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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.)