| Abstract |
The essay critiques the Supreme Court’s novel approach toward statutory construction in Sackett v. Environmental Protection Agency (2023). In Sackett, the Court considered whether the Ninth Circuit applied the appropriate test to determine whether the Sackett’s property contained wetlands regulated under the Clean Water Act (CWA). In doing so, the Court cast aside what has been considered the operative test for assessing jurisdiction, the significant nexus test. In lieu of that test, the majority articulated a considerably constrained understanding of the CWA’s reach. How it reached that understanding is as problematic as its conclusion. The majority opinion and one of the concurring opinions not only shunned any typical analysis when construing a statute, it ostensibly relied on history surrounding navigability without portraying that history with any semblance of thoroughness. This essay, consequently, canvasses a wider swath of that history to demonstrate why the majority in Sackett subverts Congress’ intent when Congress passed the CWA in 1972 and then amended the Act in 1977. |
