Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary — especially a U.S. Supreme Court stocked with Trump-era judicial activists — as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act.
Center for Progressive Reform Member Scholar William Buzbee is helping lead the defense of this bedrock environmental law. Working with the Georgetown Law Center's Environmental Law and Justice Clinic, Buzbee authored an amicus brief for members of Congress who support a strong Clean Water Act. In all, 167 members of Congress signed on to the brief that Buzbee led and wrote with his co-authors, Sara Colangelo and Jack Whiteley.
The basic question at issue in the case is how far the Clean Water Act's protections should reach. This is a question that has been the subject of considerable controversy for decades. The difference now is that there are enough conservatives on the nation's highest court to resolve the issue so narrowly that it all but renders the law a dead letter for significant portions of the United States, including much of the West.
A wide array of industry groups and small government ideologues has urged the Court to adopt a reading of the law's scope that adds hurdles for protections that aren't there and tilts against federal power. The challengers champion approaches that both bear no resemblance to how actual water bodies function or what Congress actually wrote and required in the statute. They pretend that such water bodies don't count under the law unless they have "continuous surface connections" to other "navigable" waters. To get there, they ignore the strong, protective law that Congress enacted 50 years ago.
In their policy-driven rewriting of the law, the challengers and their allies hope for a new judicial test that would automatically exclude many types of water bodies that happen to stand in the way of oil and gas development and other extractive industries, housing developments, and road construction. They don't have the votes to change the laws they dislike, so they're counting on pliant judges changing — indeed, distorting — basic definitions and criteria set forth in the Clean Water Act, especially ignoring the law's express focus on scientific, health, and recreational functions of "waters" that the act aims to protect.
Buzbee's brief makes a rock solid case that the Clean Water Act means what Congress had in mind when it passed the law — and it wasn't the absurd linguistic gymnastics being trafficked by industry groups. As Buzbee explains, the law is distinctly grounded in scientific considerations, particularly the notion of protecting the "integrity" of our nation's water resources due to their valuable functions. The challengers' atextual arguments would directly undercut that foundational aspect of the law.
Moreover, the brief details how the Clean Water Act sought to recalibrate the respective roles of the federal and state governments in protecting water quality to replace the clearly inadequate pre-existing federalism approach that allowed our rivers to literally catch on fire. Under the new law, federal protections were to serve as a "floor," providing a basic guarantee of water quality to every American regardless of the state in which they happened to reside. States still play a key role in implementation, tailoring regulatory programs to meet local conditions and needs, but that floor was to remain inviolate. The challengers' recasting of the Clean Water Act's reach is fundamentally incompatible with that vision. It would write arid regions of the country right out of the statute's protections.
Buzbee and other CPR scholars will no doubt have more to say about the case closer to the oral arguments in October, so stay tuned to our blog, Twitter, Facebook, Instagram, and our email list for updates. For now, you can read Buzbee's amicus brief here.
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James Goodwin | June 23, 2022
Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary -- especially a U.S. Supreme Court stocked with Trump-era judicial activists -- as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act.
Michael C. Duff | June 23, 2022
The Supreme Court on Tuesday unanimously struck down a Washington state law that was aimed at helping federal contract employees get workers' compensation for diseases arising from cleaning up nuclear waste. The case, United States v. Washington, concerned the federally controlled Hanford nuclear reservation, a decommissioned facility that spans 586 square miles near the Columbia River. The reservation, formerly used by the federal government in the production of nuclear weapons, presents unique hazards to cleanup workers.
Catalina Gonzalez | June 22, 2022
On June 23, the California Air Resources Board (CARB) will hold its first public hearing on its draft plan (the Draft 2022 Scoping Plan) for achieving the state's climate goals and for getting to carbon neutrality no later than 2045. Including actions that prioritize California's overburdened and underserved communities will be vital to the success of the proposed plan.
Alice Kaswan | June 22, 2022
On June 23, California's Air Resources Board (CARB) -- the state's air pollution control agency -- is holding a public hearing on its comprehensive roadmap for achieving the state's daunting climate goal: carbon neutrality by 2045 at the latest, a goal established by Gov. Gavin Newsom in a 2018 executive order. Although states are increasingly adopting 100 percent clean electricity targets, California's goal goes considerably farther, covering emissions from the entire economy, including transportation, industry, buildings, waste disposal, and agriculture.
Thomas McGarity | June 17, 2022
The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state." The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance."
Minor Sinclair | June 14, 2022
I’m thrilled to share that the Center for Progressive Reform features prominently in the pages of a forthcoming anthology of last year’s best writing on environmental law. Three of five articles selected for inclusion in the 2022 edition of the anthology were written or co-written by our esteemed Member Scholars — law professors who generously donate their time and expertise to help us achieve our mission to create a more responsive and inclusive government, a healthier environment, and a just society. A fourth article was authored by a Member Scholar who is on leave from the center while serving in the Biden administration.
Daniel Farber | June 9, 2022
Should regulators take into account harm to people in other countries? What about harm to future generations? Should we give special attention when the disadvantaged are harmed? These questions are central to climate policy and some other important environmental issues. I’ll use cost-benefit analysis as a framework for discussing these issues. You probably don’t need my help in thinking about the ethical issues, so instead I’ll focus on legal and economic considerations.
Rebecca Bratspies | June 7, 2022
Lessons from A Community Science Research Partnership in South-East Queens
Daniel Farber | May 25, 2022
In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.