When the Sacketts first filed their case in 2008, it was ultimately dismissed. The decision was then appealed to the Ninth Circuit Court of Appeals, where Judge Ronald M. Gould wrote in his 2010 opinion that “preclusion of pre-enforcement judicial review does not violate the Sacketts’ due process rights.” There is little standing in the way between the Sacketts destroying wetlands now that the Supreme Court gave its blessing for the couple to move forward with their lawsuit after the 2012 ruling. The makeup of the Supreme Court certainly seems to point to a favorable outcome for the couple as well. In the case of Rapanos v. United States, which takes center stage in this latest chapter for the Sacketts, the court could not reach a consensus on more rigidly defining the “waters of the United States” protected by the Clean Air Act.
Four conservative justices chose to support definitions that protect fewer bodies of water, with Justice Anthony Kennedy writing in a concurring opinion that he believes “waters of the United States” are defined as waters that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Four dissenting justices, including Justice Ruth Bader Ginsburg, essentially argued that the “significant nexus” test was being used as a cudgel to limit the scope of the Clean Water Act.
Kennedy, who left the court in 2018, was considered a swing vote on the court, and his retirement ushered in fears from environmentalists that whoever succeeded him could weaken protections like the Clean Water Act. This is all but guaranteed after Donald Trump named now-SCOTUS Justice Brett Kavanaugh as Kennedy’s successor. The Sierra Club found numerous examples of Kavanaugh’s utter disregard and disdain for the environment, including a 2014 case in which Kavanaugh argued that stricter emissions standards weren’t a financially sound decision when it comes to regulating power plants, completely ignoring the human and environmental consequences of dangerous emissions. In the case of White Stallion Energy v. EPA, Kavanaugh was the lone dissenter. Environmental stances from other conservative SCOTUS justices like Amy Coney Barrett are just as appalling.
Barrett, who succeeded Ginsburg, has been relatively quiet about her opinions on climate change, pulling the “I’m not a scientist” card during her confirmation hearing. There isn’t much to her legal record on environmental issues, but Grist found that the few cases she has heard certainly show that she has an interest in preserving polluters’ and bad actors’ interests, as with her signing on to a decision in favor of a housing developer building on wetlands in Illinois. The conservative talking points that wrap a lack of concern for the environment in the faux outrage for individuals and corporations are so predictable, I’m tempted to make a Mad Lib of what Kavanaugh and Barrett will ultimately say in support of the Sacketts, who I’m assuming they will find to be so deeply persecuted by *checks notes* wetlands. This is as much a case to watch as the Biden administration’s subsequent actions, especially with Sackett v. EPA being heard the same year as West Virginia v. EPA, a high-profile case on regulating greenhouse gas emissions that have immense consequences for our planet. If the Supreme Court can’t help but plunge the planet further into a climate crisis, it’s up to Biden—and all progressives—to fight like hell for our future.