The Picture Is Clear

Law for Sustainability

Wetland adjoining a stream and wetland not adjoining a stream.  The former gets protection and the latter is not deserving.  

I include stories from my career in my lectures on environmental law, and the other day I found myself describing the first project I did in my new job with the Commonwealth’s Office of Safe Waste Management back in the late 1980’s.  The students all have phone cameras but back then you took your negatives to these little photobooth stores and camera shops, or you had a smelly dark room in your basement.  The project was about not pouring photographic chemicals down the drain.  They contain silver – and hundreds of thousands of dollars was being poured into Boston Harbor every year.  At one event, a speaker gave away quarters to represent the money you get when you recover the waste instead. That makes the picture clearer.  It is one thing to tell your audience that silver is toxic to aquatic organisms and we need those organisms to break down wastes at the sewage treatment plant, and they shouldn’t be poisoning receiving waters either, but a coin to put in your pocket focuses attention, helping to foster clarity.   

I hope people have gotten a clear picture of what this court has been doing and just did with respect to our environmental laws.  I fear that May 25th’s Sackett v. EPA could be like a blank sheet of undeveloped photographic paper to some people.  What happened?  It was a unanimous opinion and EPA lost!  There are complexities here but as we apply what we know about what the law should be, a clear picture emerges from the mix.

The majority added words to the Clean Water Act that aren’t there.  

This reminds us of the definition of water pollution in the Act: “the addition of any pollutant”.  The Act says wetlands “adjacent to” navigable waters are covered.  This court now says, well, you have to have a continuous surface connection for that wetland to be adjacent.  This vastly reduces EPA’s ability to ensure a state protects the waters of its citizens.

We need the EPA to protect us all from pollution.  This was the idea of the Clean Water Act. This court that says it honors the historical context of the time when laws are passed ignores that the federal executive branch was given great power because states had failed, for decades, to do the job. 

What is taking place is a legal manifestation of an attitude, a philosophy, a mindset, that justifies defying majority will, long-standing agreements, the clear purpose of the law.  The picture emerging is of a minority that imposes its will rather than seeking to build consensus. These judges seem to be comfortable with asserting partisan views.[i]  Madison defined “faction” as a

Number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.[ii]

Recognizing that factions must be free to be, he said the only answer was to enlarge the context.  Then, the “variety of parties and interests” could save us.  So a Supreme Court loyal to the whole, the principles of comity, consensus and balance, is beneficial, but we are playing with fire to have any other kind.
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Some years ago in Rapanos v. U.S.,[iii] Antonin Scalia suggested the “continuous surface connection”. It was appalling at the time that four judges then were willing to go along with him and insert words into the statute that Congress did not, and it is even more appalling now that there are five, but it seems to reflect a loyalty to a strain of conservative judicial thinking instead of that which constitutes American jurisprudence as a whole.

Maybe this reasoning cannot stand.  Kavanaugh wrote:

In my view, the Court’s “continuous surface connection” test departs from the statutory text…

What is it that judges are supposed to do, that conservatives have insisted they do?  Keep to the text. They also departed, Kavanaugh said,

from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States. Therefore, I respectfully concur only in the Court’s judgment.  (He does not concur with the reasoning that led to the outcome).

William Buzbee, Faculty Director, Faculty Director, Environmental Law & Policy Program, Georgetown University Law Center, wrote that the decision ran contrary to law

of all types: statutory, court precedents, longstanding bipartisan regulatory policies, and regulatory science built on peer-reviewed science regarding types of waters and their functions.[iv] 

It's rude enough to thumb your nose at 45 years of practice, precedent, and so on: when new, added words actually change existing words, (“adjacent” becomes “adjoining”), the legal argument resembles the maneuvering of a shell game.

Kavanaugh was joined by Sotomayor, Kagan, and Jackson, but he did not join with Kagan, who drew a judiciously sharp picture of what happened, framing her dissent in terms of the sorrow she feels seeing the act of adjudication brought so low (she was joined by Sotomayor and Jackson):

So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. “[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.”…Because that is not how I think our Government should work—more, because it is not how the Constitution thinks our Government should work—I respectfully concur in the judgment only.  (Emphasis mine).

The one word different was to substitute “Water” for “Air”, from her dissent in West Virginia v. EPA,[v] in which the majority essentially said it couldn’t be that Congress could have intended to give EPA the power to actually cause a shift in a sector of the economy, and that if they really intended to harm the power companies’ businesses, they would have said so explicitly. 

The judges who don’t hear the message that dirty businesses must bow to the need for a clean world in which to do business now cite another idea they’ve inserted called “the Major Questions Doctrine”.  The New York Times quoted Alito, that Congress must use

Exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the government over private property.[vi]

Too bad Congress didn’t foresee their will could be frustrated in this way when they passed the Act in 1970, and made it stronger in 1990, both times with strong bipartisan support. 

EPA’s existence is a manifestation of the understanding that we have a common interest in a clean environment that is more important than the opportunity to gain revenue from dirty businesses.  Without doubt EPA was established to cause the evolution of cleaner industries: this court has now made up the idea that Congress had to explicitly state that EPA had the authority to cause a shift in how we generate power.  This court has curtailed EPA’s power to give us clean air and clean water.  The generation before us gave us EPA – a gift we must honor and rebuild so we can meet our responsibilities to

secure the Blessings of Liberty to ourselves and our Posterity.

The idea of the shared world is embodied in the practice of judges refraining from inserting their own private opinions.  When John Marshall Harlan[vii] dissented in Lochner v. New York (198 US 45, 1905), he declined to go along with overturning a state law protecting bakery workers.  The conservatives who prevailed at that time felt government can’t interfere with businesses, making the right of contract more important than people’s rights.  Harlan and two other justices did not agree that economic liberty demanded the state must refrain from protecting people’s health and safety (termed the “police power”).  Over the course of time, Harlan’s words are a response to the alarm that Alito and others raise about federal agencies being too powerful.  Harlan wrote that while

police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion.

We need regulations, and the simple-minded conservative attack on “federal overreach” obscures the way forward – to keep improving them.  The dissenters from the laissez-faire philosophy that benefitted the new business powers articulated the ideas that later were used to help the modern state learn how to take organized action in the public interest.  Harlan said the police power

is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests.

It’s not the job of the judge to override the legislature on those things unless the law is unconstitutional.  To impose a doctrine of interpretation (this new “Major Questions Doctrine”) that says nothing will be upheld that does not speak with exceeding clarity is a clear shift in the relationship between the branches of government, back to when judges stood in the way of progress.

When Justice Oliver Wendell Holmes, Jr. dissented in Lochner, he took direct aim at the practice of judges applying their own private ideas.  He wrote that the Constitution did not enact Social Darwinism, though he himself rather seemed to believe in it.[viii]  In doing so he taught American lawyers, and some of us are taught in law school, that judges are to respect the will of the people as expressed in the legislature and not to substitute their own philosophy.  Our own Chief Justice expressed an extreme version of this philosophy of judicial restraint when he said his job was like an umpire at a baseball game, not to make law, but to call balls and strikes.  Holmes wrote a century ago, concerning the economic theory of laissez-faire upon which he said the case was decided:

I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law…

I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

We have now been fully exposed to the willingness of this court to impose its own, unique view of what we as a people are permitted to do for ourselves.
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Despite years of conservatives painting a picture of liberal judges and federal agencies exceeding – usurping, the polemicists claimed – their roles and powers, the clear picture now is of just who actually has an active disregard for the will of the majority.  It is a picture of abandoning standards that evolved to assist, not frustrate, a society’s efforts to act in its own interest.  Pictures can be deceiving.  They don’t tell the whole story.  But it is hard not to see, on top of things like abuse of the emergency decision, in which great decisions are made without explanation,[ix] that what’s happening is a judicial movement at the highest level that does not seem to have, as the founders had when they declared independence, a “decent respect for the opinions” of others.  Anyone moved by the Preamble to the US Constitution should take a look.
 


[i] Yesterday’s surprise overturning of Alabama’s racist voting map is said by some to reflect some new concern for the institution’s historically deep unpopularity on the part of Roberts.  We can hope for this check.

[ii] Federal Papers No. 10, as quoted by James MacGregor Burns in the 1963 Democracy in Deadlock, p. 18.

[iii] 547 U.S. 715 (2006).

[iv] https://progressivereform.org/cpr-blog/the-supreme-courts-sackett-v-epa-bender/.

[v] Decided June 30, 2022.

[vi] “High Court Decision Limits EPA’s Power Over Wetlands”, p. A19, (print), May 26, 2023.

[vii] Known as the Great Dissenter for his disagreements with the court’s failure to enforce civil rights, as in the 1896 Plessy v. Ferguson, when he alone dissented from the view that social segregation was not a violation of equal rights.  His dissents also assisted in the later development of antitrust, labor and other progressive law.

[viii] See, famously, Buck v. Bell, 274 U.S. 200, (1927) in which he supported the use of involuntary sterilization on less desirable people.

[ix] See The Shadow Docket by Robert Verchick.