U.S. Supreme Court decision on Clean Water Act may not jeopardize much actual wetland habitat, but may clarify definitions of what is what
WASHINGTON D.C.––With actions on behalf of wetland and shoreline creatures including octopi, salmon, sea turtles, and horseshoe crabs underway elsewhere around the world and the United States, the U.S. Supreme Court on May 25, 2023 allegedly removed most habitat for such animals from protection by the Environmental Protection Agency [EPA] by redefining the reach of the 1972 Clean Water Act, last amended in 1977.
But how much of the more than 100 million acres of land affected by the Supreme Court decision really should ever have been considered wetlands, either by law or by science?
Wetlands on paper & in reality often differ
That was the whole point of the case.
How much of that land is, or ever was, viable habitat for octopi, salmon, sea turtles, and horseshoe crabs and their evolutionary kin, or even migratory birds for that matter, whose transient presence has long been definitive in legally defining wetlands?
Many conservationists, some humane organizations, and even the Joe Biden presidential administration figuratively rose in arms in opposition to the Supreme Court verdict, having fought for decades to first pass and then uphold the Clean Water Act as it was.
Pigs & foie gras
Yet actually assessing what the Supreme Court decision means to wildlife will take many more years of biological assessment, bearing in mind that habitat “lost” to some species tends to be habitat gained for many others.
The week at the Supreme Court began on a positive note for animals.
Following up a May 11, 2023 verdict upholding a California law that bars imports of pork from other states where pigs are raised in tighter confinement than California law allows, the court on May 22, 2023 refused to hear a similar case brought by foie gras farmers against selling foie gras in California.
Produced by force-feeding ducks and geese, foie gras farming has been denounced as one of the cruelest practices in animal husbandry since the Middle Ages, centuries longer than there has been any organized animal advocacy.
Beaver, otter, muskrat, turtles & alligators
The foie gras case, however, and the global wave of advocacy for octopi, salmon, sea turtles, and horseshoe crabs, were all overshadowed by the May 25, 2023 five-to-four split verdict in Sackett vs. EPA.
Purportedly “gutting” habitat protection for thousands of species, mostly fish, invertebrates, and migratory birds, the Sackett vs. EPA decision also potentially affects mammals and reptiles native to wetlands, including beaver, otter, muskrat, turtles and alligators––if, that is, all of the property previously regulated as wetlands actually functionally exists as wetlands, where wetland wildlife make their homes, as opposed to merely being considered wetlands through a stretch of regulatory definition.
(Pacific Legal Foundation photo)
EPA stopped construction
The Supreme Court majority opinion, authored by Justice Samuel Alito, did not dispute the ecological value of authentic wetlands, and recognized, based on past jurisprudence, that the distinction between wetlands and other land is not always clear.
The challenge to the Clean Water Act enforcement regulations, which are not actually part of the Clean Water Act as adopted by Congress, “was brought by Michael and Chantell Sackett,” recounted National Public Radio court reporter Nina Totenberg, “who bought property to build their dream house about 500 feet away from Idaho’s Scenic Priest Lake, a 19-mile stretch of clear water that is fed by mountain streams and bordered by state and national parkland.
“Three days after the Sacketts started excavating their property,” Totenberg continued, “the EPA stopped work on the project because the couple had failed to get a permit for disturbing the wetlands on their land.”
Sacketts chose to fight instead of seeking permit
Of note is that lower courts and all nine Supreme Court justices agreed that the Sacketts should have been issued a permit to build, since their alleged wetlands on private property were separated from federally protected wetland habitat by a 30-foot-wide road, with only a roadside ditch forming even an indirect connection.
The Sacketts, however, instead of seeking the permit they almost certainly would have been granted, chose to contest the EPA and U.S. Army Corps of Engineers assertion of authority over land not directly part of “The Waters of the United States,” a legal term used to describe navigable interstate waterways and wetlands, including tidelands, that are connected to those waters.
State’s rights
As Totenberg and many other observers see the Sackett verdict, “It was the Supreme Court’s second decision in a year limiting the ability of the agency to enact anti-pollution regulations and combat climate change.”
Reality, though, is that the Sackett verdict, along with the Supreme Court actions favoring the California prohibitions of foie gras and meat from pigs raised in gestation stalls, all reflect the “state’s rights” political lean of the conservative court majority.
Each action is part of a rollback of federal authority that political conservatives have sought since the early days of the civil rights movement, when federal laws were used to desegregate schools and public transportation, and to reduce the influence of the Ku Klux Klan within rural Southern law enforcement and the judiciary.
“Continuous surface connection”
“Writing for the court majority,” continued Totenberg, “Justice Samuel Alito said that the navigable waters of the United States regulated by the EPA under [the Clean Water Act] do not include many previously regulated wetlands.
Rather, he said, the Clean Water Act extends to only streams, oceans, rivers and lakes, and those wetlands with a ‘continuous surface connection to those bodies,’” a reasonable interpretation in view that if atmospheric and subsurface connections are included, all water on Planet Earth is connected somehow.
State vs. federal jurisdiction
The majority Supreme Court position as defined by Sackett vs. EPA is simply that wetlands not linked to “Waters of the United Sates” by a “continuous surface connection to those bodies,” they are under state rather than federal jurisdiction.
This does not mean those wetlands cannot be protected by state or local regulation, as many are, or as legally defined “critical habitat” for federally recognized endangered species, or be protected within National Parks, National Forests, Bureau of Land Management property, or other property owned by the federal government.
“Dirty Dozen” backed the Sacketts
“Organizations representing industries ranging from animal and industrial agriculture to mining, timber, residential development, and fossil fuel filed briefs in support of the Sacketts,” reported Amy Westervelt for The Intercept.
“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.’
Long histories of fighting to pollute
“The Sacketts were represented,” Westervelt continued, “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.”
Most of the organizations Westerveld mentioned have long histories of resisting attempts by any level of government to restrain or redress water and air pollution, soil erosion, and destruction of wildlife and habitat.
Most could be described as not visibly giving a damn about anything except making money, whose funders’ excesses gave rise to the extensions of federal authority under the Clean Air Act and Clean Water Act the Supreme Court has now rolled back.
Habitat is more often transformed than “lost”
At the same time, it is not difficult to find examples of relatively nonsensical applications of both Clean Air Act and Clean Water Act regulations to projects of little or no significant environmental impact, and none, on balance, to wildlife.
If, for example, the Sacketts were to plant fruit trees on the marginal wetlands involved in Sackett vs. EPA, the net effect for migratory birds other than waterfowl would likely be positive.
Waterfowl, meanwhile, were not found to be more than minor transient users of the land in question.
“Significant repercussions”
Noted Totenberg, “Justice Brett Kavanaugh, joined by the court’s three liberal members, disputed Alito’s reading of the [Clean Water Act], noting that since 1977 when the Clean Water Act was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded.
“Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court’s new test will have ‘significant repercussions for water quality and flood control throughout the United States.’”
Time will tell
On the other hand, the U.S. Army Corps of Engineers, formed by Congress in 1802, has held authority to conduct flood control projects since 1927, predating passage of the Clean Water Act by 45 years.
The Clean Water Act still provides for prosecution and substantial penalties for any actions that adversely affect water quality within “Waters of the United States,” such as dumping toxic debris anywhere that washes into “Waters of the United States,” and for requiring permitting for projects with a ‘continuous surface connection’ to “Waters of the United States.”
Only time will tell whether “significant repercussions” result from Sackett vs. EPA, other than political conservatives having one less source of alleged federal overreach to complain about.
(Greg Robbins photo)
At odds with the world
The Sackett vs. EPA decision is somewhat at odds with the direction of public concern in much of the rest of the world, albeit that most of the rest of the world has a much shorter history of instituting significant legal protection of animals and habitat than does the United States.
Panama, for instance, in March 2023 adopted legislation giving sea turtles an explicit right to unpolluted habitat, including negative effects from climate change, incidental capture, coastal development, and tourism.
“What makes the [Panama] law remarkable,” said Associated Press, paraphrasing Panamian environmental lawyer Nicholas Fromherz, ‘is that it explicitly says sea turtles, as living creatures, have rights, and with enough specificity that those rights can be enforced.”
“Panama’s new law,” continued Associated Press, “came after Ecuador’s highest court in 2022 ruled in a case about a monkey kept in a private home that wild animals are rights holders under the constitutional provisions for rights of nature.”
Octopus farm
A separate Associated Press report on May 21, 2023 described a rally in Madrid, Spain, “to protest plans for the construction of an octopus farm, saying there are no respective laws in the country and in the European Union to guarantee the welfare of the animals in captivity.
“The proposed farm,” Associated Press explained, “which aims to breed octopuses on a large scale in captivity, is scheduled to be built next year in the Canary Islands, a Spanish archipelago located in the Atlantic Ocean.”
“Scotland’s biggest salmon farm”
Animal Concern Scotland campaign officer Graehme Corbett, meanwhile, rallied opponents of a once killed scheme to build “Scotland’s biggest salmon farm” on Loch Long, within the boundaries of Loch Lomond national park, after the Scottish government indicated that it might revive it.
“As you know,” wrote Corbett, “Animal Concern has long campaigned against industrial scale salmon farming. In November 2022 we said we had secured a victory against the Loch Long Salmon Company because thanks to pressure from people like us, the Loch Lomond & Trossachs Planning Board rejected their application.
“We didn’t think Loch Long Salmon Company would take that lying down. There was too much money at stake. I’m afraid we were right,” Corbett said.
Horseshoe crabs
Back in the U.S., the Connecticut Department of Energy and Environmental Protection on May 26, 2023 confirmed that it would investigate public concern that spawning horseshoe crabs had been crushed by sand-cleaning equipment at Seaside Park in Bridgeport during preparation for the summer beach-going season.
Horseshoe crabs are recognized as an endangered species. Horseshoe crab eggs are recognized as an essential food source for other protected species including the red knot, the small bird that makes the longest migratory flight of any avian species.
“According to Connecticut’s regulations,” reported Brian Lockhart for the Connecticut Post, “using motorized equipment to groom the sand, as was the case here, is prohibited from mid-May to mid-July specifically to help protect spawning horseshoe crabs.”
Please donate to support our work:
www.animals24-7.org/donate/
Related Posts
Kevin alias “Doc” & “Bhagavan” Antle sentenced for wildlife trafficking
Charreada horse beater Christofer Dorado charged in Joliet, Illinois
Dianne Feinstein, 90, represented animals in the U.S. Senate for 30 years
Why the “green” prescriptions of 1970 have expired today
New Balance to hop out of the kangaroo leather shoe business
Pit bulls kill 2 women, 2 days apart. Small town cares; does Toledo?
Another instance of life being incredibly complicated. If each and every decision were taken contextually rather than politically, we might have a very different scenario. Or not.
Sharing with gratitude.
Actually the California pig decision is bad for the animals. The standard smaller confinements, which are prohibited in California, were sized so that the sows would not be able to crush the baby pigs. Bigger – more crushed pigs.
That’s what the pig farmers say, but several decades ago I lived for a year as a tenant on a free-range pig farm, & for a decade lived near another one. Never did the sows crush the piglets. That was, however, a common occurrence on the much larger pig farms nearby that kept sows in close confinement & often tossed crushed piglets out into their slurry pits.
It should also be noted that gestation crates, which are barely larger than the pigs themselves, are used to hold pregnant sows. There are no piglets around yet to even worry about getting stepped on.
When the pigs give birth, they are moved to a different type of confinement device known as a farrowing crate, which once again disallows the sow from making any kind of normal movement, but includes a space for her belly to protrude for the piglets to nurse.
Factory farming apologists often deliberately confuse the two, claiming that pigs must be kept in iron maiden-like devices at all times to prevent them from crushing their piglets, even when they have not yet given birth!
A+ for this comprehensive and enlightening analysis.
Double A+ for the collage art.