The Clean Water Act case before the Supreme Court may at first blush seem to be the climax of a more than decade-long legal battle between an Idaho couple seeking to build on their land plot and the Environmental Protection Agency, which determined the parcel to be federally protected wetlands.
But like many disputes filling the high court’s docket this term, the repercussions of the justices’ ultimate ruling will be felt far beyond Chantell and Michael Sackett’s property line. And, in this and other cases, the decision could hit marginalized communities particularly hard. At most risk are the people whose lives, livelihoods, and cultures depend on the very waters federal regulators seek to protect from development, pollution, and destruction.
Consider Native American tribes, such as the Fond du Lac Band of Lake Superior Chippewa. The name of the Band’s Minnesota homelands, Nagaajiwanaang, means “where the water stops” in Ojibwemowin. More than half of its reservation sits on wetlands, according to a friend-of-the-court brief filed on behalf of more than a dozen tribes.
For centuries the Band and other tribes have harvested manoomin, a wild rice whose name means “good berry” and which literally grows on water. The grain is not only essential for the community’s sustenance and economy, it is a central part of the Band’s heritage and culture — and is even a required element of annual ceremonial feasts. The Northern Great Lakes region is the only place in the world it grows.
But it is also delicate, and its crops are easily destroyed by flooding caused by the erosion of wetlands that serve as a buffer from the currents of the St. Louis River and Lake Superior. And it’s highly susceptible to destruction caused by pollution. The regulations the Sacketts seek to strike down to build on their Idaho plot are the very rules the Chippewa Band relied upon to oppose plans for a nearby open-pit sulfide mine.
“If that mine went forward, it was going to destroy thousands of acres of wetlands and contribute to pollution that could impact and degrade those wild rice fields that grow nowhere else,” said Stu Gillespie, a senior attorney for the nonprofit public interest group Earthjustice which submitted the amicus brief.
The question presented before the court may not focus on environmental racism, but its ruling could impact this and other communities of color like a tidal wave. And it all turns on the interpretation of the meaning of one word in the Clean Water Act: adjacent.
In a nutshell, the Sacketts argue that because their land is separated from the shoreline — a county road runs between the two — it is not adjacent under the statute and regulations the EPA relied upon to halt the couple’s building plans. Never mind the fact that the road itself is manmade, not natural, nor the fact that water still runs under and around it.
Several justices’ questions during oral argument Monday seemed to home in on whether such a strict interpretation of the word “adjacent” to mean land directly connected to water made any sense when it comes to wetlands protection.
“This case is going to be important for wetlands throughout the country, and we have to get it right,” said Justice Brett Kavanaugh.
Justices Sonia Sotomayor and Ketanji Brown Jackson questioned why Congress didn’t choose clearer wording in the act, like “abutting” or “imminently adjacent,” if the definition was meant to be so narrow.
Justice Elena Kagan turned to an even more everyday source.
“If you look to dictionaries, both legal and nonlegal, what they show is that adjacency actually is not the same as touching or contiguity,” Kagan said.
But this is about far more than semantics. According to The Nature Gap, an analysis by the Center for American Progress and other organizations found that the country is losing a football field’s worth of natural lands like forests, wetlands, and grasslands every 30 seconds.
“As a result,” the report states, “Black, Latino, Asian, Native American, and low-income families are far more likely than white families to live in a place that is deprived of the benefits that nature provides, including nearby places that allow them to get outside safely and access clean water, clean air, and a diversity of wildlife.”
You can see it in the disappearing wetlands of the southern Gulf regions, where flooding, pollution, and erosion in places like Louisiana, Mississippi, and Alabama have stripped Black communities of vital agricultural land and displaced entire communities in a way that threatens their heritage and culture.
It’s apparent in the fact that Black and Latino Americans are far more likely to live near floodplains, drained wetlands, sewage outfalls, or other environmentally perilous conditions but they also have far less access to safe, clean water to fish or swim in.
The inequality isn’t just “adjacent” to these policies. It’s built in to the system.
Kavanaugh couldn’t be more correct: This case is about far more than the Sacketts, and the court must “get it right.”