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.