# Sackett v. EPA (2023)/Opinion of Justice Kagan

SUPREME COURT OF THE UNITED STATES
No. 21–454
MICHAEL SACKETT, ET UX., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 25, 2023]
Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, concurring in the judgment.
Like Justice Kavanaugh, “I would stick to the text.” Post, at 14 (opinion concurring in judgment). As he explains in the principal concurrence, our normal method of construing statutes identifies which wetlands the Clean Water Act covers—and the answer provided exceeds what the Court says today. Because the Act covers “the waters of the United States,” and those waters “includ[e]” all wetlands “adjacent” to other covered waters, the Act extends to those “adjacent” wetlands. 33 U. S. C. §§1362(7), 1344(g)(1). And in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. See post, at 4–5 (quoting multiple dictionaries). So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two. As applied here, that means—as the EPA and Army Corps have recognized for almost half a century—that a wetland comes within the Act if (i) it is “contiguous to or bordering a covered water, or (ii) if [it] is separated from a covered water only by a manmade dike or barrier, natural river berm, beach dune, or the like.” Post, at 14 (emphasis in original). In excluding all the wetlands in category (ii), the majority’s “ ‘continuous surface connection’ test disregards the ordinary meaning of ​‘adjacent.’ ” Post, at 9. The majority thus alters—more precisely, narrows the scope of—the statute Congress drafted.
And make no mistake: Congress wrote the statute it meant to. The Clean Water Act was a landmark piece of environmental legislation, designed to address a problem of “crisis proportions.” R. Adler, J. Landman, & D. Cameron, The Clean Water Act: 20 Years Later 5 (1993). How bad was water pollution in 1972, when the Act passed? Just a few years earlier, Ohio’s Cuyahoga River had “burst into flames, fueled by oil and other industrial wastes.” Ibid. And that was merely one of many alarms. Rivers, lakes, and creeks across the country were unfit for swimming. Drinking water was full of hazardous chemicals. Fish were dying in record numbers (over 40 million in 1969); and those caught were often too contaminated to eat (with mercury and DDT far above safe levels). See id., at 5–6. So Congress embarked on what this Court once understood as a “total restructuring and complete rewriting” of existing water pollution law. Milwaukee v. Illinois, 451 U. S. 304, 317 (1981) (internal quotation marks omitted). The new Act established “a self-consciously comprehensive” and “all-encompassing program of water pollution regulation.” Id., at 318–319. Or said a bit differently, the Act created a program broad enough to achieve the codified objective of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.” §1251(a). If you’ve lately swum in a lake, happily drunk a glass of water straight from the tap, or sat down to a good fish dinner, you can appreciate what the law has accomplished.
Vital to the Clean Water Act’s project is the protection of wetlands—both those contiguous to covered waters and others nearby. As this Court (again, formerly) recognized, wetlands “serve to filter and purify water draining into adjacent bodies of water, and to slow the flow of surface runoff into lakes, rivers, and streams.” United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134 (1985) (citation ​omitted). Wetlands thus “function as integral parts of the aquatic environment”—protecting neighboring water if themselves healthy, imperiling neighboring water if instead degraded. Id., at 135. At the same time, wetlands play a crucial part in flood control (if anything, more needed now than when the statute was enacted). And wetlands perform those functions, as Justice Kavanaugh explains, not only when they are touching a covered water but also when they are separated from it by a natural or artificial barrier—say, a berm or dune or dike or levee. See post, at 12–13 (giving examples). Those barriers, as he says, “do not block all water flow,” and in fact are usually evidence of a significant connection between the wetland and the water. Ibid. Small wonder, then, that the Act—as written, rather than as read today—covers wetlands with that kind of connection. Congress chose just the word needed to meet the Act’s objective. A wetland is protected when it is “adjacent” to a covered water—not merely when it is “adjoining” or “contiguous” or “touching,” or (in the majority’s favorite made-up locution) has a “continuous surface connection.” See, e.g., ante, at 27.
Today’s majority, though, believes Congress went too far. In the majority’s view, the Act imposes unjustifiably “crushing consequences” for violations of its terms. Ante, at 3. And many of those violations, it thinks, are of no real concern, arising from “mundane” land-use conduct “like moving dirt.” Ante, at 13. Congress, the majority scolds, has unleashed the EPA to regulate “swimming pools and puddles,” wreaking untold havoc on “a staggering array of landowners.” Ante, at 1, 13. Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.
So the majority shelves the usual rules of interpretation—reading the text, determining what the words used there mean, and applying that ordinary understanding ​even if it conflicts with judges’ policy preferences. The majority’s first pass through the statute is, as Justice Kavanaugh says, “unorthodox.” Post, at 9. “A minus B, which includes C”? Ante, at 19. The majority could use every letter of the alphabet, and graduate to quadratic equations, and still not solve its essential problem. As the majority concedes, the statute “tells us that at least some wetlands must qualify as ‘waters of the United States.’ ” Ante, at 18–19. More, the statute tells us what those “some wetlands” are: the “adjacent” ones. And again, as Justice Kavanaugh shows, “adjacent” does not mean adjoining. See post, at 4–6; supra, at 1–2. So the majority proceeds to its back-up plan. It relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power “over private property”—particularly, over “land and water use”—it must adopt “exceedingly clear language.” Ante, at 23 (internal quotation marks omitted). There is, in other words, a thumb on the scale for property owners—no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting. See supra, at 2.
Even assuming that thumb’s existence, the majority still would be wrong. As Justice Kavanaugh notes, clear-statement rules operate (when they operate) to resolve problems of ambiguity and vagueness. See post, at 11; see also Bond v. United States, 572 U. S. 844, 859 (2014); United States v. Bass, 404 U. S. 336, 347 (1971). And no such problems are evident here. One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be—which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majority concludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to “correct” breadth. Those paying attention have seen this move ​before—actually, just last Term. In another case of environmental regulation (involving clean air), the Court invoked another clear-statement rule (the so-called major questions doctrine) to diminish another plainly expansive term (“system of emission reduction”). See West Virginia v. EPA, 597 U. S. ___, ___, ___ (2022) (slip op., at 2, 19). “[C]ontra the majority,” I said then, “a broad term is not the same thing as a ‘vague’ one.” Id., at ___ (dissenting opinion) (slip op., at 8). And a court must treat the two differently. A court may, on occasion, apply a clear-statement rule to deal with statutory vagueness or ambiguity. But a court may not rewrite Congress’s plain instructions because they go further than preferred. That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) “adjacent” to covered waters.
And still more fundamentally, why ever have a thumb on the scale against the Clean Water Act’s protections? The majority first invokes federalism. See ante, at 23–24. But as Justice Kavanaugh observes, “the Federal Government has long regulated the waters of the United States, including adjacent wetlands.” Post, at 11. The majority next raises the specter of criminal penalties for “indeterminate” conduct. See ante, at 24–25. But there is no peculiar indeterminacy in saying—as regulators have said for nearly a half century—that a wetland is covered both when it touches a covered water and when it is separated by only a dike, berm, dune, or similar barrier. (That standard is in fact more definite than a host of criminal laws I could name.) Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate. See ante, at 23 (complaining about Congress’s protection of “vast” and “staggering” “additional area”). And that, too, recalls last Term, when I remarked on special canons “magically appearing as get-out-of-text-free cards” ​to stop the EPA from taking the measures Congress told it to. See West Virginia, 597 U. S., at ___–___ (dissenting opinion) (slip op., at 28–29). There, the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy.
So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. “[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.” Id., at ___ (slip op., at 32). Because that is not how I think our Government should work—more, because it is not how the Constitution thinks our Government should work—I respectfully concur in the judgment only.