Words Matter for Wetlands, Too
Words really do matter. That’s likely the one thing poets and lawyers can both agree on. This has been proved true once again in the recent Supreme Court decision reinterpreting the 1972 Clean Water Act with regard to the protection of wetlands.
Wannabe homeowners in Idaho sued to prevent the EPA from blocking them—and then penalizing them—for backfilling their land in preparation for building a home. That was back in 2007. In 2012 the justices ruled that the lawsuit was not “premature” and could continue. On Thursday, May 25 all nine justices agreed that the agency had exceeded its authority in seeking to regulate the homeowners’ property.
But a conservative majority was willing to go further on a 5-4 vote to reinterpret the way the Clean Water Act applies to wetlands. As reported in the New York Times, Justice Alito, writing for the majority declared that “the Clean Water Act does not allow the agency to regulate discharges into wetlands near bodies of water unless they have ‘a continuous surface connection’ to those waters.” Connections below the surface, it seems, don’t count for these conservatives.
Interestingly, Justice Kavanaugh joined the three liberals in a “concurring” opinion that said the ruling “would harm the government’s ability to deal with flooding and pollution.” Justice Kagan wrote a second concurring opinion connecting the decision back to the “court’s decision in June to curtail the E.P.A.’s ability to restrict power plant emissions.” Both decisions, she argued, reflect “overreach” on the part of the court.
The words of the 1972 law have been contested territory right from the beginning given that the protection of water inevitably collides with the interests of farmers, developers and polluters of all kinds. In the early days, the struggle was over the term “navigable waters” given that the federal role in protecting water seems to have been framed originally in terms of interstate commerce. Could creeks be protected if you can’t sail a barge on them? Considerable litigation followed in response to that question.
Then in 2006, Justice Kennedy temporarily settled the matter—particularly with regard to wetlands—with two official-sounding words. Here’s the way Politico described it in 2016: “The words were ‘significant nexus,’ authored by Anthony Kennedy—the swing vote in a muddled 4-1-4 decision that forced the government to rethink how it polices water pollution. He suggested the government should limit itself to regulating waters that have a “significant nexus” with major waterways. And as definitive as those words sound, the real problem was—and still is—that nobody has ever known quite what they were supposed to mean.”
The power words in the current debate have been “adjoining” and “adjacent.” “Adjoining” wetlands would be those with the “continuous surface connection” invoked by Justice Alito above. “Adjacent” wetlands would be those that are simply nearby. Nearby, and yet quite possibly connected underground and providing a “significant nexus”—especially with regard to the flow of pollutants of all sorts—that the current majority of justices seem willing to ignore.
These conservative justices evidently live in a mental world where private property seems like a fact of nature, where “mine” can be kept safely separate from “yours.” But water lives in a world of connection and continuous flow. Any local well driller could have straightened them out on that reality. Heaven forbid they might call in an engineer or a scientist!
Now in a country that was running well, legislators of both parties would make short work of this decision, recognizing the importance of clean water to ecosystems everywhere and to our own lives every day, and have a new, more carefully worded law ready for you by next Tuesday. That law would recognize that a wetland is not—as some opponents of protection like to say—“every ditch on the farm.” But it would also clearly recognize that wetlands are essential.
Will Lane teaches part time in the Environmental Studies Department at Gettysburg College, hosts the online Green Gettysburg Book Club and is a member of Gettysburg Democracy for America.