Samuel Alito’s Wetlands-Destroying Opinion Pretends Physics Doesn’t Exist

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. You may have heard about the Supreme Court’s recent ruling in Sackett v. EPA that the Clean Water Act does not permit the Environmental Protection Agency to regulate the use of wetlands that are not connected at the surface to lakes, rivers, and streams. The court ruled that protection under the CWA only applies when wetlands have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.” Justice Samuel Alito arrived at this distinction by parsing the wording of the Clean Water Act as passed by Congress in 1972 and amended in 2018—specifically the words “waters of the United States”—and the opinion makes much of this means of arriving at the decision. Remarkably, the opinion seeks “to decide the proper test for determining whether wetlands are ‘waters of the United States’ ” while explicitly excluding scientific understanding from this test. However, the EPA’s usage has a considerably firmer hydrological basis for understanding the connections between wetlands and waterways than the court’s new continuous surface connection standard.