The Clean Water Act and Avoidance Creep

By JACK H.L. WHITELEY. Full Text.

In Sackett v. EPA, the Supreme Court set out a test for the Clean Water Act’s jurisdiction over wetlands. The Act, the Court held, protects only those wetlands that have a continuous surface connection to relatively permanent bodies of water like streams, rivers, and lakes. If the connection lies below the surface, or is at the surface but discontinuous, the wetlands are presumed to fall outside the Act’s protections. The ruling, which abruptly curtailed how each administration since the 1970s had understood the Clean Water Act’s jurisdiction, has generated persuasive criticism from environmental scholars.

In this Essay, prepared for the Minnesota Law Review Symposium, I suggest that the Sackett opinion is an example of a trend in recent Supreme Court cases called constitutional avoidance creep. As scholars have observed outside the environmental law context, an overly expansive reliance on constitutional avoidance principles can lead courts to read statutes in implausible ways. Later decisions that interpret the earlier ones then magnify the problem, getting further away from the statutory language’s ordinary meaning. Here, the Court’s use of an avoidance principle, briefly mentioned in a prior Clean Water Act case, contributed to a reading of the Act that is difficult to square with textualist principles. Connecting the environmental law and avoidance creep literatures can generate insights into the Court’s new methods of interpretation.