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The new test contradicts the Act’s text, history, and purpose. The Clean Water Act passed during a period of widespread, severe water pollution. Congress responded appropriately to this situation by granting the Environmental Protection Agency (EPA) and Army Corps of Engineers wide latitude in preventing pollution of a variety of waters including water flowing through wetland areas. It is important to understand the history of the Act in order to better understand what the elected officials were doing for the public. The Court decided to replace the Act’s text with an imported definition that, because it doesn’t reflect the historical context, limits the Act’s scope to just a fraction. The Court made the policy decision to rewrite Act in such a way as to tip the scales against the public and in favor of property owner.
The physical laws that govern climate and the water cycle are not subject to change. This reality should be reflected in our law. The public is the one who pays for the failure to reflect this reality.
Amanda Zerbe will join the Climate and Energy Policy Program and Stanford Law School in March 2023 as an Early Career Climate Law fellow. Her work will focus on clean air and fair decarbonization.
Eric Macomber will join the Climate and Energy Policy Program and Stanford Law School in September 2022 as a Wildfire Legal fellow. His work is focused on issues of law and policy relating to wildfires and the wildland/urban interface in California and Western states.
This article was originally shared by Climate and Energy Policy Program on Substack.
1 This conclusion was reached by the majority for two main reasons: First, wetlands are a separate category of water and therefore they must be considered as such; secondly, the majority believes that the section which incorporates wetlands is relatively insignificantin comparison to the rest the Act. Justice Kavanaugh and three other Justices disagreed. Justice Kavanaugh noted that the words “adjacent”, “adjoining”, and “contiguous” are different. If Congress meant adjacent, it would have used that word.
2 Over the past few years, the Court is more willing than ever to apply this method of interpreting the law to limit the authority of the statute, especially in the context of the environment.