Nothing at Stake but Life’s Essentials: How Sole Reliance on New Textualism Endangers Clean Water, Environmental Justice Communities, and Environmental Law (and a Judicial Framework to Fix It)
Samantha Bingaman
Water is life, as the old saying goes. We drink, we wash, we play, we swim, we travel, and we grow with water, among other activities central to our personal, cultural, and even spiritual needs. Amid our many differences, humans’ shared reliance on water for health and happiness can bring a feeling of unity in an otherwise fractured world. However, as we increasingly learn about persistent water pollution, shortages, and conflicts, this shared reliance on a finite and fragile resource may foster uncertainty and recalcitrance regarding future access to usable water. These are the unfortunate lessons that underscore how human intrusion can upset the balance of critical water cycles that provide us with life’s essentials, and how one entity’s action can catalyze a ripple effect of unintended consequences.
Clean water law, as well as other forms of environmental law, is no stranger to these ripple effects. Decisions of the Supreme Court of the United States, for example, naturally produce direct and indirect impacts through the socioenvironmental sectors, but of late, the Court has kindled drastic changes in environmental law. In May 2023, for example, the Supreme Court decided Sackett v. Environmental Protection Agency, “an absolute bombshell” of a case. Using a new textualist approach to narrowly interpret a wetlands protection provision of the Clean Water Act (“CWA”), the Court handed down a decision contravening decades of agency practice, erasing protections for at least half of the nation’s wetlands, and galvanizing an additional set of socioenvironmental questions. For example, what does Sackett mean for those who live in environmental justice communities, already victimized by poor infrastructure and unclean water resources? And does Sackett indicate the imminent overturning of Chevron deference—a possibility that has been slowly emerging from the shadows of the Roberts court? Following the Court’s throwing of the proverbial stone into the proverbial pond, the environmental community waits with its breath held, attempting to understand—and prepare for—the full extent of Sackett’s ripple.
The case also tells us something greater about the future of environmental law—that often, the character of these ripple effects may hinge on the type of statutory interpretation that the Court employs to decipher the environmental statute in question. This Comment argues that judicial new textualism, as applied inSackett, severely limits the purpose and reach of environmental statutes designed to protect life’s essentials of clean water, air, and other resources. Instead, courts should utilize a pragmatic, multifactor interpretive approach when analyzing environmental laws.