Increasing rollbacks of various right and protections - labor, environmental, consumer - seem to be happening lately. We'll see where this ends up.
As for this decision in particular, it's pretty short-sighted to think that a "surface connection" is substantially different than a connected aquifer when it comes to many pollutants. I wonder if the justices consulted with anyone who knows what they're talking about in this regard or this was a gut call on their part.
Going forward, the battles of regulation will go down to state and local levels. You can see it in broadband as an good example, where the FCC has become increasingly corrupt, feckless and powerless, and all the real battles are now state by state, block by block.
> This is just the beginning of all US federal agencies being gutted down to the core I hate to say it.
I agree, but am pleased to see it.
From a personal perspective, every hobby or interest I have exposes some other federal agency that's hostile toward it, and hated by that community for going well beyond their statutory authority.
Speaking more generally... I think severely curtailing the non-statutory authority of federal agencies is just about the only path toward keeping our federal system in the long run. Most of this country (by area, not population) is increasingly resentful of the federal government's actions, and their ability to enforce the law is decaying over time.
I think we'll see the Chevron Doctrine significantly limited, if not completely overturned. There are several firearms cases working their way through the courts now that would be well-suited for that. If it's done via another case, those will likely be remanded and reversed by the appellate to avoid setting more precedent specific to firearms.
Huge swathes of land, their populations and resources shouldn’t be controlled by an out of touch city, or group of cities, just because they attract more people from all over. Land doesn’t vote but regions of people do, and those regions should dictate their own policy.
So if those huge swaths of land end up poisoning rivers, streams etc which feed into lakes that supply drinking water for the cities, who exactly should have jurisdiction?
And no this isn't a rhetorical argument, the reasons why we have these regulations is because farms will gladly dump whatever into nearby streams and destroy water supplies because it's quite literally downstream of them and this doesn't directly affect them.
This case wasn’t about a farm or rivers or lakes. It was about a lot with a ditch that someone wanted to build a house on. The EPA wanted the law to cover any property with any kind of feature to control rainwater or runoff, which is basically every piece of property in the country:
> Within a few years, the agencies had “interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres” of wetlands and “virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.” Rapanos, 547 U. S., at 722 (plurality opinion).
All the court did here was rule that the law doesn’t cover ditches which might occasionally have rainwater in them. The EPA will have to go back to the older definition that includes navigable waterways, such as rivers, lakes, and seas that carry interstate or international trade, as well as the wetlands adjacent to them.
As usual, Congress retains the power to amend the law to give it a more precise definition. They could even amend it so that it does cover any random ditch that might occasionally have water in it if they wanted. Congress could have made that choice at any time in the last 50 years, but they have chosen to leave the law vague instead. If you think that the Clean Water Act _should_ be applied to every single ditch in America, then write your Representative and tell them off for not doing their job.
Ditches which ”occasionally” have ran water run through them have larger impacts on water quality and retention than wetlands. There’s all kinds of negative externalities people don’t understand are a problem or care about the problems they create, but that doesn’t make those externalities actually disappear.
> All the court did here was rule that the law doesn’t cover ditches which might occasionally have rainwater in them.
Hardly, what the court did was override both the intent of the law and people who understood what was required to implement it. It’s a perversion of the basic concept of the rule of law.
Sure, if you pollute a ditch and then the pollution runs off into a river then you you have run afoul of the Clean Water Act. But if all you’re doing is filling in a ditch with soil then you haven’t. That’s all the homeowner in this case ever did. They’re not a huge corporation dumping toxic chemicals into a river, they just filled in a ditch with soil. The ditch itself was dug by a previous owner of the property. Does the ditch count as a wetland? The court has decided that it does not.
> perversion of the basic concept of the rule of law.
You have this completely backwards. In the 70s when the CWA was created, the EPA did not consider every single ditch in America to be covered by the CWA. Congress didn’t modify the law to include every single ditch in America. They did, however, modify it in 1977 to include all “adjacent wetlands”. This was clearly intended to allow the CWA to apply to any wetland adjacent to a river or lake carrying interstate or international trade. But nobody back then thought that it covered the ditch in your back yard. It wasn’t until 2006 that the EPA started gradually expanding the scope of their activities, culminating in the present case where they are trying to assert their authority over every single place where water flows, or could flow.
The rule of law requires that people know what the law is, and it thus follows that it requires that the agencies which enforce the law may not gradually expand their definitions in order to grab more and more power. If you want the EPA to have more power, then tell your congresscritter to give it to them. Anything else is a perversion of the rule of law.
A ditch of soil alone is often a problem no separate pollution required. Bare ditches are rare to see them on untouched land on the east coast because they transport so much soil so quickly they become something else, they are only common because people create so many of them. Anyway turning a new ditch to something else involves transporting a great deal of material into waterways which at scale causes problems.
On top of this speeding up how quickly rain enters streams increases flooding etc. At an individual level it may not be obvious but collectively it can be a huge effect.
As to the bills interpretation, congress isn’t an expert on everything. They create agencies specifically to solve problems not carry out a rote script. Nobody wants the FBI having a list of specifically banned types of murder that are outlawed and if someone comes up with a new one then they’re off scot free. Instead they say arrest people who do X, and if the agency does something they don’t like congress then amends the law.
Congress has been happy to see how the EPA has followed their instructions since 2006, but suddenly these activist judges say hold up you’re not doing what congress wants… Get real they are saying this isn’t what the judges want.
Yes they should, because their very existence is heavily subsidized by those "out of touch" cities. Much in the same way as the cities depend on those rural areas for goods that can't be produced efficiently in cities, especially (but not limited to) food, and they don't want their politics governed by "out of touch" country people.
Consider being less antagonistic towards your mutual dependents.
I agree there is a really sad anti-hobbyist bias. The FAA are criminal in holding back anything other than incredibly big industry, but I still tend to think it's mostly negligence & scale, that they have real concerns at scale to tackle & can't allocate 20% of their resources to letting necessary clutch innovation & experimentation happen.
I do think people are broadly incredibly resentful. But I also think these critics would be enormously more interesting to listen to if they had nuance & perspective, if they could acknowledge how necessary it was that we did things like create the EPA & how important it is to safeguard & protect ourselves in a long term. So much of the dissent is pure disdain, just inchoate rage, and it's unclear that folks are worth heeding.
There is a huge propaganda network running very very effectively on rage against any governance. It has become a horrible mind poison.
I don’t agree with your conclusion, but totally grant that the reasoning is valid.
That said - I didn’t posit that all government regulation is bad in my original post in this thread. I said that weakening the power of federal agencies is likely the only path to maintaining our federal system in the long term.
While yes, my “end goal” is the dissolution of the state, I’m not naive enough to believe that could happen overnight and it be a good thing. Instead, I’d like to see government functions replaced one by one by private enterprises through natural market forces, culminating in dissolution of the state through lack of utility and interest in continuing it. That would be a multi-generational project even by the most optimistic projections.
You mean "private enterprise natural forces" that result in drivers being forced to urinate in bottles, tips stolen, unionising workers essentially fired, and then list goes on?
Yeah you can stick that. Hard.
People and companies will always try to screw over the little person. Government's role is to mitigate that.
SCOTUS is gathering both legislative and executive power onto itself.
Our Constitution's balance of powers was specifically designed to curtail that.
As a long time fan of democracy and loyal citizen of the USA, I'd rather have elected representation, for all their faults, rather than a cabal of reactionary corporatists with lifetime appointment and near zero accountability, calling the shots.
But opinions differ.
Some think monarchy is just terrific. Because 2400 years ago Plato blathered about mobs and tyrants and wokeness.
This case wasn’t about overturning a law, it was about reining in an unelected federal agency that had interpreted the law in a way that a plain reading doesn’t support.
If Congress had written the Clean Water Act in a way that authorized this position, we’d be having an entirely different conversation.
The hubris of Alito et al to judge our best available science, despite having zero expertise, despite decades of policy, despite decades of scientific and methodology advances, is just bonkers.
Oh, sorry, they're just being textualists. A totally real, consistent, and in no way purely fabricated as needed case-by-case legal doctrine.
I can't wait to humor the SCOTUS' anti-textualism tortured rationalism next time they choose originalism, major doctrines, or an entirely new legal fiction to reach their predetermined outcome.
You're being downvoted by people that don't really believe in democracy. They think they do, but they don't when put under the slightest bit of scrutiny.
If the argument is we share these resources and there's externalities, I'd ask why not focus on getting BRICS to pass your policies first? It will have a much greater impact than what can be done in the US. If you can't get BRICS to pass your policies, then what is the point? If the argument is that we can at least make a small impact locally, why not extend that reasoning further to allow the people in each state, and the people in each municipality to decide?
I look forward to the rebuttals given some countries are already excluded from participating in the G7.
I mean, this was ultimately an issue of real estate regulations and protections. Harlan Crow is one of the largest real estate developers and is a billionaire. He has a direct connection to Clarence Thomas and has given him multiple 'gifts'.
Seems like an obvious person to consult with on laws relating to land regulation.
That is incorrect. If you read through their arguments, you will see a long list of documents to pull from.
When you see made up concepts and things that make no sense, then you may say that. I am looking at you 9th district.
The issue at play is how the government is seen by the people in charge, it is an exciting time to see those in charge try to bend the rules to get the judges to accept it. Look at how Obama claimed the care act was not a tax until it went to the court and then it became a tax to slip by.
The concurring opinion by Justice Thomas (joined by Justice Gorsuch) was in reality a dissent.
It argues that "waters of the US", even if it leaves off the word "navigable" in the law, still refers to only navigable waters since the term "waters of the US" has always been used in only that way. That would narrow the scope of the Clean Water Act even further.
From the "concurrence":
"the agencies have 'asserted jurisdiction over virtually any parcel of land containing a channel or conduit through which rainwater or drainage may occasionally or intermittently flow,' including 'storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.'...The agencies’ definition 'engulf[s] entire cities and immense arid wastelands' alike...Indeed, because 'the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface,' 'any plot of land containing such a channel may potentially be regulated.'...
If this interpretation were correct, the only prudent move for any landowner in America would be to ask the Federal Government for permission before undertaking any kind of development."
Then, getting to the real meat of the not-really-a-concurrence "concurrence":
"What happened to the CWA is indicative of deeper problems with the Court’s Commerce Clause jurisprudence.
The eclipse of Congress’ well-defined authority over the channels of interstate commerce tracks the Court’s expansion of Congress’ power '[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'...As I have explained at length, the Court’s Commerce Clause jurisprudence has significantly departed from the original meaning of the Constitution"
That's what Justice Thomas is going for. To kill the New Deal expansion of federal power through the commerce clause. That's why to progressives, he is public enemy number one. He got one other justice to go along for the ride on this one.
Note that the decision specific to this case was unanimous.
There was a 5-4 split on whether to go further and require "wetlands" to be connected to another body of water to qualify. That wasn't a partisan split, either: Kavanaugh dissented.
I don't recall the exact bills off the top of my head, but I know Lisa Murkowski has voted against bills with the GOP when they're in the minority after having vocally supported those same bills prior.
I do remember that it was a gun control bill and that she likely did it to protect her NRA rating, which was an "A" at the time. She was later downgraded to a "B" last year after voting to end a GOP filibuster that was blocking its passage through the Senate.
Sorry I don't remember anything more specific at the moment :(. FWIW, I don't think it's an uncommon practice.
So your counter example of a Republican voting another way when it doesn't impact the results is another Republican voting another way when it doesn't impact the results? If you're going to pretend "both sides are the same" you should come up with examples other than Republicans.
There is no expert who should be deciding land policy and the idea of letting “experts” dictate the lives and property of millions is tyrannical (by the very definition.)
> Increasing rollbacks of various right and protections - labor, environmental, consumer - seem to be happening lately.
I take issue with the "rights and protections" phrasing being used in the exact opposite sense of what they mean in this case. The underlying issue is that the vague wording in the CWA was has come to be interpreted expansively and that the consequences of even unintentional violations can be crushing. Here, ordinary people were about to build a house not obviously in "navigable waters", and they were threatened with $40,000 per day in sanctions.
Also, calling it a "rollback" is deceptive phrasing that it implies going back to the time before the CWA was enacted. It would be more accurate to note that the law has been interpreted more and more broadly every year since its creation and that some outer limit is being set on what constitutes a "waterway" or "pollutant" (neither are being interpreted in a way that most people would expect).
I get that some HackerNews commenters can easily fall into the environment-good/conservatives-bad mentality, but this case can also be viewed as falling into the same category as Aaron Swartz being crushed by an expansive and overly punitive interpretation of the CFAA.
Relevant excerpts:
> Within a few years, the agencies had “interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres” of wetlands and “virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.
> By the EPA’s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.
> The CWA is a potent weapon. It imposes what have been described as “crushing” consequences “even for inadvertent violations.” Army Corps of Engineers v. Hawkes Co., 578 U. S. 590, 602 (2016) (Kennedy, J., concurring). Property owners who negligently discharge “pollutants” into covered waters may face severe criminal penalties including imprisonment.
> The Act prohibits “the discharge of any pollutant” into “navigable waters.” 33 U. S. C. §§1311(a), 1362(12)(A). It broadly defines the term “‘pollutant’” to include not only contaminants like “chemical wastes,” but also more mundane materials like “rock, sand,” and “cellar dirt.”
> And due to the Act’s 5-year statute of limitations, 28 U. S. C. §2462, and expansive interpretations of the term “violation,” these civil pen- alties can be nearly as crushing as their criminal counter- parts, see, e.g., Borden Ranch Partnership v. United States Army Corps of Engineers, 261 F. 3d 810, 813, 818 (CA9 2001) (upholding Agency decision to count each of 348 passes of a plow by a farmer through “jurisdictional” soil on his farm as a separate violation)
When vague laws with powerful punishments are interpreted expansively and aggressively by enforcement agencies, we should all hope that the Supreme Court should set limits.
As for this decision in particular, it's pretty short-sighted to think that a "surface connection" is substantially different than a connected aquifer when it comes to many pollutants. I wonder if the justices consulted with anyone who knows what they're talking about in this regard or this was a gut call on their part.