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A scientist tests water quality in a marsh

Supreme Court Clean Water Decision Is Political and Anti-Science

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Public Protections Courts Water

Statement of Center for Progressive Reform Senior Policy Analyst James Goodwin

WASHINGTON, D.C. (May 25, 2023) — Make no mistake, today’s decision in Sackett v. Environmental Protection Agency (EPA) puts our critical water resources at dire threat of irreparable destruction. By some estimates, half of all wetlands and roughly 60 percent of streams would no longer be protected. Industrial facilities will have freer rein to dump toxic pollutants in such streams. Mammoth industrial farms and irresponsible housing developers will be able to fill in vital wetlands with near impunity.

And just as this decision will leave our waterways and wetlands more polluted, it will further contaminate this Supreme Court’s already toxic legacy. With its decision today, the Court has once again demonstrated that what matters is not law, but votes; not precedent or principle, but raw political power.

How else to explain today’s abrupt reversal of its 2006 ruling in Rapanos v. United States? While the Court was badly fractured in that case, a majority of the justices at the time agreed a broader standard — one grounded in science — should be used to determine the scope of the Clean Water Act.

Now, the conservative majority has adopted the losing test from Rapanos for determining the Act’s scope — the late Justice Antonin Scalia’s “continuous surface connection” standard — and made it the law of the land.

What’s changed in the years since? The Court’s lineup.

Today’s decision is particularly outrageous because it guts the scientific core of the landmark Clean Water Act. The Court takes what is a complicated issue and grossly oversimplifies it by invoking a preference for “ordinary parlance” — or how terms are commonly used and understood. But when it wrote the act, Congress wasn’t interested in linguistics; it was seeking to protect vital natural resources. Science protects waters, not “ordinary parlance.” That’s why Congress entrusted implementation of the Clean Water Act to agency experts, not lexicographers.

This decision is just the latest in a series in which the Court’s conservatives have rejected science in favor of advancing a pro-polluter agenda.

Public Protections Courts Water