WOTUS Redefined Again!

By: John B. King

The Supreme Court’s ruling in Sackett v. EPA continues to dominate discussions regarding the scope of jurisdiction over adjacent wetlands. Now, the Corps and EPA seek to codify that ruling into the regulatory definition of ‘waters of the United States.’

In Sackett, the Supreme Court adopted Justice Scalia’s opinion in its prior Rapanos decision. It held that the Clean Water Act extends only to those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must establish first, that the adjacent body of water constitutes ‘waters of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. Sackett v. EPA, 143 S.Ct. 1322, 1341 (20243).

Continue reading →

EPA’s Regulatory Roll-Back

In March 2025, Administrator Zeldin announced that EPA will reconsider a number of regulations in order to advance various executive orders issued by President Trump and fulfill EPA’s own Powering the Great American Comeback Initiative. These efforts include the 2024 ambient air standard for particulate matter, the 2009 endangerment finding, and the scope of jurisdiction over ‘adjacent wetlands after the Supreme Court’s 2023 decision in Sackett.

In the Biden Administration, EPA lowered the National Ambient Air Quality Standard for particulate matter, the PM 2.5 NAAQS. The standard was reduced to levels that were close to background levels in some areas. EPA announced it is “revisiting” the lower standard because, among other things, the lower standard “raised serious concerns from states across the country and served as a major obstacle to permitting.”

Continue reading →

The Fading Luster of Carbon Capture

Carbon dioxide (CO2) is used to carbonate beverages and enhance plant growth. It has also been used for decades in enhanced oil recovery, in which CO2 is injected into oil- or gas-bearing formations to help extract oil and gas. Of course, many say that CO2 causes or contributes to climate change / global warming. In 2009, EPA issued its ‘endangerment finding’ in which EPA determined that current and projected concentrations of CO2 and other greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations.

The idea of capturing CO2 before it enters the atmosphere and using it or injecting it for perpetual storage, or sequestration, came about as a way to mitigate the anticipated impacts of climate change. To facilitate carbon capture, use, and storage (CCUS), Congress created the 45Q tax credit in the US Tax Code. Additionally, the Biden Administration touted CCUS as an important tool to address climate change. Even the prior Governor of Louisiana included it as a centerpiece of his climate strategy.

Continue reading →