On September 30, 2022, Fred Wagner and Jay Johnson were quoted in Law360 on the high court wetlands oral arguments. According to the article, Idaho landowners Michael and Chantell Sackett are appealing the Ninth Circuit's 2021 ruling that they need a Clean Water Act permit from the U.S. Army Corps of Engineers to build a home on their property, which was found by the U.S. Environmental Protection Agency to contain a wetland covered by the act. The appeals court rejected the Sacketts' argument that it should analyze the EPA's determination using the late Justice Antonin Scalia's interpretation of the law's jurisdiction over wetlands from 2006's Rapanos v. United States, rather than former Justice Anthony Kennedy's, which was broader.
The stakes are high, as evidenced by the more than 40 amicus briefs filed by states; green groups; agricultural, homebuilding, and mining industry organizations; and others, said Mr. Johnson, who filed a brief on behalf of the Association of American Railroads, which supports overturning the Ninth Circuit's ruling.
"This is something that has the potential to have regulatory impacts across the board," Johnson said. "And I'm sure the court will take that into account as it's listening to the arguments."
Mr. Wagner, who worked on the railroads' brief, said he believes the Biden administration will have to take a more modest approach in a future definition in light of the court's current posture toward expansive regulatory efforts.
"It's clear that if they are too aggressive, either in terms of their proposal or actual enforcement measures and actions, and the court comes up with something limiting it, that's going to be a very difficult situation for the administration," Wagner said. "So I think there's going to be some sort of effort to strike a middle ground here at some point."
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