A Court-Side Seat: Recent Legal Developments At Supreme And Federal Appeals Courts

• Published date: 10 November 2022
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation, Clean Air / Pollution
• Law Firm: Pillsbury Winthrop Shaw Pittman
• Author: Mr Anthony B. Cavender

This is a review of initial Supreme Court and Federal Appeals Courts oral arguments and other matters in October 2022.

Oral Arguments at the Supreme Court

Michael Sackett, et ux., v. Environmental Protection Agency
The Supreme Court's 2022 term began on October 3, 2022, with this important oral argument. For many years, the petitioner has encountered EPA opposition to the construction of a home on his property located near a lake in Idaho. The agency insists that the land is subject to federal regulatory jurisdiction, in that a Clean Water Act permit will be needed before work can proceed. Several courts have already weighed in on this issue; whether the land in question is considered a regulated "wetlands" pursuant to the "significant nexus" test developed by the Court in the Rapanos case decided in 2006. The oral argument was fairly long and spirited. The justices appear to believe that the "significant nexus" is unworkable because in many instances it provides little or no guidance to landowners as to whether their property may be subject to federal jurisdiction, and thus subject to civil and even criminal penalties. Justice Kavanaugh remarked that "this case is going to be important for wetlands throughout the country and we have to get it right." Later, Justice Gorsuch lamented the fact that implementing a test for federal jurisdiction under the Clean Water Act test is so difficult to apply: "If the federal government doesn't know [if a property is adjacent to navigable water and is regulated,] "does a reasonable landowner have any idea." The issue is very difficult to resolve, and the Congress has indicated that is has no interest in entering this regulatory thicket.

National Pork Producers Council et al. v. Karen Ross, et al.
On October 11, 2022, the Court heard oral argument in a Commerce Clause case. California voters approved Proposition 12, which arguably has the effect of regulating how pork is produced nationwide through California's preferred farming methods (strict confinement restrictions) although only a very small percentage of pork is produced in California. According to an amicus brief filed by the U.S. Chamber of Commerce, "If Proposition 12, stands, California and other States commanding large market shares will be able to impose their notions of sound public policy on the people of other States through important restrictions and trade boycotts." Such a result is antithetical to the interests served by the Commerce Clause. An older...