Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
Supreme Court Justice Antonin Scalia (1936-2016)
It is, once again, June. In the lawfare business, it is the season for the Supreme Court to decide (and announce) it's most contentious rulings. Let the fur fly, the teeth commit to gnashing and knickers begin to knotting.
But, wait!
One need not wait for actual June to alight, gentle and warm as a morning sun. The Court released its take (Sackett v. EPA), in late May, of what "waters of the United States" means when the EPA decides that every drop of water on American soil, regardless of its nature, be pure enough to put in little plastic bottles and sell for a King's ransom.
I exaggerate, if only just. The Court granted cert - agreed to hear the case - "[T]o decide the proper test for determining whether wetlands are 'waters of the United States.'” That seems simple, right? Congress, when they wrote the Clean Water Act in 1972, clearly defined what that meant, didn't they? The last thing on God's Earth our elected representatives want, acting in the best interest of their constituents, is Americans unnecessarily pestered by bureaucrats as they go about their lives. Can you dig it?
As Justice Alito points out, this is the Supreme Court's third try at a working definition. That is because Congress made it unlawful to discharge pollutants into "navigable waters." Okay, so far? That has constitutional implications not really addressed here (thank God). But, to muddy the... Well, the law passed by Congress and signed by President Richard Nixon ("Who?!") defines navigable waters as the "waters of the United States."
Now you see the problem.
In 2004, Michael and Chantell Sackett certainly learned about this issue when they bought property in Idaho. In an effort to build a house they filled in some marshland. "Oh, nay nay," said the EPA. That marshland is "waters of the United States" because it is near a ditch that runs into a creek that empties into Priest Lake, a bucolic and picturesque little corner of paradise. That is because the EPA viewed the Sackett Compound as "neighboring" waters covered by the CWA. With me so far? Oh - if they didn't abandon their project and restore the natural state of their lot, the EPA would fine them 40K per day.
I'm all for clean water. So, it must be said, is Justice Alito. Read his majority opinion, which begins with a valentine toward the CWA ("By all accounts, the Act has been a great success."). And if Mike and Chantell are polluting waters covered under federal law, shame on them. The question is, how are they supposed to know, if it takes three tries by the Supreme Court to figure it out? Ask the EPA? As Justice Alito patiently explains, the EPA's interpretation of its regulations has been, shall we say, elastic. That's no way to make law.
Suffice to say that more than a few of the chattering class allege that the Supreme Court has struck a blow for water pollution. The Supremes are, apparently, inviting anyone with a fancy to dump whatever is handy into bodies of water that appear convenient. One such individual commenter, at odds with the Court, found some solace in Justice Kavanaugh's dissent.
Only, no one dissented.
Let's bullet point the more obvious observations:
*The Court's conclusion that this poor property owner's mud puddle...okay, the wetland they filled in so they could build on their property...is not "waters of the United States" was unanimous.
*Five member of the Court - I'm not a math guy, but I think that's a majority - voted to clarify a plurality decision from 17 years ago that helps along some iffy drafting on the part of Congress when they passed the initial law making water pollution a thing.
*Four members, with Justice Kavanaugh writing on their behalf, stumbled over some interesting salami-slicing. Adjacent and adjoining are two different things, he says. He votes for the former, the majority incorrectly adheres to the latter, he says. So, there. Still, the Sackett's mud puddle wasn't either and so they are okay that he can keep his land the way it is.
*Justice Thomas points out, pithily but at some length, that traditionally Congress has regulated only navigable waterways usable to transport goods under their authority to regulate interstate commerce. Since Congress cannot delegate powers it does not otherwise have, giving the EPA dominion over every molecule of H2O no matter where it falls intrudes on the prerogatives of states to govern what happens within their own borders.
No, the Supreme Court's "Conservative Majority" (whatever that means) did not vote in favor of pollution. They voted in favor of clarity in the law. It's an invitation to Congress to clean up some language in the CWA.
I like to finish some of my blogs with a joke. Get it? Congress drafting laws with clarity? Get it?
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