The court's split decision on wetlands is garnering a lot of attention.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
Today's read: 13 minutes.
- The House Rules Committee approved a bill to raise the debt ceiling, moving it to a floor vote that will take place on Wednesday night. Despite some opposition on both sides, the bill is expected to pass. (The vote)
- Minnesota Gov. Tim Waltz (D) signed a bill approving recreational marijuana, making Minnesota the 23rd state to legalize adult-use cannabis and the third Midwestern state to do so. (The bill)
- FBI Director Christopher Wray said he will meet with Rep. Jim Comer (R) on the probe into the Biden family. (The meeting)
- Ukrainian drones struck wealthy districts in Moscow on Tuesday, damaging three buildings and causing no injuries or deaths. (The attacks)
- Florida Gov. Ron DeSantis (R) began his campaign for president by criticizing former President Trump's handling of Covid and saying he "moved left" on issues like criminal justice reform. (The criticism)
The Clean Water Act. On Thursday, the Supreme Court established a more stringent test to determine whether the Clean Water Act (CWA) applies to certain wetlands, limiting the Environmental Protection Agency's (EPA) authority over them. The decision will have broad implications for agriculture, energy, and mining.
For decades, courts and agencies have struggled to define what bodies of water and wetlands are protected by the CWA, which prohibits "discharge of pollutants" into "navigable waters,” “waters of the United States,” and” territorial seas.” However, several court decisions and agency rule changes have modified this definition over time.
The case before the court was Sackett v. Environmental Protection Agency, which involved Michael and Chantell Sackett, a couple who had been battling the federal government for more than 15 years for the legal right to build a house on a lot near a large lake. In 2007, the EPA asked them to stop construction of their home, threatening fines of $40,000 per day. The lot is 300 feet from Priest Lake, but because it contains wetlands protected by the CWA, the EPA claimed the land fell under the law’s protection. 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.
In that case, the court embraced a test outlined by Justice Anthony Kennedy that requires a "significant nexus" between wetlands and waters for the area to be covered by the CWA.
But the court reversed that ruling on Thursday, with Justice Samuel Alito drafting an opinion arguing that the Clean Water Act only applies to water that "blends or flows" into a channel used for interstate commerce, according to SCOTUSblog. Drawing in large part from previous opinions written by Justice Antonin Scalia, Alito wrote that the CWA covers “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”
He added that adjacent waters "must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA," which requires "a continuous surface connection... so that there is no clear demarcation between waters and wetlands,” even if that connection is sometimes broken by "low tides or dry spells."
Alito rejected Kennedy's test, arguing that it was "implausible" and would make it difficult if not impossible for landowners to determine if the CWA applied to their property. The justices were unanimous in their decision that the Sackett's property did not fall under the CWA's protections. However, they were deeply divided on why, and on how to define “waters of the United States” under the CWA. Perhaps most notably, Justice Brett Kavanaugh joined the three liberal justices in an opinion criticizing Alito's new definition.
“[T]he Court’s new and overly narrow test may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for water of the United States,” Kavanaugh wrote.
Instead, Kavanaugh argued for a more expansive test, under which the CWA would apply to wetlands next to a large body of water or separated by a man-made or natural barrier. Under this test, the wetlands on the Sackett's property still do not fall into those categories, but wetlands on the other side of levees like the ones on the Mississippi River would. Kavanaugh also argued that Alito’s new test is novel and vague enough to perpetuate the kind of legal ambiguity he himself had criticized.
Environmental groups also criticized the ruling.
“Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers,” Sam Sankar, Senior Vice President of Programs at Earthjustice, said.
The lawyers who represented Michael and Chantell Sackett celebrated the ruling.
“[It] returns the scope of the Clean Water Act to its original and proper limits,” Damien Schiff, one of their attorneys, said. “Courts now have a clear measuring stick for fairness and consistency by federal regulators.”
Today, we're going to explore some arguments about this ruling from the left and right, and then I'll share my take.
What the left is saying.
- Many on the left criticize the ruling, calling it terrible news for the cleanliness of our nation’s water.
- Some argue that the conservative justices are ignoring the intent of the law.
- Others suggest that Alito has redefined the text of the law to achieve the political outcome he wanted.
In Vox, Ian Millhiser said this is "terrible news" if you care about clean water.
"As Justice Brett Kavanaugh writes in a dissenting opinion, 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," Millhiser said. It is an "admittedly difficult question" on how to read a vague provision of the law defining "waters of the United States,” but Alito picked the "narrowest" definition.
"As an amicus brief filed by professional associations representing water regulators and managers warned, this new definition will 'exclude 51% (if not more) of the Nation’s wetlands' from the Act’s protections. Wetlands often act as filtration systems that slow the seepage of pollutants into major waterways, and as sponges that help control floods," Millhiser said. Alito's "fast and loose approach to statutory text" could "drastically limit the nation’s ability to fight water pollution."
In The Washington Post, Richard J. Lazarus said the effect of the ruling will likely be devastating.
"Congress was not at all shy about the geographic reach of the Clean Water Act. The statute targeted discharges into 'navigable waters,' but Congress also expressly defined that to include all 'waters of the United States.' Since the mid-1970s, the courts have uniformly agreed that Congress intended with that expansive definition to extend the law’s protections far beyond traditional navigable waters to include the wetlands, intermittent streams and other tributaries that feed into the nation’s major rivers and lakes," he wrote.
"In a unanimous opinion for the court almost 40 years ago, Justice Byron White explained why," Lazarus said. While "'on a purely linguistic level, it may appear unreasonable to classify lands wet or otherwise as waters,' the court said 'such a simplistic response … does justice neither to the problem faced by the [government] nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.'" However, Alito embraces Scalia's "simplistic response" that takes the dictionary definition of ‘waters’ and ignores the Clean Water Act's purpose.
In Slate, Mark Joseph Stern said the new test is "so indefensible" that Alito "even lost Brett Kavanaugh."
"The court’s decision in Sackett v. EPA is one of [its] most egregious betrayals of textualism in memory," Stern said. "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." Alito's opinion is "remarkably brazen" — so much so that Justice Kavanaugh "accused him of failing to 'stick to the text.'"
"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," Stern said. Too bad: The court declared that "instead of applying the statute’s words" it "would impose a different standard," protecting "only wetlands with 'a continuous surface connection' to larger bodies of water."
What the right is saying.
- Many on the right praise the ruling, arguing that it should bring clarity to the law.
- Some suggest this will serve landowners and citizens who struggle to decipher when they are violating the law.
- Others call it a blow against the bureaucratic state of America’s regulatory agencies.
National Review's editors praised Alito for bringing clarity to the law.
"Chief Justice John Marshall famously described the job of the courts: to 'say what the law is.' The courts are supposed to read the law, not write it," the editors said. "Sometimes, however, the written law leaves much unanswered. At a certain point, while it is important that the Supreme Court adhere to the text written by Congress, it is even more important that it settle on an answer that tells Americans what the law is, and what it is not. That is what the Court did on Thursday in Sackett v. EPA." As written, the CWA left landowners in a "perpetual state of uncertainty."
"Nothing is more central to the rule of written law than that the law be certain and knowable," the editors said. Courts and agencies have struggled to define the statutory boundary of CWA, and now Alito offers clarity. "This may not be the only possible reading of the CWA, but it makes the best sense of what Congress wrote in a way that is actually comprehensible as law and provides fair notice to citizens of what they may be jailed for doing." Fair-minded readers may disagree, but "it is much easier for owners of property to determine what waters adjoin navigable waters than to enter into disputations of what is or is not nearby enough to qualify."
The Washington Examiner's editors called it a "huge win” for the rule of law.
In 1986, the EPA issued its 'Migratory Bird Rule,' which "asserted EPA CWA jurisdiction over any water anywhere that could 'or would be used as a habitat' by migratory birds. The EPA admitted in court that this definition of 'waters of the United States' granted them jurisdiction over every swimming pool, puddle, and ditch in the country," the editors said. The Supreme Court rejected this decision, but the EPA then issued new regulations that, "according to a 2006 Supreme Court decision, gave it jurisdiction over 'virtually any parcel of land containing a channel or conduit through which rainwater or drainage may occasionally or intermittently flow.'
"That 2006 Supreme Court case struck down the EPA’s definition of ‘waters,’ but it failed to find consensus on a new definition," the editors wrote. The EPA then borrowed Justice Anthony Kennedy’s 'significant nexus' test, and "used it to assert control over pretty much any drop of water anywhere in the country." Thursday's decision gets five justices to "agree on a working definition," while "dissenters failed to offer a working definition." This did not "gut" anything, as "factories, power plants, and homes that abut a body of water are still subject to EPA jurisdiction. So is a property that abuts wetlands directly connected to any standing body of water. But homeowners like the Sacketts, whose property is separated from wetlands by a 30-foot road that touches a creek that feeds into a lake, no longer have to worry."
In The New York Post, James Bovard called it a "blow against bureaucratic tyranny."
"Since 1972, federal agencies have changed the definition of wetlands jurisdiction 13 times," Bovard wrote. "Up to 100 million private acres fall under federal sway, depending on the definition of wetlands (which could be dry 300 days a year). Because the Clean Water Act imposes strict criminal liability, farmers plowing their own fields can be treated like midnight dumpers heaving barrels of dioxin into a river."
"EPA demanded the Sacketts get a federal Clean Water Act permit to build their house, their lawyers complained, because 'Priest Lake is a navigable water; a non-navigable creek connects to Priest Lake; the non-navigable creek is connected to a non-navigable, man-made ditch; the non-navigable, man-made ditch is connected to wetlands; these wetlands, though separated from the Sacketts’ lot by a 30-foot-wide paved road, are nevertheless ‘similarly situated’ to wetlands alleged to exist on the Sacketts’ lot.' EPA persisted even though the agency 'recognizes' that 'no water at all — surface or subsurface — flows from the Sacketts’ lot to the wetlands or to the ditch across the street.' ... All nine Supreme Court justices agreed Thursday that federal bureaucrats had no right to seize control over the Sacketts’ property."
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- The CWA’s definition of waters is not particularly clear, and the last 50 years of ambiguity have been a serious problem.
- Alito’s new definition is not a textualist reading of the law, and is not true to the legislators’ intent.
- Even if the land owner’s position resonates with me, I think Alito’s new definition is an error and an overreach.
Let's start with where I'm most confident: 1) We live in an over-regulated country. 2) The Clean Water Act has been a remarkably successful piece of legislation, even if it is ambiguously written. 3) Alito has seriously overstepped, and I think his definition could do some serious harm to our waterways.
For all the criticism of regulatory overreach in the U.S., criticism I often participate in, the CWA remains a remarkable piece of legislation. We consider it common sense now that we shouldn’t use all of our bodies of water as dumping sites for industrial pollution, but that wasn't always the case. And the regulation of pollution (which is still allowed with permits) has transformed our waters into places that are, on the aggregate, much safer to fish and swim in across the country.
It's also obvious that protecting standing (or, dare I say, navigable) bodies of water like oceans, rivers, lakes or creeks is not the only necessary action to keep them clean. Wetlands flow into these bodies of water. So do subterranean waterways. Allowing the pollution of those waterways would set us back and do serious harm to the bodies of water most Americans obviously want to protect, as the Clean Water Act was designed to do.
Wetlands, in particular, are crucial. They filter and purify water, and slow runoff into larger bodies, preventing floods. So, on the raw outcome here, I think it is a net negative that fewer wetlands are going to be protected.
Textualism, as conservative justices often frame it, is about embracing the plain meaning of text in the law and how that text was understood at the time a law was written. The CWA's original intent was quite obviously to give the EPA broad authority over our waterways, and the original text does not anywhere define waters of the United States as being limited to surface connection of said waterways.
In creating his own definition, Justice Alito appears to be doing the exact thing he so often criticizes — he is writing the law, not telling us what it is.
As Stern noted (under "What the left is saying"), Congress didn't just broadly define the waters of the U.S., it also called for protecting wetlands adjacent to those waters. Congress didn’t accidentally decide to include the "adjacent" provision in 1977; it meant to codify including wetlands “bordering, contiguous, or neighboring” bodies of water. That, to me, seems to quite evidently mean wetlands next to large bodies of water even if they aren't connected by surface water. Alito's new definition seems to expressly contradict the intent and actual text of the CWA's authors.
The most remarkable thing about this case to me is that Alito and the conservative justices didn't have to do this. The Sackett family could have safely built their home — and still can. All nine justices agree here. What they disagree on is how to read the CWA moving forward. Kavanaugh's criticism of Alito does not read like someone intentionally seeking out a middle ground — it reads like a conservative justice who earnestly believes his colleagues have gone too far. As Kavanaugh notes, Alito’s new test is “sufficiently novel and vague” to create uncertainty, which is a nice way of saying it is totally invented and unclear.
None of this is to say I disagree with the spirit of the Sacketts’ fight. That they had to do battle for 15 years with the federal government only to get a unanimous ruling in their favor speaks to the way our regulatory agencies often overreach. I agree with the many conservative commentators who criticize the increasingly complex web that makes up our current system, and also share the sentiment that this law has left far too many citizens, agencies, and courts unsure of what constitutes a protected waterway. As Alito put it, some interpretations of the law gave federal jurisdiction to any soggy backyard anywhere in the country. I'm sure much of the new development on land that had been protected will be managed safely, and will fall under other stringent environmental protections anyway.
But in responding to all these wrongs, Alito and the conservative justices have committed several of their own: They've divorced the law from the legislators’ intent, essentially rewriting it in a way that fits the outcome they sought and contradicts the plain text. And in doing so they've exposed far too many of our wetlands — and, thus, waterways — to the threat of exactly the kind of pollution we had put in the past. There was a good middle ground here, one carved out cleanly by Kavanaugh; but the court opted for something much different.
So, what good result could come from all this? Congress can rewrite the law to make it clearer, and states can beef up their own enforcement to ensure they protect their water and land. For now, that’d be the best path forward.
Your questions, answered.
Q: Why wouldn't the logic of Section 230 of the telecom law also be applicable to the firearms industry? (Not the law itself, but the underpinning logic that bad people might use good things for the wrong purpose)
— James from Rogers, Arkansas
Tangle: This is an interesting question, for two reasons. First, I've actually made this comparison before when discussing Section 230 with friends or colleagues. Second, when I ask this question, I put it the other way around: Why hold Google responsible for terrorism when we wouldn't hold gun manufacturers responsible for shootings?
As you noted, and just to be clear: Section 230 isn't about guns, which is why it doesn't apply legally. The entirety of Section 230 says, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
Additionally, gun manufacturers have their own law shielding them from liability. The Protection of Lawful Commerce in Arms Act, passed in 2005, protects manufacturers from injury resulting from the "misuse of their products." This act has been used broadly to protect gun manufacturers, and since its passage no manufacturer accused of negligence has even gone to trial.
Philosophically, the comparison seems simple enough — companies who make a legal product shouldn't be responsible for illegal things people do with it. But the usages are so clearly different. As we wrote when we first covered Section 230, content aggregators and platforms are curational. If I search YouTube for car engines and in two easy clicks I find a video on how to make a bomb, that would be like buying a gun and having it come with a booklet telling me how to track down my enemies and kill them. And that's just not what's happening.
Frankly, the telecom and gun industries are so different in what they do that different logic and different laws apply. But while the gun industry has plenty of legal protection, that doesn't mean there isn't interest in challenging that protection through legislation.
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Once a week, we present the Blindspot Report from our partners at Ground News, an app that tells you the bias of news coverage and what stories people on each side are missing.
The left missed a story about the financing of Black Lives Matter, which paid its executives millions while being $9 million in the red last year.
The right missed a story about Texas passing a bill that would allow public schools to hire chaplains as school counselors.
- 700 billion. The estimated number of pounds of pollutants that the Clean Water Act keeps out of U.S. waterways every year.
- 75%. The approximate percentage of the time the Army Corps of Engineers analyzes a landowner’s property and finds that the EPA has jurisdiction.
- 250,000. The rough estimate of the number of rivers in the United States.
- 12%. The share of rivers that became safer for fishing between 1972 and 2001.
- 5.5%. The portion of land in the 48 continental U.S. states considered to be wetlands.
- One year ago today, we wrote about the police response to the shooting in Uvalde, TX.
- The most clicked link in yesterday's newsletter was once again our video about porn posted on our YouTube channel.
- Not so sure: 28% of Tangle readers don't think McCarthy should have used the debt ceiling to get a deal from Biden but were happy with the result. Readers who didn’t think the concessions were enough were split — 22% liked the debt ceiling deal and the result, while 20% didn't like the deal or the concessions. 8% were glad McCarthy made the debt ceiling deal and were satisfied with the result, while 5% were unsure. Interestingly, a whopping 18% answered "Other," with most respondents expressing frustration about the whole episode.
- Nothing to do with politics: This harbor in Wales looks just like a dolphin.
- Take the poll. What do you think of the court's decision? Let us know.
Have a nice day.
Ottawa's Rejeanne Fairhead is the fastest 96 year-old woman in the world. On an incredibly hot day in Canada’s capital, Fairhead completed the Ottawa Tamarack Race Weekend 5k in fifty-one minutes and nine seconds, beating the previous record for a woman between the ages of 95 and 99 by just 39 seconds. Fairhead had not been a runner or considered herself an athlete in her younger years. Now, she's a world-record holder. “I’ve been telling everybody, to me, age is just a number," Fairhead said. "You know, if you feel good, do something.” Through her efforts, Fairhead has raised over $7,400 for the Perley Health Foundation so far this year. National Post has the story.
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