Tyler v. Hennepin County wasn't the only property rights opinion issued by the Supreme Court in one of my law firm's cases last week.
There's this one, which we've been waiting a lot longer to drop (oral arguments were held on the first day of the Court's term back in October), Sackett v. Envt'l Prot. Agency, No. 21-454 (May 25, 2023). Like Tyler, this one is our law firm's, so we're not going to do much pundificating, and will leave that to others.
The clearest and most objective view (in our view) is that of lawprof Jonathan Adler, who analyzes the opinion over at Volokh Conspiracy in "In Sackett v. EPA, the Supreme Court Cuts Back Federal Regulatory Authority Over Wetlands." Or check out this Twitter thread by Ilya Shapiro.
Short story: all nine Justices agree that there's a limit to how far federal regulatory control extends, they just disagree about what is the limiting test; five of 'em seem to have adopted something close to the Scalia plurality from the Rapanos case, while the dissenting four go another way.
Bottom line: the EPA rule is no good, as is the Biden Admin's attempt to revise the rule midstream.
Biggest loser of the day: Justice Kennedy, since not a single Justice seems to like the "significant nexus" test.
Another victory for individual and property rights. That makes three this term for us. Not too bad.
Sackett v. Envt'l Prot. Agency, No. 21-454 (U.S. May 25, 2023)
