After twenty two years as a clean water advocate using the Clean Water Act to protect America's waterways and the communities that rely upon them, it's been a difficult five years watching the White House systematically dismantle that popular and fantastically successful statute. But yesterday, the newly constituted Roberts/Alito/Scalia/Thomas-dominated Supreme Court signaled the worst attack yet -- one that may effectively destroy the Clean Water Act entirely.
Passed in 1970, the Clean Water Act promised to eliminate pollution in America's waters by 1985 by prohibiting unpermitted discharges of pollutants into "waters of the United States." While the statute has fallen short of its lofty goal to end all pollution, it did succeed in ending the dark ages when the Cuyahoga River burned, Lake Erie was declared dead and Americans could not safely fish or swim in our major rivers including the Mississippi, the Potomac and the Hudson. Recognizing that water is a continuum, and that the purposes of the law would be easily circumvented if polluters could simply relocate their discharge pipes into smaller tributaries, drainage ditches and wetlands, the courts have consistently defined "Waters of the United States" broadly to include all tributaries and wetlands that flow into larger navigable waterbodies. Only the most isolated waters that have no hydrological connection to larger water bodies were exempt from federal regulation under the Act.
These longstanding principles are now under ferocious attack by developers and polluters who recognize in the newly-constituted Supreme Court a fresh opportunity to decimate thirty five of environmental protection. The justices' frightening repartee with the attorneys yesterday in two new cases challenging their long-established principles indicates that the right-wing extremists who have overtaken the Supreme Court may now be ready to throw the Clean Water Act out with the dirty bathwater. The right wing justices want to do this by limiting federal jurisdiction to waters that are "navigable-in-fact," i.e., that actually have boat traffic. They wish to cede our nation's tributaries and wetlands back to polluting industries. In the words of a horrified Justice Souter, "All you've got to do is dump the pollutant far enough up the water system to get away scot free."
Deriding the broad scope that has defined Clean Water Act interpretation from two generations, Chief Justice Roberts told the justice department lawyer "you put a lot of weight on the tributary approach. For those of us having trouble with the concept of tributary, you don't give us much to fall back on." Justice Scalia suggested that state governments could elect to protect local tributaries and wetlands from polluters if the court decides that federal jurisdiction over these waters no longer exists.
In fact, experience has shown time and again that polluters can easily dominate state political landscapes, and that state governments are generally willing to abandon enforcement of their own environmental laws in order to recruit polluting industries. Congress passed this federal law recognizing that shortsighted state officials willingly embrace industry's promise of a few years of pollution-based prosperity even when it imposes huge financial, health and quality of life costs on future generations.
This court seems ready to usher back the days of burning rivers, dead lakes and diminished America.