, it's not like this decision is read in isolation. There's a Clean Water Act with Clean Water Act cases. And I think he didn't need to necessarily reprise everything from Justice Scalia's decision. But when you go back, it addresses some of those consequences that you talked about.

 

Sambhav Sankar:  Well, I certainly disagree with that. You've got to write a good opinion. And this is a sloppy one. And we've already talked about it. It doesn’t cite the record stuff that it apparently relies on, on arguments that have been made in other opinions, but aren't cited. And maybe we don't care about that rhetorically, but it matters for the clarity of the law. That matters. And not integrating that really makes you question the logical integrity. And I think Professor Buzbee has done that. I don't know how much we've got. It's worth saying something about.

 

Hon. Thomas Griffith:  We have five more minutes.

 

Sambhav Sankar:  Great. It's worth saying something about the ecological consequences. Nobody else has talked about this. They're kind of enormous. It's a really big deal to remove wetlands protection from an enormous part of the U.S. I have no question that protecting those lands means some private property rights are not as people would want them. But let's also recognize that not protecting them means degradation for the rest of us, because those wetlands provide critical ecological functions. They provide chemical protection for waterways. 

 

They also protect floods. They're very crucial for protecting waterways. One of the things that I find truly ironic about this is that the groups that are pushing for being able to build on wetlands are also pushing for federal subsidies for flood-control insurance. They're saying, "We want to build houses in these places. We also want the federal government to underwrite the flood risk of those houses, despite the fact that we are now building in places that are really not a great place to build."

 

Hon. Thomas Griffith:  So, I play the role of a neutral here. But isn't your argument a bit overblown?

 

Sambhav Sankar:  Perhaps.

 

Hon. Thomas Griffith:  You're suggesting that, by this opinion, all wetlands lose protections. And that's not the gravamen of the opinion. The opinion is some types of wetlands that were protected before are no longer protected. But that's not all wetlands.

 

Sambhav Sankar:  The best assessment I've seen from the scientific articles on this is something on the order of half -- something on the order of half. Even the federal government doesn't really have a great inventory of wetlands. We looked for this, to try to figure it out as legal practitioners, not as scientists. And the best we can see is roughly half, and 100 million acres in the continental U.S. Some of those things, like the Everglades, are federally protected already, so it's not clear what those protections will be. But that really goes to the consequentialist.

 

Hon. Thomas Griffith:  But no one's arguing here that, as a result of this opinion, they're going to be building condos in the Everglades, right?

 

Sambhav Sankar:  Maybe not in the National Park Everglades, but -- you're leaning in here.

 

Prof. William W. Buzbee:  Yeah, sorry.  Go ahead.

 

Sambhav Sankar:  Well, no.  There's no question that with this we'll be building in areas where, potentially, you at least needed a permit.

 

Hon. Thomas Griffith:  Right.

 

Sambhav Sankar:  And you may have not gotten a permit.

 

Hon. Thomas Griffith:  No question.

 

Sambhav Sankar: And many of those places, by their nature, are flood-prone, right? Because they're wet more often than -- these are areas that are more wet than the areas of dry land that people were allowed to build on before.

 

Deidre Duncan:  Can I just, real quick, just jump in? Because these numbers that get thrown around, I really don't know how folks can calculate those numbers when, while the opinion is clear in some ways, there's still a lot of technical judgment that the agencies need to bring to bear on what this decision means, how it gets implemented. And I really think I would not want to be trying to calculate numbers right now. I mean, it's always the case. 

 

All these decisions have come out, every single one of them. I've been around now to see the numbers that get quoted of "loss of this," after SWANCC. Same thing after Rapanos, "loss of this." And somehow, through their ways, the agencies figure out a way to kind of address the issue. And, I think, here, it's going to be less than what was before. But it really remains to be seen how much is lost. But then, once they articulate that, then it's up to the states to address those other areas that you're talking about, in the ways and tools that they have at the state level.

 

Sambhav Sankar:  Well, if you're saying that the impact of the opinion is minimal, I hope so.

 

Deidre Duncan:  That's not what I'm saying.

 

Prof. William W. Buzbee:  So, there was an article in Science, that I coauthored with a bunch of scientists, that was looking at the rule that Matt worked on, the Trump administration's rule that substantially built on the Rapanos plurality opinion by Scalia. And I'm trying to remember where they came out. But scientists, experts in this, looked at. I think it is viewed as about 50 percent of America's wetlands.

 

Sambhav Sankar:  It was a leaked PowerPoint from the administration.  Matt may know more about that than I do.

 

Tom Ward:  Did that take into account what the states will regulate?  Or not.

 

Prof. William W. Buzbee:  That was just the federal layer.

 

Sambhav Sankar:  Who knows what they will regulate.

 

Prof. William W. Buzbee:  There's an additional complication. Sam mentioned this issue about different states break down. But a lot of states have a rule that says, "No stricter than." That is, they don't allow their environmental regulators to be more protective than federal law. That's mostly targeted, originally, at pollution levels of, like, emitting from stacks, and effluent. But people are going to apply it now and try to expand that here. And so that's something that will be tested now. But a lot of states have the "no more stringent than" laws.

 

Sambhav Sankar:  There's one state, Michigan, that's trying to repeal -- it's in the process of trying to repeal that law right now.

 

Hon. Thomas Griffith:  Well, I think the time is up, unless Matt has a final question. No?

 

Sambhav Sankar:  You going to tell us about the leak?

 

Hon. Thomas Griffith:  Yes?  Go ahead.

 

Matt Leopold:  A final point.

 

Hon. Thomas Griffith:  A final point?

 

Matt Leopold:  There was an economic analysis that was done as part of the "navigable waters protection rule," that assessed this question of whether there were gaps, and how those gaps would be filled. And it concluded that a substantial number of states have wetlands protection programs in many forms. You were talking about Florida. It's my home state. One hundred percent of all wetlands are regulated in Florida, at the state level, for example. California adopted a new wetlands program as a result of the Trump-era rule.  So I think those numbers may not reflect the protections at the state and local levels that we're seeing.

 

Hon. Thomas Griffith:  Well, with that, we're going to wrap up.  We've run at the end of our time. And so I want to thank the members of the panel for their learned and civil discussion, and for your questions.  Thank you all very much.