Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on the books for over forty years and leave the nation with no protection against water pollution and wetlands destruction. And remember, this is the supposedly most "moderate" conservative Justice on the Court.
This is a truly radical suggestion. Every now and then, a defendant in an enforcement case will argue that the law was unconstitutionally vague under the circumstances of the case. A quick computer search reveals that such a claim has been made by someone about every other year since the law was passed in 1972. Each time, the federal courts have rejected the claiming, finding plenty of evidence that the defendant was on notice of the possible illegality of the conduct. In other words, the vagueness argument has been something of a desperation claim that has consistently fallen on its face. Now this far-fetched legal argument is suddenly being given new life by a Supreme Court Justice. Admittedly, Kennedy was only making a suggestion. But that's often been how the conservative majority has changed the law, starting with suggestions, then concurring or dissenting opinions, and then a 5-4 decision.
With Justice Scalia off the Court, there's no immediate danger that the Court will strike down the Clean Water Act. But who knows how a Trump or Cruz appointee would rule on the issue? We could find ourselves overnight with no water pollution law at all. Keep in mind the conservative majority didn't hesitate to rip the heart out of the Voting Rights Act after it had been on the books even longer. But, more likely, we could find the vagueness argument being used to justify judicial decisions that "clarify" the statute by carving away huge chunks.
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Daniel Farber | April 5, 2016
Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the […]
Brian Gumm | March 31, 2016
When it comes to public health, the environment, and social justice, Americans are facing a host of challenges that call out for comprehensive, national solutions. Whether it’s climate change, threats to water resources like the Chesapeake Bay and the Great Lakes, or serious injuries and deaths in the workplace, how we respond as a nation […]
Melanie Benesh, Thomas Cluderay | March 31, 2016
Originally published on EnviroBlog by Thomas Cluderay, general counsel, and Melanie Benesh, legislative attorney, for the Environmental Working Group. You might think you can’t put a price on protecting public health and the environment. But you’d be wrong – especially if we’re talking about the nation's broken and outdated chemicals law, the 1976 Toxic Substances Control Act, […]
Matthew Freeman | March 29, 2016
NEWS RELEASE: CPR Welcomes New Communications Director Today, the Center for Progressive Reform (CPR) announced that Brian Gumm has joined the organization as its communications director. Gumm will serve alongside the group’s staff and Member Scholars in their efforts to protect our health, safety, and environment. “I’m excited to welcome Brian Gumm to our team,” […]
Daniel Farber | March 28, 2016
The Texas AG’s office seems to do little else besides battle against EPA, and Texas Senator Ted Cruz is in the vanguard of anti-environmentalism. Yet even in Texas there are some rays of hope. While Texas is attacking the Clean Power Plan, the city of Houston is leading a coalition of cities defending it. Other cities are […]
Katrina Miller | March 25, 2016
As spring rains approach, the need for more stringent stormwater controls comes into sharper focus. Rain is a life-giver, of course, but in our ever more paved environment, it’s also a conveyance for water pollution. Stormwater runoff in urban areas travels across rooftops, roads, sidewalks and eventually into a municipal storm sewer system, all the […]
Matt Shudtz | March 24, 2016
Decades in the making, OSHA’s new silica rule will better protect millions of workers from a highly toxic, cancer-causing substance that has killed thousands while the rule slowly worked its way through the regulatory gauntlet, administration after administration. Today, in quarries, foundries, building sites, and kitchen rehab jobs across the country, workers can look forward […]
Matthew Freeman | March 24, 2016
NEWS RELEASE: New Manual Helps Workplace-Safety Activists Push for Criminal Charges in On-the-Job Tragedies Washington, DC —– Every year, thousands of workers across the United States are killed on the job — 4,679 in 2014 alone. Thousands more are seriously injured. Many of these deaths and injuries are entirely preventable when employers put in place basic safety measures. […]
Robert Verchick | March 23, 2016
Earlier this week in Havana’s Gran Teatro, President Obama urged Cubans in this new century to keep their eyes on the prize of “sustainable prosperity.” His remarks focused on the foundational role of political freedom, but not before underlining the importance of environmental protection too. That’s no surprise. Economic growth in Cuba will depend heavily […]