Supreme Court justices skeptical of EPA’s authority to protect wetlands from pollution

By Ariane de Vogue, CNN Supreme Court Reporter

A majority of the Supreme Court seemed skeptical of the Biden administration’s defense of the Environmental Protection Agency’s authority to protect wetlands from pollution under the Clean Water Act on Monday, in the first session of oral arguments in the court’s new term.

At the same time, however, some conservatives on the bench seemed to reject an argument from an opposing lawyer suing the federal government that would severely limit EPA’s ability to regulate.

The long-running dispute centers on an Idaho couple who were hoping to build a home on new property in 2007 but received a stop work order from the EPA. The agency asserted that the property contained “navigable waters,” or wetlands subject to Clean Water Act protections.

Now, the justices are attempting to devise a test for determining when wetlands — such as swamps, bogs, marshes that are adjacent to navigable waters — fall under the EPA’s authority.

At her first oral arguments since joining the bench, Justice Ketanji Brown Jackson asked several questions, joined at times by the two other liberal justices, suggesting that Congress’ intent was clear. They pushed on the notion that a wetland doesn’t have to actually touch the surface of navigable waters in order to trigger government regulation.

Jackson did not hesitate to ask several questions, at one time interrupting another justice on the bench — a practice that rarely occurs now that the court has changed its process for questioning since the beginning of the Covid-19 pandemic.

At the end of arguments, she also broke from usual procedures by interrupting a lawyer during his rebuttal, a period of time where the justices usually allow a lawyer to have his final say. Chief Justice John Roberts offered the lawyer more time.

Jackson, a veteran of multi-member courts having served on a federal appellate court based in Washington DC, seemed at ease, at one point sharing a joke with her seatmate Brett Kavanaugh. She wore a lace jabot over her robe, reminiscent of collars once worn by Justice Ruth Bader Ginsburg.

This story is breaking will be updated.

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CNN’s Ella Nilsen contributed to this report.