Washington Monthly - This Supreme Court Loves to Legislate From the Bench. See Their Latest Decision on the EPA and Wetlands.
Open Markets strategic counselor Caroline Fredrickson explores a decision made by the majority of the justices decided to rewrite the Clean Water Act despite its professed belief in narrowly interpreting statute.
The Chamber of Commerce, which has labored mightily for decades to use the courts to deregulate the United States, just won another battle. Last week, the Supreme Court did its bidding by eviscerating the Environmental Protection Agency’s authority under the Clean Water Act to protect vast swaths of wetlands, taking another whack at the agency specifically and regulatory authority in general. Just last year, the Court decimated EPA’s power to address climate change under the Clean Air Act. Both cases were ostensibly based on the doctrine of “textualism,” which purports to follow the text strictly—but both reveal the Court is rewriting statutes when it doesn’t like the text.
As I wrote here a few weeks ago, the Republican project to remake the courts goes beyond ending reproductive freedom. It includes ignoring statutory texts to advance corporate interests and dismantle government regulations. In the recent case, big business hid behind small landowners Chantell and Michael Sackett, who wanted to build a house by an Idaho lake. Their case pitted them against the EPA and challenged central aspects of the Clean Water Act. Behind the plaintiffs were real estate developers, multinational corporations, and ideologues who didn’t want the EPA to issue reasonable regulations about our nation’s wetlands. When the Court ruled in favor of the Sacketts, the corporate titans came out of the shadows and openly gloated: “The Supreme Court has provided long overdue relief for companies and landowners across our nation,” said Marty Durbin, President of the Global Energy Institute of the U.S. Chamber of Commerce.
In his opinion for five of the justices, Justice Samuel Alito wrote that the EPA does not have authority under the Clean Water Act to limit discharges into wetlands close to other bodies of water unless there is “a continuous surface connection” to those waters. The majority proved once again that “textualism” is discarded when regulation inhibits pollution or unfettered capitalism. Just as the justices have jettisoned the text of antimonopoly law when the words interfere with corporate consolidation, they have now junked the actual language of the Clean Air Act in favor of their tortured interpretation.
Despite the law applying to all “waters of the United States” (which includes lakes, rivers, and streams) and “wetlands adjacent” to such waters, Alito took a black marker, similar to the one Donald Trump used to falsify the path of Hurricane Dorian, to cross out the word “adjacent,” ignoring the explicit congressional codification of EPA’s definition of “adjacent” to mean “bordering, contiguous, or neighboring.” This definition, also found in dictionaries—a favorite source of avowed textualists—would ensure that the EPA could protect wetlands that border a larger body of water without having to be linked directly.
Read full article here.