Last month, the New York Times ‘Toxic Waters’ column published an article on the impact of Supreme Court rulings on the regulation of water pollution. It begins:
Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.
Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to Environmental Protection Agency regulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.
The Clean Water Act was intended to end dangerous water pollution by regulating every major polluter. But today, regulators may be unable to prosecute as many as half of the nation’s largest known polluters because officials lack jurisdiction or because proving jurisdiction would be overwhelmingly difficult or time consuming, according to midlevel officials.
The article goes on to discuss the two Supreme Court cases that are collectively responsible for the decline in regulation of waterways. In 2001, the Court ruled in Solid Waste Agency v. Army Corps of Engineers that the Clean Water Act only applies to bodies of water that run between states and not those that are within states. This decision has left a good deal of intrastate bodies of water utterly without defense -- and, really, who’s to know if what flows underground in Kansas City, Missouri, will wind up in Kansas City, Kansas!
The 2006 decision in Rapanos v. United States further muddied the water. Five members of the Supreme Court -- four Justices who came to agreement plus Justice Kennedy, who wrote his own opinion -- limited the enforcement of the federal Clean Water Act, dismissing a lawsuit against a developer who was building a mall on a wetland. The bigger question before the Court, though, was whether federal law applies to wetlands, and if so, which wetlands can be regulated.
Justice Stevens, who wrote a dissenting opinion, was critical of the Court for departing from thirty years of tradition in interpreting the Clean Water Act and also from the intent of the law, which was to protect the environment. He commented:
The broader question is whether regulations that have protected the quality of our waters for decades, that were implicitly approved by Congress, and that have been repeatedly enforced in case after case, must now be revised in light of the creative criticisms voiced by the plurality and Justice Kennedy today….
In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps’ resulting decision to treat these wetlands as encompassed within the term “waters of the United States” is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.…
While the Court did vote to dismiss the case against the developer, the justices couldn’t agree on which waters are covered by the Clean Water Act. This, in turn, created confusion at the Environmental Protection Agency regarding what the agency can regulate and, also, among potential polluters.
While these two cases may seem technical, they are very important in that they have brought about a new era of freedom for polluters. These court decisions present another chapter in the recurring narrative of court actions that are weakening laws intended to protect Americans.
Access to a clean and safe environment is a basic civil and human right. The Clean Water Act's objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”. The law further states that “it is the national goal that the discharge into the navigable waters be eliminated by 1985.” Twenty-five years later, the Clean Water Act has made a big difference in our water quality -- but the past few years have seen a steady decline in enforcement.
Protecting the environment is not a partisan issue. It's not Democratic or Republican. As Americans, we are all responsible for protecting the environment -- but we also assume that our government has the power to protect the air we breathe and the water we drink. It's upsetting to think that the majority of our top judges are protecting the economic rights of polluters and developers rather than the safety of our planet.
(Photo by tracyyxx.)