Now that the Supreme Court's first arguments of this Term are in the books, you can read the transcript, or listen to the recording (mp3) (or stream it above). This is Sackett v. EPA, a case that has been to the Court before, where it unanimously held that the Sacketts could ask a court whether the government was correct when it claimed their land was covered by the Clean Water Act, and didn't need to wait for the criminal charges shoe to drop.
Before we go on, a note that our law firm represented the Sacketts then, as we do now. So we're not going to go into a great deal of detail, and leave it to you to check out the public commentary elsewhere.
That said, about the only thing we will comment on is the noticeable lack of owner-focused perspective in the arguments. As we heard them, most of the Justices' questions were focused on Congressional intent (which is, in our opinion, a snipe hunt because Congress certainly has had enough time to make its intent clear, which leads one to believe that Congress itself has no idea), and on ease of administration of the various rules for what "waters of the United States" means. Not a whole lot about whether your average landowner can decipher whether their property is or might be subject to regulation and whether they risk a trip to the pokey if they don't throw thousands of dollars at first finding out.
And if the purpose of the statute controls over the actual text as some of the Justices seemed to be suggesting and the purpose is to ensure that waters are free of pollution, then isn't literally everything covered? Are they arguing for some kind of conceivable basis test for WOTUS? Seems so. Is land a "water" in the same way that bees are fish in California?
An oldie but goodie.
Our 10am William and Mary Law School Land Use class was lucky enough to be able to listen live, so we could understand better how arguments (and legal sausages) get made.
We took notes.
Next up, the opinion. Any predictions, you ask? Not from us.
