This story originally appeared in Common Dreams on Jan. 25, 2022. It is shared here with permission under a Creative Commons (CC BY-NC-ND 3.0) license.
Environmental advocates and congressional Democrats are raising alarm after the US Supreme Court this week agreed to hear arguments in two cases regarding bedrock regulations designed to protect the quality of the nationâs air and water.
The nine justices announced Monday that they plan to hear arguments in the case of an Idaho couple who were blocked from building a home on their land by the Clean Water Act. According to the Environmental Protection Agency (EPA), Chantell and Michael Sackettâs land contained wetlands and the couple needed a federal permit to build.
The court is also scheduled to hear arguments in West Virginia v. EPA, in which Republican-led states are asking the court to consider whether the EPA has the authority under the Clean Air Act to regulate fossil fuel emissions from coal-fired power plants.
Represented by the right-wing Pacific Legal Foundation, the Sacketts are calling on the Supreme Court to settle on a narrow definition of âwaters of the United States,â one that could have profound implications for numerous industries and regulatory policy in the country.
That case is expected to be heard during the Supreme Court session starting in October, but in just over a month the court is also scheduled to hear arguments in West Virginia v. EPA, in which Republican-led states are asking the court to consider whether the EPA has the authority under the Clean Air Act to regulate fossil fuel emissions from coal-fired power plants.
The right wing-dominated courtâs decision to take up the two cases in the span of just a few months is âthe latest indication that the conservative majority on the Supreme Court is stepping in to assess the limits of the nationâs bedrock environmental lawsâpotentially in ways that hamstring President Bidenâs environmental agenda,â wote Maxine Joselow at The Washington Post Tuesday.
âIt seems like we have a new conservative supermajority on the court that is much more inclined to do a slash-and-burn expedition through our major environmental laws,â Robert Percival, director of the Environmental Law Program at the University of Maryland, told the Post.
In the former case, Sackett v. EPA, the plaintiffs want the Supreme Court to resolve a 2006 case called Rapanos v. United States, which resulted in a 4-1-4 ruling. The court could not reach a majority opinion regarding the definition of the âwaters of the United Statesâ that the Clean Water Act is meant to protect.
Justice Antonin Scalia proposed that only water that has a âcontinuous surface connectionâ to a river, lake, or other waterway should be protected, while Justice Anthony Kennedy created a test to determine if wetlands had a âsignificant nexusâ to other bodies of water, in which case they would be covered by the law.
The Biden administration has already filed a brief in favor of Kennedyâs broader definition of protected waters.
Under Scaliaâs definition, the solicitor general wrote, âagencies would lack authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the riverâs âchemical, physical, and biological integrity.’â
Scaliaâs definition was used to support former President Donald Trumpâs Navigable Waters Protection Rule and has been favored for years by the US Chamber of Commerce and groups representing homebuilders.
It is âimpossible to overstate the impactâ the courtâs adoption of Scaliaâs definition would have on wetlands in the US, said Patrick Donnelly, Great Basin director for the Center for Biological Diversity (CBD), as corporations could be given new authority to build a variety of structures on or through wetlands.
Mark Ryan, a former EPA attorney, told the Post that at least five of the courtâs conservative justices are likely to vote in favor of Scaliaâs interpretation.
As clean water advocates warned of the implications of Sackett v. EPA, nearly 200 Democrats in both chambers of Congress filed an amicus brief in West Virginia v. EPA, calling on the court to rule that the agency is authorized to regulate pollution from power plants.
The lawmakers said the Clean Air Act âmust be read as broadly authorizing the EPA to address new and evolving air pollution problems, including greenhouse gas emissions from existing stationary sources.â
According to environmental lawyers, Justices John Roberts, Samuel Alito, Clarence Thomas, and Brett Kavanaugh are all likely to support curtailing the EPAâs authority.
States including West Virginia and North Dakota are joining two coal companiesâNorth American Coal and Westmoreland Miningâin asking the court to decide whether the EPA can issue climate regulations for the power sector.
According to environmental lawyers, Justices John Roberts, Samuel Alito, Clarence Thomas, and Brett Kavanaugh are all likely to support curtailing the EPAâs authority.
The plaintiffs are âasking the Court to do far-reaching damage to all sorts of ways we protect human life: by regulating food safety, car safety, deadly pollution, and so on,â Vickie Patton, general counsel to the Environmental Defense Fund, told The New Yorker. âThereâs an enormous amount at stake for the American people.â
In another brief, Sens. Bernie Sanders (I-VT), Elizabeth Warren (D-MA), Richard Blumenthal (D-CT), and Sheldon Whitehouse (D-RI) accused the fossil fuel âindustry machineâ of pushing its policy agenda at the Supreme Court. They noted that Exxon Mobil, the American Petroleum Institute, and the Koch family had provided funding to groups that have written amicus briefs in support of the Republican states seeking to weaken the EPAâs authority.
âThe industry-funded and industry-promoted arguments made here⊠would empower and enrich polluting corporations at the expense of public health, welfare, and the environment,â wrote the lawmakers. âThe court should refuse to participate in this industry-driven project.â
On Twitter, Warren accused the fossil fuel industry of asking the Supreme Court to âdo their dirty workâ for them.
âWe must call out when the Court is being used as a political tool for special interests,â said the senator.
Source: Therealnews.com