Brett Kavanaugh
Role at the time: Associate justice, concurring in the judgment
Condemned
Response to this claim
Clean Water Act coverage of adjacent wetlands requires a continuous surface connection that makes the wetland practically indistinguishable from covered waters.
“In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents.”
Read the original text (opens in a new tab)Sackett v. EPA: majority and separate opinions · Supreme Court of the United StatesNo. 21-454; Alito majority pages 19-22 and 27-28; Kavanaugh concurrence pages 1-14
The justices agree on the judgment for the Sacketts but divide over the continuous-surface-connection test for covered wetlands.
Archived copy (opens in a new tab)Why we used this label
His criticism is directed at the majority's test. Agreement with the judgment does not defend that test.