From his opinion concurring in Sackett v. EPA:
The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.
Refighting a battle that left unresolved in Rapanos, Alito opines on the scope of the Clean Water Act:
The reach of the Clean Water Act is notoriously unclear.Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on alot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined upto $75,000 per day ($37,500 for violating the Act andanother $37,500 for violating the compliance order). And if the owners want their day in court to show that their lotdoes not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. Bythat time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.
The Court’s decision provides a modest measure of re-lief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property ownerswith little practical alternative but to dance to the EPA’s tune.
And SAA does something liberals usually criticize–call on Congress to change the law (note, no one joins him here):
Real relief requires Congress to do what it should havedone in the first place: provide a reasonably clear rule re- garding the reach of the Clean Water Act. When Con- gress passed the Clean Water Act in 1972, it providedthat the Act covers “the waters of the United States.” 33
U. S. C. §1362(7). But Congress did not define what itmeant by “the waters of the United States”; the phrasewas not a term of art with a known meaning; and the words themselves are hopelessly indeterminate. Unsurprisingly, the EPA and the Army Corps of Engineers in- terpreted the phrase as an essentially limitless grant of authority. We rejected that boundless view, see Rapanos
v. United States, 547 U. S. 715, 732–739 (2006) (plurality opinion); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167–174 (2001),but the precise reach of the Act remains unclear. For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate arule providing a clear and sufficiently limited definition of the phrase. Instead, the agency has relied on informal guidance. But far from providing clarity and predictability, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis byEPA field staff. See Brief for Competitive Enterprise Institute as Amicus Curiae 7–13.
Allowing aggrieved property owners to sue under theAdministrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act canrectify the underlying problem.