The Supreme Court is presently hearing a case the outcome of which could drastically limit the capacity of the EPA to enforce the Clean Water Act. The basic issue is whether the Act, which covers navigable waters under Congress's power to regulate interstate commerce, grants jurisdiction over waterways that may drain into or otherwise effect the quality of water in navigable waters but or not themselves navigable. The distillation: If the government can protect a stream can't it also regulate the ditch that flows into the stream and the wetland that protects the stream? If the polluters get their way then the provisions of the Clean Water Act will be virtually unenforcable.
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The Roberts Court may very well handcuff the government's power to keep our waters swimmable and fishable, turning back the clock to the days when our rivers were flammable. Democrats need to respond by proposing an Environmental Protection Ammendment and put the Republican Party on the record as supporting a right to pollute.
As Dahlia Lithwick reports
HERE the right-wing activist judges lead by Scalia have been hostile to the government's case, ignoring both the intention of Congress that the act authorize necessary steps to protect navigable waterways and the executive branch's long-standing interpretation of this authorization. Scalia even offered assistance and encouragement to the polluter's lawyers:
Both Rapanos and Carabell lost in the lower courts. Both contend that the CWA doesn't contemplate wetlands adjacent to non-navigable waters, and that the federal government is overstepping its authority in usurping state and local prerogatives. The government urges that the definition of "navigable waters" must encompass wetlands that will impact those waters, even if they aren't connected in obvious ways. M. Reed Hopper represents Rapanos, the less attractive of the two landowners. (He decided not to file for a permit, dredged his land, and annihilated 54 acres of wetlands over the government's strenuous objections). Hopper opens by disparaging government efforts to regulate the merest "trickle." Justice Antonin Scalia immediately interrupts to ask whether he even wants to concede "trickle." The government here seeks to claim jurisdiction even over "ditches without a trickle." (Lithwick at Slate, linked above)
No decision in the case yet, so I hope I'm not jumping the gun here, but it appears that the right-wing activist judges may using a narrow, anti-Hamiltonian interpretation of the Commerce Clause to create a right to pollute, nullify legislation and declaw the Clean Water Act by over-riding the executive branch's authority to do what is necessary to enforce it. Sadly, we now have justices that adapt and stretch their judicial philosophy to serve polluter's interests by legislating from the bench rather than justices who consider the public interest and defer to the legislature when there are reasonable arguments to support their authority.
But we are not without recourse. Indeed, this presents an opportunity for the Democratic Party to put the traditional American value of conservation forward with a constitutional ammendment that specifically and unequivocally grants Congress the power to protect the environment. Republicans, who believe in a right to pollute, will certainly oppose this and it may not pass. The Republicans have to go on the record as supporting activist judges overturning environmental protections and as supporting a right to pollute, however. This is alot like their borrow and waste budgets. With their budgets it's "pork today, forget tomorrow." With their support for pollution it's "dump today, forget tomorrow."