Kagan, J., concurring in judgement
SUPREME COURT OF THE UNITED STATES
No. 21–454
MICHAEL SACKETT, ET UX., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 25, 2023]
Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, concurring in the judgment.
Like Justice Kavanaugh, “I would stick to the text.” Post, at 14 (opinion concurring in judgment). As he explains in the principal concurrence, our normal method of construing statutes identifies which wetlands the Clean Water Act covers—and the answer provided exceeds what the Court says today. Because the Act covers “the waters of the United States,” and those waters “includ[e]” all wetlands “adjacent” to other covered waters, the Act extends to those “adjacent” wetlands. 33 U. S. C. §§1362(7), 1344(g)(1). And in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. See post, at 4–5 (quoting multiple dictionaries). So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two. As applied here, that means—as the EPA and Army Corps have recognized for almost half a century—that a wetland comes within the Act if (i) it is “contiguous to or bordering a covered water, or (ii) if [it] is separated from a covered water only by a manmade dike or barrier, natural river berm, beach dune, or the like.” Post, at 14 (emphasis in original). In excluding all the wetlands in category (ii), the majority’s “ ‘continuous surface connection’ test disregards the ordinary meaning of
