We'd do better addressing real environmental threats if we quit destroying our credibility with preposterous pretexts like this.
What constitutes “navigable waters”? That question has bedeviled Mike and Chantell Sackett for 15 years, and now it comes back again to the Supreme Court. Ten years ago, the Supreme Court took an incremental approach to the Waters of the United States (WOTUS) Act and the EPA’s regulation based on its jurisdiction over “navigable waters.”* * *
[A new] case raises the question of the test that courts should use to determine what constitutes “waters of the United States,” which the Clean Water Act was passed to protect in 1972.
In a 2006 case called Rapanos v. U.S., the court could not muster a majority opinion. Four justices, led by Justice Antonin Scalia, said the provision means water on the property in question must have a connection to a river, lake or other waterway.
But a fifth justice, Anthony M. Kennedy, created the test that emerged from the case, saying the act covers wetlands with a “significant nexus” to those other bodies of water.
At risk of violating the journalist's copyright, I quote the article, (quoting Justice Alito, whose remarks I take to be in the public record):
ReplyDelete" [T]he precise reach of the Act remains unclear. For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase ...far from providing clarity and predictability, the agency’s latest informal guidance advises property owners that many jurisdictional determinations concerning wetlands can only be made on a case-by-case basis by EPA field staff. "
Rule of man rather than rule of Law. If the bureaucrat and landowner are on friendly, or mutually profitable, terms, one "case" applies. If not, another "case" arises and another finding, and a different set of restrictions, applies.
Case-by-case "law" is no law at all and has no place in our republic.
Until the 1970s, the rough field definition of "navigable water way" was that it had enough moving water to float a log or a canoe over a mile, or was a pond or lake of sufficient size to require a paddle to cross in a canoe or kayak. So a farm stock tank did not count, nor did many arroyos. Then along came wetlands protections (in general a good thing, but . . . ) and the definition became more and more vague.
ReplyDeleteState statutes and definitions are also variable, at least west of the 100th Meridian.
LittleRed1
Honestly, it's not as though I didn't care about protecting wetlands. I'm just tired of pretexts. If Congress wants to protect wetlands, let's protect wetlands, not pretend they're navigable waterways.
ReplyDeleteIt's like the nonsense from 2020: isn't racism the "real" public health threat? No. The pandemic was, and it didn't help to say that crowds in the street were good public health if they were upset about racism but bad if they were upset about any of that icky MAGA stuff.
Speaking of icky MAGA stuff, I've just sent off for a pair of "Fauci Flip-Flops" (a/k/a sandals) from the DeSantis campaign website. They have an impression on the sole that makes your footprints in sand read "Fauci Can Pound Sand."