{"id":10936,"date":"2023-06-13T14:22:11","date_gmt":"2023-06-13T14:22:11","guid":{"rendered":"http:\/\/lonecandle.com\/?p=10936"},"modified":"2023-06-13T14:22:11","modified_gmt":"2023-06-13T14:22:11","slug":"a-new-supreme-court-opinion-is-terrible-news-if-you-care-about-clean-water","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=10936","title":{"rendered":"A new Supreme Court opinion is terrible news if you care about clean water"},"content":{"rendered":"\n

\n\n” “As Justice Brett Kavanaugh writes in a dissenting opinion, Justice Samuel Alito\u2019s majority opinion in Sackett v. EPA<\/em><\/a> is likely to hobble the law\u2019s ability to protect several major waterways, including the Mississippi River and the Chesapeake Bay.<\/p>\n\n\n\n

The case involves an admittedly quite difficult question<\/a> of how to read a vague provision of the law. The Clean Water Act prohibits \u201cdischarge of pollutants\u201d into \u201cnavigable waters.\u201d But it also defines the term \u201cnavigable waters\u201d counterintuitively, to include all \u201cwaters of the United States<\/a>, including the territorial seas.\u201d<\/p>\n\n\n\n

Both the courts and the federal agencies that enforce this law have struggled over the last half-century to determine which \u201cwaters\u201d can be regulated under this uncertain statutory language \u2014 a problem exacerbated by the fact that pollutants discharged far from a major waterway can nonetheless migrate into that waterway. A toxic chemical dumped miles from the Mississippi River might find its way to that river through the network of streams, creeks, wetlands, and similar geographic features that feed into it.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“As an amicus brief<\/a> filed by professional associations representing water regulators and managers warned, this new definition will \u201cexclude 51% (if not more) of the Nation\u2019s wetlands\u201d from the Act\u2019s protections. Wetlands often act as filtration systems<\/a> that slow the seepage of pollutants into major waterways, and as sponges that help control floods<\/a>.<\/p>\n\n\n\n

In short, this opinion will significantly curtail the federal government\u2019s ability to protect American waters.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“The specific dispute in Sackett<\/em> involved Idaho landowners who wanted to fill in what a federal appeals court described as a \u201csoggy residential lot<\/a>\u201d with dirt and rocks so that they could build a house on it. The lot is near a tributary that feeds into a creek, which itself feeds into Priest Lake, a sufficiently large body of water that no one really questions if it is subject to the Clean Water Act.<\/p>\n\n\n\n

Although all nine justices agreed that the Clean Water Act does not apply to this particular lot, they split 5-4 on how to read the act, with Kavanaugh joining the three liberal justices in dissent. (Technically, both Kavanaugh\u2019s opinion and Justice Elena Kagan\u2019s separate opinion, which also disagrees with Alito, are opinions \u201cconcurring in the judgment,\u201d because all nine justices agreed that the property owners should prevail. But both of those opinions dissent from Alito\u2019s reading of the law.)<\/p>\n\n\n\n

The Clean Water Act is not the most precisely drafted law, and its text offers few hints as to what the \u201cwaters of the United States\u201d might be. But it does include one pretty clear indication of how the law treats wetlands. One provision of the Clean Water Act applies the law to \u201cwetlands adjacent<\/a>\u201d to waterways covered by the act.<\/p>\n\n\n\n

As Justice Kagan writes in her opinion, \u201cin ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.\u201d <\/p>\n\n\n\n

But Alito\u2019s opinion does not apply the act to all wetlands that are \u201cadjacent\u201d to nearby waterways. Under Alito\u2019s approach, only wetlands that have a \u201ccontinuous surface connection to bodies that are \u2018waters of the United States\u2019 in their own right, so that there is no clear demarcation between \u2018waters\u2019 and wetlands\u201d are subject to the law\u2019s restrictions on pollution.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“regardless of whether the Sackett<\/em> opinion can be squared with the actual language of the Clean Water Act, it is a binding opinion by the Supreme Court of the United States, and its narrow reading of that act could drastically limit the nation\u2019s ability to fight water pollution.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Near the end of his opinion dissenting from Alito\u2019s approach, Kavanaugh lays out several ways that \u201cthe Court\u2019s rewriting of \u2018adjacent\u2019 to mean \u2018adjoining\u2019 will matter a great deal in the real world.\u201d He warns that this decision \u201cmay leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies\u2019 regulatory authority.\u201d”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“The fundamental challenge facing any water regulator is that water systems are interconnected. As Kavanaugh writes, \u201cbecause of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.\u201d<\/p>\n\n\n\n

This explains why Congress<\/a> not only extended the Clean Water Act to significant waterways, it also extended it to wetlands that are \u201cadjacent\u201d to those waterways. It makes no sense to prohibit pollution dumped directly into the mighty Mississippi, but to permit pollution to be dumped on nearby wetlands that feed directly into the river.<\/p>\n\n\n\n

Nevertheless, five justices ruled that Congress\u2019s decision to apply the law to adjacent waterways does not matter.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/2023\/5\/25\/23737426\/supreme-court-clean-water-act-epa-pollution-wetlands-sackett-alito<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“”As Justice Brett Kavanaugh writes in a dissenting opinion, Justice Samuel Alito\u2019s majority opinion in Sackett v. EPA is likely to hobble the law\u2019s ability to protect several major waterways, including the Mississippi River and the Chesapeake Bay.
\nThe case involves an admittedly quite difficult question of how to read a vague provision of the law. The Clean Water Act prohibits \u201cdischarge of pollutants\u201d into \u201cnavigable waters.\u201d But it also defines the term \u201cnavigable waters\u201d counterintuitively, to include all \u201cwaters of the United States, including the territorial seas.\u201d<\/p>\n

Both the courts and the federal agencies that enforce this law have struggled over the last half-century to determine which \u201cwaters\u201d can be regulated under this uncertain statutory language \u2014 a problem exacerbated by the fact that pollutants discharged far from a major waterway can nonetheless migrate into that waterway. A toxic chemical dumped miles from the Mississippi River might find its way to that river through the network of streams, creeks, wetlands, and similar geographic features that feed into it.”<\/p>\n

…<\/p>\n

“As an amicus brief filed by professional associations representing water regulators and managers warned, this new definition will \u201cexclude 51% (if not more) of the Nation\u2019s wetlands\u201d from the Act\u2019s protections. Wetlands often act as filtration systems that slow the seepage of pollutants into major waterways, and as sponges that help control floods.<\/p>\n

In short, this opinion will significantly curtail the federal government\u2019s ability to protect American waters.”<\/p>\n

…<\/p>\n

“The specific dispute in Sackett involved Idaho landowners who wanted to fill in what a federal appeals court described as a \u201csoggy residential lot\u201d with dirt and rocks so that they could build a house on it. The lot is near a tributary that feeds into a creek, which itself feeds into Priest Lake, a sufficiently large body of water that no one really questions if it is subject to the Clean Water Act.<\/p>\n

Although all nine justices agreed that the Clean Water Act does not apply to this particular lot, they split 5-4 on how to read the act, with Kavanaugh joining the three liberal justices in dissent. (Technically, both Kavanaugh\u2019s opinion and Justice Elena Kagan\u2019s separate opinion, which also disagrees with Alito, are opinions \u201cconcurring in the judgment,\u201d because all nine justices agreed that the property owners should prevail. But both of those opinions dissent from Alito\u2019s reading of the law.)<\/p>\n

The Clean Water Act is not the most precisely drafted law, and its text offers few hints as to what the \u201cwaters of the United States\u201d might be. But it does include one pretty clear indication of how the law treats wetlands. One provision of the Clean Water Act applies the law to \u201cwetlands adjacent\u201d to waterways covered by the act.<\/p>\n

As Justice Kagan writes in her opinion, \u201cin ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.\u201d <\/p>\n

But Alito\u2019s opinion does not apply the act to all wetlands that are \u201cadjacent\u201d to nearby waterways. Under Alito\u2019s approach, only wetlands that have a \u201ccontinuous surface connection to bodies that are \u2018waters of the United States\u2019 in their own right, so that there is no clear demarcation between \u2018waters\u2019 and wetlands\u201d are subject to the law\u2019s restrictions on pollution.”<\/p>\n

…<\/p>\n

“regardless of whether the Sackett opinion can be squared with the actual language of the Clean Water Act, it is a binding opinion by the Supreme Court of the United States, and its narrow reading of that act could drastically limit the nation\u2019s ability to fight water pollution.”<\/p>\n

…<\/p>\n

“Near the end of his opinion dissenting from Alito\u2019s approach, Kavanaugh lays out several ways that \u201cthe Court\u2019s rewriting of \u2018adjacent\u2019 to mean \u2018adjoining\u2019 will matter a great deal in the real world.\u201d He warns that this decision \u201cmay leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies\u2019 regulatory authority.\u201d”<\/p>\n

…<\/p>\n

“The fundamental challenge facing any water regulator is that water systems are interconnected. As Kavanaugh writes, \u201cbecause of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.\u201d<\/p>\n

This explains why Congress not only extended the Clean Water Act to significant waterways, it also extended it to wetlands that are \u201cadjacent\u201d to those waterways. It makes no sense to prohibit pollution dumped directly into the mighty Mississippi, but to permit pollution to be dumped on nearby wetlands that feed directly into the river.<\/p>\n

Nevertheless, five justices ruled that Congress\u2019s decision to apply the law to adjacent waterways does not matter.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[103,528,1156],"class_list":["post-10936","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-environment","tag-supreme-court","tag-water"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/10936","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10936"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/10936\/revisions"}],"predecessor-version":[{"id":10937,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/10936\/revisions\/10937"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10936"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10936"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}