April 19, 2022
Wiley, a preeminent Washington, D.C. law firm, recently filed a judicial amicus brief with the U.S. Supreme Court on behalf of U.S. Senator Shelley Moore Capito (RW.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, and Congressman Sam Graves (R-Mo.), a ranking member of the House Transportation and Infrastructure Committee, and a coalition of 199 other members of the Congress (see press release). The brief supports the petitioners in the ongoing case before the United States Supreme Court Sackett v. Environmental Protection Agency. The brief argues that the Court should adopt a clearly administrable rule for what constitutes “United States waters” under the Clean Water Act (CWA), consistent with the statute’s history and text, that would protect the environment while respecting and empowering farmers. , small businesses and homeowners.
“Congress has made clear its intent in the statute, structure, and history to establish a limited federal regulatory presence in cooperation with the states. In the CWA, Congress chose language that from virtually the founding was understood both as exercising limited jurisdiction and as preserving the traditional role of the states as primary regulators of local waters and lands. But that intention has now been reversed. Through the “significant connection” test, the EPA and the Corps can instead use any ecological connection between nearby land and water as a pretext for intrusive central planning. This case is an opportunity for the Court to finally put the genie back in the bottle and to ratify the functional equivalence test proposed by Judge Scalia. Only then will Congress’ dual goals of cooperative federalism and environmental protection in the CWA be fully vindicated,” the brief states..
The Wiley team was led by Thomas M. Johnson, Jr. William K. Lane III and William Turner.