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18236 |
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Date: October 03, 2022 at 11:52:10
From: akira, [DNS_Address]
Subject: SCOTUS is likely to restrict EPA's powers to regulate water pollution |
URL: https://www.vox.com/policy-and-politics/2022/9/27/23363959/supreme-court-clean-water-act-sackett-epa-rapanos-wetlands |
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Rebecca Leber
2h
"The Supreme Court is hearing oral arguments for an extremely important
case today. SCOTUS is likely to restrict the EPA's powers to regulate water
pollution."
By Ian Millhiser Sep 27, 2022
"The Supreme Court case that’s likely to handcuff the Clean Water Act
Sackett v. EPA may prove to be the most significant attack on America’s
clean water laws since the 1970s.
For decades, the Supreme Court struggled to define a key term at the heart
of the Clean Water Act, the landmark 1972 legislation that forms the
backbone of America’s efforts to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.”
It’s an admittedly difficult question, that is now in the hands of the most
conservative Supreme Court since the 1930s. And the Court’s Republican-
appointed supermajority seems poised to deal a severe blow to the clean
water law, in a case that could do significant harm to America’s efforts to
prevent floods and to ensure that everyone in the country has access to safe
drinking water.
The Clean Water Act prohibits “discharge of pollutants” into “navigable
waters.” But it also defines the term “navigable waters” vaguely and
counterintuitively, to include all “waters of the United States, including the
territorial seas.” In Rapanos v. United States (2006), the Supreme Court’s
last attempt to define the key phrase “waters of the United States,” the
justices split three ways, with no one approach winning majority approval
from the Court.
Now, Sackett v. EPA brings this question to a Court that’s moved
dramatically to the right after former President Donald Trump filled a third of
its seats. Though the specific dispute in Sackett seems minor — it involves a
couple that wants to fill in wetlands on their residential lot near an Idaho lake
— the case still gives the Supreme Court everything it needs to hamstring
much of the landmark anti-pollution legislation.
Even in the best-case scenario for environmentalists, the Court’s new
majority is likely to embrace the narrow reading of the Clean Water Act
proposed by the late Justice Antonin Scalia in his Rapanos opinion. That
approach, according to an amicus brief filed by professional associations
representing water regulators and managers, “would also exclude 51% (if
not more) of the Nation’s wetlands” from the Act’s protections, and could
potentially exclude an even greater percentage of the nation’s streams.
Meanwhile the plaintiffs in Sackett, no doubt feeling emboldened by the
Supreme Court’s recent hostility to environmental regulation, have come up
with a reading of the Clean Water Act that is more restrictive than any of the
approaches proposed by any justice in Rapanos. According to their brief, the
“waters of the United States” are “limited to traditional navigable waters and
intrastate navigable waters that link with other modes of transport to form
interstate channels of commerce.”
If that approach prevails, huge numbers of streams, drainage ditches, and
other small tributaries that may flow into major bodies of water — but that
are not themselves large enough to be navigated by ships and other
watercraft — could abruptly lose the Clean Water Act’s protections.
The stakes in Sackett are high because America’s waterways are so
interconnected. Wetlands, even wetlands that do not directly border rivers
or lakes, act as filtration systems that slow the seepage of pollutants into
major waterways. And they also act as sponges that help control floods.
Small streams, human-made drainage, and other narrow waterways typically
empty into other bodies of water. So, if wetlands, streams, and the like are
not protected from pollution, that pollution will inevitably poison major
waterways.
But environmentalists have little reason to be optimistic about the Clean
Water Act’s future after the law is interpreted by this Supreme Court.
The three approaches laid out in Rapanos, briefly explained
Once upon a time, Sackett would have been a fairly easy case. When federal
laws are ambiguous, the Supreme Court’s decision in Chevron v. Natural
Resources Defense Council (1984) typically instructs the courts to defer to
an expert federal agency’s interpretation of that law. And the Biden
administration is currently finalizing an interpretation of the phrase “waters
of the United States” that merges both Scalia’s narrow definition and a more
expansive definition offered by Justice Anthony Kennedy in Rapanos.
Indeed, in an opinion joined by the 2006 Court’s liberal minority, Justice
John Paul Stevens argued that the Court should largely leave the question of
which waters qualify as “waters of the United States” to executive branch
agencies. The executive’s determination that certain wetlands are subject to
Clean Water Act regulation, Stevens wrote in his Rapanos dissent, “is a
quintessential example of the Executive’s reasonable interpretation of a
statutory provision” which is entitled to deference under Chevron.
But Stevens’s deferential approach only received four votes. Four other
justices, including three members of the Court’s current Republican-
appointed majority, joined Scalia’s opinion calling for much stricter limits on
the Clean Water Act.
“The phrase ‘the waters of the United States,’” Scalia claimed, includes only
“relatively permanent, standing or continuously flowing bodies of water.” His
definition does not include “channels through which water flows
intermittently or ephemerally, or channels that periodically provide drainage
for rainfall.”
Scalia added that wetlands are only subject to the Act if they have a
“continuous surface connection” with a “relatively permanent body of
water” that makes it “difficult to determine where the ‘water’ ends and the
‘wetland’ begins.”
As mentioned above, an amicus brief filed by experts on water regulation
and management argues that Scalia’s definition would “exclude 51% (if not
more) of the Nation’s wetlands.” It would also exclude many wetlands (and
potentially, many streams and other bodies of flowing water) for completely
arbitrary reasons. Because Scalia’s test requires a “surface” connection, for
example, a wetland that connects to a major river via an underground
channel would be beyond the Act’s ban on pollution — even though
pollutants can flow through an underground stream just as surely as they
can flow through a surface channel.
In any event, Scalia’s approach did not carry the day in Rapanos. The sole
remaining justice, Kennedy, carved out a middle ground between Scalia and
Stevens which called for less deference to federal agencies than Stevens
advocated, but that also read the Clean Water Act more expansively than
Scalia.
Under Kennedy’s definition, wetlands (and, most likely, narrow waterways)
are subject to the federal law if they “significantly affect the chemical,
physical, and biological integrity of other covered waters more readily
understood as ‘navigable.’” Thus, Kennedy’s rule looks at the nation’s water
systems as a whole, and would prohibit pollution that meaningfully impacts
important bodies of water — even if that pollution is discharged into a
wetland that may be some distance from a major river or lake.
Why are wetlands so important?
The Sackett case is primarily a case about wetlands. In 2004, plaintiffs
Chantell and Michael Sackett bought what a federal appeals court described
as a “soggy residential lot” near Priest Lake in Idaho. The Sacketts have
spent the last 14 years in litigation over whether they may fill in wetlands on
this lot with sand and gravel.
(One reason why this case has gone on for so long is that it already took one
trip up to the Supreme Court, in 2012, to determine whether the Sacketts
filed their lawsuit prematurely. A unanimous Court determined that they did
not.)
It’s reasonable to wonder why the government is fighting so hard to prevent
the Sacketts from dumping sand and gravel — as opposed to, say, toxins —
on their land. The answer is that even natural fillers like sand can destroy a
wetland, and the government argues that wetlands play an essential role in
maintaining a healthy national water system.
As the government explains in its brief, wetlands “provide flood control and
trap and filter sediment and other pollutants that would otherwise be carried
into downstream waters.” Similarly, the water managers’ brief explains that
wetlands are particularly important because they are “more efficient at
pollutant removal than other waters thanks to the slow, sometimes
infrequent, rate at which water moves through them.”
Although maintaining wetlands does create costs — just ask the Sacketts,
who were unable to develop their land for years — the water managers argue
that preserving wetlands, headwaters, and other structures that efficiently
filter the water supply “is less costly and more effective to prevent a loss in
water quality than to treat contaminated water later on.”
In the likely event that the Court adopts Scalia’s proposed rule in Rapanos,
that could place most of the nation’s wetlands beyond the Clean Water Act’s
anti-pollution safeguards. And the Sackett plaintiffs ask the Court to go
much further than Scalia would have gone, limiting the law’s protections to
“navigable” waters. (The plaintiffs do concede that “non-navigable wetlands
inseparably bound up with such waters” should also be protected.)
There are a few reasons to doubt that the Court will take this maximalist
approach. Among other things, none of the justices in Rapanos, including
the three current justices who joined Scalia’s opinion, took such an extreme
view in 2006. And the government notes in its brief that the plaintiffs
previously told the Supreme Court that they were “not disputing ‘the extent
to which the Clean Water Act regulates tributaries of traditional navigable
waters.’” So the Court may be reluctant to reward these plaintiffs for trying
to expand the scope of the case midway through Supreme Court review.
Even if the Court does not accept the plaintiffs’ most expansive proposal,
however, the stakes in this case remain quite high. Scalia’s rule would
fundamentally alter America’s clean water regime, potentially removing the
majority of wetlands from the Clean Water Act’s protections. And it would do
so based on arbitrary distinctions such as whether the wetlands feed into
larger bodies of water via a “continuous surface connection” or something
more transient or subterranean.
And, without protection for these wetlands, America’s water system could
lose much of its ability to filter pollutants out of our drinking water."
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Responses:
[18237] [18243] [18244] [18241] [18240] [18239] [18238] [18242] |
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18237 |
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Date: October 03, 2022 at 16:39:47
From: Jeff/Lake Almanor,CA, [DNS_Address]
Subject: They shouldn't stop there, They should stop all Bureaucratic agencies |
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from making Laws. They are unelected and their power must be very limited.
I'd like to see all of them be eliminated. And Congress do their job.
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Responses:
[18243] [18244] [18241] [18240] [18239] [18238] [18242] |
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18243 |
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Date: October 04, 2022 at 15:21:18
From: akira, [DNS_Address]
Subject: Re: They shouldn't stop there, They should stop all Bureaucratic... |
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Have you ever been to a country with poor environmental regulations?
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Responses:
[18244] |
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18244 |
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Date: October 04, 2022 at 17:17:05
From: Jeff/Lake Almanor,CA, [DNS_Address]
Subject: Re: They shouldn't stop there, They should stop all Bureaucratic... |
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Mexico, when I was a kid several times. And it was cool, once you got past
Tijuana.
Now I have a hard time going to San Diego, or even Southern California for
that matter.
And I have no desire to go out of this country nowadays.
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Responses:
None |
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18241 |
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Date: October 04, 2022 at 10:24:03
From: pamela, [DNS_Address]
Subject: Re: They shouldn't stop there, They should stop all Bureaucratic... |
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Responses:
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18240 |
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Date: October 04, 2022 at 09:44:44
From: Jeff/Lake Almanor,CA, [DNS_Address]
Subject: Re: They shouldn't stop there, They should stop all Bureaucratic... |
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The SC does not make Laws. They are supposed to interpret laws strictly
according to the Constitution. No twisting, no politics, no changing, no
modernizing, without formal amendment procedures.
If this was followed, all the rulings would be unanimous. And not down party
lines.
I wish all the courts in this land would rule in this manner.
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Responses:
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18239 |
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Date: October 04, 2022 at 04:42:04
From: akira, [DNS_Address]
Subject: Yes! SC justices are unelected & their power must be very limited |
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"I'd like to see all of them be eliminated" Me too!
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Responses:
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18238 |
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Date: October 03, 2022 at 19:41:26
From: ryan, [DNS_Address]
Subject: Re: They shouldn't stop there, They should stop all Bureaucratic... |
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ah, you're a fan of rivers on fire? that's what happens when you let corporations run wild...did not congress set up and fund the epa?
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Responses:
[18242] |
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18242 |
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Date: October 04, 2022 at 10:31:07
From: pamela, [DNS_Address]
Subject: Re: They shouldn't stop there, They should stop all Bureaucratic... |
URL: https://www.epa.gov/history/origins-epa |
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Richard Nixon proposed it and sent the bill to
Congress. Does not mean it acts fairly or is without
corruption.
The Origins of EPA
We celebrate EPA's "birthday" every December 2. What
actually happened on December 2, 1970?
A. President Nixon signed Reorganization Plan No. 3
calling for the establishment of an Environmental
Protection Agency.
B. The U.S. Senate confirmed William Ruckelshaus as
EPA's first Administrator.
C. Administrator Ruckelshaus signed EPA Order 1110.2
creating the initial organization of EPA.
Related Information
History of Earth Day
The American conversation about protecting the
environment began in the 1960s. Rachel Carson had
published her attack on the indiscriminate use of
pesticides, Silent Spring, in 1962. Concern about air
and water pollution had spread in the wake of
disasters. An offshore oil rig in California fouled
beaches with millions of gallons of spilled oil. Near
Cleveland, Ohio, the Cuyahoga River, choking with
chemical contaminants, had spontaneously burst into
flames. Astronauts had begun photographing the Earth
from space, heightening awareness that the Earth’s
resources are finite.
In early 1970, as a result of heightened public
concerns about deteriorating city air, natural areas
littered with debris, and urban water supplies
contaminated with dangerous impurities, President
Richard Nixon presented the House and Senate a
groundbreaking 37-point message on the environment.
These points included:
requesting four billion dollars for the improvement of
water treatment facilities;
asking for national air quality standards and stringent
guidelines to lower motor vehicle emissions;
launching federally-funded research to reduce
automobile pollution;
ordering a clean-up of federal facilities that had
fouled air and water;
seeking legislation to end the dumping of wastes into
the Great Lakes;
proposing a tax on lead additives in gasoline;
forwarding to Congress a plan to tighten safeguards on
the seaborne transportation of oil; and
approving a National Contingency Plan for the treatment
of oil spills.
Around the same time, President Nixon also created a
council in part to consider how to organize federal
government programs designed to reduce pollution, so
that those programs could efficiently address the goals
laid out in his message on the environment.
Following the council’s recommendations, the president
sent to Congress a plan to consolidate many
environmental responsibilities of the federal
government under one agency, a new Environmental
Protection Agency. This reorganization would permit
response to environmental problems in a manner beyond
the previous capability of government pollution control
programs:
The EPA would have the capacity to do research on
important pollutants irrespective of the media in which
they appear, and on the impact of these pollutants on
the total environment.
Both by itself and together with other agencies, the
EPA would monitor the condition of the environment--
biological as well as physical.
With these data, the EPA would be able to establish
quantitative "environmental baselines"--critical for
efforts to measure adequately the success or failure of
pollution abatement efforts.
The EPA would be able--in concert with the states--to
set and enforce standards for air and water quality and
for individual pollutants.
Industries seeking to minimize the adverse impact of
their activities on the environment would be assured of
consistent standards covering the full range of their
waste disposal problems.
As states developed and expanded their own pollution
control programs, they would be able to look to one
agency to support their efforts with financial and
technical assistance and training.
After conducting hearings during that summer, the House
and Senate approved the proposal. The agency’s first
Administrator, William Ruckelshaus, took the oath of
office on December 4, 1970.
The documents below shed more light on EPA's birth and
early years. Note: The resources listed below are
available for historical reference only. Page layout
may differ for older documents and some links may be
broken.
Article "Origins of the EPA" in the Spring 1992 issue
of The Guardian - provides background on conservation,
ecology and early environmental movements, the first
Earth Day, and the establishment of EPA.
President's Advisory Council on Executive Organization
("Ash Council") memo (April 1970) advising President
Nixon to form EPA
Reorganization Plan No. 3 of 1970 (July 9, 1970) -
message from President Nixon to Congress about
reorganization plans to establish EPA and the National
Oceanic and Atmospheric Administration (NOAA)
EPA Order 1110.2 (December 4, 1970) - initial
organization of EPA
Article "The Birth of EPA" in the November 1985 issue
of EPA Journal
December 1970 press release "First Administrator
Ruckelshaus on the establishment of EPA"
Document: Duties Transferred to EPA from Other Agencies
Document: Origin of the EPA Seal
Article "EPA's Formative Years, 1970-1973" in the
September 1993 issue of The Guardian (pdf) (EPA
publications number 202-K-93-002) provides details on:
the early years of EPA, including functions transferred
from other agencies;
EPA's early organization; EPA's enforcement strategy;
early air pollution control efforts;
the banning of DDT; and
the leadership of EPA Administrators William D.
Ruckelshaus and Russell E. Train.
Article "EPA History (1970-1985)" prepared in November
1985 by the EPA Office of Public Awareness on the
occasion of EPA's 15th anniversary
EPA History Home
Origins of EPA
Historical Topics
Historical Photos and Images
Milestones and Timeline
Contact Us to ask a question, provide feedback, or
report a problem.
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