A Devastating Blow: Reflecting on the Supreme Court’s Decision in Sackett v. EPA

This article is from the winter edition of Mobile Baykeeper’s print quarterly, CURRENTS. The magazine is mailed to active members who have given more than $50 in the past year. To get on the magazine’s mailing list, donate here.

by Cade Kistler

Growing up, I spent much of my time outdoors: swimming and fishing in the Tennessee River and Lake Guntersville, water skiing, and duck-hunting with my family. After that idyllic childhood and an adult life spent mostly in Coastal Alabama, I’ve developed a deep connection to our waters. 

For as long as I’ve been aware of efforts to protect our waters, I’ve been reminded of this quote from Dr. Martin Luther King: “The moral arc of the universe is long but bends toward justice.” These words consistently rang true as efforts to secure protections for our waters were not easily won, but steadily accumulated over time. 

Recent events have shaken this belief, especially the Supreme Court decision in Sackett v. EPA. The ruling, which was handed down in May 2023, significantly reduced the number of waters covered by these protections. 

The implications of the ruling are stark enough that I’m wary to discuss its local implications for fear that developers will further exploit the decision. For we now face a reality where thousands of miles and millions of acres of wetlands lack any protection. 

In Colorado, the Alamosa River, a 64-mile-long river that flows most of the year but dries up in late fall, may lose its protections under the Clean Water Act. Once subject to the largest cyanide spill in U.S. history, the Alamosa has undergone significant restoration efforts. Under the new rule, such efforts would likely not have been required. In New Mexico, it appears that more than 90 percent of waterways, including parts of the Rio Grande, may lose protection. 

Under the new ruling, if you plan to construct a factory, you might bypass the need for a discharge permit by arguing that the creek or river you are discharging into is no longer protected as a waterway. This could, in theory, allow for unregulated pollution to be released legally. 

Wetlands, which are vital for wildlife habitat, water quality, and flood control, are similarly at risk. In many cases, where a wetland doesn’t have a surface connection to a larger waterway, developers will be able to fill in wetlands without needing permits from the Army Corps of Engineers. While this may benefit certain economic interests, it endangers the long-secured protections that have allowed us to hunt, fish, and swim in our waterways.

In the face of this setback, Dr. King’s words about the moral arc bending toward justice resonate now more than ever. He understood that this bend requires active effort — a conscious choice to shape our future. 

This most recent action by the Supreme Court leaves me with a pang of sadness; yet, we cannot wallow in defeat. For those of us who care about the health of waters — and if you’re reading this, I believe you do — the only recourse is to keep fighting. The Clean Water Act has been a cornerstone of waterway protection in America. But the act is showing its age, and its flaws are now being exploited through varying interpretations by courts and administrations. 

It’s time for Americans to demand new legislation that ensures the safety of our waterways. It’s up to us — citizens of every stripe, political affiliation, religion, age, and race — to tell our legislators on both sides of the aisle that our waters deserve common-sense protections. We need protections that ensure our vast wetlands are not destroyed by unchecked development, which, prior to the Clean Water Act, led to the loss of nearly half a million acres of wetlands in America each year and caused extensive damage to our waterways.

We can’t just wait for action at the federal level. Local and state initiatives are also crucial. Officials in cities and counties around Mobile Bay have the power to enforce basic protections. Some measures already exist, such as Alabama’s Coastal Area Management Program, which still secures protections for wetlands in Alabama’s coastal areas (less than 10 ft in elevation). But more measures are needed. We must make it clear to our officials: our waterways need protection — no ifs, ands, or buts. 

While the recent legal changes are a setback, they are also a call to action. We cannot rest on our past accomplishments. As a community, we must continue to work diligently at all levels — local, state, and national — to ensure the safety and health of our waterways, not just for us, but for future generations. 

Cade Kistler is the Baykeeper at Mobile Baykeeper. 

Image: Splinter Hill Bog Preserve in Perdido, Alabama.


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