Michael P. Vandenbergh, E. O. Currier Stoffel & Steph Tai, Filling the Sackett Gap: The Private Governance Option, 109 MINN. L. REV. 2583 (2025).
Abstract
The Supreme Court’s decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools to close the Sackett Gap—the gap between the wetlands protected before and after Sackett. Scholars have argued for federal measures to fill the Sackett Gap, but these actions face substantial challenges. Congress is unlikely to adopt new wetlands legislation, agencies are constrained by Sackett’s expansive language, the end of Chevron deference, and the 2024 presidential election, and lower federal courts are constrained by the emergence of the major questions doctrine. Recognizing these constraints, scholars have turned to state and local governments, but more than half of the states limit their wetlands requirements to be no more stringent than federal requirements, and many restrict the options of local governments.
Drawing on the private environmental governance (PEG) literature, this Article identifies viable new instruments that can fill gaps in and complement government measures. This Article explores private sector motivations to destroy wetlands and proposes a new conceptual model to identify tools that can shift those motivations. It concludes that PEG supply chain, investor-, lender-, and customer-driven initiatives can be directed toward the sectors that pose the greatest wetlands threats and can create legal, economic, and social pressure for wetlands preservation. This Article focuses on the Sackett Gap, but the conceptual model and tools provide viable ways to address other emerging gaps in environmental, health, and safety regulation.
