WOTUS, SCOTUS, and Pigs, Oh My!

The Supreme Court is starting up its new term next week. What is on its environmental docket, you ask? Could it be bigger than last year? Quite possibly!

First up, the Court will hear a case about the Clean Water Act, which regulates discharges of pollutants into “waters of the United States.” An Idaho couple, Michael and Chantell Sackett, are upset that EPA and the Army Corps of Engineers kept them from building on their property after finding that it was likely connected to wetlands and thus waters of the United States. The Sacketts argue that those two federal agencies had no jurisdiction and that the Clean Water Act should only be applied to waters that are navigable in the traditional sense or where the water flows between states. For years, EPA and Army Corps have used science to determine when waters are connected enough to make pollution flows a federal concern. Read this brief led by New York to learn more. To say that the Sacketts are asking for a vast rewrite is an understatement. Argument is on October 3. (Read filings in the Sackett v. EPA docket here.)

The second case looks like it is about pigs, but it is really about states. The issue is a California proposition (Prop. 12) that requires pork sold in California to have been raised humanely. A pork trade association challenged the law, claiming that it violates the Constitution because California is just trying to influence how farmers in other states raise their pigs. Under the Constitution, Congress regulates commerce between the states. The argument is that when states regulate in a way that affects too much out-of-state conduct—as the trade group argues is happening here—they violate an unwritten part of that clause – the “dormant” Commerce Clause. This argument really stretches the dormant Commerce Clause’s reach. The doctrine historically has been used to strike down state regulations that are protectionist, discriminate against other states, or wholly regulate out-of-state conduct, but everyone agrees that’s not what’s happening here. Still, the Department of Justice sided with the pork industry in this case, echoing petitioners’ argument: that the “effect” of California’s proposition is just too much and that the benefits aren’t there. But if the Court agrees, then where is the line? States have all sorts of rules and policies that apply to consumption in-state while also affecting markets outside their states, including many safety and energy rules. You can read more about that in this brief, led by Illinois and Michigan. It isn’t obvious that the Supreme Court has the appetite (no pun intended) to take the dormant Commerce Clause to this extreme. But we shall see. Argument is on October 11. (Read the National Pork Producers Council v. Ross filings here.)