Samuel Alito's Assault on Wetlands Is So Indefensible That He Lost Brett Kavanaugh

[Nevilledog]

https://slate.com/news-and-politics/2023/05/samuel-alito-wetlands-opinion-lost-brett-kavanaugh.html

On Thursday, the Supreme Court dealt a devastating blow to the nation’s wetlands by rewriting a statute the court does not like to mean something it does not mean. The court’s decision Sackett v. EPA is one of the court’s most egregious betrayals of textualism in memory. Put simply: The Clean Water Act protects wetlands that are “adjacent” to larger bodies of water. Five justices, however, do not think the federal government should be able to stop landowners from destroying wetlands on their property. To close this gap between what the majority wants and what the statute says, the majority crossed through the word “adjacent” and replaced it with a new test that’s designed to give landowners maximum latitude to fill in, build upon, or otherwise obliterate some of the most valuable ecosystems on earth.

Justice Samuel Alito’s opinion for the court is remarkably brazen about this approach—so brazen that Justice Brett Kavanaugh (of all people!) authored a sharp opinion accusing him of failing to “stick to the text.” Alito began with a long history of the Supreme Court’s struggles to identify the “outer boundaries” of the Clean Water Act, as if to explain why the time had come for the court to give up wrestling with the text and just impose whatever standard it prefers. The law expressly protects “waters of the United States” (like rivers and lakes) as well as “wetlands adjacent” to these waters. Congress added the wetlands provision in 1977 to codify the EPA’s definition of “adjacent,” which also happens to be the actual definition: “bordering, contiguous, or neighboring.” Under that interpretation—the one Congress adopted—wetlands that neighbor a larger body of water remain protected, even if they aren’t directly connected.

Why did Congress make that choice? Because wetlands provide immense environmental benefits: They filter and purify water draining into nearby streams, rivers, and lakes. They slow down runoff into these larger bodies. And they serve as vital flood control. In other words, the Clean Water Act has to protect “adjacent” wetlands to serve its overarching goal of safeguarding the broader “waters of the United States” from pollution.

Too bad, Alito wrote: We don’t like the definition that Congress used. It could lead to “crushing” fines for landowners and interfere with “mundane” activities like “moving dirt.” It interferes with “traditional state authority.” And it could give the EPA “truly staggering” regulatory authority. Five justices on the Supreme Court think all of that is very bad. So they declared that, instead of applying the statute’s words, the court would impose a different standard: Only wetlands with “a continuous surface connection” to larger bodies of water merit protection under the Clean Water Act.

*snip*

[Irish_Dem]

1. The US Supreme Court keeps showing us over and over: they hate America and Americans.

Except of course the SC loves rich people.

[Amishman]

16. Overall it was unanimous - 9-0, and this case is kind of murky

Looking at the specifics of the case, I understand why it was 9-0. Their property is not continually flooded / saturated. It is surrounded on all sides by other developed properties. It has no direct waterway access. That specific example / case was overreach by the EPA.

The issue is the broader restrictions on powers coming out of it, which is overreach by the court.

This is also a damn good example of how stretching the gray areas of laws is a risky practice. An abuse of authority by the EPA in a limited instance opened the door to a broad and excessive curb of their authority.

[Irish_Dem]

18. I wish I had some confidence the SC cares about Americans

Who aren’t rich.

[2naSalit]

2. ...

[Goonch]

3. 👇👇👇👁️👁️

[Scrivener7]

9. Perfect!

[thatdemguy]

4. The reasons aside it was a unanimous decision

So while the reasons where different every justice agreed the EPA went too far.

[Nevilledog]

7. It was a 5-4 decision in its reasoning.

[thatdemguy]

11. yes but still unanimous that the epa went too far

We can all say jumping off a high roof will kill you, but some will say its the sudden stop and some will say its because you jumped off a roof. But we all agree it will kill you. AKA unanimous it will kill you

[Nevilledog]

12. But it's important to evaluate for future challenges.

[SleeplessinSoCal]

5. This is going to piss off the environmental Republicans here in the OC.

Back when we formed a group to counter the Tea Party in 2011, I found that several Republicans in our local government were very protective of Wetlands. These were often the same Republicans who opposed abortion rights - while we had them. And they are mostly women.

Another chink in their armor

[hatrack]

14. What, both of them?

.

[SleeplessinSoCal]

19. No. The educated Republican women of OC have issues with their own party

The Tea Party helped to turn our area blue. Not immediately, but gradually and cause them to fight amongst themselves. It's been quite a spectacle.

[hatrack]

20. Glad to hear it - hope they hurry up, because we don't have all that much time left . . .

.

[MutantAndProud]

6. Define large

Is this not just another opening for another case?

*sigh*

Hydrology in soil is actually a fairly established science if I remember correctly. I guess by setting aside ‘large’ bodies that flow at a rate (undefined?) large enough to be unfiltered of novel human-created contaminants and concentrations of unearthed toxic substances they’re trying to target major offenders. But ‘small’ sources of contamination add up eventually if they’re in flood plains, historic inundation zones and river paths, or are attached to aquifer and wetlands feeding zones.

Also, as said in title, they need to define ‘large’ and ‘small’ in a way that isn’t going to ultimately destroy safe drinking water standards at the minimum. We do have the ability to measure all chemicals/products brought into an area and the amount that flows out…

I never understood the reluctance to run more testing labs in this country. Could be lots of jobs with sample collection, processing, and remediation if they wanted

[mopinko]

8. the culture wars are just a cover for this shit.

this is the real goal. regulatory destruction.

[Arazi]

10. Devastating. Absolutely heartbreaking

[thatdemguy]

13. To a point I think this case is good

I have seen someone local who filled in a dip in their yard that when it rained a bunch the dip was a 1/8 acre puddle, about 2 inches deep get fined. No rain no puddle, and it would take 2 days to be no puddle and a week to not be muddle if it did not rain again. The fine was only like 1000 bucks, but the cost to fix it was like 5k.

[PatSeg]

15. Why one might think that the justices

are "legislating from the bench". Hmm.

[Blue Owl]

17. Well, beer-loving Brett is kinda wet, if ya know what I mean...