Trump rolled back decades of drinking water protections. The Supreme Court has just gone even further.
Nearly two decades ago, a Michigan man named John Rapanos attempted to fill in three wetlands on his property to make way for a shopping mall. State regulators warned it was illegal without federal Clean Water Act permits. Rapanos argued that you couldn’t navigate a boat from his wetlands to a federal waterway, so the Environmental Protection Agency had no jurisdiction over his land. When Rapanos ignored cease and desist letters from the EPA, the government successfully filed a civil lawsuit against him, which he then swore to “fight to the death.”
Instead, he did all the to the highest court in the land. In a split decision in 2006, the Supreme Court overturned the judgment against Rapanos, but failed to reach a majority decision on whether wetlands that drained into “United States waters” regulated by the federal government were eligible for the same protections.
In 2016, President Barack Obama sought to answer that question with a new EPA rule expanding the Clean Water Act of 1972 to include millions of acres of marshes, bogs, and lagoons whose water—and any pollution added to it – flows into waterways that are already federally regulated. .
Republicans chastised the move as a federal land grab, while environmentalists applauded what they saw as a reasonable interpretation of the decades-old law through the prism of the latest science shows on hydrology and the threat increase in extreme droughts and toxic algal blooms.
In 2020, President Donald Trump rolled back much of the rule’s protections, roughly halving the total protected wetland area. In 2022, President Joe Biden moved to restore Obama-era rule.
On Thursday, the Supreme Court’s new right-wing supermajority reconsidered the 2006 decision to roll back federal protections for virtually all of the wetlands that Trump has deregulated — and then some, even eliminating the few safeguards the Republican administration has tried to preserve.
The 5-4 decision – written by Judge Samuel Alito and joined by Judges John Roberts, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett – revoked the authority of the Clean Water Act over at least 59 million acres of areas wet across the United States, according to a estimate by environmental group Earthjustice.
“You’re going to see the Clean Water Act drastically reduced in coverage,” said Duke McCall, a partner specializing in federal water rules at law firm Morgan Lewis. “The impacted waters are going to be significantly shrunk.”
The Obama administration included all wetlands connected to existing federal waterways via underground aquifers or streams. The Trump EPA narrowed the scope to include only wetlands with visible surface connections to rivers, lakes, and other long-standing “United States waters.” But the Republican administration has made an exception for wetlands cut off from federal waterways via a berm, bridge or other man-made barrier.
The court granted no such leeway, instead dismantling nearly half a century of established federal jurisdiction over wetlands — a fact Conservative Justice Brett Kavanaugh noted in his dissenting opinion.
At the very least, the decision takes the United States back to the mid-1970s, to the early days of the Clean Water Act, said Emily Hammond, professor of energy and environmental law at George Washington University. . But Hammond pointed out that it could be worse than that, noting that the majority opinion repeatedly cites the Supreme Court’s 1870 decision in the Daniel Ball case, which found that waterways are only “navigable only if they are “in fact navigable” and used for interstate or foreign trade connections.
“It has always been understood, I think, by the courts and by Congress and by agencies that when Congress used the term ‘waters of the United States’, it meant going beyond that ‘actually navigable’ standard. that Daniel Ball stood for,” Hammond says. “Seeing the majority now citing that old decision suggests their goal is to narrow the scope of the Clean Water Act to what it would have been before we had a Clean Water Act.”
“In some ways it takes us that far,” Hammond said, referring to the 1870 case.
Kavanaugh wrote that while the last eight previous administrations dating back to 1977 “held radically different views on how to regulate the environment, including under the Clean Water Act”, all “recognized as a matter of right that the Clean Water Act’s coverage of adjacent wetlands means more than adjacent wetlands and also includes wetlands separated from waters covered by levees or man-made barriers, natural river berms, beach dunes, etc
Thursday’s decision, he argued, will have “negative consequences for waters” across the country.
“By reducing the coverage of wetlands by law to adjacent wetlands only, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant impacts on water quality. water and flood control across the United States,” Kavanaugh writes.
The ruling is part of what liberal Justice Elena Kagan sees as a clear court trend to curtail the federal government’s legal authority to regulate pollution at a time of dramatic ecological upheaval – as other countries take action. drastic measures to preserve a semblance of natural current. biodiversity and order. Last year, the Supreme Court dramatically limited the EPA’s power to reduce emissions from power plants under the Clean Air Act.
“The vice in both cases is the same: the Court’s appointment of itself as the national environmental policy maker,” Kagan wrote. “So I will conclude, unfortunately, by repeating what I wrote last year, with the replacement of a single word. ‘[T]he Court substitutes its own ideas on policy-making for those of Congress. The Court will not allow the Clean [Water] Act to work as instructed by Congress. The Court, rather than Congress, will decide how much regulation is too much. ”
Last year, the Supreme Court took the unusual step of hearing a case over outdated power station regulations – the High Court usually dismisses cases without active legal implications – in what was widely seen as an attempt to preemptively block the Biden administration from reviving a controversial Obama-era rule. The court’s six conservative justices, including Kavanaugh, ruled in favor of permanently shutting down the legal route taken by the Obama administration to vindicate parts of its Clean Power Plan settlement.
The apparent partisan agenda of the Tory justices is not the only perceived conflict of interest that is sowing distrust in the nation’s highest court. Trump-appointed Barrett, whose father spent much of his career working for Royal Dutch Shell, refused to recuse himself key cases involving the oil giant, even as Judge Samuel Alito stepped down from his disclosed oil and corporate investments.
investigative media ProPublica released a series of briefings over the past month revealing that Thomas, who was appointed by President George HW Bush, did not disclose private jet trips and land deals he received from the billionaire real estate developer Harlan Crow. The National Multifamily Housing Council, which has close ties to Crow — the CEO of Crow Holdings Inc. is also that group’s chairman, and three of Crow’s companies are dues-paying members — filed an amicus brief on a earlier version of this case. , as HuffPost’s Paul Blumenthal reported.
Republican lawmakers celebrated Thursday’s decision as a victory for family farmers crushed under the heels of regulators seeking to make life off the land even harder and more complicated.
“In a huge victory for farmers, ranchers, small business owners and families – the Supreme Court has abandoned the excessive Obama/Biden WOTUS rule once and for all,” Rep. Sam Graves (R- Mo.) In a statement.
But while “farmers and small business owners have been singled out” as the most sympathetic victims of an alleged government overreach, McCall said “developers are a huge affected group who have been staunch opponents “to the extension of the protection of wetlands.
Another way Thursday’s decision harkens back to the time before the Clean Water Act was passed in 1972 is to effectively restore a varying patchwork of state water rules, Hammond said.
“The Clean Water Act was of course designed to create a floor between states so that we didn’t have the race to the bottom with polluters moving to states where they could pollute more because the policies were more lenient” , they said. “This ruling so dramatically undermines the Clean Water Act that we’re sort of back to the days of significant state disparities in protecting our waters.”
“These kinds of decisions are starting to add up,” Hammond added. “There is no doubt that there will be cumulative impacts and we will see changes as a result.”
The Huffington Gt