Air and water under threat as SCOTUS takes aim at environmental laws

This story originally appeared in Common Dreams on January 25, 2022. It is shared here with permission under a Creative Commons license (CC BY-NC-ND 3.0).

Environmental advocates and congressional Democrats are sounding the alarm after the U.S. Supreme Court agreed this week to hear arguments in two cases involving fundamental regulations designed to protect air quality and of the country’s water.

The nine justices announced Monday that they plan to hear arguments in the case of an Idaho couple who were prevented from building a home on their land by the Clean Water Act. According to the Environmental Protection Agency (EPA), Chantell and Michael Sackett’s land contained wetlands and the couple needed a federal permit to build.

The court must also hear arguments in West Virginia vs. EPA, in which the Republican-led states are asking the court to consider whether the EPA has the authority under the Clean Air Act to regulate fossil fuel emissions from coal-fired power plants.

Represented by the right-wing Pacific Legal Foundation, the Sacketts are asking the Supreme Court to rule on a narrow definition of “United States waters,” one that could have profound implications for many industries and regulatory policy in the country. .

This case is expected to be heard during the Supreme Court session starting in October, but in just over a month the court is also expected to hear arguments in West Virginia vs. EPA, in which the Republican-led states are asking the court to consider whether the EPA has the authority under the Clean Air Act to regulate fossil fuel emissions from coal-fired power plants.

The right-wing court’s decision to review the two cases in just a few months is “the latest indication that the Supreme Court’s conservative majority is stepping in to assess the limits of the nation’s fundamental environmental laws – potentially in ways that get in the way of President Biden’s environmental agenda,” Maxine Joselow wrote to The Washington Post on Tuesday.

“It looks like we have a new conservative supermajority on the court that is much more inclined to slash and burn through our key environmental laws,” said Robert Percival, director of the environmental law program at the University. of Maryland. the To post.

In the previous case, Sackett v EPA, plaintiffs want the Supreme Court to resolve a 2006 case called Rapanos v. United States, which resulted in a 4-1-4 decision. The court was unable to reach a majority opinion regarding the definition of “United States waters” that the Clean Water Act is intended to protect.

Judge Antonin Scalia proposed that only water that has a “continuous surface connection” with a river, lake or other watercourse should be protected, while Judge Anthony Kennedy created a test to determine whether wetlands had a “significant connection” with other water bodies. , in which case they would be covered by the law.

The Biden administration has already filed a brief supporting Kennedy’s broader definition of protected waters.

According to Scalia’s definition, the Solicitor General wrote, “Agencies would not have the authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that wetlands significantly affect the “chemical, physical and physical” properties of the river. organic integrity.’”

Scalia’s definition was used to support former President Donald Trump’s Navigable Waters Protection Rule and has been favored for years by the US Chamber of Commerce and groups representing homebuilders.

It’s “impossible to overstate the impact” the court’s adoption of Scalia’s definition would have on wetlands in the United States, said Patrick Donnelly, Great Basin director for the Center for Biological Diversity ( CBD), as companies could be granted new authority to build a variety of structures on or through wetlands.

Mark Ryan, a former EPA attorney, told the To post that at least five of the court’s conservative justices will likely vote in favor of Scalia’s interpretation.

As clean water advocates have warned of the implications of Sackett v EPA, nearly 200 Democrats in both houses of Congress filed an amicus brief in West Virginia vs. EPA, asking the court to rule that the agency is authorized to regulate pollution from power plants.

Lawmakers said the Clean Air Act “should be interpreted as broadly authorizing the EPA to address emerging air pollution issues, including greenhouse gas emissions from existing stationary sources.”

According to environmental lawyers, Justices John Roberts, Samuel Alito, Clarence Thomas and Brett Kavanaugh are all likely to support reducing the EPA’s authority.

States, including West Virginia and North Dakota, join two coal companies – North American Coal and Westmoreland Mining – in asking the court to decide whether the EPA can issue climate regulations for the electricity sector .

According to environmental lawyers, Justices John Roberts, Samuel Alito, Clarence Thomas and Brett Kavanaugh are all likely to support reducing the EPA’s authority.

The plaintiffs “are asking the Court to cause massive damage to all sorts of ways we protect human life: by regulating food safety, car safety, deadly pollution, etc.”, Vickie Patton, general counsel for the ‘Environmental Defense Fund, Recounted The New Yorker. “There’s a lot at stake for the American people.”

In another memoir, the senses. Bernie Sanders (I-VT), Elizabeth Warren (D-MA), Richard Blumenthal (D-CT) and Sheldon Whitehouse (D-RI) have accused the fossil fuel “industry machine” of pushing its political order of the day in the Supreme Court. They noted that Exxon Mobil, the American Petroleum Institute and the Koch family had provided funds to groups that had written amicus briefs in support of Republican states seeking to weaken the authority of the EPA.

“The industry-funded and promoted arguments presented here…would empower and enrich polluting corporations at the expense of public health, welfare and the environment,” the lawmakers wrote. “The court should refuse to participate in this industry-led project.”

On Twitter, Warren accused the fossil fuel industry of asking the Supreme Court to “do the dirty work” for them.

“We must challenge when the Court is used as a political tool for special interests,” said the senator.