The Supreme Court today severely curtailed the EPA's ability to regulate wetlands under the Clean Water Act. This was a genuinely complicated case, but the big problem is that the court majority was able to do its work only by twisting the clear instructions of Congress. The CWA defines wetlands as anything "adjacent" to lakes, streams, rivers, and so forth, but conservatives on the court just tossed that aside:
To determine when a wetland is part of adjacent “waters of the United States,” the Court agrees with the Rapanos plurality that the use of “waters” in §1362(7) may be fairly read to include only wetlands that are “indistinguishable from waters of the United States.” This occurs only when wetlands have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”
"Adjacent" is simply not the same thing as "indistinguishable" or "adjoining" or any other word. As Justice Kagan acidly puts it:
One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be—which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majority concludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to “correct” breadth.
Kagan is clear that the conservative majority is rewriting the words of Congress not because of any ambiguity—there isn't any—but simply because they believe the current wetlands rules go too far. In other words, they are baldly substituting their own water regulation preferences for those of Congress, even though Congress's are clearly expressed. It's an appalling act of transparent judicial activism.
Conservative majority less Kavanaugh it would seem. https://slate.com/news-and-politics/2023/05/samuel-alito-wetlands-opinion-lost-brett-kavanaugh.html
Yah, Kavanaugh was a beer swilling would be pussy grabbing dick flashing poor little rich kid, but given he friendship with Kagan I keep hoping he will become more moderate as he grows up, ala former justice Souter.
5-4
Notorious RBG strikes again!
Every day I week for that.
What is it with liberals? Ted Kennedy nearly killed Obamacare, RBG put ACB on the court, and now we have Feinstein. Come on people, sometimes you have to step up and take one for the team! Not even that big a sacrifice in your sunset years.
The Court does not like regulatory agencies writing rules to implement legislation. In fact, the Court doesn't like regulatory agencies, period. In 2023 they are likely to remove all (or most) rule-making power from all federal regulatory agencies. This is just a preview.
The present Supreme Court loves the idea of a regulatory agency, it’s just that they feel there should be only one regulatory agency, and it should be the Supreme Court.
Thomas and Alito are constantly playing Calvinball. Again I hate to reiterate the point, but this conservative SCOTUS will make shit up to have its way, ensuring that no law is safe, ever, regardless of precedence.
Like when they just made up facts to justify an earlier ruling?
They learned their Calvinball from a master, Antonin Scalia.
Alito plays 4D Calvinball.
The statute says:
"The term 'navigable waters' means the waters of the United States, including the territorial seas."
The EPA interpreted "waters of the United States" to encompass "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds."
It then further interpreted "wetlands" to encompass "wetlands 'adjacent' to covered waters."
It then FURTHER interpreted "adjacent" to encompass "'bordering, contiguous, or neighboring' and clarified that 'adjacent' wetlands include those that are separated from covered waters 'by manmade dikes or barriers, natural river berms, beach dunes and the like.'"
So through agency rulemaking, we have gone from "waters of the United States" to (in a case cited in the opinion) dumping dirt 32 miles from navigable waters.
And the dissent is arguing that Congress massively expanded the scope of the Act implicitly when it described the scope of another, separate program. It is a silly argument.
If you believe that the EPA should have this authority (and I agree they should), then Congress should affirmatively grant them that authority. But you should be appalled by the notion that executive agencies can grant themselves power like this.
And if you think about the intent of the EPA's mandate under CWA, then you would know that watersheds are not just navigable rivers, which is why the extent of CWA was broadly interpreted to include (adjacent) wetlands.
What sense does it make for regulations to end at the water's edge when the pollution is upland and upstream?
It's a statute, not a commandment to go forth and heal the world. Just because you believe the EPA could do a better job with a broader mandate doesn't mean they have that mandate.
The majority opinion (and the concurrence) provide support for Congressional intent when they discuss the usage of the term "waters". I'm not seeing that kind of support in the dissent. Instead I'm seeing the kind of flavor text you get in decisions when you don't have a legal or factual argument.
Are the odd numbers adjacent to the evens? Why or why not?
The statute's intent was clear. It is conservatives who wish to change the intent of the 1972 CWA.
The impetus of the revisions to 1972 CWA came from Rachel Carson's book. If you are intending to protecting waterways, the watershed is inseparable.
What conservatives wish to do is redirect from cogent logic into semantical arguments about the meaning of words.
As I wrote above, Calvinball.
Exactly. The point of the rule was to prevent dischargers from saying "Huh, if I dump this pollution in the river, that's illegal, so how about I just dump this pollution onto (hydrologically connected) dirt *next to* the river."
I'm afraid this one is one of those "If you can't make me say I'm wrong I win." guys.
Probably. Hence, his name.
"Clean Water Act". Hmmm...so please explain how one might keep a river clean if somebody can dump pollution into an 'adjacent' wetland? Are we giving up the the logic adjacent to the meaning of the words? Hmm??
This is just more judicial overreach. This court is an abomination, adjacent to a horror, adjacent to garbage.
That's not how it works.
Just read the opinion. Maybe you'll end up agreeing with the dissent. That's fine! But at least you'll have some idea of what the actual arguments are. And not these bizarre straw men that the media toss about.
Nothing was more shocking to me than the first year of law school. Reading all the old Supreme Court cases that I had been raised to venerate and realizing that they were crap.
The statute also says that "navigable waters" include:
"[T]hose waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto..."
See https://www.law.cornell.edu/uscode/text/33/1344.
This is one of the two sections of statute cited by the dissent, in its first paragraph, where it states that:
"The Clean Water Act generally prohibits dumping
dredged or fill material without a permit into the “waters of
the United States.” 33 U. S. C. §§1311(a), 1344(a), 1362.
The “waters of the United States” include wetlands that are
“adjacent” to waters covered by the Act—for example,
wetlands that are adjacent to covered rivers or lakes."
Note that the citation provided here is of 33 USC 1311(a), not any EPA interpretation.
Now, I think anyone who has a passing familiarity with US Constitutional law will immediately understand that the language used by Congress in that section of the statute (where it includes among the relevant waters those "susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce") was an explicit assertion of federal authority under the Interstate Commerce clause.
The inclusion of "wetlands adjacent thereto" is clear enough as well. But the more important point is that, once you have conceded to the statute its primary assertion, on Constitutional grounds (which, again, Congress very plainly intended), the latter is a comparatively minor addendum.
To undo the latter, you would have to undo the former, which would mean rejecting Congress's right to apply the Interstate Commerce clause in the way it plainly intended to do. Whatever the merits of such a claim, this was not the grounds on which the majority based its decision.
And in any case, the language here is directly from the statute, not from some EPA administrator. So we can dispense with the claim that this was an artifact of administrative law-making, on those grounds.
That leaves the question of how to interpret "adjacent"--which, indeed, is not defined in the statute itself.
The first definition offered by Oxford Languages is this:
"1. Next to or adjoining something else."
And the etymology further adds this:
"late Middle English: from Latin adjacent- ‘lying near to’, from adjacere, from ad- ‘to’ + jacere ‘lie down’."
Digging a bit further, the same dictionary gives, as a first definition for "neighboring," the following:
"1. next to or very near another place; adjacent."
Given those definitions, I think that Justice Kagan's interpretation of "adjacent" as "neighboring" is quite a good deal more apt than the frankly very strained notion that adjacency somehow requires indistinctness or an absence of "clear demarcation" between two things--a notion found nowhere in the history or ordinary definition of the word.
(Indeed, one might almost say that the ordinary meaning explicitly rules out this interpretation: If two things are indistinguishable, how can they be said to lie near to one another? Would they not then appear simply to be the same thing, rather than two adjacent/neighboring things? Think of some actual cases of ordinary usage and you'll pretty quickly see how oddly abstract and uncanny this sounds.)
No administrative law-making is required to reach such judgments. Just the ability to read and understand plain English.
Ah yes.
Section 1362(7) "Definitions", may begin "Except as otherwise specifically provided, when used in this chapter ..." and may provide a definition of "navigable waters."
But when Congress decided to massively expand jurisdiction, Congress decided not to change the definition section. Instead, Congress decided to *checks notes* implicitly change the definition of "navigable waters" for the entire chapter through a convoluted clause in Section 1344(g)(1). A paragraph entitled "state administration" in a section entitled "permits for dredged or fill material".
Sure. That makes sense. As said in the majority opinion:
In addition, it would be odd indeed if Congress had tucked an important expansion to the reach of the CWA into convoluted language in a relatively obscure provision concerning state permitting programs. We have often remarked that Congress does not “hide elephants in mouseholes” by “alter[ing] the fundamental details of a regulatory scheme in vague terms or ancillary provisions.”
Since you refuse to answer the questions put to you, let's just cut to the chase and say fuck off, troll.
Arguing about the proper definition of "adjacent" is pointless. So I'm not going to.
There is a longstanding principle of statutory interpretation that Congress does not make major changes to regulatory regimes in offhand way. So the fact that Section 1344(g)(1) says something about "adjacent" is pretty fucking irrelevant. Particular given the bizarre way that the clause is structured. And the location of the ostensible redefinition of navigable waters in the statute as a whole.
This jurisdictional issue has been a running sore for decades. If this decision prompts Congress to get off its ass and clarify matters, that is great! And if it does so by expressly defining "navigable waters" in 1362(7) to include adjacent wetlands, then that is even better!
Still won't answer the, troll? Why oh why is that? It's a simple question: are the odd numbers adjacent to the evens? Note that I'm not asking for the definition of 'adjacent'.
Of course, we already know why you won't answer, don't we, troll.
Well, between each pair of even and odd numbers there exists an uncountably infinite set of other numbers. So I would have to say "no."
BAAAANT! Thanks for demonstrating you haven't the faintest fucking idea what you're talking about, nor how to hold to an argument (pro tip: don't go on about 'adjacency' and then declare that it doesn't make any difference anyway; it labels you a tosser.) I'm going going to go out on a limb and say you _still_ don't get what I'm getting at.
"It then FURTHER interpreted "adjacent" to encompass "'bordering, contiguous, or neighboring'"
Wait. Is that supposed to be shocking? Because just on its face, that seems like a perfectly reasonable definition of "adjacent"?
"Wait. Is that supposed to be shocking? Because just on its face, that seems like a perfectly reasonable definition of "adjacent"?"
But Drum is not claiming that the liberal reading of the statue is reasonable. He is claiming that the conservative reading is so unreasonable as to be lawless. And it is simply not the case that adjacent always includes nearby but not touching as Kagan appears to claim in the quoted passage.
And you're deliberately misreading what she said.
"One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. ..."
This is incorrect. Adjacent has multiple closely related meanings including touching. See this dictionary for example.
"very near, next to, or touching:" and "very near, or with nothing in between:"
So judges have to interpret the law to decide which meaning makes most sense. If the law referred to states adjacent to Canada I would interpret this as sharing a border with Canada not as close to Canada.
Welll ... let's be charitable and say people have no idea what distance is, let alone that there are dozens -- probably hundreds -- of different distance functions. Is the red square immediately to the lefr/right above/below 'adjacent' in a game of chechers? How about the words 'quote' and 'quata'?
Note that both of the definitions you fetched include things that are very near but NOT touching.
Which of course is the ordinary everyday meaning of "adjacent." We might say that two houses, or two chess pieces, or two parked cars are adjacent even when they aren't in physical contact.
The word "continuous" was available, had Congress intended the meaning that the USSC majority preferred, but they chose "adjacent." They've since been overruled by the legislators in black, but their meaning was perfectly clear.
"Note that both of the definitions you fetched include things that are very near but NOT touching."
As I said the word has multiple meanings so the Court is obligated to pick one. They aren't obligated to pick the one liberals would prefer. If a statute referred to adjacent states I think the most natural meaning would be states sharing a border. Which has the advantage of being clear cut (with the possible exception of the diagonally opposite four corners states).
"...even though Congress's are clearly expressed. ..."
According to Scotusblog
"Four justices – Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson – agreed that the CWA does not apply to the wetlands on the Sacketts’ lot, but they disagreed with the majority’s reasoning. .."
So apparently it isn't all that clear as even the minority thought the EPA was overreaching in this case. And perhaps the government shouldn't litigate cases like this all the way to the Supreme Court.
Yeah - read the description of the EPA and Corps' behavior in the majority opinion. I would dismiss it as an anti-government strawman, were I to encounter it in a fictional work.
So who should I dismiss as strawmanning dissemblers? You and five members of the current SCOTUS? Or the literally hundreds of others in both the courts and congress who have said otherwise?
That ... simply does not follow. "I say he's not guilty because he's white." "I say he's not guilty because he was in jail at the time of the holdup."
Same conclusion; different reasoning. Do you really not get that?
"Same conclusion; different reasoning. Do you really not get that?"
Of course it is different reasoning. But what matters is they all agreed the EPA was wrong. Which means contrary to Drum that Congress had not in fact been perfectly clear.
Then why did you feel the need to say this:
You. were. wrong. By your own words. Do you think anyon going to think better of you for refusing to admit what at this point is obvious to all? Shakes head and walks away
"a well-regulated militia"
When the court can decide those four words were written in invisible ink, they can rewrite laws any way they like. The conservative movement has taken over the judicial system and the federal courts will overturn progressive laws at their whim. Who's gonna stop them?
Perhaps it’s time to reject the concept of binding judicial interpretation of statutory and constitutional issues. The Congress has the right to restrict the court’s jurisdiction, just as it has the right to set the number of justices. Maybe it’s time for a change.
Perhaps Marbury v Madison was wrongly decided.
I don't know that a polity such as the United States can function properly without a reasonably robust degree of judicial review. But, in addition to narrowing the judiciary's jurisdiction, we may want to consider requiring a supermajority for a court to strike down congressional enactments, as that would be consistent with Marbury, a case that was decided 4-0.
Five-four decisions to eviscerate the will of the legislative branch are arguably a sharp departure from our constitutional traditions. I'd require a 7-2 vote if it were up to me.
The right answer is much larger number of judges in the supreme court, to make the effect of asingle judge small. At least 30.
They don't all need to be in each hearing, just sub-set of them, and after that they the sub-set write it up and the whole body vote on that.
These judges will also judges in the appeal courts, so it doesn't increase the number of judges that are needed overall.
Many believe “well regulated militia” referred to the southern states need to maintain their own paramilitary to be able to chase escaped slaves and put down slave rebellions and the like. Makes sense given the constitution’s precious treatment of slavery.
Count me in as one of those believers.
One of the reasons for militias given in the Constitution is to put down insurrections. At least some of the writers must have understood this to include mainly slave rebellions.
Legislating from the bench. Didn't that used to make Republicans furious? It ought to get Alito impeached, but this Congress no longer cares about guarding its own turf. They are not interested in governing. They aren't even interested in winning. The only thing that gets them stiff is pwning the libs.
Ah, love those CON-servative Willie Sticks!
Republicans hate legislating from the bench when the Supreme Court is on balance progressive, just as they champion state’s rights when the federal government is under progressive control. Likewise they love legislating from the bench when the judges are approved by the federalist society, and steamroller the states when they control the federal government. It’s not as though we are dealing with people who are intellectually honest.
Wow. Not only are these guys begging to have the court expanded, they are begging to have it abolished. Thanks, JR.
They may be proven wrong in the end, but I don't think they're even moderately worried about court reform. They believe, perhaps not inaccurately, that our politics makes it very difficult for the Democrats to win a trifecta and to abolish the filibuster (both of which are necessary). And even with sufficient numbers, Democrats seldom show any steel in their dealings with the right. Doing so might make some columnists angry, after all.
Terrible decision. But at least a new constitutional interpretation wasn't created. That is, a future Congress could undo the damage. And I hope will do so, for the sake of other species we share America with.