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The U.S. Supreme Court's recent decision on the limits of federal authority under the Clean Water Act has been celebrated or condemned, depending on the ideological predilections of the observer. Everyone agrees, however, that the opinions themselves make for rather rough reading. They boil down to a squabble over the words "adjacent" and "adjoining."
The dispute involves Michael and Chantell Sackett, who were trying to build a house on land they'd purchased in Idaho. They trucked in dirt and rocks, only to be warned by the Environmental Protection Agency that because their lot included wetlands, they were violating the Clean Water Act. Unless they restored the area, they faced fines of $40,000 a day.
The Sacketts sued. The case has been up and down the appellate ladder several times. Last month, after nearly two decades of litigation, a unanimous Supreme Court ruled in their favor.
But on what ground exactly? That's where the words get tricky.
Although some have treated the case as some sort of rightist coup, all nine justices agreed that in going after the Sacketts, the EPA had exceeded its authority. Small wonder. The EPA has long argued that under existing precedents, its statutory authority to regulate "wetlands" was "theoretically" broad enough to cover "almost all waters and wetlands across the country."
Nobody on the court agreed with this breathtaking claim. The single significant disagreement between Justice Samuel Alito's majority opinion and the principal separate concurrence (written by Justice Brett Kavanaugh and joined by Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor) was over whether "adjacent" in the Clean Water Act means "adjoining" … or something else.