Joint IU Maurer, McKinney symposium to focus on implications of Sackett Clean Water Act decision

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A May decision from the U.S. Supreme Court that narrowed environmental regulations on wetlands not connected to larger bodies of water will be the focus of an upcoming joint symposium hosted by Indiana University Maurer School of Law and Indiana University Robert H. McKinney School of Law.

The event, Sackett v. EPA: What the Supreme Court’s Decision Means for Regulation and Wetlands Conservation,” will take place Friday in the Wynne Courtroom and Steve Tuchman and Reed Bobrick Atrium at IU McKinney, according to a news release. The law schools will host leading scholars and practitioners to discuss the implications of the Supreme Court decision Sackett v. EPA.

The law schools describe the Sackett decision as “one of the most significant environmental opinions issued by the Supreme Court, and it resolves a longstanding debate surrounding the scope of the federal Clean Water Act.”

The case involved an Idaho couple who sought to build a house near Priest Lake in the state’s panhandle, according to The Associated Press. The couple, Chantell and Michael Sackett, objected when federal officials identified a soggy portion of the property as a wetlands that required them to get a permit before building.

By a 5-4 vote, the high court said in an opinion by Justice Samuel Alito that wetlands can only be regulated under the Clean Water Act if they have a “continuous surface connection” to larger, regulated bodies of water, AP reported. There is no such connection on the Sacketts’ property.

In August, the U.S. Environmental Protection Agency announced that the agency and the U.S. Department of the Army had announced a final rule amending the 2023 definition of “waters of the United States” to conform with Sackett.

At the symposium, participants will discuss the case, its history and the court’s opinion. They also will discuss the implications of the case on a national level and how it might affect the protection of the nation’s wetlands, as well as the implications of a narrower scope of the Clean Water Act in Indiana.

“This will be a great opportunity to learn about and explore how the Supreme Court’s decision in Sackett v. EPA will impact the administration of the Clean Water Act and the protection of wetlands nationally and here in Indiana, as well as how the decision reflects the court’s changing approach to examining decisions by administrative agencies,” professor Sam Kalen, the visiting Robert H. McKinney family chair in environmental law, said in a news release.

Kalen and professor Robert L. Fischman, the George P. Smith II distinguished professor of law at IU Maurer, will offer welcoming remarks to kick off the event.

“Although it received less press coverage than West Virginia v. EPA, Sackett made more radical changes to federal environmental law and public regulation,” Fischman said in the release. “The decision dramatically shrank the coverage of the Clean Water Act, imperiling Congress’ statutory objective of restoring and maintaining the physical, chemical, and biological integrity of the nation’s waters.

“Discharges of pollutants into vast acreages of wetlands and tributary waters that formerly required permits may now occur without any public scrutiny, pollution controls, or mitigation as a result of Sackett,” Fischman continued. “States may fill the regulatory void, but many will not. This conference will bring together leading environmental scholars from around the country to discuss the effects of this important ruling.”

The symposium’s first panel — entitled “Statutory interpretation and agency deference: What can we expect in future litigation?” — will be moderated by IU Maurer professor John Applegate. Panelists will include professor William Buzbee of Georgetown Law, Kalen of IU McKinney, professor Mark Squillace of Colorado Law and professor William Weeks of IU Maurer.

Fischman will moderate the second panel, “Private Ordering: How will property owners, land trusts, and corporations respond to the decrease in regulation?” That panel will include professor Christian Freitag of IU Maurer and the Conservation Law Center, professor Steph Tai of the University of Wisconsin Law School and Jonathan Wood of the Property and Environment Research Center.

A third panel — “Federal agency Implementation: How will the EPA and Army Corps of Engineers change their implementation of the CWA?” — will be moderated by Kacey Cook of the Conservation Law Center. Panelists will include professor Mark Davis of Tulane Law School and IU Maurer students Ryan Day and Noah Hines.

The final panel will discuss the topic, “Indiana Wetlands and Tributary Waters: What should Indiana do to address the gap between the reduction in Clean Water Act jurisdiction and existing state law?” Greg Ellis of the Indiana Chamber of Commerce will serve as moderator.

Panelists will include IU McKinney student Seth Marvin Engdahl, Kim Ferraro of the Conservation Law Center and Rachele Baker of Little River Consultants.

The program carries six hours of free CLE credit with a required registration. Registration is available online.

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