George Will Demands Clarity – Except from the Supreme Court
Wed ,28/06/2023George Will started out his article, “The Supreme Court Votes for Clarity from Congress “ by citing a court case where the Supreme Court overruled the EPA – by muddying the water. He was referring to the case, Sacketts vs. the EPA. The Sacketts sued the EPA because it denied them a permit to, as George Will put it,” add a little sand and gravel to the land”. The little sand and gravel he refers to would have filled in the wetlands adjacent to Priest Lake which is considered navigable water by the state of Utah. The EPA cited their right to regulate navigable waters under the Clean Water Act. The Army Corps of Engineers analyzed the property and found that the EPA had jurisdiction.
The EPA successfully argued that, while the wetlands feed a non-navigable creek, that creek drains into navigable Priest Lake, and won a federal court battle in the 9th Circuit to continue blocking construction. The case was based on the Clean Water Act (CWA), which prohibits dumping pollution into “navigable waters . . . including wetlands adjacent thereto”, making it clear that the Clean Water Act includes adjacent wetlands. The Court ruled 5-4 in favor of the Sackett’s, but to do so they had to change the definition of adjacent.
Writing the majority opinion, Justice Samuel Alito said that to be protected, there must be a “continuous surface connection” between the wetlands and navigable water. “The Court’s ‘continuous surface connection’ test disregards the ordinary meaning of ‘adjacent,’” wrote the dissenting justices. Alito and the conservative justices divorced the law from the legislators’ intent, essentially rewriting it in a way that fits the outcome they sought and contradicting the plain text of the law. The Clean Water Act was passed in the 1970s to restore and protect our Nation’s waters. The court overturned a 50-year precedent for the way the Clean Water Act has been interpreted. And, in doing so, they’ve exposed many of our wetlands and waterways to the threat of exactly the kind of pollution we had in the past that the Clean Water Act was meant to prevent. It is now estimated that the Clean Water Act keeps 700 billion pounds of pollutants out of US waterways every year .
The Supreme Court ruling also the means that as much as 90 million acres of wetlands in the U.S. are no longer protected by the Clean Water Act, embracing the decades-long demands of mining companies, the fossil fuel industry, reckless developers, and other big polluters. The court’s decision in Sackett v. EPA puts our communities, public health, and local ecosystems in danger. Wetlands are essential. They store water to prevent and mitigate floods, filter pollutants before they reach other bodies of water, support forestry, food and seafood production, and recreation, and more. “It doesn’t reflect reality, or the scientific understanding of how watersheds and the river networks within them function,” said Ellen Wohl, a river researcher and professor in the Geosciences Department at Colorado State University.
She pointed out that wetlands eventually flow into navigable bodies of water, aquifers, and subterranean waterways. Allowing the pollution of those would also allow pollution of many streams, lakes, and wells we rely on for clean sources of water. It will do serious harm to the bodies of water most Americans obviously want to protect, as the Clean Water Act was designed to do. Justice Samuel Alito’s majority opinion in Sackett v. EPA is likely to hobble the law’s ability to protect several major waterways, including the Mississippi River and the Chesapeake Bay. He obviously did not allow for the fact that water runs downhill and that almost everyone lives downstream from someone.
To prevent an ecological disaster, Congress should rewrite the law to make it even clearer, although it is clear enough in its present form. And, states should beef up their own enforcement to ensure they protect their water and land. For now, that would be the best path forward, but it is not likely to happen soon, given the political makeup of Congress and many state legislatures.
As to George Will, he lacks clarity in the meaning of “conservative”. He applauded the decision by the conservative members of the Supreme Court which overturned 50 years of precedents and opened up over half of the United States’ wetlands to pollution and development. He distorted scientific work in the 1970s to discount the role of carbon dioxide in warming the earth, by claiming scientists then were predicting a New Ice Age. He seems to care little about conserving the earth and its ecosystems, and he rails about government regulations, even those meant to protect other human beings. Apparently, he doesn’t think claiming to be conservative means you support conserving the most important thing we have, the Earth.
Note: More detailed information about the value of wetlands, and this ruling are given in the High Country News: “Waterways are made up of more than what’s visible on the surface. Take Lapwai Creek, near Lewiston, Idaho: At a casual glance, it’s a ribbon of cool water, shaded by cottonwood trees and alive with steelhead and sculpin, mayfly and stonefly larvae. An adult could wade across it in a few strides without getting their knees wet. But that’s just the part people can see. Beneath the surface channel, coursing through the rounded cobbles below, is what scientists call the hyporheic zone: water flowing along underground, which can be a few inches deep, or 10 yards or more, mixing with both surface water and groundwater. Microbes that purify water live down there, and aquatic insects—food for fish and other animals—can use it as a sort of underground highway, traveling more than a mile away from a river.
A creek, in other words, is more than just the water in its channel; it’s also the water underground, and it’s connected to everything else in its watershed, including wetlands and channels upstream that might dry up during some years, or perhaps go years between getting wet. Whatever happens there—pollution or protection—happens to the entire creek. In the case of Lapwai Creek, which flows into the Clearwater River and then the Snake River, it’s a small but fundamental part of the complex ecosystem that salmon, humans and countless other creatures in the Pacific Northwest rely on.
But those ecological realities are strikingly absent from last week’s US Supreme Court decision in Sackett v. EPA. The ruling strips federal protections from all ephemeral streams and, as reported by E&E News, more than half of the previously protected wetlands in the US. It limits Clean Water Act protections to “relatively permanent, standing or continuously flowing bodies of water.” That includes some wetlands—those that are “indistinguishable” from protected oceans, lakes, rivers and streams “due to a continuous surface connection.”
“It doesn’t reflect reality, or the scientific understanding of how watersheds and the river networks within them function,” said Ellen Wohl, a river researcher and professor in the Geosciences Department at Colorado State University. Wohl helped review the scientific evidence used to develop an earlier, and much more expansive, Obama-era definition of which bodies of water fall under the jurisdiction of the Clean Water Act.
Justice Brett Kavanaugh: “The Court’s ‘continuous surface connection’ test disregards the ordinary meaning of ‘adjacent.’ … As a result, the Court excludes wetlands that the text of the Clean Water Act covers—and that the Act since 1977 has always been interpreted to cover.”
Weaker protections mean that more wetlands and temporary streams will be destroyed, filled in with dirt for houses or other development. Ecosystems and people alike will lose the benefits they provide: biodiversity and abundance of species; space to absorb extra water during storms, preventing deadly floods; natural storage of that same water, so it’s available later, during dry times; the natural purification that occurs when water is filtered through the ground.
Take, for example, a desert playa in the Great Basin, which might be dry for years at a time. When rainwater falls on it or snowmelt flows into it, it acts like “a big sponge,” Wohl said. A sponge that can store water for later, and clean it, too. But if you turn it into a parking lot by filling or building on it, as the Supreme Court ruling makes it easier to do, water will pour off it, rather than soak in. And what was once a playa—part of an intricate system changing across space and time—will become simply an asphalt wasteland.”
