Half of US wetlands lost federal protection. Their fate is up to the states
pilotonline.com
pilotonline.com
This is perfectly reasonable if you look at the original law and intent behind it, and the wetlands the federal agency no longer can claim control over. The original law was passed to protect the “navigable waters of the United States”. The agency claimed that wetlands around random creek flowing into a lake are covered, because there is a “significant nexus” between it and some navigable waters, somewhere. If you disagreed, tough luck, your best option was to appeal to the same agency, making it both judge and prosecutor in the same case, and in any case is not a practical option for a random person without deep pockets, who just want to build a house on a lake.
The ruling said that when the law says it applies to navigable waters of United States, you can apply it only to waters or wetlands that actually are navigable for purposes of interstate commerce, or are so connected to these waters to be practically indistinguishable. This is perfectly reasonable: if given wetlands are not connected to interstate navigable waters, why should they be under federal jurisdiction in the first place, especially given the plain language of the relevant law? If the state wants to protect its own waters and wetlands, it’s certainly free to do so.
Now, I believe that federal government could actually argue that the random wetlands actually can be under its jurisdiction, if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that, instead of leaning on old law that clearly did not mean to cover this.
Exactly. The law as written was misinterpreted. Write a new law.
Since Congress is in a comatose state, executive branch agencies have come to rely on Chevron deference and related doctrines, and the people on the courts to expand executive branch authority.
¹ Congress manages to pass a few non-budgetary laws that have broad³ bipartisan appeal, but this has the effect of excluding most meaningful legislation
² the repeal of which Sinema and Manchin blocked; so its repeal is contingent on Democrats winning a few more Senate seats
³ broad, due to the Senate filibuster, and the Hastert rule in the House: https://en.wikipedia.org/wiki/Hastert_Rule
https://en.wikipedia.org/wiki/List_of_acts_of_the_117th_Unit...
The current situation is not at all special or ahistorical.
Every president since the founding has probably felt tempted to become a dictator and work around congress out of frustration -- thankfully we have the court system to (usually) shut them down.
I suspect the current Congress has not passed any meaningful non-budgetary legislation.
Some of the most important pending bills include restoring the Voting Rights Act (which was crippled by the conservative wing of the Supreme Court in the Shelby County v. Holder decision). That bill is still being blocked by the Republican party. See: https://en.wikipedia.org/wiki/John_Lewis_Voting_Rights_Act
The Voting Rights Act used to be a bill that was renewed with bipartisan support, but once the Republican party realized that the invalidation of this bill made it easier to suppress minority votes in red states, they've been opposed to its renewal.
You can also raise the counterpoint here: 45 years of precedent says they're included, and if you don't like it, pass a law saying it doesn't.
My uncle has a small stream running through his back yard, counted as "navigable water" despite the fact that I could jump across it as a child and it wasn't deep enough to support anything but a paper boat.
I'm also not saying we shouldn't have protections for the environment, but loose interpretation of rules is how you get corruption and abuse.
Right, and the judiciary has 45 years of precedent that the wetlands are included. This radicalized illegitmate SCOTUS just threw out the protections because their corporate owners benefit from it.
Besides, laws matter. If you want something done, you have to pass a law. If you don't have the votes, then go do the work and convince more people to vote with you.
Edit: it actually wasn't set precedent from the supreme court anyway. The previous decision was split and was sent back down to the lower court, before being settled:
Historically only a small fraction of Supreme Court cases have overturned precedent without a conflict at lower levels.
If the courts cannot be expected to consistently interpret the law, how can citizens be sure what that law means?
To turn over fifty years of precedent on a whim is certainly within the power of the supreme court, but only in the same manner that doing a poor job of running the federal government is within the powers of the executive.
There is nothing to stop them from doing their job poorly, because they are themselves the ones responsible for setting and maintaining high standards.
And you are right.
I absolutely support both same-sex marriage and the casting out of the vile separate-but-equal doctrine.
And I think both would have been better done as legislation.
When the supreme court struck down 50 years of precedent supporting the right of women to use abortion as a tool in reasonably controlling whether they would choose to go through the dangers of pregnancy, they showed precedent alone is not a dependable bulwark for the rights of the citizenry.
I also admit I find it far more reasonable for the courts to expand rights and protections than I do seeing it strip them away.
You might argue this is an expansion of rights for those that would prefer to be unhindered by regulatory oversight while destroying, polluting and mismanaging the wetlands now under their control, and I suppose it is. Though I doubt any good will come of it.
https://en.wikipedia.org/wiki/Cargo_cult_science
> In the South Seas there is a cargo cult of people. During the war they saw airplanes land with lots of good materials, and they want the same thing to happen now. So they've arranged to imitate things like runways, to put fires along the sides of the runways, to make a wooden hut for a man to sit in, with two wooden pieces on his head like headphones and bars of bamboo sticking out like antennas—he's the controller—and they wait for the airplanes to land. They're doing everything right. The form is perfect. It looks exactly the way it looked before. But it doesn't work. No airplanes land. So I call these things cargo cult science, because they follow all the apparent precepts and forms of scientific investigation, but they're missing something essential, because the planes don't land.
You don't get democracy for participating in a voting ritual. You don't get justice for just following precedent. These things are a summation of the beliefs, norms, and actions of a society as a whole.
It is myopic to frame the conversation around precedence or individual cases. When you frame the conversation around justice, it becomes clear why it's OK to break precedence to protect rights granted by nature, but not OK to break precedence to enrich some business that pollutes the environment.
Here is one of our great founding father's (Thomas Paine) take on justice:
> Man, with respect to all those matters, is more a creature of consistency than he is aware, or than governments would wish him to believe. All the great laws of society are laws of nature. Those of trade and commerce, whether with respect to the intercourse of individuals or of nations, are laws of mutual and reciprocal interest. They are followed and obeyed, because it is the interest of the parties so to do, and not on account of any formal laws their governments may impose or interpose.
> But how often is the natural propensity to society disturbed or destroyed by the operations of government! When the latter, instead of being ingrafted on the principles of the former, assumes to exist for itself, and acts by partialities of favour and oppression, it becomes the cause of the mischiefs it ought to prevent.
Our government was acting on behalf of the citizens with brown and obergafell and is acting on behalf of corrupt individuals with citizens united, this, the overturns, or any other number of things our federalist society junta is doing.
So when the court operates on behalf of the weak and oppressed it is fulfilling it's purpose, but when it operates on behalf of the powerful and corrupt, it is denigrating the institution it claims to be and spitting in the very face of justice and crushing the idea of rule of law.
https://www.npr.org/2023/05/25/1178150234/supreme-court-epa-...
> Justice Brett Kavanaugh, joined by the court's three liberal members, disputed Alito's reading of the statute, noting that since 1977 when the CWA was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded. Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court's new test will have quote "significant repercussions for water quality and flood control throughout the United States."
Chantell and Michael Sackett went to the Supreme Court twice. Twice! Unanimous rulings in their favor both times. Sacketts: 18, EPA: 0.
Due to court turnover they had 13 unique SCOTUS justices find in their favor.
Am I supposed to pretend that the liberal justices aren't also corrupt?
> The court voted unanimously to reverse the Ninth Circuit, but split 5–4 on the rationale. The majority opinion, by Alito, introduced a new test to define wetlands, which reversed five decades of EPA rule-making and limited the scope of the Clean Water Act's authority to regulate waters of the United States. Justice Brett Kavanaugh joined the three liberal justices in agreeing that the CWA did not apply to the Sacketts' property, but argued that the majority's new definition was incorrect and will have significant effects on regulated waters.
What is this 45-year-old precedent of which you speak? The CWA itself? It's worth noting that the Sacketts have been wrapped up in challenging the agency decision in the courts for nearly 20 years. Regulatory agencies stretching the bounds of their authority until they come to a head in the courts is not unique to the CWA or the EPA, but is a phenomenon typical of the interplay between the Judiciary and Executive branch. A regulatory agency claiming their decisions are not subject to any judicial review is.. a position, I guess.
> Radicalized illegitimate SCOTUS
That comment seems quite radical. SCOTUS unanimously decided this case, FWIW. SCOTUS looked at the plain language of the statute, which seems like a great place to start and end the review. What has been determined to be illegitimate is the breadth of EPA's claimed authority under the law as written.
Nobody is suggesting that. The basic argument is if both the executive and the judiciary misinterpret a law for decades then it’s the legislative branch’s job to correct that “misunderstanding” not the judiciary. This is why it’s called a common law, past court cases clarify the rules. https://en.wikipedia.org/wiki/Common_law
When president exists it’s the judiciaries job to maintain the status quo not to arbitrarily change the rules after it’s already made up its mind, unless there is some clear conflict. The fundamental principle at play is if the judicial branch can flip flop arbitrarily then president is meaningless and everything can be relitigated endlessly.
Edit: There’s many sources of conflict even without changes to the law as lower courts should be self consistent but there’s independence between them. Which might seem strange but creates some redundancy as consistent rulings reinforce precedent while conflicting rulings invite intervention by a higher court.
It is often the precedent which was arbitrary.
There’s many other systems we could use, but existing case law has the benefit of being extremely detailed. If navigable waterways in your state is public land, what happens after a dam is installed and they’re no longer navigable? That’s the kind of thing you want to find out before you buy some property.
Most legal questions aren’t about state power but what exactly the rule is. Contracts are a huge area that has little to do with the state. Even when stuff involves the state people want to know the legal/liability/tax implications of doing X vs Y before doing something.
Ie: Do I need a permit to build an outdoor pizza oven? It doesn’t matter how arbitrarily the rule was created, you just want to know the rule and often the penalty for breaking it. Laws often use vague terms like “reasonable.” So, WTF is does “reasonable speed under the circumstances” actually mean in say light rain, well chances are someone found out …
Not quite.
As recently as in 2006, Rapanos decided "the CWA’s use of 'waters' encompasses 'only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’"
Also: "More recently, the agencies have engaged in a flurry of rulemaking defining 'the waters of the United States.' In a 2015 rule, they offered a muscular approach that would subject 'the vast majority of the nation’s water feature' to a case-by-case jurisdictional analysis. Although the rule listed a few examples of 'waters' that were excluded from regulation like '[p]uddles' and 'swimming pools,' it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters. And it subjected a wider range of other waters, including any within 4,000 feet of indirect tributaries of interstate or traditional navigable waters, to a case-specific determination for significant nexus.
The agencies repealed this sweeping rule in 2019. Shortly afterwards, they replaced it with a narrower definition that limited jurisdiction to traditional navigable waters and their tributaries, lakes, and 'adjacent' wetlands. They also narrowed the definition of '[a]djacent,' limiting it to wetlands that '[a]but' covered waters, are flooded by those waters, or are separated from those waters by features like berms or barriers. This rule too did not last. After granting the EPA’s voluntary motion to remand, a District Court vacated the rule."
https://news.ycombinator.com/item?id=21407836
In fact, here's video of her plowing wetlands,
https://www.reuters.com/business/environment/its-my-home-isl...
She won her politically correct case BTW
https://www.reuters.com/business/environment/its-my-home-isl...
Hopefully Germany outlaws her existence and kicks her off wetland island. It would be poetic justice.
Welp.
So.... Not a fan of Oberefell vs Hodges, I take it?
How many endorheic basins do we even have in the United States? And one of the major ones, the basin of the Great Salt Lake, is clearly navigable for commerce purposes (although obviously not for "interstate" commerce, which may be what matters here).
> if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that
Why do we need to pass a law to assert something patently obvious to everyone? All waters are connected to major U.S. rivers except those in small endorheic basins. If some random person wants to build a house on a lake (which is a euphemism for: some major corporation wants to dump toxic waste in that lake), of course that affects all downstream waters of that lake, all the way to the ocean.
This case has been 10 years in the making. In this case the EPA threatened to fine a family that wanted to develop a plot of land in a residential subdivision up to $75,000/day. The EPA claimed that because it had not yet fined the family, it's determination that their plot of land was a protected wetland under the Clean Water Act was not subject to judicial review. So the family would have a sword of Damocles hanging over their head if they decided to develop the land, but they couldn't challenge proactively that the land they wanted to develop was not in fact a protected wetland.
The Supreme Court unanimously held that the compliance order threatening the fine was subject to judicial review, leading to the second case involving this plot of land, as to whether it was in fact a protected wetland.
I do hope that states can work together to protect the environment but it does seem likely to become a partisan issue.
Again, if Congress wanted to fix this, they have the authority. The decision simply said they have not yet actually done so.
a) Don't agree that congress is blocked and is never going to pass anything.
b) Care more about the legalities than the issues themselves, and so don't really care about whether there is a plausible way through congress.
c) Are making a cry for help for everyone to come together to fix congress. Hoping that if things get bad enough, people will finally wake up and get congress working again.
d) Trust that the supreme court will vote in their favour, and are just concern trolling / trying to distract their political opponents by referring to congress.
Let me know if I missed any other options.
The only way to address the issue is to do so legally.
e.) Want to limit the federal executive branch of government which some believe has grown too powerful.
e) stop complaining about the Supreme Court rulings going against their desire, and complain to Congress instead.
You have a subtext in all your options that gates all your options on what (a person thinks) should happen. For example "whether there is a plausible way through congress".
None of your options simply leave that concept entirely out. The reality of a law simply does not care on what you feel the law should be.
I see it all the time people complain "if you rule this way then xyz will happen", which is so completely irrelevant I don't see why they even mention it. A ruling is based on what IS passed not what output you want.
Legislature on the other hand is all about what SHOULD be the result.
If we try to rely on the Supreme Court to fix things without fixing congress, the Supreme Court is going to become way more dysfunctional too.
Because it's what the current Court is saying. They're pushing back against Chevron's deference to agency rule making.
Congress didn't say a thing, agencies wrote a rule, the courts deferred; SCOTUS is saying that last part was incorrect, the agencies never had the power to write that rule. Congress needed to do it.
Meanwhile, Congress watches the Court strike down significant parts of things like the Voting Rights Act.
There’s little reason to believe the Court couldn’t possibly have struck down a “fix” on some other premise.
No? If SCOTUS says a law is unconstitutional, you’re either in amendment territory, or the complete collapse of the American system if Congress and the Executive ignore them.
If Congress wants, they can write legislation and then simultaneously exclude it from judicial review.
What's really happening here is that a wall that took years/decades to build, that everyone thought was solid, was just torn down, and everyone is saying "the masons should have just built a better wall if they cared so much. They can do so now if they choose." while the territory that the wall was protecting is being invaded. See the problem?
Until someone checked and realized the wall was not where it claimed to be.
If the wetlands described don't fall under constitutional "Navigable Waterways" (via CWAs language "Waters of the US"), then congress does NOT have the constitutional authority to regulate it.
I’d go even further than that. Lots of migratory birds and animals use them.
It’s pretty amazing being around when the mega flocks of birds land.
Not mentioned in this article is the fact that the “substantial nexus” standard just rejected by the Supreme Court was ridiculously vague, and the process by which landowners could determine whether there existed a “substantial nexus” between wet-ish areas on their property and navigable waterways was ridiculously slow and uncertain. (But with potentially huge civil and even criminal penalties to those who guessed wrong.)
The process, in recent years: first you hire an specialized wetlands consulting firm whom you pay many thousands of dollars to compile a document that argues, in highly technical language, that no substantial nexus exists. You submit this “Request for Jurisdictional Determination”, which may run more than 100 pages long, to the Army Corps of Engineers. They respond whenever they get around to it. Maybe six months later you get an answer. More often than not, they claim jurisdiction, and then you have to file for an Army Corps dredge/fill permit that might take another six months to be issued.
Note that complaining about this painful process doesn’t imply a belief that waterways shouldn’t be protected. There are other land use restrictions (think: local zoning restrictions or FEMA flood plain building code restrictions) that are often very stringent, but at least their application is CLEAR. In most cases, a property owner or prospective buyer can determine the property’s zoning and flood plain status in five minutes by examining the relevant maps online.
No such clarity has existed regarding the location of Waters of the United States under the CWA. Hopefully this ruling will lead to a more clear-cut situation.
In any case, if the EPA can no longer protect land that Congress hadn't actually authorized it to protect, then let's get something in Congress that better fits the bill.
Sounds like you agree with this, but think about when the pendulum swings back and the freedoms you enjoy are now infringed upon by unelected, unaccountable justices that don’t GAF about the will of the the people.
This is a bad reading of the opinion. Wetlands were broadly undefined in statute.
Problems can arise when people with wealth and money at stake take issue with the executive branch's interpretation. They can do things like take judges on vacations, get into beneficial financial transactions with them, and do expensive favors for them or their family members. Then, when those people end up with cases before the Supreme Court, because there are absolutely no enforceable ethics rules, the justices conveniently discover that there are principles at stake.
Page 6 of the Opinion [1] does a good job summarizing what Congress wrote, what it meant at the time, how it was amended by the courts and agencies over the years, and how it's changed since 2015. Nothing appears to be corruptly constructed.
[1] https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
Probably not because “oops we forgot”, but “we want regulators to handle the specifics”.
The Act includes all sorts of wording, like "it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water", "eliminating the pollution of the navigable waters and ground waters and improving the sanity condition of surface and underground waters", and "within all or part of a watershed or river basin".
That's quite a wide net to cast.
A wetland acts like a big sponge. A massive rainstorm drops a pile of water, and it absorbs into the wetland. It releases slowly. It's a buffer for water.
This means your infrastructure for moving the water through, past, around the city and urban areas can be smaller, since they don't need to handle so much water as once. Or that they can handle a larger rainstorm.
You want a wetland or ten upstream of your home. They are low cost to maintain, and provide a lot of value.
Source: my brilliant wife is one of Ontario's top municipal engineers on this topic and you can learn a lot just by asking "how was work" every night for 15 years.
Is this even true? I thought they only limited the definition of adjacent to a surface connection.
I can look up a map of what the State and Federal government consider a wetland on my property. If I need to do eg construction within 100 feet of such an area on the map, I'm supposed to call in the local DEC and they -- for free -- come in and tell me the boundaries of the wetland based on local vegetation.
Isn't that how it works everywhere?
Yes.
The Army Corps of Engineers "controls permits for the discharge of dredged or fill material into covered waters... The costs of obtaining such a permit are 'significant,' and both agencies have admitted that 'the permitting process can be arduous, expensive, and long.' ...Success is also far from guaranteed, as the Corps has asserted discretion to grant or deny permits based on a long, nonexclusive list of factors..."
The fact that "agencies never defined exactly what they regarded as the 'full extent of their authority," instead encouaraging "local field agents to make decisions on a case-by-case basis" is specifically called out.
"What are landowners to do if they want to build on their property? The EPA recommends asking the Corps for a jurisdictional determination, which is a written decision on whether a particular site contains covered waters. But the Corps maintains that it has no obligation to provide jurisdictional determinations, and it has already begun announcing exceptions to the legal effect of some previous determinations."
All the the Supreme Court did is rule that, at least so far, congress has not done so.
And yet somehow this is the Supreme Court's fault.
Yah, sorry, but I don't believe you. The Supreme Court just doesn't do that.
Let me see some sources to support what you are saying.
If you want to jump straight to the punchline, this is from the section on United States v. Riverside Bayview Homes, Inc in which the Supreme Court made clear that they were aware of this context and informed their ruling taking it into account: The Court also cited legislative history from the passage of the Clean Water Act and the amendments in 1977—in which the term “adjacent wetlands” was added to the statute107—as support for its conclusion that Congress intended for the Clean Water Act to have a broad jurisdictional reach which included the adjacent wetlands at issue.108 In concluding that adjacent wetlands could reasonably be covered, however, the Court also emphasized that it did not express any opinion on the Corps’ authority to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water.109
BTW, the opinion literally quotes the term "estuarine waters" which is a phrase never used in the Clean Water Act. Basically, the majority opinion is lying.
The opinion cites §1330(g)(4)(C)(vii) ("estuarine waters"), looks like that is from an amendment to the Federal Water Pollution Control Act (which is the official name for the Clean Water Act), https://www.govinfo.gov/bulkdata/PLAW/114/public/PLAW-114pub...:
"To amend the Federal Water Pollution Control Act to reauthorize the National Estuary Program, and for other purposes"
...
"(vii) low dissolved oxygen conditions in estuarine waters and related nutrient management."
You forgot Sotomayor, Kagan, and Jackson. The decision was unanimous.
https://en.wikipedia.org/wiki/Sackett_v._Environmental_Prote...
There's a lot of other reasons to protect wetlands. The tiny little one I was involved with was the water fountain for all of the local pollinators. Water access in the middle of the summer in the PNW is a serious challenge. It was one of the first times I encountered bees and wasps who were too busy doing their thing to even care that I was there.
But yes, they can just make up definitions if they want. The NYC may issue gun law case from last year had that with the infamous “historical tradition of firearm regulation” ruling. We have a common law system which means that judicial rulings from federal appellate courts are law in their jurisdiction. The only thing stopping them I guess is the fear of another Andrew Jackson deciding they’re illegitimate and ignoring them.
https://constitution.congress.gov/constitution/amendment-10/
I fear these lands will just become bargain chips, held hostage, to push through terrible interests elsewhere.
I'm generally in favor of broader protections than the Court permitted with this decision. However, determining what policies are appropriate is simply not in the remit of the Court. SCOTUS determines what the law says, not what it should say.
Furthermore, the Supreme Court ruling in that case invalidates every interpretation of the CWA that both EPA and the US Army Corp of Engineers have had going back to it's inception in 1972.
If the Supreme Court says they don't have authorization under an existing law, Congress needs to pass new law that authorizes them to regulate it. President cannot direct them to write a rule to cover a condition it is not authorized to cover.
This issue also gets a bit more complicated since states could also file suit and escalate to the supreme court again that federal government should not have powers to regulate certain bodies of water inside the states. I don't know how this ruling will affect any new legislation that may get passed.
Hopefully Congress will do something. Doubtful that they will.