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While all the justices agreed that the EPA was wrong in this particular case the liberals and Kavanaugh authored a separate opinion because they disagreed with the majority's interpretation of the clean waters act. The issue is that water flows downstream, you can't protect the navigable waters of the U.S. without preventing people from dumping things into the marsh that flows into them. Congress wasn't super specific about what wetlands the EPA has authority over, I'm not a lawyer but a lot of the wrangling is over distinctions between waters that are "adjoining", "adjacent" or have "a significant nexus" with covered waters.
The EPA's argument was that the Sackett Family was filling in a wetland that had a subsurface flow into Priest lake and so needed federal permits. This got championed by Pacific Legal Fund, an organization founded by Ronald Reagan's former welfare reform team, because they saw a significant opportunity to loosen environmental regulation on property rights. Alito wrote the Majority opinion establishing a new test that only wetlands with a continuous surface connection to navigable waters are covered by the Clean Water Act, which would exclude a lot of wetlands that have been traditionally covered.
Kavanaugh actually broke with the conservative majority and sided with liberals on this issue because he thought that test was too strict. He argued that Alito's continuous surface connection test ignored the common meaning of "adjacent". It would exclude waters separated by man made barriers, such as marshes next to the Mississippi Levees, or swamps that drain into the Chesapeake Bay through subsurface connections. Pollutants dumped in these waters will end up in navigable waters and excluding them from coverage is nonsensical.
As usual with the Supreme Court it does look like Congress really needs to step in and clarify their law. The burden placed on property rights by saying that no one can build on their land if it has a tiny ditch that flows into a covered body of water is too high. But excluding swamps next to rivers without a surface connection from environmental protections seems to ignore basic hydrology.
This. For the most part, the Supreme Court ought to enforce the law as written, only bending words when the strict wording leads to absurdities that were obviously unintended. If Congress wants X, they need to write a law that unambiguously says X.
Honestly, I would like for some sort of formalized law amendment process that can be initialized by the Supreme Court. Something like "This Law is vague, you need to fix it. We've interpreted it as X for this particular case. If that's what it's supposed to be in the future, please reword the Law to state that less ambiguously. If you meant something else, please reword the Law to state that less ambiguously and we can apply that to future cases. But something needs to change here." And then Congress has a limited time to go through some version of the Lawmaking process to fix that Law and clarify their intentions.
They've tried.
From the decision:
Of course this is a conservative thing.
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It looks like a nice reminder that the Supreme Court actually has an important job.
I know we’re incentivized to see the dirtiest and most politicized parts of it. But sometimes a marsh is just a marsh.
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