If we don’t watch out, and a drowsy acceptance of what sounds like reasoning sets in, we will find ourselves back before the Clean Water Act (CWA) was passed – half a century ago.  This would not be a good thing for wetlands and the Waters of the United States (WOTUS) that they sustain. 
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Before the Supreme Court now is a case brought by Michael and Chantell Sackett, who want the court to declare that EPA is wrong when it says it can prevent them from filling (destroying) a wetland by their house.[i]  Their attorney, Damien Schiff of the Pacific Legal Foundation, explained in a Federalist Society discussion before the October 3rd oral arguments[ii], that landowners should be able to tell when their property is regulated wetland.  In a brief supporting the Sacketts, the Southeastern Legal Foundation argued that “Without expert analysis or Agency clarification, no property owner could possibly know whether a trickle through her property implicates the CWA…[iii]”  This is pretty much what Justice Scalia was addressing in the 2006 Rapanos case[iv], which has ruled this area of law in recent times (and which established a different standard, articulated by retired Justice Kennedy, who was there on the 3rd, watching oral argument).  Scalia wanted it simple.  He wanted to see a “continuous surface connection” between a wetland and an undeniably regulated navigable water – he wanted to see water to say EPA could protect it.  I suppose one could say he had no faith that water was there, under the ground, or that in arid areas, an “ephemeral” stream might actually play a big role in water quality (when it comes to life after rain). 

This year in which Juneteenth became a widely-celebrated event we also had the June, 2022 end-of-term Supreme Court decisions that dismayed overwhelming majorities, disrupted our stability, and derailed progress badly needed by a faltering civilization.  One especially disturbing moment in the sorry judicial thinking should not be overlooked: the placement of a profoundly misbegotten slur at the heart of what might look to the uninformed like high-flown rhetoric in defense of fundamental freedoms.  Please read this paragraph, where Justice Gorsuch concisely states his reason for concurring in the tying of EPA’s hands, at this time when we and future generations desperately need EPA to defend us against the gathering storm:

When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regula­tions as substitutes for laws passed by the people’s repre­sentatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the govern­ment of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur.  (West Virginia v. EPA, June 30, 2022.  Boldface added).

If I had no idea of the facts and history, I would probably agree with all of his general statements.  But “pen and phone” simply means to regulate.  It is used by both sides. Even to deregulate is pen and phone.  It is a strange kind of lie, told by or to the Justice, and if the latter, he must be helped to recognize it as such.  “Pen and phone” itself is an innocuous term, and has been used hypocritically, withheld when a President acts in accord with the will of the industry for no action on climate change, and levied when a President acts to protect us. For a Supreme Court Justice to link the dutiful exercise of executive power to the specious charge of circumvention of the will of the people is an immensely sad moment.

​The New York Times front- and several page report May 1, 2022 on racist mythologist Tucker Carlson[i] (descended from Henry Miller, who gained ownership of vast tracts of land after the Mexican-American war), made me think about Karl Lueger, mayor of Vienna from 1897 until his death in 1910, whose “particularly aggressive anti-Semitism” was “central” to his election (Times of Israel).[ii]  Even though he tried to move away from “hatred of a minority” in office, that’s how he built his career.  Hitler viewed Lueger as a model in Mein Kampf.  The simple answer - it’s the fault of those people over there – that appealed to him, now draws many into the pernicious trap of “white grievance”.  

Carlson’s “data-driven” business approach taught him to step up what sells and he now has a lock on support from Lachlan Murdock.  They see no problem with this route to success, like Lueger.  They are dividing the house, and we will all reap the whirlwind they are stirring unless we meet this challenge with effective response. This Times coverage is of historical proportions and should be read by all environmental citizens because what’s coming could be more powerful than heated hurricanes and tornados. 

In Wittgenstein’s Vienna[iii] one reads how Lueger became more center-right, as if he were just using the appeal to people’s fears to get into power. Carlson may think of himself as center-right.  He began as a libertarian.  Now he is leading a cultural war.  He reminds us too of Nixon and others who were not devil madmen like Hitler or Putin, but in pandering to the right were great Pandoras (none of them women): people who open the box of social horrors.

If we are to turn back the Nazification of America we should stop anticipating the Night of the Living Dead, viewing Republican voters like zombie followers of leaders with dead souls.  We must instead think of other analogies in our effort to free them from the captured herd.  Cowboy heroes can help here, resisters of the mob, what Toto the dog does at the end of the Wizard of Oz, the crusty old town liberated by a Barbara Stanwyck vitality or a Gregory Peck integrity – there are so many stories that can inspire us to try to reach those now captured by what was described years ago as The Republic Noise Machine.[iv]  A cultural war is being waged against those of us who cling to the American Dream of equality, and we must learn to use stories as do the enemies of democracy. 

Purpose and Context

​What can the environmental citizen do?  When one pays attention to what is happening in the world, this question presses so large that it threatens to destroy focus.  The welter of messes is confusing and disorienting.  Clarity helps.

Some students bring the clarity of urgency to my classes.  They are clear that they want to do something even though they don't know what it is yet.  Even though such large problems loom and it must also be overwhelming to think how the generations before them failed, the determination to do something brings a sense of purpose, gives you a place in the world, a kind of light, a feeling of clarity.  You may not know how the hell you will make progress, but you have found something to believe in. 

Our stability is greatly tested when the world falls into war, and nuclear war threats suddenly rise up.  Now the environmental citizen has to be thinking about the peace movement.  War overshadows all of our plans to figure out what to do about plastics, toxics, climate change, loss of habitat.  The environmental movement did, at the beginning, feel like an outgrowth of the VietNam protest era, the next thing you did to change the world after marching wasn’t enough. Things have come full circle and we are back at the beginning, with peace.
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I, like other children, was terrified of A- and H-bombs[1] before I knew about pesticides and birds.  It was the spreading of radioactive strontium-90 from nuclear testing that was one of the first great alarms about ourselves, about what “we” were doing to the world.  Barry Commoner[2] and Linus Pauling[3] helped people understand the relationship – to see the particles raining down on the grass and being eaten by the cows and then in the milk children drink, and then damaging their chromosomes.  Fallout’s poisoning showed how we are all connected in a tragedy.

​Even if no one cares, I feel bad that I have posted only one blog at this site in 2021.  I suppose I have been like so many who took the election of Joe Biden as a reason to take a break from what feels like the front lines of a very tiring war.  Constantly attending to environmental issues, and the battle for the rule of law, for reason and mutual respect, can be like carrying a heavy weight.  Environmental citizens need rest sometimes from carrying that weight.  But picking it up again can make you feel strong, purposeful, engaged.  And despite the continuing darkness of the news, there are signs of light – there is a real prospect now of money flowing to much-needed efforts, such as the removal of lead from our homes and surroundings.
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In my class Research for Environmental Agencies and Organizations I offer students a list of projects, and each semester I include something about lead poisoning prevention.  One student signed on to help me promote a bill that is now before the Massachusetts legislature[1], submitted by Senator Patricia Jehlen, similar to a bill she submitted many years ago.  The intent of the bill is to overcome the barriers to suing those who recklessly placed lead in commerce, knowing it will harm people, and doing nothing to prevent that harm.  If companies make a product that they ought to know would likely harm people, the law should provide for both compensation to victims and punishment for those who unreasonably cause harm, so that others will be deterred from doing the same thing.  But when you can’t prove that the harm you experienced was caused by a particular company that company gets away with their malfeasance.  The bill that Jehlen put forth many years ago would have imposed “market share liability”, allowing the apportionment of liability according to the market share a company had of that product, treating all the members of industry who behaved the same way as culpable.  The current bill allows the court more flexibility to determine how to allocate responsibility, but it’s the same idea: no one should get away with such anti-social behavior simply because the specific product maker can’t be identified.