In 2007, Michael and Chantell Sackett decided to build a house on what an appeals court later called “a soggy residential lot” near Priest Lake in Idaho. The EPA objected, claiming the lot was a protected wetland subject to the Clean Water Act. The Sacketts sued and the case has been up to the US Supreme Court and back again previously. This week, five of the so-called justices of the Supreme Court decided to overrule long established precedent and allow the Sacketts to build their dream home.
In a majority opinion, Judge Samuel Alito wrote, “We hold that the CWA extends to only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters.” The nub of the controversy is that some parcels of land are wet part of the year and dry at other times.
The Supreme Court & WOTUS
Conservatives have long argued the phrase “waters of the United States” applies only to navigable waterways. Progressives take the position that all water percolates through the soil and eventually winds up in such navigable waters. The problem is that Congress chose a rather ambiguous phrase when drafting the Clean Water Act.
Since Congress has not seen fit to tighten the definition, the courts are free to weigh in on what they think Congress meant, or should have meant. That in turn makes the courts the lawmakers, not the legislative branch.
In a prior opinion, Alito made his biases known. “The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by E.P.A. employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”
Down With Activist Judges!
For generations, reactionaries have railed against what they called “activist judges” — people like Earl Warren, Thurgood Marshall, William Brennan, and others who included a heavy dollop of social justice in their decisions. Now, of course, those same reactionaries are over the moon with joy because “their guys” are practicing a virulent brand of judicial activism of their own.
It should be noted that the Sacketts have not spent millions of dollars of their own money to prosecute their case. Their cause has been taken up by the ultra conservative Pacific Legal Foundation.
One member of the conservative wing of the Supreme Court broke ranks with his colleagues. Brett Kavanaugh wrote in a separate opinion that the majority’s new test “departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents” and will have “significant repercussions for water quality and flood control throughout the United States.”
Elena Kagan joined in Kavanugh’s opinion, saying that in a decision last year limiting the power of the EPA under the Clean Air Act, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”
Reaction To The Supreme Court Decision
As reported by Common Dreams, the reaction from progressives has been fierce. Sam Sankar, a vice president at Earthjustice, said, “While Earthjustice and our allies are closely evaluating the impact of the Sackett decision on the new WOTUS regulation. we can say with certainty that the court has once again given polluting industries and land developers a potent weapon that they will use to erode regulatory protections for wetlands and waterways around the country.”
Elizabeth Southerland, former director of science and technology in EPA’s Office of Water, noted that “since 1989, the U.S. government has used Clean Water Act authority to either prevent the filling of wetlands or to permit filling only when an equal acreage of wetlands is reclaimed or restored. Wetland preservation is critical for providing flood control, absorbing pollutants, preventing shoreline erosion, storing carbon, and serving as a nursery for wildlife.”
She added the decision “is a big win for land developers and miners, who will now be free to destroy certain types of wetlands without paying for wetland reclamation and a big loss for communities who will have to pay more to treat their drinking water and respond to increased flooding and shoreline erosion.”
Environmental advocates tell the Washington Post that under the interpretation of the Clean Water Act in the Sackett case, about half of all wetlands and roughly 60% of streams in America will no longer be federally protected.
Attorney Rafe Petersen, who represents miners, offshore wind developers, and others seeking EPA permits, was positively gleeful about this latest decision. He said the court decisions and rule changes over the years have made the water rules some of the most difficult for businesses to deal with.
A court decision against the EPA, he added, likely leaves the Biden administration to start all over again from scratch. “I don’t see how they get away from that,” Petersen gloated. “The Biden administration is really boxed into the corner.”
Ordinary People Respond
It’s easy to see why some are celebrating this ruling and others are apoplectic. In comments to a New York Times story about the decision, one person posted this: “The Supreme Court is turning itself into a regulatory agency. It is unconstitutionally impinging on the powers of the executive branch. But of course it will never rule that its own behavior is unconstitutional.”
Here’s another: “I don’t think people realize the ramifications of this anti-science ruling. Wetlands are critical infrastructure. They collect and hold water after rain events so that it doesn’t go rushing into our rivers and streams causing floods. Instead, the water infiltrates into the ground where it is cleaned and flows through underground flows into streams and rivers over a prolonged period of time.
“They are directly connected to our rivers and lakes, just under the ground. If you fill in a wetland, or pollute it, that has direct impacts on the bodies of water surrounding that wetland. Unfortunately, the effects will happen over a long period of time. Floods will incrementally get worse until some day in the future our kids will look back and say: ‘How in the world were they so stupid?” This is a massive ruling. Bigger than Dobbs. This affects everyone. Men, women, children, future generations.
Under a pergola next to a rain garden outside CleanTechnica headquarters, we are all feeling gutted by this latest outrage from the Trojan horses installed on the Supreme Court at the behest of Charles Koch and his ilk, with a massive boost from the despicable Mitch McConnell. And yet, there is this comment that is rational and realistic…and correct.
“The original law is vague, as the article reported. Without a firm definition of what constitutes ‘the waters of the United States’ it will be courts that will have to provide that definition. Congress can fix this if it wants, just as Congress can give the EPA authority to regulate CO2 emissions. Don’t blame the courts for the inevitable result of poorly written legislation.”
We might add that Congress often lets shoddy language slide, knowing they are passing the buck to the judiciary. It’s often politically expedient to do, even if it allows Congress to shirk its duty as specified in the Constitution.
Congress could fix this, but it won’t, because the American people have decided to send idiots, charlatans, thieves, and crooks to Washington, DC, to represent them. Largely they are single issue voters who will approve anyone who says the right thing about the freedom to slaughter school children with assault rifles, or the Ten Commandments, or the reproductive health of women. They can’t be bothered looking beneath the surface. Instead they make up their mind about who to vote for based upon a tweet or an internet post.
Votes matter. Elections matter. We get the government we deserve. Perhaps we should be more involved in the electoral process — while we still can.
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