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> 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

> 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
    - Retric 3y ago
      No every level sets precedent, making precedent is a side effect not their role. Historically only a small fraction of Supreme Court cases have overturned precedent without a conflict at lower levels.
    - knome 3y ago
      Our laws are supposed to be interpreted via precedent. We are not a fly by night French civil system. Our legal traditions are rooted in maintaining centuries of stability within the law, altering those interpretations only in accordance with new laws. If the courts cannot be expected to consistently interpret the law, how can citizens be sure what that law means? To turn over fifty years of precedent on a whim is certainly within the power of the supreme court, but only in the same manner that doing a poor job of running the federal government is within the powers of the executive. There is nothing to stop them from doing their job poorly, because they are themselves the ones responsible for setting and maintaining high standards.
      - nostromo 3y ago
        I’m curious then if you also oppose Brown and Obergefell?
        knome 3y ago
        This seems to be a sort of "gotcha" question, wherein you pose points of precedent breaking for which I am likely to support the outcome but not the process. And you are right. I absolutely support both same-sex marriage and the casting out of the vile separate-but-equal doctrine. And I think both would have been better done as legislation. When the supreme court struck down 50 years of precedent supporting the right of women to use abortion as a tool in reasonably controlling whether they would choose to go through the dangers of pregnancy, they showed precedent alone is not a dependable bulwark for the rights of the citizenry. I also admit I find it far more reasonable for the courts to expand rights and protections than I do seeing it strip them away. You might argue this is an expansion of rights for those that would prefer to be unhindered by regulatory oversight while destroying, polluting and mismanaging the wetlands now under their control, and I suppose it is. Though I doubt any good will come of it.
  - liquidgecka 3y ago
    You use the term "This radicalized illegitimate SCOTUS" but you realize that the court was unanimous that the EPA had overstepped its authority under the law right?
    - banana_feather 3y ago
      There was most certainly not unanimity on the redefinition of wetlands, which is what they were talking about.
      - liquidgecka 3y ago
        > While the nine justices agreed that the Sacketts should prevail, they divided 5-to-4 as to how far to go in limiting the EPA's authority. https://www.npr.org/2023/05/25/1178150234/supreme-court-epa-clean-water-act https://www.npr.org/2023/05/25/1178150234/supreme-court-epa-...
        banana_feather 3y ago
        I'm sorry, did you not read past the ad break? The very next paragraph is about four dissenters taking issue with the wetlands definition: > Justice Brett Kavanaugh, joined by the court's three liberal members, disputed Alito's reading of the statute, noting that since 1977 when the CWA was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded. Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court's new test will have quote "significant repercussions for water quality and flood control throughout the United States."
  - ksherlock 3y ago
    You don't you just hate those radicalized 9-0 SCOTUS rulings? Chantell and Michael Sackett went to the Supreme Court twice. Twice! Unanimous rulings in their favor both times. Sacketts: 18, EPA: 0. Due to court turnover they had 13 unique SCOTUS justices find in their favor.
    - cmh89 3y ago
      You mean the 9-0 that says they don't have a corruption problem despite mounting evidence of decades of bribes? Am I supposed to pretend that the liberal justices aren't also corrupt?
      - paulddraper 3y ago
        So what percentage of SCOTUS "legitimate"
    - cipheredStones 3y ago
      This is very misleading - the regulatory changes introduced by the ruling were 5-4 along ideological lines, even though the judgement in favor of the Sacketts was unanimous. In the case this year: > The court voted unanimously to reverse the Ninth Circuit, but split 5–4 on the rationale. The majority opinion, by Alito, introduced a new test to define wetlands, which reversed five decades of EPA rule-making and limited the scope of the Clean Water Act's authority to regulate waters of the United States. Justice Brett Kavanaugh joined the three liberal justices in agreeing that the CWA did not apply to the Sacketts' property, but argued that the majority's new definition was incorrect and will have significant effects on regulated waters.
  - aksss 3y ago
    > 45 years of precedent What is this 45-year-old precedent of which you speak? The CWA itself? It's worth noting that the Sacketts have been wrapped up in challenging the agency decision in the courts for nearly 20 years. Regulatory agencies stretching the bounds of their authority until they come to a head in the courts is not unique to the CWA or the EPA, but is a phenomenon typical of the interplay between the Judiciary and Executive branch. A regulatory agency claiming their decisions are not subject to any judicial review is.. a position, I guess. > Radicalized illegitimate SCOTUS That comment seems quite radical. SCOTUS unanimously decided this case, FWIW. SCOTUS looked at the plain language of the statute, which seems like a great place to start and end the review. What has been determined to be illegitimate is the breadth of EPA's claimed authority under the law as written.
- Retric 3y ago
  > constantly ass laws just to tell the executive branch they are abusing their powers. Nobody is suggesting that. The basic argument is if both the executive and the judiciary misinterpret a law for decades then it’s the legislative branch’s job to correct that “misunderstanding” not the judiciary. This is why it’s called a common law, past court cases clarify the rules. https://en.wikipedia.org/wiki/Common_law https://en.wikipedia.org/wiki/Common_law When president exists it’s the judiciaries job to maintain the status quo not to arbitrarily change the rules after it’s already made up its mind, unless there is some clear conflict. The fundamental principle at play is if the judicial branch can flip flop arbitrarily then president is meaningless and everything can be relitigated endlessly. Edit: There’s many sources of conflict even without changes to the law as lower courts should be self consistent but there’s independence between them. Which might seem strange but creates some redundancy as consistent rulings reinforce precedent while conflicting rulings invite intervention by a higher court.
  - ralusek 3y ago
    > arbitrarily change the rules after it’s already made up its mind. It is often the precedent which was arbitrary.
    - Retric 3y ago
      Sure, but that’s not an inherent issue. If things are arbitrary and you decide based on a coin flip then the coin flip needs to be binding or you just keep flipping coins. There’s many other systems we could use, but existing case law has the benefit of being extremely detailed. If navigable waterways in your state is public land, what happens after a dam is installed and they’re no longer navigable? That’s the kind of thing you want to find out before you buy some property.
      - ralusek 3y ago
        An issue down to coin flips should be seen as a signal of a bug. However, I would argue that more often than not, it's not actually down to a coin flip. There is a default position in a liberal society, and that is that of minimal authority. Every legal question is fundamentally one of "does the state have the authority to do this, and if so, at what level?" If the answer is unclear, this should always resolve to no, or if yes, at the most localized level specified.
JumpCrisscross 3y ago
> 45 years of precedent says they're included Not quite. As recently as in 2006, Rapanos decided "the CWA’s use of 'waters' encompasses 'only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’" Also: "More recently, the agencies have engaged in a flurry of rulemaking defining 'the waters of the United States.' In a 2015 rule, they offered a muscular approach that would subject 'the vast majority of the nation’s water feature' to a case-by-case jurisdictional analysis. Although the rule listed a few examples of 'waters' that were excluded from regulation like '[p]uddles' and 'swimming pools,' it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters. And it subjected a wider range of other waters, including any within 4,000 feet of indirect tributaries of interstate or traditional navigable waters, to a case-specific determination for significant nexus. The agencies repealed this sweeping rule in 2019. Shortly afterwards, they replaced it with a narrower definition that limited jurisdiction to traditional navigable waters and their tributaries, lakes, and 'adjacent' wetlands. They also narrowed the definition of '[a]djacent,' limiting it to wetlands that '[a]but' covered waters, are flooded by those waters, or are separated from those waters by features like berms or barriers. This rule too did not last. After granting the EPA’s voluntary motion to remand, a District Court vacated the rule." https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
- User23 3y ago
  This reminds me of how a court declared that San Diego's overgrown drainage system was a protected wetland and they had to offset it in order to dredge it out and keep a century flood from happening.
  - panny 3y ago
    And on the other side, farmer suing the German government because of climate change, while she is plowing wetlands... https://news.ycombinator.com/item?id=21407836 https://news.ycombinator.com/item?id=21407836 In fact, here's video of her plowing wetlands, https://www.reuters.com/business/environment/its-my-home-island-activist-who-forced-german-climate-action-2021-05-05/ https://www.reuters.com/business/environment/its-my-home-isl... She won her politically correct case BTW https://www.reuters.com/business/environment/its-my-home-island-activist-who-forced-german-climate-action-2021-05-05/ https://www.reuters.com/business/environment/its-my-home-isl... Hopefully Germany outlaws her existence and kicks her off wetland island. It would be poetic justice.
oatmeal1 3y ago
Is it truly 45 years of precedent, or has the executive slowly taken a less strict interpretation over the years, expanding what it thinks the Act gives it jurisdiction over?
paulddraper 3y ago
> 45 years of precedent says they're included, and if you don't like it, pass a law saying it doesn't So.... Not a fan of Oberefell vs Hodges, I take it?

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
  - Retric 3y ago
    No every level sets precedent, making precedent is a side effect not their role. Historically only a small fraction of Supreme Court cases have overturned precedent without a conflict at lower levels.
  - knome 3y ago
    Our laws are supposed to be interpreted via precedent. We are not a fly by night French civil system. Our legal traditions are rooted in maintaining centuries of stability within the law, altering those interpretations only in accordance with new laws. If the courts cannot be expected to consistently interpret the law, how can citizens be sure what that law means? To turn over fifty years of precedent on a whim is certainly within the power of the supreme court, but only in the same manner that doing a poor job of running the federal government is within the powers of the executive. There is nothing to stop them from doing their job poorly, because they are themselves the ones responsible for setting and maintaining high standards.
    - nostromo 3y ago
      I’m curious then if you also oppose Brown and Obergefell?
      - knome 3y ago
        This seems to be a sort of "gotcha" question, wherein you pose points of precedent breaking for which I am likely to support the outcome but not the process. And you are right. I absolutely support both same-sex marriage and the casting out of the vile separate-but-equal doctrine. And I think both would have been better done as legislation. When the supreme court struck down 50 years of precedent supporting the right of women to use abortion as a tool in reasonably controlling whether they would choose to go through the dangers of pregnancy, they showed precedent alone is not a dependable bulwark for the rights of the citizenry. I also admit I find it far more reasonable for the courts to expand rights and protections than I do seeing it strip them away. You might argue this is an expansion of rights for those that would prefer to be unhindered by regulatory oversight while destroying, polluting and mismanaging the wetlands now under their control, and I suppose it is. Though I doubt any good will come of it.
- liquidgecka 3y ago
  You use the term "This radicalized illegitimate SCOTUS" but you realize that the court was unanimous that the EPA had overstepped its authority under the law right?
  - banana_feather 3y ago
    There was most certainly not unanimity on the redefinition of wetlands, which is what they were talking about.
    - liquidgecka 3y ago
      > While the nine justices agreed that the Sacketts should prevail, they divided 5-to-4 as to how far to go in limiting the EPA's authority. https://www.npr.org/2023/05/25/1178150234/supreme-court-epa-clean-water-act https://www.npr.org/2023/05/25/1178150234/supreme-court-epa-...
      - banana_feather 3y ago
        I'm sorry, did you not read past the ad break? The very next paragraph is about four dissenters taking issue with the wetlands definition: > Justice Brett Kavanaugh, joined by the court's three liberal members, disputed Alito's reading of the statute, noting that since 1977 when the CWA was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded. Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court's new test will have quote "significant repercussions for water quality and flood control throughout the United States."
- ksherlock 3y ago
  You don't you just hate those radicalized 9-0 SCOTUS rulings? Chantell and Michael Sackett went to the Supreme Court twice. Twice! Unanimous rulings in their favor both times. Sacketts: 18, EPA: 0. Due to court turnover they had 13 unique SCOTUS justices find in their favor.
  - cmh89 3y ago
    You mean the 9-0 that says they don't have a corruption problem despite mounting evidence of decades of bribes? Am I supposed to pretend that the liberal justices aren't also corrupt?
    - paulddraper 3y ago
      So what percentage of SCOTUS "legitimate"
  - cipheredStones 3y ago
    This is very misleading - the regulatory changes introduced by the ruling were 5-4 along ideological lines, even though the judgement in favor of the Sacketts was unanimous. In the case this year: > The court voted unanimously to reverse the Ninth Circuit, but split 5–4 on the rationale. The majority opinion, by Alito, introduced a new test to define wetlands, which reversed five decades of EPA rule-making and limited the scope of the Clean Water Act's authority to regulate waters of the United States. Justice Brett Kavanaugh joined the three liberal justices in agreeing that the CWA did not apply to the Sacketts' property, but argued that the majority's new definition was incorrect and will have significant effects on regulated waters.
- aksss 3y ago
  > 45 years of precedent What is this 45-year-old precedent of which you speak? The CWA itself? It's worth noting that the Sacketts have been wrapped up in challenging the agency decision in the courts for nearly 20 years. Regulatory agencies stretching the bounds of their authority until they come to a head in the courts is not unique to the CWA or the EPA, but is a phenomenon typical of the interplay between the Judiciary and Executive branch. A regulatory agency claiming their decisions are not subject to any judicial review is.. a position, I guess. > Radicalized illegitimate SCOTUS That comment seems quite radical. SCOTUS unanimously decided this case, FWIW. SCOTUS looked at the plain language of the statute, which seems like a great place to start and end the review. What has been determined to be illegitimate is the breadth of EPA's claimed authority under the law as written.
Retric 3y ago
> constantly ass laws just to tell the executive branch they are abusing their powers. Nobody is suggesting that. The basic argument is if both the executive and the judiciary misinterpret a law for decades then it’s the legislative branch’s job to correct that “misunderstanding” not the judiciary. This is why it’s called a common law, past court cases clarify the rules. https://en.wikipedia.org/wiki/Common_law https://en.wikipedia.org/wiki/Common_law When president exists it’s the judiciaries job to maintain the status quo not to arbitrarily change the rules after it’s already made up its mind, unless there is some clear conflict. The fundamental principle at play is if the judicial branch can flip flop arbitrarily then president is meaningless and everything can be relitigated endlessly. Edit: There’s many sources of conflict even without changes to the law as lower courts should be self consistent but there’s independence between them. Which might seem strange but creates some redundancy as consistent rulings reinforce precedent while conflicting rulings invite intervention by a higher court.
- ralusek 3y ago
  > arbitrarily change the rules after it’s already made up its mind. It is often the precedent which was arbitrary.
  - Retric 3y ago
    Sure, but that’s not an inherent issue. If things are arbitrary and you decide based on a coin flip then the coin flip needs to be binding or you just keep flipping coins. There’s many other systems we could use, but existing case law has the benefit of being extremely detailed. If navigable waterways in your state is public land, what happens after a dam is installed and they’re no longer navigable? That’s the kind of thing you want to find out before you buy some property.
    - ralusek 3y ago
      An issue down to coin flips should be seen as a signal of a bug. However, I would argue that more often than not, it's not actually down to a coin flip. There is a default position in a liberal society, and that is that of minimal authority. Every legal question is fundamentally one of "does the state have the authority to do this, and if so, at what level?" If the answer is unclear, this should always resolve to no, or if yes, at the most localized level specified.

JumpCrisscross 3y ago

> 45 years of precedent says they're included Not quite. As recently as in 2006, Rapanos decided "the CWA’s use of 'waters' encompasses 'only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’" Also: "More recently, the agencies have engaged in a flurry of rulemaking defining 'the waters of the United States.' In a 2015 rule, they offered a muscular approach that would subject 'the vast majority of the nation’s water feature' to a case-by-case jurisdictional analysis. Although the rule listed a few examples of 'waters' that were excluded from regulation like '[p]uddles' and 'swimming pools,' it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters. And it subjected a wider range of other waters, including any within 4,000 feet of indirect tributaries of interstate or traditional navigable waters, to a case-specific determination for significant nexus. The agencies repealed this sweeping rule in 2019. Shortly afterwards, they replaced it with a narrower definition that limited jurisdiction to traditional navigable waters and their tributaries, lakes, and 'adjacent' wetlands. They also narrowed the definition of '[a]djacent,' limiting it to wetlands that '[a]but' covered waters, are flooded by those waters, or are separated from those waters by features like berms or barriers. This rule too did not last. After granting the EPA’s voluntary motion to remand, a District Court vacated the rule." https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf

User23 3y ago
This reminds me of how a court declared that San Diego's overgrown drainage system was a protected wetland and they had to offset it in order to dredge it out and keep a century flood from happening.
- panny 3y ago
  And on the other side, farmer suing the German government because of climate change, while she is plowing wetlands... https://news.ycombinator.com/item?id=21407836 https://news.ycombinator.com/item?id=21407836 In fact, here's video of her plowing wetlands, https://www.reuters.com/business/environment/its-my-home-island-activist-who-forced-german-climate-action-2021-05-05/ https://www.reuters.com/business/environment/its-my-home-isl... She won her politically correct case BTW https://www.reuters.com/business/environment/its-my-home-island-activist-who-forced-german-climate-action-2021-05-05/ https://www.reuters.com/business/environment/its-my-home-isl... Hopefully Germany outlaws her existence and kicks her off wetland island. It would be poetic justice.

oatmeal1 3y ago

Is it truly 45 years of precedent, or has the executive slowly taken a less strict interpretation over the years, expanding what it thinks the Act gives it jurisdiction over?

paulddraper 3y ago

> 45 years of precedent says they're included, and if you don't like it, pass a law saying it doesn't So.... Not a fan of Oberefell vs Hodges, I take it?