(WASHINGTON) – The Supreme Court on Thursday made it harder for the federal government to control water pollution with a ruling that strips wetlands of protection from larger bodies of water.
It is the second decision in as many years in which the court’s conservative majority has narrowed the scope of environmental regulations.
Judges upheld property rights over clean water concerns in favor of an Idaho couple seeking to build a home near Priest Lake in the state’s borough. Chantel and Michael Sackett objected when federal officials discovered that the wet portion of the property was considered a wetland, requiring them to obtain a permit before building.
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In a 5-4 vote, the court said in Justice Samuel Alito’s opinion that wetlands can only be regulated under the Clean Water Act if they have a “continuous surface connection” to larger, regulated bodies of water. There is no such bond on the Sacketts estate.
The court rejected a 17-year-old opinion by their former colleague Anthony Kennedy that allowed regulation of wetlands that have a “significant connection” to larger waterways.
The Kennedy opinion was the standard for evaluating whether wetlands are covered by the landmark environmental law of 1972. Opponents have argued that the standard is vague and unworkable.
Environmental advocates predicted that narrowing the law’s reach would strip more than half of the nation’s wetlands of protection.
Reacting to the decision, Manish Bapna, executive director of the Natural Resource Defense Advocate, called on Congress to amend the Clean Water Act to restore wetland protections and for states to strengthen their own laws.
“The Supreme Court tore out the heart of the law we depend on to protect America’s waters and wetlands. Most chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable damage. Communities across the country will pay the price,” Bapna said in a statement.
The outcome will almost certainly affect ongoing legal battles over new wetlands regulations that the Biden administration put in place in December. Two federal judges have temporarily blocked the rules in 26 states.
In Thursday’s ruling, all nine justices agreed that the wetlands on the Sacketts’ property were not covered by the act.
But only five justices joined the opinion, which established a new test for evaluating when wetlands are covered by the Clean Water Act. Chief Justice John Roberts, Justice Clarence Thomas and Alito would adopt a narrower standard in the Supreme Court’s last major swamp case in 2006. They were joined Thursday by Justices Neil Gorsuch and Amy Coney Barrett.
Conservative Brett Kavanaugh and the court’s three liberal justices accused their colleagues of rewriting that law.
Kavanaugh wrote that the court’s “new and overly narrow test could suddenly leave long-regulated and long-accepted regulated wetlands outside the scope of agencies’ regulatory authority.”
He cited efforts to control flooding on the Mississippi River and protect the Chesapeake Bay as two projects that could be jeopardized by the decision.
Justice Elena Kagan wrote that the majority’s rewriting of the act was “an effort to prevent anti-pollution actions that Congress saw fit.” Kagan cited last year’s ruling that limited regulation of greenhouse gas emissions under the Clean Air Act.
In both cases, he noted, the court “appointed itself as the national environmental policy decision-maker.” Kagan was joined by her liberal writing colleagues Sonia Sotomayor and Ketanji Brown Jackson.
The Sacketts paid $23,000 for the 0.63-acre lot near Crete Lake in 2005 and two years later broke ground on a three-bedroom home.
They had filled a portion of the property described in the appeals court with rocks and soil in preparation for construction when Environmental Protection Agency officials showed up and ordered them to stop work.
They had also won their legal battle in the Supreme Court in an earlier round.
A federal appeals court in San Francisco upheld the EPA’s decision in 2021, finding that part of the property, 300 feet from the lake and 30 feet from an unnamed waterway that flows into the lake, are wetlands.
The Sacketts’ own consultant had similarly advised them years earlier that their property contained wetlands.
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