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PaperclipPerfector  11mo ago (text post)   28353 thread views

Culture War Roundup for the week of May 29, 2023

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A decade ago the supreme court unanimously ruled that people are actually allowed to appeal federal agency rulings to the court system, which the Obama administration did not want. The EPA had attempted to fine a couple $75,000 a day for starting to build a home in compliance with local permitting, on the theory that their land being next to a ditch gave the federal government control over the land. The houses right next to the local lake didn't bother the government: they just randomly picked this couple to ruin. Moreover, the EPA claimed that nobody could challenge its rulings in court, as they were "civil actions" rather than final penalties.

The court remanded the case and allowed the couple to appeal the EPA ruling, and it has been working its way back up the appeals courts ever since.

The couple just won a second unanimous supreme court case against Biden's EPA, which had attempted to define the navigable waters of the united states to mean any land on which there is any standing water at any time of the year (turning about 80% of US land into "water" for legal purposes). The EPA tried to moot the case by withdrawing their compliance order, but

It's interesting and a little encouraging that even the liberal members of the court (except Ginsburg) are not eager to give the executive infinite unappealable power. You might get a letter out of the blue threatening you with ruinous fines or prosecution because some federal agency decided to go after you as a test case, but if you have a hundred million dollars and backing from the US Chamber of Commerce, you might actually win after several decades of legal action.

A decade ago the supreme court unanimously ruled that people are actually allowed to appeal federal agency rulings to the court system, which the Obama administration did not want.

That is not the worst summary of a legal issue I have ever heard, but it isn't great. The Administrative Procedures Act provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704. The issue in the case was whether "final agency action" had yet occurred. Not whether "people are actually allowed to appeal federal agency rulings to the court system," since people have been doing that successfully for decades.

Biden's EPA, which had attempted to define the navigable waters of the united states to mean any land on which there is any standing water at any time of the year.

No, 40 CFR 120.2 defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." And according to the Court's decision, that definition dates to the early 1980s. And see, eg, People of State of Ill. v. Outboard Marine Corp, 619 F.2d 623, 627 fn 14 (2nd Cir. 1980) (quoting the rule). It was not a creation of "Biden's EPA," as you imply.

I don't even know what to say to this. You admit below that the Obama administration's position was that the Sacketts should not be allowed to appeal the EPA penalty through the court system. But you worded your quibble as if you're trying to insinuate that this wasn't the case.

Worse, the Biden EPA announced the new definition of waters of the united states in December 2022. Your claim that it dated from the 1980s is deceptive at best. But you worded your claim very carefully to imply rather than state something plainly untrue.

All I can say is that you need to read more carefully.

You admit below that the Obama administration's position was that the Sacketts should not be allowed to appeal the EPA penalty through the court system

No, as I said, the administration's position was that the Sacketts should not be allowed to appeal the EPA decision YET, whereas OP implied that the Administration's position was that no one should be able to appeal EPA and other agency decisions AT ALL; OP said that Court ruled that "people are actually allowed to appeal federal agency rulings to the court system, which the Obama administration did not want."

Worse, the Biden EPA announced the new definition of waters of the united states in December 2022. Your claim that it dated from the 1980s is deceptive at best.

Leaving aside that your link shows that the rule did not take effect until March 20, 2023, which obviously was far too late to be the rule under which the EPA issued its order, and more than 5 months after the October 3, 2022, oral arguments in the case, what I said was:

40 CFR 120.2 defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." And according to the Court's decision, that definition dates to the early 1980s. And see, eg, People of State of Ill. v. Outboard Marine Corp, 619 F.2d 623, 627 fn 14 (2nd Cir. 1980) (quoting the rule). It was not a creation of "Biden's EPA," as you imply.

And, if you had bothered to look at that 1980 case I cited, you would have seen that it says:

The Environmental Protection Agency provides the following definition for "navigable waters":

(t) "Navigable waters" means "waters of the United States, including the territorial seas." This term includes:

...

(2) Interstate waters, including interstate wetlands;

...

(6) Wetlands adjacent to waters identified in paragraphs (t)(1)-(5) of this section ("Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. . . .

So, as I said, the definition I quoted has been used by the EPA to define "wetlands" since at least 1980.

Also, why do Democrats like swamps (or, as they call them, wetlands) so much?

  • water filtration to capture agricultural runoff

  • water retention to replenish the aquifers

  • biomass generation to capture carbon

  • waterfowl habitats

Also wetlands dampen the blow of hurricanes, flash floods and general storm surge; protecting human lives and reducing soil erosion. In addition to the obvious direct destruction of dry land, the soil erosion can allow salt water to enter fresh water ecosystems, killing most life within them, then the decaying dead plants stop anchoring the soil and cause even more aggressive erosion. Salt water flooding in previously protected fields also badly damages soil fertility.

Hurricanes start slowing down and losing strength as soon as they leave open ocean, and waves weaken and break by hitting all the foliage, sandbars and shallow waters. The more wetland you have as a buffer between the ocean and human settlements the better.

Getting rid of those is about as bright as taking all the padding out of a helmet.

I do not think the EPA knows what navigable means. A plain language reading would be a waterway that you could travel along by boat.

Plain language is irrelevant when the term is defined by statute. The CWA defines navigable waters as "waters of the United States", and gives the EPA authority to define that further, pursuant to their usual rulemaking authority. So the relevant definition here isn't of "navigable" but of "waters of the United States", and those are defined pretty thoroughly in the regulations as well as by at least three supreme court decisions. Even if I took your definition at face value it woudn't make sense considering the purpose of the act. The stream closest to my house definitely isn't navigable by any plain language definition of the term, but it feeds into a major navigable river only a few miles downstream, where it flows across the property of a steel mill. To say that the mill could avoid the need for an EPA permit simply by dumping into the stream instead of the river itself would completely subvert the purpose of the act. So the definition naturally includes any waterways that connect to actually navigable waterways.

I do not think the EPA knows what navigable means.

Well, here is a bit of the history, according to the Supreme Court:

After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining "the waters of the United States" to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed. Reg. 31320 (1975). More importantly for present purposes, the Corps construed the Act to cover all "freshwater wetlands" that were adjacent to other covered waters. A "freshwater wetland" was defined as an area that is "periodically inundated" and is "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." 33 CFR § 209.120(d)(2)(h) (1976). In 1977, the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition reads as follows:

"The term `wetlands' means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." 33 CFR § 323.2(c) (1978).

In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR § 323.2 (1985).

United States v. Riverside Bayview Homes, Inc., 474 US 121, 123-124 (1985)

Note that, in that case, "The [lower] court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of "navigable waters," intended to allow regulation of wetlands that were not the result of flooding by navigable waters. Under the court's reading of the regulation, respondent's property was not within the Corps' jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. . . . We now reverse."

Moreover:

On a purely linguistic level, it may appear unreasonable to classify "lands," wet or otherwise, as "waters." Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious.

Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history and underlying policies of its statutory grants of authority. Neither of these sources provides unambiguous guidance for the Corps in this case, but together they do support the reasonableness of the Corps' approach of defining adjacent wetlands as "waters" within the meaning of § 404(a). Section 404 originated as part of the Federal Water Pollution Control Act Amendments of 1972, which constituted a comprehensive legislative attempt "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101, 33 U. S. C. § 1251. This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, "the word `integrity' . . . refers to a condition in which the natural structure and function of ecosystems [are] maintained." H. R. Rep. No. 92-911, p. 76 (1972). Protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control pollution, for "[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source." S. Rep. No. 92-414, p. 77 (1972).

In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into "navigable waters," see CWA §§ 301(a), 404(a), 502(12), 33 U. S. C. §§ 1311(a), 1344(a), 1362(12), the Act's definition of "navigable waters" as "the waters of the United States" makes it clear that the term "navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term. See S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 (1972) (statement of Rep. Dingell).

474 US at 132-133.

So, apparently the Court thinks that the EPA does indeed know what "navigable" means, or at least what Congress meant by "navigable." Note also that the EPA's interpretation is almost 50 years old; if Congress disagreed with it, it could have amended the statute to annul the EPA's interpretation.

Also, why do Democrats like swamps (or, as they call them, wetlands) so much?

Note that the regulation at issue was originally promulgated in 1976, under a Republican administration. And, as the quote above says, wetlands are "loved" for purposes of the Clean Water Act because "[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source." S. Rep. No. 92-414, p. 77 (1972).

There was a time that draining swamps was among the greatest achievements of the government.

We don't worry about malaria any more, and wetlands have many benefits

There was a time that draining swamps was among the greatest achievements of the government.

Fun footnote in the court's opinion:

Leovy v. United States also reflected the law’s longstanding hostility to wetlands: “If there is any fact which may be supposed to be known by everybody, and, therefore, by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances.” Traditionally, the only time wetlands were the subject of federal legislation was to aid the States in draining them. Wetlands preservation only gained traction due, in large part, to advances in firearms technology that made waterfowl hunting feasible.

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