The Clean Water Act of 1972 was intended to do exactly what the name implies — protect the waters of the United States from pollution. Since the beginning, it was controversial. Precisely what waters were included? It obviously applies to the Great Lakes and the Mississippi River, but what about that pond on the back 40 of a farm in Kansas?
Over the years, state and federal courts have plumbed the depths of the Clean Water Act and come up with dozens of scenarios that have done little but muddy the waters (pardon the expression). Opponents of the Act maintain it should only apply to navigable waterways. Proponents argue that if a farmer dumps millions of pounds of pesticides onto his fields and rainwater later carries all those toxins into a river or stream, the Clean Water Act should prohibit such behavior.
In 2015, the Obama administration attempted to cut through the competing interpretations and provide some clarity in what came to be known as the Waters Of The United States rule. In essence, the EPA and the Corps of Engineers promulgated new standards intended to make it clear that the Clean Water Act applies to “streams and wetlands which have a significant hydrological and ecological connection to traditional navigable waters, interstate waters, and territorial seas,” according to Wikipedia.
Farmers and ranchers went berserk over the new rule. It is not a stretch to say the furor over the Waters Of The United States rule played a significant role in Donald Trump’s election victory in 2016. The rule enraged many people in America’s heartland who claimed it made every mud puddle that remained after a rain storm subject to the Clean Water Act. They deemed it an egregious example of government overreach. The ire in rural states may have contributed to victories for Trump in several swing states.
Injection Wells On Maui
This week, the United States Supreme Court weighed in with a ruling that does not completely satisfy any of the litigants. According to The New York Times, the case involved the activities of a wastewater treatment plant on the island of Maui, Hawaii. The facility uses deep injection wells to dispose of some four million gallons of treated sewage each day by pumping it into groundwater about a half-mile from the Pacific Ocean. All the parties to the litigation agreed that some of the wastewater reached the ocean.
The Trump maladministration, which is supposed to be protecting the health and welfare of all Americans, supported the claim by the county of Maui that the Clean Water Act does not apply to discharges that travel through groundwater before reaching protected waters. The Supreme Court disagreed.
In a 6-3 decision, the court said the controlling question is whether “the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” The guiding principle of the decision is that groundwater may now be considered a link between sources of pollution and protected waterways.
“This decision is a huge victory for clean water,” said David L. Henkin, a lawyer with Earthjustice who argued the case on behalf of environmental groups. “The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes and oceans.”
This is a huge deal. Until now, polluters have insulated their nefarious conduct from judicial review by claiming the law does not apply if pollution travels through groundwater. That fiction has now been dismissed by the Supreme Court.
Fun & Games In High Places
Who says lawyers don’t have a sense of humor? The arguments presented to the court included such amusing hypotheticals as whether whiskey added to punch from a flask could be said to be “from” the original bottle or, indeed, from a barrel in Scotland.
The judges themselves joined in the fun by debating among themselves whether a traveler could be said to have simultaneously come from the train station, Baltimore, and Europe, and whether a recipe calling for adding drippings from meat to gravy made sense when the drippings were collected from a pan. Such frivolity is seldom seen in the exalted halls of justice.
Justice Breyer, writing for the majority, chided both sides for taking extreme positions, apparently unaware that extreme positions are the norm these days outside the august halls of the Supreme Court. In his decision, he said the standard should be whether “the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” The decision will now create a whole new class of attorneys who spend their entire careers arguing over the meaning of the phrase “functional equivalent.”
As important as this decision is, it is equally significant that the majority included 6 justices — the usual suspects on the court’s liberal wing plus Chief Justice John Roberts and the newest member of the court, Brett Kavanaugh. The other three justices confirmed their unshakable conviction that the government can never do anything right and should be dismantled completely.
Why is that important? Because there are a slew of cases headed to the Supreme Court that challenge many of the outrageously partisan policies of the Trump maladministration and also quite a few lawsuits seeking to address the impending disaster of a warming planet. Perhaps there is a hope yet that the Supreme Court will not just roll over and play dead when the stupid, pigheaded policies promoted by the unstable moron on the White House and his toadies come before it. We’re looking at you, Andrew Wheeler.
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