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The recent decision didn’t so much “strike down” the protections, but rather ruled that the relevant law does not apply to the wetlands the EPA used to apply it

by xyzzyz 3y ago

The recent decision didn’t so much “strike down” the protections, but rather ruled that the relevant law does not apply to the wetlands the EPA used to apply it to. There was previous ruling, which according to SCOTUS, was erroneous, and so it reversed it. This is perfectly reasonable if you look at the original law and intent behind it, and the wetlands the federal agency no longer can claim control over. The original law was passed to protect the “navigable waters of the United States”. The agency claimed that wetlands around random creek flowing into a lake are covered, because there is a “significant nexus” between it and some navigable waters, somewhere. If you disagreed, tough luck, your best option was to appeal to the same agency, making it both judge and prosecutor in the same case, and in any case is not a practical option for a random person without deep pockets, who just want to build a house on a lake. The ruling said that when the law says it applies to navigable waters of United States, you can apply it only to waters or wetlands that actually are navigable for purposes of interstate commerce, or are so connected to these waters to be practically indistinguishable. This is perfectly reasonable: if given wetlands are not connected to interstate navigable waters, why should they be under federal jurisdiction in the first place, especially given the plain language of the relevant law? If the state wants to protect its own waters and wetlands, it’s certainly free to do so. Now, I believe that federal government could actually argue that the random wetlands actually can be under its jurisdiction, if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that, instead of leaning on old law that clearly did not mean to cover this.

2OEH8eoCRo0 3y ago
> they will need to pass a new law to assert that Exactly. The law as written was misinterpreted. Write a new law.
- willcipriano 3y ago
  They won't because their donors and friends don't want one. So all you'll get is impotent complaining about the supreme court.
  - EMCymatics 3y ago
    You could argue that it was the same for roe.
- EMCymatics 3y ago
  They really should but it will be difficult to fund.
- winter_blue 3y ago
  Congress has been deadlocked for 12½ years (i.e. since January 2011) due to the Senate filibuster. Don't expect any meaningful¹ non-budgetary law to be passed until the filibuster² is gone. Since Congress is in a comatose state, executive branch agencies have come to rely on Chevron deference and related doctrines, and the people on the courts to expand executive branch authority. ¹ Congress manages to pass a few non-budgetary laws that have broad³ bipartisan appeal, but this has the effect of excluding most meaningful legislation ² the repeal of which Sinema and Manchin blocked; so its repeal is contingent on Democrats winning a few more Senate seats ³ broad, due to the Senate filibuster, and the Hastert rule in the House: https://en.wikipedia.org/wiki/Hastert_Rule https://en.wikipedia.org/wiki/Hastert_Rule
  - nostromo 3y ago
    This is false. Congress continues to pass a record number of bills, and often does so with broad bipartisan support. https://en.wikipedia.org/wiki/List_of_acts_of_the_117th_United_States_Congress https://en.wikipedia.org/wiki/List_of_acts_of_the_117th_Unit... The current situation is not at all special or ahistorical. Every president since the founding has probably felt tempted to become a dictator and work around congress out of frustration -- thankfully we have the court system to (usually) shut them down.
    - winter_blue 3y ago
      Many of the significant bills in the Wikipedia article are budgetary bills, which are not subject to the Senate filibuster. I suspect the current Congress has not passed any meaningful non-budgetary legislation. Some of the most important pending bills include restoring the Voting Rights Act (which was crippled by the conservative wing of the Supreme Court in the Shelby County v. Holder decision). That bill is still being blocked by the Republican party. See: https://en.wikipedia.org/wiki/John_Lewis_Voting_Rights_Act https://en.wikipedia.org/wiki/John_Lewis_Voting_Rights_Act The Voting Rights Act used to be a bill that was renewed with bipartisan support, but once the Republican party realized that the invalidation of this bill made it easier to suppress minority votes in red states, they've been opposed to its renewal.
bcrosby95 3y ago
> Now, I believe that federal government could actually argue that the random wetlands actually can be under its jurisdiction, if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that, instead of leaning on old law that clearly did not mean to cover this. You can also raise the counterpoint here: 45 years of precedent says they're included, and if you don't like it, pass a law saying it doesn't.
- zdragnar 3y ago
  Congress shouldn't have to constantly pass laws just to tell the executive branch that they are abusing their powers. That's what the judiciary is for. My uncle has a small stream running through his back yard, counted as "navigable water" despite the fact that I could jump across it as a child and it wasn't deep enough to support anything but a paper boat. I'm also not saying we shouldn't have protections for the environment, but loose interpretation of rules is how you get corruption and abuse.
  - cmh89 3y ago
    > That's what the judiciary is for. Right, and the judiciary has 45 years of precedent that the wetlands are included. This radicalized illegitmate SCOTUS just threw out the protections because their corporate owners benefit from it.
    - nostromo 3y ago
      The whole point of a supreme court is to set precedent, as they have with many other decisions that you probably like, like Brown v. Board of Education and Obergefell v. Hodges. Besides, laws matter. If you want something done, you have to pass a law. If you don't have the votes, then go do the work and convince more people to vote with you. Edit: it actually wasn't set precedent from the supreme court anyway. The previous decision was split and was sent back down to the lower court, before being settled: https://en.wikipedia.org/wiki/Rapanos_v._United_States https://en.wikipedia.org/wiki/Rapanos_v._United_States
loeg 3y ago
I don't know why you say this doesn't "strike down" protections. Isn't this exactly what "striking down" means, in the context of the US judicial system?
- canjobear 3y ago
  Striking down usually means a law is invalidated because it is found unconstitutional. In this case, the issue was whether EPA's policy matched the language of a particular law or not, not whether that law itself was constitutional.
feoren 3y ago
> if given wetlands are not connected to interstate navigable waters How many endorheic basins do we even have in the United States? And one of the major ones, the basin of the Great Salt Lake, is clearly navigable for commerce purposes (although obviously not for "interstate" commerce, which may be what matters here). > if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that Why do we need to pass a law to assert something patently obvious to everyone? All waters are connected to major U.S. rivers except those in small endorheic basins. If some random person wants to build a house on a lake (which is a euphemism for: some major corporation wants to dump toxic waste in that lake), of course that affects all downstream waters of that lake, all the way to the ocean.
oatmeal1 3y ago
I'd like to add to the discussion the specifics of the case that was brought to the Supreme Court: https://www.youtube.com/watch?v=gBETD_SlpVU https://www.youtube.com/watch?v=gBETD_SlpVU This case has been 10 years in the making. In this case the EPA threatened to fine a family that wanted to develop a plot of land in a residential subdivision up to $75,000/day. The EPA claimed that because it had not yet fined the family, it's determination that their plot of land was a protected wetland under the Clean Water Act was not subject to judicial review. So the family would have a sword of Damocles hanging over their head if they decided to develop the land, but they couldn't challenge proactively that the land they wanted to develop was not in fact a protected wetland. The Supreme Court unanimously held that the compliance order threatening the fine was subject to judicial review, leading to the second case involving this plot of land, as to whether it was in fact a protected wetland.

by xyzzyz 3y ago

2OEH8eoCRo0 3y ago

> they will need to pass a new law to assert that Exactly. The law as written was misinterpreted. Write a new law.

willcipriano 3y ago
They won't because their donors and friends don't want one. So all you'll get is impotent complaining about the supreme court.
- EMCymatics 3y ago
  You could argue that it was the same for roe.
EMCymatics 3y ago
They really should but it will be difficult to fund.
winter_blue 3y ago
Congress has been deadlocked for 12½ years (i.e. since January 2011) due to the Senate filibuster. Don't expect any meaningful¹ non-budgetary law to be passed until the filibuster² is gone. Since Congress is in a comatose state, executive branch agencies have come to rely on Chevron deference and related doctrines, and the people on the courts to expand executive branch authority. ¹ Congress manages to pass a few non-budgetary laws that have broad³ bipartisan appeal, but this has the effect of excluding most meaningful legislation ² the repeal of which Sinema and Manchin blocked; so its repeal is contingent on Democrats winning a few more Senate seats ³ broad, due to the Senate filibuster, and the Hastert rule in the House: https://en.wikipedia.org/wiki/Hastert_Rule https://en.wikipedia.org/wiki/Hastert_Rule
- nostromo 3y ago
  This is false. Congress continues to pass a record number of bills, and often does so with broad bipartisan support. https://en.wikipedia.org/wiki/List_of_acts_of_the_117th_United_States_Congress https://en.wikipedia.org/wiki/List_of_acts_of_the_117th_Unit... The current situation is not at all special or ahistorical. Every president since the founding has probably felt tempted to become a dictator and work around congress out of frustration -- thankfully we have the court system to (usually) shut them down.
  - winter_blue 3y ago
    Many of the significant bills in the Wikipedia article are budgetary bills, which are not subject to the Senate filibuster. I suspect the current Congress has not passed any meaningful non-budgetary legislation. Some of the most important pending bills include restoring the Voting Rights Act (which was crippled by the conservative wing of the Supreme Court in the Shelby County v. Holder decision). That bill is still being blocked by the Republican party. See: https://en.wikipedia.org/wiki/John_Lewis_Voting_Rights_Act https://en.wikipedia.org/wiki/John_Lewis_Voting_Rights_Act The Voting Rights Act used to be a bill that was renewed with bipartisan support, but once the Republican party realized that the invalidation of this bill made it easier to suppress minority votes in red states, they've been opposed to its renewal.

bcrosby95 3y ago

> Now, I believe that federal government could actually argue that the random wetlands actually can be under its jurisdiction, if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that, instead of leaning on old law that clearly did not mean to cover this. You can also raise the counterpoint here: 45 years of precedent says they're included, and if you don't like it, pass a law saying it doesn't.

zdragnar 3y ago
Congress shouldn't have to constantly pass laws just to tell the executive branch that they are abusing their powers. That's what the judiciary is for. My uncle has a small stream running through his back yard, counted as "navigable water" despite the fact that I could jump across it as a child and it wasn't deep enough to support anything but a paper boat. I'm also not saying we shouldn't have protections for the environment, but loose interpretation of rules is how you get corruption and abuse.
- cmh89 3y ago
  > That's what the judiciary is for. Right, and the judiciary has 45 years of precedent that the wetlands are included. This radicalized illegitmate SCOTUS just threw out the protections because their corporate owners benefit from it.
  - nostromo 3y ago
    The whole point of a supreme court is to set precedent, as they have with many other decisions that you probably like, like Brown v. Board of Education and Obergefell v. Hodges. Besides, laws matter. If you want something done, you have to pass a law. If you don't have the votes, then go do the work and convince more people to vote with you. Edit: it actually wasn't set precedent from the supreme court anyway. The previous decision was split and was sent back down to the lower court, before being settled: https://en.wikipedia.org/wiki/Rapanos_v._United_States https://en.wikipedia.org/wiki/Rapanos_v._United_States

loeg 3y ago

I don't know why you say this doesn't "strike down" protections. Isn't this exactly what "striking down" means, in the context of the US judicial system?

canjobear 3y ago
Striking down usually means a law is invalidated because it is found unconstitutional. In this case, the issue was whether EPA's policy matched the language of a particular law or not, not whether that law itself was constitutional.

feoren 3y ago

> if given wetlands are not connected to interstate navigable waters How many endorheic basins do we even have in the United States? And one of the major ones, the basin of the Great Salt Lake, is clearly navigable for commerce purposes (although obviously not for "interstate" commerce, which may be what matters here). > if they affect the water in other states, eg. through ground water flows etc. However, they will need to pass a new law to assert that Why do we need to pass a law to assert something patently obvious to everyone? All waters are connected to major U.S. rivers except those in small endorheic basins. If some random person wants to build a house on a lake (which is a euphemism for: some major corporation wants to dump toxic waste in that lake), of course that affects all downstream waters of that lake, all the way to the ocean.

oatmeal1 3y ago

I'd like to add to the discussion the specifics of the case that was brought to the Supreme Court: https://www.youtube.com/watch?v=gBETD_SlpVU https://www.youtube.com/watch?v=gBETD_SlpVU This case has been 10 years in the making. In this case the EPA threatened to fine a family that wanted to develop a plot of land in a residential subdivision up to $75,000/day. The EPA claimed that because it had not yet fined the family, it's determination that their plot of land was a protected wetland under the Clean Water Act was not subject to judicial review. So the family would have a sword of Damocles hanging over their head if they decided to develop the land, but they couldn't challenge proactively that the land they wanted to develop was not in fact a protected wetland. The Supreme Court unanimously held that the compliance order threatening the fine was subject to judicial review, leading to the second case involving this plot of land, as to whether it was in fact a protected wetland.