Kagan, J., concurring in judgement
before—actually, just last Term. In another case of environmental regulation (involving clean air), the Court invoked another clear-statement rule (the so-called major questions doctrine) to diminish another plainly expansive term (“system of emission reduction”). See West Virginia v. EPA, 597 U. S. ___, ___, ___ (2022) (slip op., at 2, 19). “[C]ontra the majority,” I said then, “a broad term is not the same thing as a ‘vague’ one.” Id., at ___ (dissenting opinion) (slip op., at 8). And a court must treat the two differently. A court may, on occasion, apply a clear-statement rule to deal with statutory vagueness or ambiguity. But a court may not rewrite Congress’s plain instructions because they go further than preferred. That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) “adjacent” to covered waters.
And still more fundamentally, why ever have a thumb on the scale against the Clean Water Act’s protections? The majority first invokes federalism. See ante, at 23–24. But as Justice Kavanaugh observes, “the Federal Government has long regulated the waters of the United States, including adjacent wetlands.” Post, at 11. The majority next raises the specter of criminal penalties for “indeterminate” conduct. See ante, at 24–25. But there is no peculiar indeterminacy in saying—as regulators have said for nearly a half century—that a wetland is covered both when it touches a covered water and when it is separated by only a dike, berm, dune, or similar barrier. (That standard is in fact more definite than a host of criminal laws I could name.) Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate. See ante, at 23 (complaining about Congress’s protection of “vast” and “staggering” “additional area”). And that, too, recalls last Term, when I remarked on special canons “magically appearing as get-out-of-text-free cards”
