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Supreme Court to hear high-stakes challenge to Clean Water Act

The Climate 202

Good morning and welcome to The Climate 202! As a scheduling note, the newsletter won't publish on Monday or Friday next week. (We'll have a short week with Congress out of town.)

Below we have an update on the devastation from Hurricane Ian and a scoop about a White House climate staffer leaving his post. But first:

The Supreme Court will take up a major Clean Water Act case. Here's what to know.

Monday marks the first day of the Supreme Court's new term, and the justices are wasting no time in weighing another challenge to one of the nation's bedrock environmental laws.

The court will hear oral arguments Monday morning in a closely watched challenge to the Clean Water Act, passed in 1972 to protect all “waters of the United States”— including streams, rivers, lakes and wetlands — from harmful pollution.

Environmentalists fear the court's conservative majority could dramatically narrow the law's reach, undercutting the federal government's ability to protect waterways — and the wildlife for which they provide critical habitat — across the country.

“This decision will be nothing short of a life-or-death sentence for coho salmon, razorback suckers, California tiger salamanders and hundreds of other endangered animals that rely on ephemeral and intermittently flowing streams and wetlands,” Hannah Connor, a senior attorney at the Center for Biological Diversity, said in a statement.

However, business groups and home builders have cheered the court's decision to take the case. They argue that legal confusion over the definition of “waters of the United States,” or WOTUS, has created regulatory chaos for businesses and property owners.

“Without clear guidance from this Court, the Chamber’s members will continue to endure an expensive, vague, and time-consuming process whenever they need to determine whether a project or activity will impact waters subject to federal jurisdiction,” the U.S. Chamber of Commerce wrote in a brief.

The case comes after the Supreme Court ruled in June that the Environmental Protection Agency had overstepped its authority under the Clean Air Act to slash planet-warming emissions from power plants.

Here's what to know about the Clean Water Act case — and why it matters.


The case, Sackett v. Environmental Protection Agency, centers on a long-running dispute involving an Idaho couple named Chantell and Michael Sackett.

  • The couple began their lengthy legal battle in 2007, when they tried to build a home on their land near Idaho's Priest Lake. The EPA determined that the property contained a wetland, and that the couple needed to obtain a Clean Water Act permit or face heavy fines.
  • The Sacketts, who are represented by the conservative Pacific Legal Foundation, have won at the Supreme Court before. This time, they're calling on the justices to significantly narrow the definition of “waters of the United States” so that their property — and others like it — would not be subject to the Clean Water Act.

In the famously muddled 2006 case Rapanos v. United States, the justices split 4-1-4 over which test courts should use to determine what constitutes “waters of the United States.”

  • Under the test proposed by then-Justice Anthony M. Kennedy, a wetland must have a “significant nexus” to regulated waters. Federal courts have favored this interpretation, which informed the Obama administration's Clean Water Rule.
  • Under the narrower definition proposed by then-Justice Antonin Scalia, a wetland must have a “continuous surface connection” to "relatively permanent" waters. Business groups such as the Chamber of Commerce and National Association of Home Builders favor this interpretation, which informed President Trump's Navigable Waters Protection Rule.
  • A federal court has since struck down Trump's rule. The Biden administration is planning to issue a new regulation.
‘A major rewrite’

Mark Ryan, a Clean Water Act expert who worked as a lawyer at the EPA for 24 years, said he thinks at least five conservative justices could vote to adopt Scalia's narrower test.

“Reading the tea leaves of the Supreme Court is always a dangerous venture,” Ryan said. “But I would predict a 5-4, if not a 6-3, adoption of something in line with the Scalia standard from the Rapanos decision, which would be a major rewrite of the Clean Water Act.”

Damien Schiff, a senior attorney at the Pacific Legal Foundation who will argue the case on Monday, said he is “quietly optimistic” that the Sacketts will prevail. He noted that Chief Justice John G. Roberts Jr. signed Scalia's opinion in Rapanos, while Justice Neil M. Gorsuch signaled in the Clean Air Act case that he is “skeptical of broad EPA interpretations of statutes.”

Jon Devine, who leads the Natural Resources Defense Council's federal water policy team, said the adoption of Scalia's test could remove Clean Water Act protections for roughly 19 percent of streams and 51 percent of wetlands in the country.

“That would be catastrophic,” he said, “for the water quality purposes of the act.”

Oral arguments in Sackett v. EPA begin at 10 a.m. Eastern time on Monday, both in person and online here.

Extreme events

Revived Hurricane Ian aims for South Carolina after battering Florida

Hurricane Ian re-intensified and set its sights on South Carolina on Friday after walloping Florida as one of the deadliest storms to ever hit the United States, The Washington Post's Jason Samenow, Kelly Kasulis Cho, Annabelle Timsit and Kim Bellware report.

In an update at 2 a.m. Friday, the National Hurricane Center placed Ian about 175 miles southeast of the historic city of Charleston, where the Category 1 storm could make landfall later Friday, bringing with it “life-threatening storm surge" and maximum sustained winds of 85 mph.

In Florida, where Ian came ashore Wednesday as a monster Category 4 storm, Gov. Ron DeSantis (R) said at least 700 rescues were conducted Thursday involving the U.S. Coast Guard, the National Guard and urban search-and-rescue teams. As of Friday morning, more than 2 million customers in Florida remained without power, according to the online tracking site

President Biden, speaking at the Federal Emergency Management Agency headquarters Thursday, said Ian “could be the deadliest” storm in Florida history. As of Thursday evening, 12 people had been confirmed dead in the storm, Phil Helsel, Daniel Arkin and Tim Stelloh report for NBC News.

Ian's rapid intensification bears the unmistakable fingerprints of climate change, The Post's Scott Dance and Kasha Patel report. Warmer waters give hurricanes more energy to release through crushing winds and pounding waves. Since 2017, six other hurricanes to hit the U.S. shorelines have qualified as “rapid intensification events,” meaning their wind speeds increased by at least 35 mph within 24 hours.

According to a preliminary analysis released Thursday, human-caused climate change increased Ian's extreme rainfall rates by 10 percent. The analysis, conducted by Stony Brook University professor Kevin Reed and Lawrence Berkeley National Laboratory senior scientist Michael Wehner, has not yet been peer-reviewed but relied on the same methodology as a prior peer-reviewed study of the 2020 Atlantic hurricane season.

Pressure points

David Hayes, White House climate staffer, steps down

David Hayes, who served as deputy secretary of the Interior Department during the Clinton and Obama administrations, is stepping down from his post as special assistant to the president for climate policy. His last day is Friday, The Post's Allyson Chiu scoops.

Hayes, 68, helped develop and carry out President Biden's ambitious goal of conserving 30 percent of the nation's lands and waters by 2030. He also helped establish interagency working groups focused on climate resilience and worked to expand offshore wind power.

In an interview with The Post this week, Hayes warned that America has not adequately prepared to cope with the perils of a warming planet.

“Ian reminds us that we have underinvested in longer-term resilience,” he said. “We’ve been very good as a country in terms of immediate response and you’ll see it again with the Federal Emergency Management Agency. They are fabulous in coming in and working to get the power back up and dealing with the immediate impacts. But as a country and certainly prior administrations and prior Congresses have not funded the longer-term issues.”

Correction: An earlier version of this story incorrectly said Hayes is 69. He is 68.

On the Hill

Senate Environment and Public Works panel approves TVA nominees

The Senate Environment and Public Works Committee on Thursday voted to advance five nominees to be members of the Tennessee Valley Authority Board of Directors.

If confirmed by the full Senate, the nominees — Robert Klein, Michelle Moore, William Renick, Joe Ritch and Adam Wade White — would help oversee the nation’s largest federally owned utility as President Biden targets a carbon-free electricity grid by 2035.

“As the nation’s largest public power system, TVA should be leading the charge in offering affordable rates and transitioning to cleaner energy generation,” Committee Chair Thomas R. Carper (D-Del.) said in a statement. “I believe that all starts with the right leadership.”

House Natural Resources Committee passes bill to update U.S. fishing laws

The House Natural Resources Committee on Thursday advanced legislation to reauthorize U.S. fishing laws, which haven't been updated in 15 years and don't mention climate change.

The Sustaining America’s Fisheries for the Future Act from Rep. Jared Huffman (D-Calif.) aims to modernize the Magnuson-Stevens Fishery Conservation and Management Act, the primary law governing federal fisheries management and conservation.

The measure would require consideration of climate change in regional fishery management council planning, according to a summary from Huffman's office. It comes as the ocean has absorbed more than 90 percent of the excess heat that greenhouse gas emissions have trapped in the atmosphere, threatening marine species and ecosystems.

In the atmosphere


A useful tip for setting boundaries at work: 😂🌳

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