WASHINGTON — The Supreme Court opened its nine-month term on Monday hearing a conservative challenge to the federal government’s authority to regulate wetlands under a landmark environmental protection law, Justice Ketanji Brown Jackson asking several questions on his first day on the bench.
Jackson, the first black woman to serve on the court, was quick to ask a series of questions at the start of the nearly two hours of arguments indicating her sympathy for maintaining extensive federal authority over wetlands.
On a notoriously complex question about the scope of federal clean water law, Jackson seemed keen to get to the heart of the matter, saying at one point “let me try to provide some clarification.” She later politely apologized for asking a follow-up question after a lengthy exchange with an attorney for Idaho landowners Chantell and Mike Sackett, who want to build on property the government has deemed a wet area. .
Jackson’s line of questioning was similar to that of the court’s other two liberal justices, Elena Kagan and Sonia Sotomayor. Conservative justices seemed more skeptical of expanded federal power, but it was unclear how the court might rule based on their questions.
Nominated by President Joe Biden, Jackson was sworn in this summer. The oral argument also marked the first time in history that four female judges sat together on the bench.
Jackson replaced fellow Liberal Justice Stephen Breyer, who retired in June. She is one of three liberals on the nine-judge tribunal, which is expected to continue her conservative trajectory in the new term.
The court has already agreed to hear major cases that could end consideration of race in college admissions and make it easier for Republicans to impose voting restrictions ahead of the 2024 presidential election. With a solid 6-3 Conservative majority in place, Jackson is unlikely to be a key vote in many major cases.
For the first time since the Covid pandemic hit Washington in March 2020, members of the public were allowed in packaging courtroom for Monday’s case as the risk-averse court returns somewhat to pre-pandemic proceedings, although public access to the building remains limited.
The justices return to action after a tumultuous end to the court’s last term in which the conservative majority overturned the landmark Roe v. Wade that provided federal protection for the right to abortion, leading some to question the court’s legitimacy.
The court’s conservative majority is skeptical of broad assertions of the federal agency’s power, which could line up with arguments made in Monday’s case. During the court’s term that ended in June, the justices handed down a landmark ruling that limited the Environmental Protection Agency’s ability to fight climate change by regulating carbon emissions under of the Clean Air Act.
The same agency is in court this time, with the Clean Water Act, aimed at protecting water quality, now under scrutiny.
He also sees the return of the Sacketts to the Supreme Court after justices ruled in their favor in an earlier case in 2012. Both cases involve the same underlying dispute: the Sacketts’ effort to build property on land they own in Priest Lake, Idaho, parts of which the EPA has deemed a protected wetland, meaning the land is under federal jurisdiction and building on it requires a permit.
The first case involved whether the Sacketts could challenge an EPA compliance order in court after filling the affected area with gravel and sand without obtaining a permit. The struggle, which began in 2007, continued over whether the land was a wetland.
The Sacketts turned to the Supreme Court for the second time after the 9th United States Circuit Court of Appeals, based in San Francisco, last year ruled in favor of the federal government in its decision that the area was a wetland.
The law on how to define a wetland – of key interest to property developers and other business interests – was long confused and left unresolved when the Supreme Court in 2006 ruled on an earlier case On the question. Then four justices said the Clean Water Act covered land with a “continuous surface connection” to a waterway, but there was no clear majority. Judge Anthony Kennedy, who provided the fifth vote in the 5-4 decision, offered his own test that the law granted jurisdiction over wetlands with a “significant connection” to a waterway. The new case gives the court a chance to revisit the earlier decision, with some observers believing the majority could adopt the stricter test proposed by the four justices in 2006.
Successive presidential administrations have sought to clarify the law, with Democrats generally favoring greater federal power and Republicans, backed by business interests, saying the jurisdiction of the Clean Water Act should be limited.
The Biden administration is currently finalizing a new federal rule. In court papers, Solicitor General Elizabeth Prelogar, representing the administration, said Kennedy’s “significant connection” test is preferable because it “covers adjacent wetlands that significantly affect the chemical, physical and of the country’s traditional navigable waters”.