The US Supreme Court's recent decision to narrow the reach of the Clean Water Act could accelerate the pace of renewable energy and electric transmission development, legal experts said June 7.
"It could well speed them up," Robin Craig, a water law expert at the University of Southern California's Gould School of Law, said during a panel discussion hosted by the American Law Institute.
The Supreme Court's May 25 decision in Sackett v. EPA sought to resolve one of the longest-running controversies in environmental law: where and when the Clean Water Act's protections and related permitting requirements extend to wetlands.
Following the high court's divided Rapanos v. United States decision in 2006, lower courts have largely relied on a test outlined in a concurring opinion written in that case by former Justice Anthony Kennedy. That test held that the act covers wetlands sharing a "significant nexus," such as a chemical, physical or biological connection, with other federally protected waters like rivers and lakes.
In Sackett, however, Justice Samuel Alito penned a 5-4 opinion concluding that the late Justice Antonin Scalia's approach in Rapanos, supported by a four-justice plurality at the time, is the correct test for determining federal jurisdiction over wetlands.
Scalia argued in Rapanos that wetlands should only be covered by the Clean Water Act when they have a "continuous surface connection" with federally protected waters.
The decades-long controversy is largely centered on Section 404(g) of the statute, a 1977 amendment to the law authorizing the US Environmental Protection Agency to transfer its permitting authority for dredging and filling activities in protected wetlands to states.
The Clean Water Act's Section 404 permitting program requires landowners and developers to minimize and mitigate impacts when dredging and filling wetlands where the statute applies.
Water permits trigger further environmental reviews
Under the Supreme Court's new test, as many as half of the 118 million acres of wetlands in the US are no longer protected by the Clean Water Act, according to an estimate by the environmental law organization Earthjustice.
Environmental groups were sharply critical of the Supreme Court's Sackett ruling. But the ruling could also lead to significant reductions in the time and cost required to build clean energy projects and related power lines, legal experts said June 7.
Brooks Smith, a managing partner at Troutman Pepper Hamilton Sanders LLP, noted that obtaining a Clean Water Act permit typically comes before additional environmental reviews under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA).
"Especially for renewable projects, the water permitting may be the hook for ESA review and NEPA compliance," Smith said during the panel discussion. "From a developer's standpoint, that might be good."
Craig agreed on that point but also questioned whether easier permitting requirements will result in the same level of environmental protection.
"That'll kind of depend on what the state's doing," Craig said.
The Supreme Court's Sackett ruling is expected to have a disproportionate impact in the US West, which is much drier than the eastern half of the country. As a result, fewer wetlands in the West are expected to meet the continuous surface connection test, Craig said.
Craig also cautioned that developers seeking to build on previously covered wetlands could face even steeper permitting hurdles in states such as California.
"If you're in California, be careful because you may end up with [the California Environmental Quality Act] instead, and that's actually a harder process," Craig said.
The Supreme Court issued its Sackett ruling shortly before US President Joe Biden signed a debt ceiling bill that included a range of changes to NEPA.
The bill set deadlines of one year to complete environmental assessments under NEPA and two years to finish environmental impact statements for larger projects. It also allows permit applicants to petition courts if agencies miss those deadlines. Courts could then direct agencies to complete the reviews within 90 days "unless the court determines a longer time period is necessary to comply with applicable law."
The bill also redefined "major federal actions" under NEPA in a way that could exempt some projects from the law's requirements, and it expanded categorical exclusions to free lower-impact projects from additional analysis.
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