Comment: A defining divide in Supreme Court’s ‘unanimous’ ruling

By Stephen L. Carter / Bloomberg Opinion

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 week, 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 Alito’s majority opinion and the principal separate concurrence (written by Justice Kavanaugh and joined by Justices Jackson, Kagan, and Sotomayor) was over whether “adjacent” in the Clean Water Act means “adjoining” … or something else.

For decades, courts and regulators have struggled to interpret what the majority correctly describes as a “convoluted” sentence in the Clean Water Act, which says that states (rather than the EPA) have regulatory jurisdiction over discharges into “waters of the United States” unless they’re traditionally navigable waters, including “wetlands adjacent thereto,” that is, adjacent to those navigable waters. In an effort to translate the statute’s dreadful legalese into plain language, Alito’s majority opinion gets a smidgen too cute: “States may permit discharges into A minus B, which includes C.” (Kagan’s delicious riposte: “The majority could use every letter of the alphabet, and graduate to quadratic equations, and still not solve its essential problem.”)

But the five-justice majority and the four-justice concurrence agreed that the wetlands the Sacketts were filling to build their house fall outside category C, and thus aren’t subject to the Clean Water Act. The need for wordsmithery comes in unpacking the different routes the two opinions traveled to reach that result.

According to the majority, the EPA’s error was to suppose that waters are adjacent just because they’re nearby and have a “significant nexus.” That’s wrong, argues Alito. For wetlands to be “adjacent” to navigable waters of the United States, “they must be indistinguishably part of a body of water that itself constitutes” … well, waters of the United States. The two must have “a continuous surface connection”; in effect, they must touch, one flowing into the other. This, says Alito, is how dictionaries define “adjacent,” as a synonym for “adjoining.”

Thus it makes no difference how close the Sacketts’ wetlands might be to any navigable waters of the United States. Absent a “continuous surface connection” between the two, the right to discharge into them is controlled by state rather than federal law.

Not so fast, answers Kavanaugh. He cites dictionaries of his own for the proposition that adjacent and adjoining don’t mean the same thing. The word adjacent, writes Kavanaugh, “means lying near or close to, neighboring, or not widely separated.” Thus, “two things need not touch each other in order to be adjacent.”

Nevertheless, in Kavanaugh’s view, the Sacketts should prevail, because even under his broader interpretation of “adjacent,” the EPA’s jurisdiction extends only to wetlands that are contiguous with navigable waters or “separated … only by a man-made dike or barrier, natural river berm, beach dune, or the like.” The wetlands on the Sackett property are separated by much more.

Still hard going? Imagine two hotel rooms. If they’re side by side, Alito would say they’re not truly adjacent unless a door connects them, in which case the rooms adjoin. Kavanaugh, on the other hand, would hold that the rooms are adjacent as long as the only thing separating them is a narrow (man-made!) barrier … like a wall. The EPA’s position is that they can be considered adjacent even if they’re several rooms apart as long as what happens in one could theoretically affect what happens in another. It’s that interpretation that every member of the court rejects.

As for the battle between the majority and the concurrence, I’ll let others opine on how policy will be affected. The wordsmith in me is constrained to note, however, that the Oxford English Dictionary defines “adjacent” as “next to or very near” (the Kavanaugh view); and then, in the same line, as “adjoining” (the Alito view). Not exactly a tempest in a teacup, but at the very least a reminder that even with the best of intentions, we wind up, like Humpty Dumpty, making words mean what we want them to mean. That’s a trait law shares with politics.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”