Supreme Court Narrows the Scope of the Clean Water Act
npr.org
npr.org
As for this decision in particular, it's pretty short-sighted to think that a "surface connection" is substantially different than a connected aquifer when it comes to many pollutants. I wonder if the justices consulted with anyone who knows what they're talking about in this regard or this was a gut call on their part.
There was a 5-4 split on whether to go further and require "wetlands" to be connected to another body of water to qualify. That wasn't a partisan split, either: Kavanaugh dissented.
I do remember that it was a gun control bill and that she likely did it to protect her NRA rating, which was an "A" at the time. She was later downgraded to a "B" last year after voting to end a GOP filibuster that was blocking its passage through the Senate.
Sorry I don't remember anything more specific at the moment :(. FWIW, I don't think it's an uncommon practice.
Going forward, the battles of regulation will go down to state and local levels. You can see it in broadband as an good example, where the FCC has become increasingly corrupt, feckless and powerless, and all the real battles are now state by state, block by block.
I agree, but am pleased to see it.
From a personal perspective, every hobby or interest I have exposes some other federal agency that's hostile toward it, and hated by that community for going well beyond their statutory authority.
Speaking more generally... I think severely curtailing the non-statutory authority of federal agencies is just about the only path toward keeping our federal system in the long run. Most of this country (by area, not population) is increasingly resentful of the federal government's actions, and their ability to enforce the law is decaying over time.
I think we'll see the Chevron Doctrine significantly limited, if not completely overturned. There are several firearms cases working their way through the courts now that would be well-suited for that. If it's done via another case, those will likely be remanded and reversed by the appellate to avoid setting more precedent specific to firearms.
Land doesn’t vote.
And no this isn't a rhetorical argument, the reasons why we have these regulations is because farms will gladly dump whatever into nearby streams and destroy water supplies because it's quite literally downstream of them and this doesn't directly affect them.
> Within a few years, the agencies had “interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres” of wetlands and “virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.” Rapanos, 547 U. S., at 722 (plurality opinion).
All the court did here was rule that the law doesn’t cover ditches which might occasionally have rainwater in them. The EPA will have to go back to the older definition that includes navigable waterways, such as rivers, lakes, and seas that carry interstate or international trade, as well as the wetlands adjacent to them.
As usual, Congress retains the power to amend the law to give it a more precise definition. They could even amend it so that it does cover any random ditch that might occasionally have water in it if they wanted. Congress could have made that choice at any time in the last 50 years, but they have chosen to leave the law vague instead. If you think that the Clean Water Act _should_ be applied to every single ditch in America, then write your Representative and tell them off for not doing their job.
> All the court did here was rule that the law doesn’t cover ditches which might occasionally have rainwater in them.
Hardly, what the court did was override both the intent of the law and people who understood what was required to implement it. It’s a perversion of the basic concept of the rule of law.
> perversion of the basic concept of the rule of law.
You have this completely backwards. In the 70s when the CWA was created, the EPA did not consider every single ditch in America to be covered by the CWA. Congress didn’t modify the law to include every single ditch in America. They did, however, modify it in 1977 to include all “adjacent wetlands”. This was clearly intended to allow the CWA to apply to any wetland adjacent to a river or lake carrying interstate or international trade. But nobody back then thought that it covered the ditch in your back yard. It wasn’t until 2006 that the EPA started gradually expanding the scope of their activities, culminating in the present case where they are trying to assert their authority over every single place where water flows, or could flow.
The rule of law requires that people know what the law is, and it thus follows that it requires that the agencies which enforce the law may not gradually expand their definitions in order to grab more and more power. If you want the EPA to have more power, then tell your congresscritter to give it to them. Anything else is a perversion of the rule of law.
On top of this speeding up how quickly rain enters streams increases flooding etc. At an individual level it may not be obvious but collectively it can be a huge effect.
As to the bills interpretation, congress isn’t an expert on everything. They create agencies specifically to solve problems not carry out a rote script. Nobody wants the FBI having a list of specifically banned types of murder that are outlawed and if someone comes up with a new one then they’re off scot free. Instead they say arrest people who do X, and if the agency does something they don’t like congress then amends the law.
Congress has been happy to see how the EPA has followed their instructions since 2006, but suddenly these activist judges say hold up you’re not doing what congress wants… Get real they are saying this isn’t what the judges want.
Consider being less antagonistic towards your mutual dependents.
If the argument is we share these resources and there's externalities, I'd ask why not focus on getting BRICS to pass your policies first? It will have a much greater impact than what can be done in the US. If you can't get BRICS to pass your policies, then what is the point? If the argument is that we can at least make a small impact locally, why not extend that reasoning further to allow the people in each state, and the people in each municipality to decide?
I look forward to the rebuttals given some countries are already excluded from participating in the G7.
I do think people are broadly incredibly resentful. But I also think these critics would be enormously more interesting to listen to if they had nuance & perspective, if they could acknowledge how necessary it was that we did things like create the EPA & how important it is to safeguard & protect ourselves in a long term. So much of the dissent is pure disdain, just inchoate rage, and it's unclear that folks are worth heeding.
There is a huge propaganda network running very very effectively on rage against any governance. It has become a horrible mind poison.
Our Constitution's balance of powers was specifically designed to curtail that.
As a long time fan of democracy and loyal citizen of the USA, I'd rather have elected representation, for all their faults, rather than a cabal of reactionary corporatists with lifetime appointment and near zero accountability, calling the shots.
But opinions differ.
Some think monarchy is just terrific. Because 2400 years ago Plato blathered about mobs and tyrants and wokeness.
I think that’s the root of the problem.
This case wasn’t about overturning a law, it was about reining in an unelected federal agency that had interpreted the law in a way that a plain reading doesn’t support.
If Congress had written the Clean Water Act in a way that authorized this position, we’d be having an entirely different conversation.
I volunteered for a wetlands conservation group for a decade. Only made possible by Bush 41's efforts to further codify and protect wetlands. https://en.wikipedia.org/wiki/No_net_loss_wetlands_policy
The hubris of Alito et al to judge our best available science, despite having zero expertise, despite decades of policy, despite decades of scientific and methodology advances, is just bonkers.
Oh, sorry, they're just being textualists. A totally real, consistent, and in no way purely fabricated as needed case-by-case legal doctrine.
I can't wait to humor the SCOTUS' anti-textualism tortured rationalism next time they choose originalism, major doctrines, or an entirely new legal fiction to reach their predetermined outcome.
Probably next week.
Sure some things aren't done well, as you say hobbyists can suffer, but without regulation at scale the majority of the population suffers.
If it's not regulated, every big company will abuse whatever they can (people or otherwise) to get ahead.
That said - I didn’t posit that all government regulation is bad in my original post in this thread. I said that weakening the power of federal agencies is likely the only path to maintaining our federal system in the long term.
While yes, my “end goal” is the dissolution of the state, I’m not naive enough to believe that could happen overnight and it be a good thing. Instead, I’d like to see government functions replaced one by one by private enterprises through natural market forces, culminating in dissolution of the state through lack of utility and interest in continuing it. That would be a multi-generational project even by the most optimistic projections.
Yeah you can stick that. Hard.
People and companies will always try to screw over the little person. Government's role is to mitigate that.
When you see made up concepts and things that make no sense, then you may say that. I am looking at you 9th district.
The issue at play is how the government is seen by the people in charge, it is an exciting time to see those in charge try to bend the rules to get the judges to accept it. Look at how Obama claimed the care act was not a tax until it went to the court and then it became a tax to slip by.
Is the idea that Thomas is actually a liberal and if he didn’t have wealthy conservative friends he would write and vote differently on these cases?
It argues that "waters of the US", even if it leaves off the word "navigable" in the law, still refers to only navigable waters since the term "waters of the US" has always been used in only that way. That would narrow the scope of the Clean Water Act even further.
From the "concurrence":
"the agencies have 'asserted jurisdiction over virtually any parcel of land containing a channel or conduit through which rainwater or drainage may occasionally or intermittently flow,' including 'storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.'...The agencies’ definition 'engulf[s] entire cities and immense arid wastelands' alike...Indeed, because 'the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface,' 'any plot of land containing such a channel may potentially be regulated.'... If this interpretation were correct, the only prudent move for any landowner in America would be to ask the Federal Government for permission before undertaking any kind of development."
Then, getting to the real meat of the not-really-a-concurrence "concurrence":
"What happened to the CWA is indicative of deeper problems with the Court’s Commerce Clause jurisprudence. The eclipse of Congress’ well-defined authority over the channels of interstate commerce tracks the Court’s expansion of Congress’ power '[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'...As I have explained at length, the Court’s Commerce Clause jurisprudence has significantly departed from the original meaning of the Constitution"
That's what Justice Thomas is going for. To kill the New Deal expansion of federal power through the commerce clause. That's why to progressives, he is public enemy number one. He got one other justice to go along for the ride on this one.
I take issue with the "rights and protections" phrasing being used in the exact opposite sense of what they mean in this case. The underlying issue is that the vague wording in the CWA was has come to be interpreted expansively and that the consequences of even unintentional violations can be crushing. Here, ordinary people were about to build a house not obviously in "navigable waters", and they were threatened with $40,000 per day in sanctions.
Also, calling it a "rollback" is deceptive phrasing that it implies going back to the time before the CWA was enacted. It would be more accurate to note that the law has been interpreted more and more broadly every year since its creation and that some outer limit is being set on what constitutes a "waterway" or "pollutant" (neither are being interpreted in a way that most people would expect).
I get that some HackerNews commenters can easily fall into the environment-good/conservatives-bad mentality, but this case can also be viewed as falling into the same category as Aaron Swartz being crushed by an expansive and overly punitive interpretation of the CFAA.
Relevant excerpts:
> Within a few years, the agencies had “interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres” of wetlands and “virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.
> By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.
> The CWA is a potent weapon. It imposes what have been described as “crushing” consequences “even for inadvertent violations.” Army Corps of Engineers v. Hawkes Co., 578 U. S. 590, 602 (2016) (Kennedy, J., concurring). Property owners who negligently discharge “pollutants” into covered waters may face severe criminal penalties including imprisonment.
> The Act prohibits “the discharge of any pollutant” into “navigable waters.” 33 U. S. C. §§1311(a), 1362(12)(A). It broadly defines the term “‘pollutant’” to include not only contaminants like “chemical wastes,” but also more mundane materials like “rock, sand,” and “cellar dirt.”
> And due to the Act’s 5-year statute of limitations, 28 U. S. C. §2462, and expansive interpretations of the term “violation,” these civil pen- alties can be nearly as crushing as their criminal counter- parts, see, e.g., Borden Ranch Partnership v. United States Army Corps of Engineers, 261 F. 3d 810, 813, 818 (CA9 2001) (upholding Agency decision to count each of 348 passes of a plow by a farmer through “jurisdictional” soil on his farm as a separate violation)
When vague laws with powerful punishments are interpreted expansively and aggressively by enforcement agencies, we should all hope that the Supreme Court should set limits.
Seems like an obvious person to consult with on laws relating to land regulation.
The property in question was hundreds of feet from a lake, with a row of houses and a road in between the property and a lake.
The EPA and various rules by Obama tried to make anything that drains into a navigable waterway a wetland, and thus under its jurisdiction. That's obviously ridiculous. This cuts the Biden rule a little finer, so that something designated a wetland needs to be physically adjacent to the water to fall under the protection umbrella.
Reading comprehension is hard, which is why people don't do it.
In what way? Any pollution draining into the wetland affects the wetland. Why shouldn't regulation to protect the wetland protect the wetland from pollution?
How come you should be free to pollute a waterway just because you aren't waterfront property?
A mountain peak is obviously not a wetland.
The main issue is the lack of clarity around the definition and the rather significant fines ($60k / day) that can be imposed on someone who moved some dirt.
Part of what the court wants is for congress to define the law rather than putting that in the hands of ever changing, appointed officials in a federal agency.
--- start of the majority opinion
This case concerns a nagging question about the outer reaches of the Clean Water Act (CWA), the principal federal law regulating water pollution in the United States. By all accounts, the Act has been a great success. Before its enactment in 1972, many of the Nation’s rivers, lakes, and streams were severely polluted, and existing federal legislation had proved to be inadequate. Today, many formerly fetid bodies of water are safe for the use and enjoyment of the people of this country.
There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act’s geographical reach have been uncertain from the start. The Act applies to “the waters of the United States,” but what does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?” How about ditches, swimming pools, and puddles?
For more than a half century, the agencies responsible for enforcing the Act have wrestled with the problem and adopted varying interpretations. On three prior occasions, this Court has tried to clarify the meaning of “the waters of the United States.” But the problem persists. When we last addressed the question 17 years ago, we were unable to agree on an opinion of the Court. Today, we return to the problem and attempt to identify with greater clarity what the Act means by “the waters of the United States.”
--- later
Second, the EPA’s interpretation gives rise to serious vagueness concerns in light of the CWA’s criminal penalties. Due process requires Congress to define penal statutes “‘with sufficient definiteness that ordinary people can understand what conduct is prohibited’” and “‘in a manner that does not encourage arbitrary and discriminatory enforcement.’”
The way the article is written you can really tell that the NPR writer has an opinion.
Rather than just explain the facts about what happened they obviously frame it as “conservatives are destroying the planet”.
This is why trust in news sources is at an all-time low.
"Petitioners Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for building a home. The Environmental Protection Agency informed the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act, which prohibits discharging pollutants into 'the waters of the United States.' The EPA ordered the Sacketts to restore the site, threatening penalties of over $40,000 per day."
It's an example of why building anything costs so much.