Vol. 28, No.23 Week of June 04, 2023
Providing coverage of Alaska and northern Canada's oil and gas industry

Ruling puts Alaska resource development back in state control

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Kay Cashman

Petroleum News

On May 25, the U.S. Supreme Court limited the federal government's authority to regulate wetlands under the Clean Water Act, issuing a narrow reading of the statute's scope and definition of Waters of the United States, or WOTUS, in Sackett v. Environmental Protection Agency.

The ruling has a significant impact on Alaska as the state has more than half the nation's wetlands, with more than 3 million lakes, nearly a million miles of rivers, more coastline than the rest of the Lower 48 combined, and, prior to the Court's ruling, 174 million acres of wetlands subject to federal oversight according to the now defunct definition by the EPA.

The ruling decreased the amount of wetlands covered by the Clean Water Act in Alaska, limiting the federal government's power to control community and resource development projects - and how Alaskans balance development with environmental protection, Alaska Gov. Mike Dunleavy's office said in a press release following the ruling.

Alaska's departments immediately began to redefine what lands will be subjected to Clean Water Act permitting requirements.

"Today's ruling puts Alaska back on the map," Dunleavy said on May 25. "There is no doubt, thanks to today's ruling, that Alaska is once again open for business."

Under Dunleavy the state has advocated for limiting the expansion of the definition of WOTUS. The state argued to the Supreme Court in a friend-of-the-court brief that an expansive WOTUS definition exceeded the authority granted to the federal agencies under the Clean Water Act.

In addition, the state recently urged exemptions for unique types of wetlands such as permafrost in comments it submitted last year as part of EPA's WOTUS rulemaking.

Earlier this year, Alaska and 23 other states won a preliminary injunction of the EPA's revised WOTUS definition.

"The State of Alaska has been in a non-stop fight to limit federal overreach since the start of the Biden administration," said Alaska Attorney General Treg Taylor. "I'm proud of the efforts both now and over the past two decades of our state lawyers who contributed to today's ruling that clarifies the scope of the Clean Water Act and will no longer unnecessarily hamper Alaska's ability to manage its own land and water. The clarity provided by this decision will help to end this unlawful federal expansion and bring certainty and predictably to Alaskan development."

"Of late, federal agencies have exploited the ambiguous WOTUS definition to expand their jurisdictional reach to cover wetlands in Alaska with only a remote connection to traditionally navigable waters. Not any longer," said Alaska Department of Environmental Conservation Commissioner Jason Brune.

Justices comment

Justice Samuel A. Alito, writing for the majority in the 5 to 4 opinion, said the EPA's interpretation of its powers went too far.

"We hold that the CWA extends to only those wetlands with a continuous surface connection to bodies that are - waters of the United States' in their own right, so that they are - indistinguishable' from those waters," Alito wrote.

Justice Elena Kagan wrote for the court's liberals, comparing the ruling to last term's decision limiting the EPA's ability to combat climate change.

"The vice in both instances is the same: the Court's appointment of itself as the national decision-maker on environmental policy," she wrote, joined by Justice Sonia Sotomayor and Ketanji Brown Jackson.

Trump appointee Justice Brett M. Kavanaugh wrote separately to object to the majority's reading of the law. He said that the majority's decision "departs from the statutory text - from this Court's precedents."

The Sacketts

All of the justices thought the lower court got it wrong regarding the couple who brought the case, which is why the court reheard the case.

The justices were reviewing for a second time the plans of Michael and Chantell Sackett, who want to build a home on their property near Priest Lake, one of the Idaho's largest lakes.

The EPA said that there are wetlands on the couple's 0.63-acre lot, which makes it subject to the Clean Water Act and allows the government to require permits and impose penalties for violations.

The Sacketts obtained a local building permit 15 years ago to begin construction on their land, about 300 feet from the lake. Their plot is bounded on two sides by roads and separated from the lake by a row of homes.

The EPA put the plans on hold, threatening fines of more than $40,000 per day if the Sacketts did not stop construction. The couple went to court to block the EPA order and asked the justices to narrow the definition of "waters of the United States" so that their land was not covered by the Clean Water Act.


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