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Right-Wing US Supreme Court Delivers 'Catastrophic Loss for Water Protections'
The court "ripped the heart out of the law we depend on to protect American waters and wetlands," said one critic, warning that the ruling "will cause incalculable harm."
May 25, 2023
The U.S. Supreme Court's right-wing majority on Thursday severely curtailed protections for "waters of the United States."
The decision in Sackett v. Environmental Protection Agency (EPA) is "unanimous in result but very split in reasoning," explained Slate's Mark Joseph Stern. "The upshot of Sackett is that, by a 5–4 vote, the Supreme Court dramatically narrows" which wetlands are covered by the Clean Water Act (CWA).
The majority opinion—authored by Justice Samuel Alito and joined by all of the court's other right-wing members except Justice Brett Kavanaugh—concludes that the CWA only applies to wetlands with "a continuous surface connection" to larger bodies of water, excluding those that are "adjacent."
\u201cThe decision is so extreme that they even lost Brett Kavanaugh, who wrote separately to note that "long-regulated adjacent wetlands" are now at the mercy of polluters, "with significant repercussions for water quality and flood control throughout the United States."\u201d— Cristian Farias (@Cristian Farias) 1685024738
Earthjustice declared in response to the ruling that "this is a catastrophic loss for water protections across the country and a win for big polluters, putting our communities, public health, and local ecosystems in danger."
Manish Bapna, president and CEO of the Natural Resources Defense Council (NRDC), was similarly critical, saying that "the Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands."
"The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price," Bapna warned.
"What's important now is to repair the damage," he added. "The government must enforce the remaining provisions of law that protect the clean water we all rely on for drinking, swimming, fishing, irrigation, and more. States should quickly strengthen their own laws. Congress needs to act to restore protections for all our waters."
\u201cBREAKING: The U.S. Supreme Court just ruled in favor of corporate polluters over protecting communities & #cleanwater, ignoring decades of legal precedent, science, & Clean Water Act protections. SCOTUS failed us. @POTUS & Congress must step in to protect our nation\u2019s\u2026\u201d— Waterkeeper Alliance (@Waterkeeper Alliance) 1685026989
Elizabeth Southerland, former director of science and technology in EPA's Office of Water, noted that "since 1989, the U.S. government has used Clean Water Act authority to either prevent the filling of wetlands or to permit filling only when an equal acreage of wetlands is reclaimed or restored."
"Wetland preservation is critical for providing flood control, absorbing pollutants, preventing shoreline erosion, storing carbon, and serving as a nursery for wildlife," stressed Southerland, now a volunteer with the Environmental Protection Network.
Thursday's decision, she said, "is a big win for land developers and miners, who will now be free to destroy certain types of wetlands without paying for wetland reclamation," and "a big loss for communities who will have to pay more to treat their drinking water and respond to increased flooding and shoreline erosion."
\u201cNEW: The Supreme Court just gutted the Clean Water Act, leaving communities, health, and ecosystems vulnerable.\n\nBig polluters celebrate while water protections crumble.\n\nIf we're going to tackle the climate crisis, we must expand the court!\u201d— Sunrise Movement \ud83c\udf05 (@Sunrise Movement \ud83c\udf05) 1685031538
The high court was criticized for hearing the case—brought by an Idaho couple denied a permit by the EPA—as the federal agency was finalizing a new waters of the United States (WOTUS) rule following the Trump administration's widely condemned rollback. The Biden administration's policy was just finalized in December.
"While Earthjustice and our allies are closely evaluating the impact of the Sackett decision on the new WOTUS regulation," said Sam Sankar, the legal group's vice president of programs, "we can say with certainty that the court has once again given polluting industries and land developers a potent weapon that they will use to erode regulatory protections for wetlands and waterways around the country."
Highlighting that "wetlands play an integral role in protecting downstream waterways and reducing flooding—which will only worsen as climate change makes extreme weather more frequent," Food & Water Watch legal director Tarah Heinzen said the right-wing ruling "rejects this established science in favor of corporate developers' profiteering."
Now, Heinzen added, "the Biden administration and states must get creative and use every tool at their disposal to protect our rivers, streams, and wetlands from this devastating decision."
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Biden Vetoes Move by GOP, Corporate Dems to Block Water Regulations
"Let me be clear: Every American has a right to clean water," said Biden. "This veto protects that right."
Apr 06, 2023
U.S. President Joe Biden on Thursday vetoed legislation pass by congressional Republicans and corporate Democrats to stop the federal government from protecting public health and the planet, blocking a resolution passed by both chambers last month to gut water protections.
Democratic Sens. Catherine Cortez Masto (Nev.), Joe Manchin (W.Va.), Jacky Rosen (Nev.), and Jon Tester (Mont.) joined former Democrat Sen. Kyrsten Sinema (I-Ariz.) and every Republican in the Senate to pass H.J. Res. 27 last week, following the bill's passage in the GOP-controlled U.S. House.
The legislation rejected the Environmental Protection Agency's definition of the "waters of the United States" (WOTUS) that are protected under the Clean Water Act, as "traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters."
The regulation, introduced in December, is expected to restore protections for millions of marshes and other waterways after the Trump administration wiped out those regulations, permitting increased industrial pollution in nearly half of all wetlands across the country.
Biden's veto, said the president will protect Americans' right to clean water.
\u201cI just vetoed a bill that attempted to block our Administration from protecting our nation's waterways \u2013 a resource millions of Americans depend on \u2013 from destruction and pollution.\n \nLet me be clear: Every American has a right to clean water.\n \nThis veto protects that right.\u201d— President Biden (@President Biden) 1680809643
Republicans would need a two-thirds majority to override Biden's veto—a level of support they're unlikely to get.
Senate Minority Leader Mitch McConnell (R-Ky.) on Wednesday claimed that a presidential veto would allow EPA officials to regulate pollution "way outside the authority that Congress actually provided in the Clean Water Act," and expressed hope that the U.S. Supreme Court will ultimately rule that the government cannot protect navigable waters from industrial pollution.
The veto is the second of Biden's presidency. Last month he vetoed a resolution that attempted to overturn a rule allowing retirement fund managers to consider the impact of their investments on the climate and planet.
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Biden Veto Expected After 4 Senate Dems, Sinema Help GOP Gut Water Protections
"The senators who voted to remove these protections shamefully put corporate profits over our right to clean drinking water, healthy water-reliant economies, and sustainable water supply," said one critic.
Mar 29, 2023
U.S. President Joe Biden's vow to veto a Republican-led resolution that would gut his administration's water protections did not stop four Democratic senators and one ex-Democrat from helping the GOP send the measure to his desk on Wednesday.
Democratic Sens. Catherine Cortez Masto (Nev.), Joe Manchin (W.Va.), Jacky Rosen (Nev.), and Jon Tester (Mont.) along with now-Independent Sen. Kyrsten Sinema (Ariz.) joined with all Republicans present to pass H.J. Res. 27 in a 53-43 vote.
Passed by the GOP-controlled House early this month mostly along party lines—nine Democrats supported the measure while just one Republican opposed it—the resolution takes aim at regulations finalized by the Biden administration in late December.
"A majority of senators elected to represent the American people have chosen to side with corporate polluters."
Reversing one of many rollbacks under former President Donald Trump, under the Biden rule, the Environmental Protection Agency (EPA) defines "waters of the United States" (WOTUS) that are protected under the Clean Water Act as "traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters."
In an early March policy statement threatening what is now expected to be Biden's second veto, the White House explained that "H.J. Res. 27 would leave Americans without a clear 'waters of the United States' definition. The increased uncertainty would threaten economic growth, including for agriculture, local economies, and downstream communities."
"Farmers would be left wondering whether artificially irrigated areas remain exempt or not," the White House warned. "Construction crews would be left wondering whether their waterfilled gravel pits remain exempt or not."
"Compared to the kind of uncertain, fragmented, and watered-down regulatory system that H.J. Res. 27 might compel," the White House added, "the final rule will secure substantial and valuable benefits each year in critical flood protections, enhanced water quality, and the treasured recreational activities—fishing, swimming, boating, and more—that fill the lives and livelihoods of tens of millions of U.S. households that depend on healthy wetlands and streams."
\u201cGood thing @POTUS plans to veto \ud83d\udc4e this misguided resolution. We're grateful to #ChesBay champ @SenatorCardin and @EPWCmte Chairman @SenatorCarper for forcefully speaking against it.\u201d— Chesapeake Bay Foundation (@Chesapeake Bay Foundation) 1680118199
If they all choose to run, Manchin, Rosen, Sinema, and Tester, are up for reelection next year. Cortez Masto, who narrowly won reelection in November, told the Nevada Appeal on Wednesday that the Silver State's "unique water needs are unlike any other state, and this administration's rule forces our local governments, farmers, ranchers, and businesses to jump through unnecessary red tape."
As E&E News noted Wednesday:
One vulnerable Democrat facing a tough reelection campaign opted to stick with his party. Arizona Sen. Mark Kelly's vote had previously been an open question, but during a recent hearing, he repeatedly questioned the use of the Congressional Review Act to target WOTUS.
The CRA allows for a simple majority to overturn recent rules, but also hinders the government's ability to pursue a similar rule. Kelly expressed concern the resolution might unravel any efforts to make Clean Water Act enforcement suitable to states like his.
"Restoring critical protections for waters across the country should be a simple and easily supported effort. Yet a majority of senators elected to represent the American people have chosen to side with corporate polluters and play politics with one of our most critical natural resources," declared Sierra Club executive director Ben Jealous. "This is inexcusable."
"Access to clean, safe water is a human right and should never be determined by where someone lives, how much money they make, or the color of their skin," he said. "The Sierra Club has and will continue to work with our allies to protect our waters, and we call President Biden to swiftly veto the WOTUS Congressional Review Act resolution."
Earthjustice senior legislative counsel Julián González similarly called out the senators and called for a swift veto, while also warning that "protections for clean water are constantly under attack from polluting industries, and this will not be the last Republican attempt to significantly weaken the Clean Water Act during this Congress."
\u201c@POTUS How did we get here? Industry has been hellbent on pursuing deregulatory policies that are politically unpopular and benefit very few, but want people to believe that it was done in their best interest. \n\nSimply put: they spread disinformation. https://t.co/oBa3GYgeuU\u201d— Earthjustice (@Earthjustice) 1680122201
"The Clean Water Restoration Rule is grounded in the scientific consensus of how waters and wetlands are hydrologically connected and incredibly important to protect," González stressed. "This is a welcome step forward from the Trump administration's pro-polluter dirty water."
"Unfortunately, instead of relying on the science, Republicans—and some Democrats—are choosing to ally themselves with dirty industries whose mission is to eliminate any and all meaningful protections for our waters," he continued. "The senators who voted to remove these protections shamefully put corporate profits over our right to clean drinking water, healthy water-reliant economies, and sustainable water supply."
"We urge members of Congress who supported this resolution to reflect on why they are tossing aside concerns of people from all walks of life who value our waters in order to support those who would decimate the Clean Water Act if they had their way," González added. "Finally, we applaud President Biden for indicating he will reject this effort and veto this resolution when it reaches his desk."
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