One way to protect the wetlands the Supreme Court says don't matter

Post-Sackett Action:  Breathing Life into NEPA’s Section 101

This week Brenda Mallory, Chair of the White House Council on Environmental Quality, delivered a forceful keynote address at the One Water Summit in Tucson, Arizona that laid out the Biden-Harris Administration’s vision for a national commitment to protect clean water in the wake of the U.S. Supreme Court’s disappointing decision in Sackett v. EPA. 

 The US Senate also marked the recent 51st anniversary of the Clean Water Act with a full committee hearing on the impacts of the Sackett v. EPA opinion. While the hearing celebrated the progress made in improving the nation’s water quality over the last 50 years, Senators also hit a somber note in acknowledging the loss of Clean Water Act protections for 50% or more of the nation's remaining wetlands.  

How did we go from President George H.W. Bush making a campaign promise - and implementing it - of a national goal of “no net loss of wetlands” to the Supreme Court so wholeheartedly undermining that goal?  How could our complex weave of national environmental laws leave such a gap? 

One of our gap-filling laws is the National Environmental Policy Act, or NEPA.

NEPA’s Section 101 is foundational to the nation’s environmental policy, as emphasized in the Final Report of the National Environmental Conflict Resolution Advisory Committee. This Advisory Committee was the result of a bipartisan Senate request to investigate “strategies for using collaboration, consensus building, and dispute resolution to achieve the substantive goals” of NEPA. The Final Report found that NEPA’s “Section 101 articulates a national policy for the environment . . . framing a set of environmental, economic, and social goals that most Americans could agree upon.” 

The problem is that it’s a foundation upon which nothing has ever been built. 

It is time to breathe life into NEPA's Section 101, including for the opportunity it provides to protect or benefit wetlands and streams that they Supreme Court striped of protection under the Clean Water Act.

Section 101(b) of NEPA encourages the “Federal Government to use all practicable means . . . [to] attain the widest range of beneficial uses of the environment without degradation . . ..” . Surely Congress used the phrase “all practicable means” and “without degradation” intentionally to get federal projects to have better long-term environmental outcomes—as opposed to just making it a purely procedural step to document but not require better outcomes.

A substantive role for NEPA’s Section 101 is consistent with Congressional intent. Indeed, a witness testifying before the Senate during the April 16, 1969 committee hearing when NEPA was introduced, stated:

“It would not be enough, it seems to me, when we speak of policy, to think that a mere statement of desirable outcomes would be sufficient to give us the foundation that we need for a vigorous program of what I would call national defense against environmental degradation. We need something that is firm, clear, and operational.”

The committee’s Chairman, Senator Henry "Scoop" Jackson similarly stated, “The purpose of this legislation is to . . . ensure that present and future generations of Americans will be able to live in and enjoy an environment free of hazards to mental and physical well-being.”  

Just this year, in the Council on Environmental Quality’s (CEQ’s) proposed “Phase 2” NEPA rulemaking, the CEQ proposed that NEPA’s Section 101 be incorporated in rule as: “Federal agencies shall to the fullest extent possible:  . . . (f) Use all practicable means, consistent with the requirements of the Act and other essential considerations of national policy, to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment.” 

Require mitigation - it is a "practicable means"  

One way to breathe life into NEPA’s Section 101 would be to require major Federal actions reviewed under NEPA to include compensatory mitigation for loss of wetlands or streams, regardless of whether those were federal waters or not. These mitigation pathways have been well developed under the Army Corps of Engineers’ Section 404 Permit authority, known as its compensatory mitigation program.  

NEPA’s Section 101 directive is actually stronger and more explicit than the executive guidance that provided the basis for the wetland and stream compensatory mitigation program, the rulemaking for which was a result of President George H. W. Bush’s policy of “no net loss” of wetlands announced in 1989. This policy was reaffirmed by President George W. Bush in 2002 and again in 2004. The “no net loss” compensatory mitigation program has been widely acknowledged as dramatically slowing the loss of wetlands, although how much wetland loss persists and the complexity of the program for private individuals are consistent issues.  The Army Corps of Engineers’ regulatory framework for a Clean Water Act Section 404 Permit uses the term “compensatory mitigation” as the measure of an environmental offset, defined as “the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved.”  The Clean Water Act’s offset requirement has not been altered by the multiple Supreme Court opinions addressing the reach of the Act, including the Sackett v. EPA opinion of May 25, 2023, even though the Supreme Court has redefined what aquatic resources are subject to the Army Corps’ offset requirement.  

More Authority for NEPA’s Section 101 to Provide a Mitigation Directive  

Directing major federal actions to mitigate their impacts on wetlands and streams is similar to the approach taken in Section 102 of the PEER Act, which I wrote about here. Section 102 of the PEER Act contemplates environmental offsets for major federal actions through restoration, preservation, or other actions.

In addition, President Biden’s Executive Order 14008 (Jan. 27, 2021) announced a whole-of-government approach to the climate crises:  “It is the policy of my Administration to organize and deploy the full capacity of its agencies to combat the climate crises to implement a Government-wide approach that reduces climate pollution in every sector of the economy; increases resilience to the impacts of climate change; protects public health; conserves our lands, waters, and biodiversity; delivers environmental justice; and spurs well-paying union jobs and economic growth especially through innovation, commercialization, and deployment of clean energy technologies and infrastructure.” 

Another pathway for implementation of NEPA Section 101’s mitigation directive is providing compensatory mitigation or environmental offsets for unavoidable impacts to the habitats of threatened or endangered species. The US Fish and Wildlife Service recently proposed a regulatory update to its 1988 Consultation Handbook for Section 7 activities under the Endangered Species Act, proposing to allow mitigation offsets for unavoidable harms to imperiled species’ habitats. My EPIC colleague, Becca Madsen, wrote about how the Service’s directive is long overdue.  

A NEPA Section 101 rulemaking requiring compensatory mitigation or an environmental offset for unavoidable harms could simultaneously promote the streamlined “deployment of clean energy technologies and infrastructure” through simplified NEPA review for major federal actions as directed in the Fiscal Responsibility Act while also “conserv[ing] our lands, waters, and biodiversity” that will “increase resilience to the impacts of climate change,” as set out in President Biden’s Executive Order on the Climate Crisis. Even mitigation limited to harms to wetlands, streams, and the habitats of imperiled species by major federal actions would be big turn toward climate resilience.  

Using Section 101 to force action is an idea whose time has come.