27 May 23
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It's obvious that Alito simply doesn't like the law, so he refashions it to his own liking.
Writing for five justices, Justice Samuel A. Alito Jr. said 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. The decision was a second major blow to the E.P.A.’s authority and to the power of administrative agencies generally. Last year, the court limited the E.P.A.’s power to address climate change under the Clean Air Act.
For the benefit of the strict constructionists in our audience, it should be noted that Alito simply dispensed with the word "adjacent" and that the phrase "continuous surface connection" appears nowhere in the Clean Water Act. Alito simply doesn't like the law, so he refashions it to his own liking. It is spectacularly dishonest even by Alito's standards, which are considerable. Which was obvious even to Kavanaugh, who wrote in a concurrence:
By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “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.
Justice Elena Kagan concurred with Kavanaugh's concurrence, linking it to another, earlier industry-friendly decision that tap-danced on the Clean Air Act.
...the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.
As the Times explains:
The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight because the wetlands on their property were not subject to regulation in any event.)
This bit of dark legerdemain is deeply ominous, Steve Bannon's "destruction of the administrative state" gussied up in judicial finery. The final blow could fall in the next term. In May, the Court agreed to hear a case called Loper Bright Enterprises, et al. v. Raimondo, Secretary of Commerce., et al in which the power of any and all federal agencies to regulate pretty much anything at all. There clearly are five votes right now for a return to the status quo ante of the Roosevelt administration. The Theodore Roosevelt administration, that is.
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Kevin McCarthy. (photo: ABC News)
Republican lawmakers are refusing to raise the debt ceiling unless Democrats accept sweeping spending cuts and expanded work requirements on social programs — an agenda borrowed from a dark money–funded think tank that has pushed to loosen child labor laws.
In doing so, GOP lawmakers are following the agenda pushed by an obscure conservative think tank bankrolled by far-right billionaires and activists that was behind a recent slew of state bills rolling back child labor laws across the country. The effort comes several years after the GOP passed massive, deficit-busting tax cuts benefiting the wealthy and corporations — and as the party pushes to make those tax cuts permanent, at an estimated cost of $3.5 trillion.
In effect, Republicans want to force Americans in poverty to pick up the tab for the tax cuts they gave to their wealthy donors, while giving those donors more vulnerable workers to exploit.
Republicans are attempting to ram through the think tank’s agenda by refusing to raise the debt ceiling, an arbitrary limit set by Congress on how much money the federal government can borrow, unless Democrats accept sweeping spending cuts and expanded work requirements on social programs.
The government is constitutionally required to pay its debts and meet its contractual obligations, and almost every Congress for the past century has voted to raise the debt ceiling without incident. But with divided control of Congress and Joe Biden as president, Republicans want to use the imminent threat of the United States defaulting on its debts and an economic recession as an opportunity to punish the poor.
Last month, House Republicans passed debt ceiling legislation proposed by Speaker Kevin McCarthy (R-CA) that would massively cut government spending on social safety net programs — including Medicaid, food stamps, and cash assistance, known as Temporary Assistance to Needy Families (TANF).
The proposal would subject most Medicaid recipients between the ages of nineteen and fifty-five without dependent children to a work requirement, forcing them to work for at least eighty hours a month or earn a minimum monthly salary to remain eligible. The new requirements likely would cause millions of low-income Americans to lose Medicaid coverage.
The plan would also expand food stamp and TANF work requirements to adults aged forty-nine to fifty-five, which could kick one million people off the food assistance program and more than half a million families off cash assistance.
Study after study has shown that work requirements have no impact on long-term employment outcomes, but they do kick eligible people out of social programs due to administrative burdens and make them poorer.
“When we talk about work requirements, remember, we want to take people from poverty to jobs,” McCarthy told reporters on Monday, adding: “I don’t think it’s right that we borrow money from China to pay somebody that has no dependents, [is] able-bodied, to sit on a couch. What we find is people become more productive.”
McCarthy’s work requirement proposal and his gripes about dependency come straight from the Foundation for Government Accountability (FGA), a conservative think tank that recently made headlines for helping secretly draft several state bills to roll back child labor laws.
One such bill in Iowa would allow fourteen-year-old kids to “perform non-incidental work in meat freezers” and fifteen-year-olds to perform “light assembly work as long as the assembly is not performed on machines or in an area with machines,” NBC News reported. The bill, which has not yet been signed by the governor, “appears to violate” federal labor laws, according to Labor Department officials.
“Work requirements will help get Americans out of dependency and back to work, preserving resources for the truly needy,” said the FGA’s president and CEO, Tarren Bragdon, when House Republicans introduced their debt ceiling proposal. “There has never been a better time to get able-bodied adults back into the workforce.”
Bragdon, a former Maine state legislator, founded the organization in 2011 during the Tea Party’s austerity push as part of the last major debt ceiling standoff, when Republicans demanded significant spending cuts.
One week before Republicans released their current debt ceiling proposal, the FGA released new polling in favor of work requirements. On April 11, the FGA’s polling arm published data showing that more than 70 percent of likely voters support expanded work requirements for cash welfare benefits and food stamps, as well as new work requirements on Medicaid.
The following week, McCarthy proposed expanding work requirements for food stamps and TANF, and imposing new work requirements on Medicaid in his debt ceiling package.
The FGA then put out a white paper claiming that “House Republicans’ proposal for Medicaid and food stamp work requirements will increase the labor force and boost the national economy,” on the basis that “moving just four million able-bodied adults from welfare to work would increase real GDP by an estimated $149 billion.”
Lobbying records show the FGA’s advocacy arm, the Opportunity Solutions Project, started lobbying Congress on work requirements in 2017. In the first quarter of 2023, the group spent $130,000 on lobbying, including on food stamp reform, work requirements, and TANF, according to federal records reviewed by the Lever.
The FGA and its advocacy arm have been bankrolled by right-wing groups in the dark money network built by conservative Supreme Court architect Leonard Leo, and also receive huge money from the family foundation of cardboard box magnate and conservative megadonor Dick Uihlein.
Between 2019 and 2021, Leo’s network contributed nearly $4 million to the FGA and its advocacy arm, according to tax records reviewed by the Lever.
Uihlein’s foundation has contributed nearly $18 million to the FGA since 2014, according to data from the Center for Media and Democracy.
Other major donors to the FGA have included the billionaire Scaife family, heirs to the Mellon aluminum and banking fortune, and DonorsTrust, a donor-advised fund — or pass-through vehicle — long known as conservatives’ “dark money ATM.” (Leo’s network donated $71 million to DonorsTrust in 2021.)
In 2018, the FGA was behind a GOP push to attach work requirements to food stamps — which was passed by House Republicans but failed in the Senate. “Political observers said the inclusion of proposed changes to food stamps was testimony to the FGA’s growing influence in key Republican circles,” the Washington Post reported.
More recently, the FGA and its affiliates have crusaded to eliminate the temporary augmentation of social safety net programs enacted by congressional COVID relief bills — like expanded child tax credits, unemployment benefits, and food stamps.
The FGA noted in its 2021 annual report that it had “leveraged our relationships with governors to help states opt out of the $300 unemployment bonus and build momentum for this federal program to end in September 2021.”
The organization wrote that it had also “capitalized on our work in West Virginia and connections with Sen. Joe Manchin to show 1) the effectiveness of work requirements and 2) how the expanded child tax credit caused dependency, supply chain issues, and inflation problems.”
Manchin, a coal baron turned corporate Democratic senator for West Virginia, reportedly complained to his colleagues that lazy parents would use their expanded child tax credit payments to buy drugs, and demanded that it include a work requirement, before blocking its reauthorization altogether.
Census research found that the expanded child tax credit lifted nearly three million children out of poverty, though temporarily.
This spring, the FGA’s Opportunity Solutions Project was the only group backing legislation in Maine to add work requirements to Medicaid. The FGA also pushed to restart Medicaid redeterminations, or administrative checks on beneficiaries’ eligibility, which often result in people wrongfully losing coverage because they miss a piece of mail. Redeterminations were temporarily paused during the pandemic, but the federal government recently allowed states to start conducting them again.
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The 11-year-old called the police during a domestic dispute. (photo: The Enterprise-Tocsin/Twitter)
The family is calling for the officer to be fired and charged.
Aderrien Murry was following his mother’s instructions by calling 911 in response to a domestic disturbance in the early morning hours of May 20, his mother Nakala Murry told reporters.
The Indianola officer who responded came to the door with his gun drawn, Murry said, and instructed everyone in the home to come outside. She said when Aderrien came around a hallway corner, the cop shot him.
“He kept asking, ‘Why did he shoot me? What did I do wrong?’” she said.
According to the Mississippi Bureau of Investigation, which is investigating the shooting, Aderrien “received significant injuries.” Murry said her son had a collapsed lung, fractured ribs and a lacerated liver and was placed on a ventilator.
Murry’s lawyer Carlos Moore tweeted that the officer who shot Murry, Greg Capers, has been placed on administrative leave. Moore said the family wants him to be fired and charged.
“No child in Indianola should be in this terrifying condition because of the actions of someone who’s allegedly the best cop in Indianola,” Moore said in a press conference. “If he’s your best, Indianola, you need to clean house.”
Indianola police did not comment on the case when reached by VICE News.
According to Mississippi Today, Moore is calling for Capers to be charged with attempted murder and for Police Chief Ronald Sampson to be fired. He’s also calling for body camera footage from the incident to be released. Moore and Murry’s supporters planned a sit-in at Indianola City Hall for Thursday morning
The Mississippi Bureau of Investigation said it is currently gathering evidence.
“Upon completing the investigation, agents will share their findings with the Attorney General’s Office” the agency said in a press release.
Moore told Mississippi Today Capers had previously tased a man in handcuffs in December.
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Activists rallying to defend DACA in Washington, D.C. (photo: Andrew Stefan/RSN)
In addition to lacking health insurance, DACA recipients cited fears around costs and immigration status as barriers, a report first shared with NBC News found.
A report published Friday by the immigrant rights nonprofit group National Immigration Law Center, documenting the findings of a recent survey, finds that 27% of DACA recipients reported not being covered by any kind of health insurance or other health care plan.
The results suggest that of the more than 580,000 young adults without legal status who are allowed to work and study without fear of deportation under the Obama-era DACA program, almost 157,000 are estimated to be uninsured.
The survey was conducted last year with 817 DACA recipients. It was administered by Tom K. Wong, founding director of the U.S. Immigration Policy Center at the University of California, San Diego, with the help of United We Dream, the nation’s largest immigrant youth-led organization, the Center for American Progress policy institute and the National Immigration Law Center.
A previous version of the survey conducted in 2021 found the DACA uninsured rate to be at 34%. Kica Matos, president of the National Immigration Law Center, attributed the slight dip to "a healthier economic climate."
"The last survey was done when we were still in the middle of the pandemic, so we believe that economic trends have since improved ... This likely means there are more DACA recipients that are employed and therefore have access to health care" through their employers, she said.
Of the DACA recipients who reported having health insurance, 80% said they were covered through an employer or union.
But unlike most in America, if DACA recipients lose their job and with that their health insurance, they can’t fall back on federal health insurance programs, which are often more affordable but are only available to those with legal immigration status.
Because being ineligible for federal health insurance contributes to DACA recipients' high uninsurance rate, the Department of Health and Human Services under President Joe Biden proposed a rule that would expand access to health care coverage to them. Research has found that DACA recipients contributed an estimated $6.2 billion in federal taxes every year that help fund such programs.
The Biden proposal calls for the definition of “lawful presence” to be amended to include DACA recipients for purposes of Medicaid and Affordable Care Act coverage.
“It brings up a lot of hope for many of us to be able to have affordable health care access because a lot of the times we avoid going to a doctor,” DACA recipient Diana Avila said. “The thought of how much is it going to cost is what drives a lot of us to not want to go to the doctor.”
The proposed Biden rule hasn't yet been finalized, meaning that DACA recipients’ access to federal health insurance programs is not yet a done deal.
In response to an email from NBC News, the Centers for Medicare and Medicaid Services, which submitted the proposed rule, stated that, “While we cannot speculate on when the rule will be finalized, note that the proposed rule includes a proposed effective date for all provisions of November 1, 2023."
The CMS will be requesting comment from the public until June 23 on the proposed regulations, “and specifically on the feasibility of this date and whether to consider a different effective date," it stated.
Avila, 22, was born in Honduras and has lived in Indiana since she was a 4-year-old, and was 12 when she got DACA in 2012.
Obstacles to health care access
DACA recipients are awaiting the fate of the proposed rule at a time when they are three times more likely to be uninsured than the general population, according to last year's survey.
DACA has helped many eligible young immigrants access better paying jobs and educational opportunities, but that hasn't been the case for all recipients.
"There are still significant disparities in terms of access to health care for this particular population," Matos said.
According to the survey, DACA recipients reported other barriers to accessing health care:
- 57% of respondents believed they were ineligible to access care due to their immigration status.
- 51% reported not being aware of any affordable care or coverage options available to them.
- 21% believed that accessing health care services could negatively affect their immigration status or that of a family member.
Of those surveyed, 71% reported past situations in which they were unable to pay medical bills or expenses.
On top of that, "there are also those memories of families not being able to afford health care and having to deal with bills," Matos added.
Avila remembers growing up in a mixed immigration status family. That meant she and her oldest sibling couldn't access affordable health care while her younger siblings, who were born in the U.S., qualified for care.
As a child, Avila was prone to ear infections, she said. Her mother would use every home remedy possible to evade doctors and hospitals and avoid unaffordable medical costs. In contrast, her younger brothers would go to the doctor more often, even for the most minor of issues.
When Avila was 18, she suffered a concussion while playing soccer at school and needed to visit a specialist. She recalled hesitating to go because she was worried about her and her family's ability to afford the care.
"It's sad to think about that. I considered not getting looked at, taken care of, because of how much it was going to cost," she said.
DACA's uncertainty — and the mental health toll
While DACA has been around for a decade, it's faced legal challenges from the Trump administration and Republican-led states. The program has been closed to new registrants since July 2021 while a lawsuit filed by Texas and other GOP-led states makes its way through the courts.
To improve the chances that DACA will survive legal battles, the Biden administration implemented a rule in October that turned the program into a federal regulation. A federal judge in Texas is expected to rule on the legality of the new rule this year.
"The precarious nature of DACA has brought with it feelings of anxiety, depression and fear related to the future of their status because it's so uncertain," Matos said of DACA recipients.
The new report found that almost half (48%) of DACA recipients who reported experiencing mental or behavioral health issues did not seek care from a mental health professional. The three main barriers were expensive costs, lack of time and limited access to providers able to meet their cultural or language needs.
Avila recently graduated from Marian University in Indianapolis with a degree in psychology and works at a nonprofit organization that serves immigrants.
Despite the uncertainty surrounding DACA, she plans to apply to law school and specialize in immigration law and human rights, hoping that a more permanent solution to her immigration status emerges.
"DACA recipients contribute so much to society that it's time for change," Avila said. "A pathway to citizenship would be the best way to appreciate the work that DACA recipients have been doing since they came to the U.S."
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An employee checks the chamber of an assault-style rifle at a shooting range. (photo: Jewel Samad/AFP)
Campaigners take legal route after success against big tobacco and other industries led to change
In New York, California, Delaware and other states, new laws aim to provide ways around a near 20-year immunity provided to gun manufacturers and distributors. In Indiana, a lawsuit brought by victims of the 2021 mass shooting at a FedEx facility aims to hold a gun manufacturer accountable for the horror wrought by one of its weapons.
Lawsuits like the Indianapolis action, brought by two survivors of the shooting and the family of a man killed, broadly argue that gun manufacturers, gun sellers and gun distributors bear responsibility for gun crimes because of the way they design, market and distribute their products and there is evidence the litigation could work to combat gun violence.
The arguments are similar to some of those brought against car, opioid, asbestos and tobacco industries in recent decades, which led to companies acknowledging the danger of their products and pushed them toward more responsible practices.
Those lawsuits exposed the true extent to which company executives were aware of the harmfulness of their products. Huge financial penalties were imposed which eventually compelled more responsible behavior.
The door was effectively opened for gun litigation last year, when the families of five adults and four children killed in the 2012 Sandy Hook school shooting settled with Remington, which manufactured the AR-15 style rifle used in the massacre, for $73m.
The families argued that Remington had violated a Connecticut trade law by irresponsibly marketing its AR-15 Bushmaster rifle to young, high-risk males, through militaristic marketing campaigns and first-person shooter video games – a similar tactic is seen in the Indianapolis lawsuit.
“Definitely reasonable gun laws need to be passed,” said Philip Bangle, a lawyer representing the FedEx shooting victims.
“[But] that’s a policy issue and that is a different avenue. What we’re trying to do through litigation is just encourage responsible conduct, and make it beneficial for gun manufacturers and dealers to start implementing responsible conduct.”
Lawsuits against gun companies have become rare but in the 1990s a number of them were sued by individuals affected by gun violence and by cities seeing the impact of firearms in neighborhoods.
By 2000 more than 30 cities, and the state of New York, were suing the gun industry, seeking damages and improved gun safety standards.
But that avenue soon closed. Rather than improve their standards, the gun industry, including the National Rifle Association, lobbied hard for protection from such litigation.
That led to the 2005 Protection of Lawful Commerce in Arms Act (PLCAA), which effectively granted gun manufacturers and sellers immunity from lawsuits related to harm “resulting from the criminal or unlawful misuse” of guns.
Unlike other industries, the gun industry was now largely free to act as it chose.
“It would be like if the car industry didn’t have any safety features and then thought that they had this cloak of immunity around them, like the gun industry thinks they do, and just started making things like tanks. Or Formula 1 cars that would fly through the streets,” Bangle said.
“It’s not just acting irresponsibly, like: “We’re selling products, we’re going to make a profit and now we’re going to face some responsibilities so we’re going to make changes’”. It’s: ‘We’re selling a product and now we’ve got a free pass to act anyway we want to make the profit as large as we can.’”
In the last decades, some states have begun to push back against the gun industry’s immunity. PLCAA allows some exceptions for lawsuits when state laws are broken and states including New York and California have used that to allow legal action to proceed.
New York passed a law in 2021 that allows firearm sellers, manufacturers and distributors to be sued by the state, cities or individuals for creating a “public nuisance” that endangers the public’s safety and health. Late last year, Buffalo, New York, took advantage of the new law when it sued gun companies including Beretta, Smith & Wesson, Glock, Remington and Bushmaster “for their conduct in fueling gun violence in the City of Buffalo”.
In April the state of Washington passed a law which similarly cleared the way for lawsuits against gun makers and sellers, while a California law passed in 2022 requires that gun manufacturers adhere to state standards for the safety and marketing of their products, opening the way for lawsuits.
Gun lobbyists are already challenging those laws, and the immunity of gun companies could ultimately end up in the US supreme court. But even if litigation is unsuccessful, it can be beneficial.
Timothy Lytton, distinguished professor at Georgia State University College of Law and editor of the book Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, said litigation can help to push the issue of gun violence to the front of the public’s minds and also “reframe” the discussion of America’s gun crisis.
“Instead of focusing a lot of attention on the criminal shooters or mental health issues this litigation has focused attention on gun manufacturers, in terms of their design decisions, their distribution decisions and their marketing strategies,” Lytton said.
In addition, the litigation process itself could help to expose any egregious or cynical business decisions made by gun manufacturers.
“It compels [gun] industry defendants to disclose information that regulators may not have. The civil discovery system is a powerful way to force companies that do not want to disclose proprietary information to disclose that information,” Lytton said.
“That might include decisions about how they think about gun design, who they think their market is, their awareness of siphoning of their products to illegal markets.”
Lytton said there are comparisons between those lawsuits and the impact of lawsuits on the opioid industry. Victims of opioid addiction – both addicts and their families – began to file lawsuits against opioid companies in the 2000s, Lytton said, as did states and local health departments.
They made the same legal arguments that people suing gun companies are using: that the design, marketing and distribution of opioids was having an impact on people in the US.
“We have now seen both verdicts and settlements in the tens of billions of dollars against pharma companies, they have changed the design of these products, they’ve changed their marketing strategies of these products.
“They’ve scaled back distribution and they police their distribution channels of these products. They’ve completely revolutionized the way they do business with regard to opioids and essentially taken responsibility for a large-scale, nationwide crisis in public health.”
The Giffords Law Center, which was founded by Gabby Giffords, a former Arizona congresswoman who was shot in the head in a shooting that killed six people in 2011, is among the groups that has worked with shooting victims and states to enhance people’s ability to sue the gun industry.
“Guns are the only consumer product that’s not regulated,” said Adam Skaggs, chief counsel and vice-president at the Giffords Law Center.
“Folks that are trying to treat the gun industry just like any other industry. They’re not trying to single it out for special negative treatment or to impose higher standards on the gun industry than any other industry,” Skaggs said.
“There’s simply an effort to say: guns are a product, like cars, like medicine, like cigarettes, and we should have the same tools at our disposal to confront abuses within that industry.”
There is a long way to go, but if lawsuits can have the same impact as litigation against opioid companies, it could be a great leap toward creating something approaching safer gun use in the US.
“People are losing their lives at the same time that the industry is cashing in record-breaking profits. And so these cases are incredibly important,” Skaggs said.
“It’s important that lawsuits achieve judgments, that they win punitive damages awards against companies that are established to be engaging in unlawful and unethical business practices. Because it’s that financial incentive that leads companies to change their behavior,” he said.
“But it’s also important that these lawsuits are used to shine a light on the business practices and the decisions that these companies have made.”
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The arrest of Stuardo Campo. (photo: Guatevision)
Stuardo Campos was formerly an anti-corruption prosecutor in the country during the administration of former President Jimmy Morales. It was not immediately clear whether the accusations pertain to his current position or the former.
The complaint against Campos was made by the far-right Foundation Against Terrorism, a group that started out defending military officers accused of war crimes, but has also targeted members of the justice system who worked corruption cases.
“This complaint is spurious,” Campos said. “I know that my work as an anti-corruption prosecutor earned me animosity in a lot of sectors.”
Campos was known for an investigation related to a government highway project during the Morales administration. A number of officials from that administration were arrested when repeated landslides and other problems were blamed on poor construction.
In recent years, a number of prosecutors and judges who handled anti-corruption cases have been investigated and charged. Many of them have fled the country to avoid prosecution by an Attorney General’s office the United States government and others have accused seeking revenge against members of the justice system.
More recently, as the lead prosecutor of migrant crimes, Campos was credited with dismantling migrant smuggling rings and oversaw the first extradition of Guatemalans to the U.S. accused of migrant smuggling.
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A bull moose in a wetland. (photo: Encyclopedia Britannica)
Industries ranging from animal agriculture to mining to fossil fuel rallied in support of the Idaho couple behind Sackett v. EPA.
The case was filed by a wealthy Idaho couple, Michael and Chantell Sackett, who were annoyed that they were required to get a special permit from the Environmental Protection Agency to build on their land because of its proximity to Priest Lake. The Sacketts’ land contains wetlands, but because the wetlands are separated from the lake by a road, they argued the permit was unnecessary. It’s almost certain they would have gotten the permit had they applied, but they opted to sue instead. The court took the Sacketts’ case as an opportunity to open up a broader discussion about what exactly the Clean Water Act is meant to protect, changing the law completely and removing protections from any wetland not immediately connected to a body of water.
Even Justice Brett Kavanaugh, who broke with his conservative colleagues, accused the majority of having effectively “rewritten” the Clean Water Act, which was originally passed in 1972 and updated in 1977.
“Since 1977, when Congress explicitly included ‘adjacent’ wetlands within the act’s coverage, the Army Corps has adopted a variety of interpretations of its authority over those wetlands — some more expansive and others less expansive,” Kavanaugh wrote. “But throughout those 45 years and across all eight presidential administrations, the Army Corps has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a man-made dike or barrier, natural river berm, beach dune, or the like.”
In the majority opinion, written by Justice Samuel Alito, the court applied a new interpretation of the word “adjacent,” removing protections for any wetlands that are not immediately adjoining lakes, streams, rivers, or oceans, which will have a profound impact on coastal communities around the country. “Wetlands are essential for protecting disadvantaged communities, which are often in low-lying areas, from flooding,” Nick Torrey, senior attorney with the Southern Environmental Law Center, said. Torrey added that wetlands are also critical to the many fishing businesses in the southeast, where he practices. “We have a saying: No wetlands, no seafood,” he said.
“The court’s approach today was to disregard several decades’ worth of precedent interpreting the Clean Water Act,” Sam Sankar, senior vice president at Earthjustice, said. For the past 40 years, the court has interpreted the word “adjacent” to mean what it does to everyone else; in this ruling, five justices said “well actually” adjacent means adjoining, so if there is anything in between a wetland and the water, that wetland doesn’t need to be protected.
It’s not a decision underpinned by science, but rather a legal invention known as the “clear statement rule,” a term the justices use when they want to assert their power to ignore Congress’s wishes and interpret the law solely as written. “The court is increasingly using the clear statement rule to narrow laws written years ago by Congresses that sought to create environmental protections like the Clean Water Act,” Sankar said.
In her dissent, Justice Elena Kagan wrote that the majority used the clear statement rule as a “thumb on the scale for property owners — no matter that the Clean Water Act is all about stopping property owners from polluting.” Referring to conservative justices’ reliance on the rule to weaken environmental regulations, Kagan added, “These pop-up ‘clear statement’ rules give the court a way to cabin the anti-pollution actions Congress thought appropriate by appointing itself as the national decision-maker on environmental policy.”
The clear statement rule is a close cousin of the “major questions doctrine,” another bit of legalcraft that the court has increasingly used to gut regulations on industry. “The Supreme Court maybe invoked it only five times in its whole history before 2021, in cases that were actually quite exceptional,” Richard Revesz, dean emeritus at New York University School of Law and administrator of information and regulatory affairs at the U.S. Office of Management and Budget, said. “But in the last couple of years, it’s a doctrine that’s been invoked promiscuously by opponents of regulation and the court has shown great interest in embracing it. It basically says if an agency decision is going to have vast economic or political significance, it needs to be authorized explicitly by Congress.”
The court invoked the major questions doctrine last year in West Virginia v. EPA to curtail the EPA’s ability to regulate greenhouse gas emissions from power plants. Now in Sackett v. EPA, it has invoked the clear statement rule to apply a narrower interpretation of the Clean Water Act than Congress intended. It’s an interpretation that benefits not only the wealthy couple who brought the case, but also polluting industries. “Mining, oil and gas, development, anyone that pollutes, and a whole lot of them joined or sent in separate briefs in support of the Sacketts,” Jon Devine, director of federal water policy for the Natural Resources Defense Council, said.
Organizations representing industries ranging from animal and industrial agriculture to mining, timber, residential development, and fossil fuel filed briefs in support of the Sacketts. Dark-money-funded anti-regulatory organizations like the Cato Institute, Americans for Prosperity, the U.S. Chamber of Commerce, and the Atlantic Legal Foundation also weighed in on the couple’s behalf. Supporters of the case cheered the ruling as a “win for property owners.” The Sacketts were represented by the libertarian law firm Pacific Legal Foundation, which counts the Koch-funded Donors Capital Fund as well as Searle Freedom Trust, Exxon Mobil, and the Sarah Scaife Foundation among its donors.
According to Sankar, the ruling represents an end run around the legislative process; these interests have been trying to weaken the Clean Water Act for years. “This ruling is the result of a decades-long push by many of these industries,” he said. “They couldn’t cut back on the Clean Water Act by persuading Congress. They tried and failed. … But they succeeded in building a judiciary willing to take this kind of action to rewrite the laws when they’re not able to do so legislatively. What the court has done is rewrite the law in an extraordinarily aggressive way, going beyond even what the Trump administration would have done.”
The Trump administration’s proposed “Waters of the United States” rule would have stripped protection from about half as many wetlands as the Supreme Court’s Sackett ruling did.
In the wake of the decision, environmental advocates are calling on Congress to make explicit that these wetlands are covered by the Clean Water Act. “The court has spoken and now we need to look at ways to restore these protections,” Jim Murphy, director of legal advocacy for the National Wildlife Federation, said. “The primary way is to go back to Congress and have them make clear through legislation that these protections are in place as they were intended to be.”
Murphy said that shouldn’t be a hard sell, as clean water tends to be popular with voters. “Seventy-five percent or so of Americans support strengthening the Clean Water Act across the board,” he said.
States can also act to safeguard wetlands within their borders, thus protecting clean drinking water and improving flood protection for residents. “States are already authorized by federal law to protect more than the limited number of wetlands that the Supreme Court now allows,” Devine said. But nearly half of U.S. states have opted instead to follow the Clean Water Act, so wetlands that are no longer protected due to the Sackett ruling are not protected by those state governments either. Those laws can be changed, but it will take time. “We’re going to need to engage in that fight,” Devine said. “We can’t take as acceptable the gross loss that this opinion would allow.”
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