[HN Gopher] Half of US wetlands lost federal protection. Their f...
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Half of US wetlands lost federal protection. Their fate is up to
the states
Author : DoreenMichele
Score : 137 points
Date : 2023-06-27 21:45 UTC (1 hours ago)
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| senojsitruc wrote:
| [flagged]
| renewiltord wrote:
| Remember: regulations are written in blood.
| SalmoShalazar wrote:
| I'm not going to remember this because it's nonsensical. Care
| to elaborate?
| kneebonian wrote:
| Do you have a script dude. You seem to have this same comment
| on almost every thread that has anything to do with law.
| neverartful wrote:
| I'm all for protecting true wetlands, but I'm aware of a specific
| instance in my county where a 'wetland' is nonsense. My friend
| owns rural property that was once mined for coal (not surface
| mining). He has sinkholes on his property from the former mine
| shafts. There is a sinkhole that straddles his property line with
| his neighbor and this sinkhole is from a former mine shaft. The
| sinkhole has never been filled in and being a low spot collects
| water. The state's railroad commission who has done some sinkhole
| mitigation work won't touch it because it's been classified as a
| wetland. Asinine.
| Somatochlora wrote:
| Sounds like a wetland to me. You can argue that artificially
| created wetlands shouldn't qualify for protection but that
| doesn't seem obvious to me.
| whythre wrote:
| Now he doesn't have to argue anything because the EPA's broad
| interpretation of the law was overturned.
| tutorialmanager wrote:
| Reasonable people can debate weather or not a sinkhole filled
| with water is a wetland. The EPA overstretched it's authority
| and calls these things navigable waterways and that's what
| this lawsuit is about.
| justrealist wrote:
| The title is kinda deceptive in that those lands weren't under
| federal protection until relatively recently when the EPA claimed
| jurisdiction over all lands which occasionally touched something
| that was wet.
| TaylorAlexander wrote:
| I suppose it's open to interpretation whether that is
| deceptive. It seems like it's accurate even if there is other
| context. Personally I'm in favor of pretty broad federal land
| protections.
| hoosier_daddy wrote:
| [flagged]
| throwway120385 wrote:
| Same here. Especially as the alternative of waiting for
| damage to be done has historically meant that the water is
| entirely undrinkable for generations and the mining or oil
| company has bankrupted itself and the owners have skipped
| town.
| sacrosancty wrote:
| [dead]
| scythe wrote:
| >Personally I'm in favor of pretty broad federal land
| protections.
|
| I'm generally in favor of broader protections than the Court
| permitted with this decision. However, determining what
| policies are appropriate is simply not in the remit of the
| Court. SCOTUS determines what the law says, not what it
| _should_ say.
| zdragnar wrote:
| As much as I love protecting wetlands generally, I am personally
| familiar with the extent to which they can apply unreasonably. I
| wouldn't be surprised if much of these wetlands were in fact
| "wetlands".
|
| In any case, if the EPA can no longer protect land that Congress
| hadn't actually authorized it to protect, then let's get
| something in Congress that better fits the bill.
| MarkMarine wrote:
| Congress specifically wrote the law to protect wetlands. The
| issue of "wetlands" as you put it actually came up while
| congress was drafting the laws, and congress specifically wrote
| the law to cover them. The Supreme Court just ignored this
| because it felt like it.
|
| https://crsreports.congress.gov/product/pdf/R/R44585
| LastTrain wrote:
| Well then they should have written the law better.
| JumpCrisscross wrote:
| > _issue of "wetlands" as you put it actually came up while
| congress was drafting the laws, and congress specifically
| wrote the law to cover them. The Supreme Court just ignored
| this because it felt like it_
|
| This is a bad reading of the opinion. Wetlands were broadly
| undefined in statute.
| ceejayoz wrote:
| > Wetlands were broadly undefined in statute.
|
| Probably not because "oops we forgot", but "we want
| regulators to handle the specifics".
| mullingitover wrote:
| Statutes are frequently written in vague terms with the
| intent of having the executive branch make a reasonable
| interpretation, e.g. the rule-making body says "The park
| shall be kept clean and well maintained," and the executive
| branch comes up with their interpretation.
|
| Problems can arise when people with wealth and money at
| stake take issue with the executive branch's
| interpretation. They can do things like take judges on
| vacations, get into beneficial financial transactions with
| them, and do expensive favors for them or their family
| members. Then, when those people end up with cases before
| the Supreme Court, because there are absolutely no
| enforceable ethics rules, the justices conveniently
| discover that there are _principles_ at stake.
| barney54 wrote:
| Here, Congress said they were regulating the "navigable
| waters." If they wanted to regulate wetlands, they should
| have said so in the text of the law. Congress didn't say they
| wanted to regulate wetlands in the text of the law.
| jandrese wrote:
| Honestly the mistake of the original law was to limit it only
| to "navigable" waters, because the land does not have two
| different water systems. Most water ends up in a navigable
| body at some point. If someone is dumping mine tailings in a
| river but is told to stop so they switch to dumping them in
| the creek that feeds the river then nothing has been solved.
| TheRealPomax wrote:
| _and the president_ because what one can take away, another can
| regrant. All Biden needs to do is go "actually no these are all
| protected again".
| joecool1029 wrote:
| US law does not function like this. Federal agencies are
| authorized to operate under authorizing law passed through
| Congress. A president can only direct an agency to allocate
| resources to do something under existing law (Executive Orders
| are not new law, they are instructing an agency to enforce or
| not enforce existing law). Agencies are given some latitude in
| how to create Rules that function under the authorizing Law,
| but they aren't Law.
|
| If the Supreme Court says they don't have authorization under
| an existing law, Congress needs to pass new law that authorizes
| them to regulate it. President cannot direct them to write a
| rule to cover a condition it is not authorized to cover.
|
| This issue also gets a bit more complicated since states could
| also file suit and escalate to the supreme court again that
| federal government should not have powers to regulate certain
| bodies of water inside the states. I don't know how this ruling
| will affect any new legislation that may get passed.
| ars wrote:
| This quote is just stupid: "Where the Supreme Court is tying the
| hands of the federal government". Congress could, if they
| actually wanted to, pass a law that would regulate these lands.
|
| All the the Supreme Court did is rule that, at least so far,
| congress has not done so.
|
| And yet somehow this is the Supreme Court's fault.
| CalChris wrote:
| Congress passed the Clean Water Act which literally included
| "estuarine zones". The Supreme Court cynically said Congress
| hadn't meant wetlands with that synonym. So yeah, the Supreme
| Court or Alito, Roberts, Thomas, Gorsuch and Barrett are at
| fault.
|
| BTW, the opinion literally quotes the term "estuarine waters"
| which is a phrase never used in the Clean Water Act. Basically,
| the majority opinion is lying.
| infamouscow wrote:
| The people upset about this ruling are only upset the ruling
| didn't go in their favor.
|
| They'd be perfectly happy if it went differently. Which is to
| say they are angry we have checks and balances.
|
| Those finger pointing, whining, and complaining are just angry
| fools playing defense for their elected representatives who
| utterly failed to pass relevant laws.
|
| They only have themselves to blame.
| HWR_14 wrote:
| Congress did in fact change the law to specify that those areas
| were regulated. In the past. After the last time people
| complained that it should only be surface connections they
| changed the law to make it more explicit that was not the
| intent. The Supreme Court completely ignored that.
| ars wrote:
| > The Supreme Court completely ignored that.
|
| Yah, sorry, but I don't believe you. The Supreme Court just
| doesn't do that.
|
| Let me see some sources to support what you are saying.
| justrealist wrote:
| It is simply not true that congress revised this law.
| munk-a wrote:
| Watersheds aren't a local resource - they're a regional resource.
| This decision made no sense to begin with since, for instance,
| Vermont acting like a bad neighbor will cause environmental
| devastation in Massachusetts, Connecticut and New York - water
| sheds very rarely stay neatly within state boundaries. This
| becomes an even bigger issue when you look at the Mississippi -
| mining in North Dakota can cause issues in Louisiana.
|
| I do hope that states can work together to protect the
| environment but it does seem likely to become a partisan issue.
| lostlogin wrote:
| > Watersheds aren't a local resource - they're a regional
| resource.
|
| I'd go even further than that. Lots of migratory birds and
| animals use them.
|
| It's pretty amazing being around when the mega flocks of birds
| land.
| detourdog wrote:
| I live in a area of Massachusetts and one side of the hill
| sheds to the Long Island sound and the other side sheds water
| to the Hudson.
| detourdog wrote:
| I forgot to mention about 5 years ago just before we sold
| the family farm in Central Pennsylvania. We received a
| notice that we had to start creating a management plan for
| the manure. We were in the Chesapeake watershed. The farm
| was sold and a hospital built on top of it all...
| ars wrote:
| > This decision made no sense to begin with since
|
| Again, if Congress wanted to fix this, they have the authority.
| The decision simply said they have not yet actually done so.
| ceejayoz wrote:
| They also have had the authority to fix the supposed
| misinterpretation of their intent for decades, and have not.
|
| Meanwhile, Congress watches the Court strike down significant
| parts of things like the Voting Rights Act.
|
| There's little reason to believe the Court couldn't possibly
| have struck down a "fix" on some other premise.
| rootusrootus wrote:
| Congress basically has all the power. They could just tell
| SCOTUS to piss off. Maybe that's why so many people are
| happy to see the gridlock and dysfunction. Heaven help us
| if too many congresspeople really agree on something.
| thomasahle wrote:
| I'm trying to understand if the people saying "congress can
| just fix this" every time the supreme court makes a ruling,
|
| a) Don't agree that congress is blocked and is never going to
| pass anything.
|
| b) Care more about the legalities than the issues themselves,
| and so don't really care about whether there is a plausible
| way through congress.
|
| c) Are making a cry for help for everyone to come together to
| fix congress. Hoping that if things get bad enough, people
| will finally wake up and get congress working again.
|
| d) Trust that the supreme court will vote in their favour,
| and are just concern trolling / trying to distract their
| political opponents by referring to congress.
|
| Let me know if I missed any other options.
| peyton wrote:
| b). The US government is really big and powerful, so it's
| more important to me the system is working as it should
| than any single issue be resolved.
| zdragnar wrote:
| The "so..." clause in (B) is irrelevant. Any solution that
| doesn't pass conditional muster is temporary, at best.
| Relying on unconstitutional measures to enact the change
| you want invites unfortunately measures to enact changes
| you don't like.
|
| The _only_ way to address the issue is to do so legally.
| detroitcoder wrote:
| It is often:
|
| e.) Want to limit the federal executive branch of
| government which some believe has grown too powerful.
| rootusrootus wrote:
| My vote is c. Though hopefully things don't get so bad that
| we just exclude the SCOTUS from the process. IMO that's a
| possibility if we continue to rely on them to be the
| effective source of law.
| ars wrote:
| None of the above.
|
| e) stop complaining about the Supreme Court rulings going
| against their desire, and complain to Congress instead.
|
| You have a subtext in all your options that gates all your
| options on what (a person thinks) _should_ happen. For
| example "whether there is a plausible way through
| congress".
|
| None of your options simply leave that concept entirely
| out. The reality of a law simply does not care on what you
| feel the law _should_ be.
|
| I see it all the time people complain "if you rule this way
| then xyz will happen", which is so completely irrelevant I
| don't see why they even mention it. A ruling is based on
| what _IS_ passed not what output you want.
|
| Legislature on the other hand is all about what _SHOULD_ be
| the result.
| swsieber wrote:
| > c) Are making a cry for help for everyone to come
| together to fix congress. Hoping that if things get bad
| enough, people will finally wake up and get congress
| working again.
|
| If we try to rely on the Supreme Court to fix things
| without fixing congress, the Supreme Court is going to
| become way more dysfunctional too.
| pitaj wrote:
| > Last month, a U.S. Supreme Court decision struck down federal
| protections for wetlands covering tens of millions of acres
| across the country, leaving no regulation of those areas in
| nearly half the states.
|
| Is this even true? I thought they only limited the definition of
| adjacent to a surface connection.
| HWR_14 wrote:
| Most wetlands are connected via subsurface connections. About
| half.
| throwway120385 wrote:
| Which makes sense because water flows underground.
| JumpCrisscross wrote:
| It also makes it impossible for someone to decide _ex ante_
| whether your property is a wetland, a problem with the
| current process SCOTUS called out. Namely, the government
| wouldn't tell you if your property was a wetland until
| after it thought you'd violated the law.
| saalweachter wrote:
| Is this really the case?
|
| I can look up a map of what the State and Federal
| government consider a wetland on my property. If I need
| to do eg construction within 100 feet of such an area on
| the map, I'm supposed to call in the local DEC and they
| -- for free -- come in and tell me the boundaries of the
| wetland based on local vegetation.
|
| Isn't that how it works everywhere?
| JumpCrisscross wrote:
| > _Is this really the case?_
|
| Yes.
|
| The Army Corps of Engineers "controls permits for the
| discharge of dredged or fill material into covered
| waters... The costs of obtaining such a permit are
| 'significant,' and both agencies have admitted that 'the
| permitting process can be arduous, expensive, and long.'
| ...Success is also far from guaranteed, as the Corps has
| asserted discretion to grant or deny permits based on a
| long, nonexclusive list of factors..."
|
| https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.p
| df
| gman83 wrote:
| I don't understand how the Supreme Court came up with this
| "continuous surface connection" definition. Can they just make up
| such definitions on their own?
| sacrosancty wrote:
| [dead]
| xyzzyz wrote:
| The recent decision didn't so much "strike down" the protections,
| but rather ruled that the relevant law does not apply to the
| wetlands the EPA used to apply it to. There was previous ruling,
| which according to SCOTUS, was erroneous, and so it reversed it.
|
| This is perfectly reasonable if you look at the original law and
| intent behind it, and the wetlands the federal agency no longer
| can claim control over. The original law was passed to protect
| the "navigable waters of the United States". The agency claimed
| that wetlands around random creek flowing into a lake are
| covered, because there is a "significant nexus" between it and
| some navigable waters, somewhere. If you disagreed, tough luck,
| your best option was to appeal to the same agency, making it both
| judge and prosecutor in the same case, and in any case is not a
| practical option for a random person without deep pockets, who
| just want to build a house on a lake.
|
| The ruling said that when the law says it applies to navigable
| waters of United States, you can apply it only to waters or
| wetlands that actually are navigable for purposes of interstate
| commerce, or are so connected to these waters to be practically
| indistinguishable. This is perfectly reasonable: if given
| wetlands are not connected to interstate navigable waters, why
| should they be under federal jurisdiction in the first place,
| especially given the plain language of the relevant law? If the
| state wants to protect its own waters and wetlands, it's
| certainly free to do so.
|
| Now, I believe that federal government could actually argue that
| the random wetlands actually can be under its jurisdiction, if
| they affect the water in other states, eg. through ground water
| flows etc. However, they will need to pass a new law to assert
| that, instead of leaning on old law that clearly did not mean to
| cover this.
| 2OEH8eoCRo0 wrote:
| > they will need to pass a new law to assert that
|
| Exactly. The law as written was misinterpreted. Write a new
| law.
| winter_blue wrote:
| Congress has been deadlocked for 121/2 years (i.e. since
| January 2011) due to the Senate filibuster. Don't expect any
| non-budgetary law to be passed until the filibuster1 is gone.
|
| Since Congress is in a comatose state, executive branch
| agencies have come to rely on _Chevron deference_ and related
| doctrines, and the people on the courts to expand executive
| branch authority.
|
| 1 the repeal of which Sinema and Manchin blocked; so its
| repeal is contingent on Democrats winning a few more Senate
| seats
| nostromo wrote:
| This is false. Congress continues to pass a record number
| of bills, and often does so with broad bipartisan support.
|
| https://en.wikipedia.org/wiki/List_of_acts_of_the_117th_Uni
| t...
|
| The current situation is not at all special.
|
| Every president since the founding has probably felt
| tempted to become a dictator and work around congress --
| thankfully we have the court system to (usually) shut them
| down.
| willcipriano wrote:
| They won't because their donors and friends don't want one.
| So all you'll get is impotent complaining about the supreme
| court.
| EMCymatics wrote:
| You could argue that it was the same for roe.
| EMCymatics wrote:
| They really should but it will be difficult to fund.
| bcrosby95 wrote:
| > Now, I believe that federal government could actually argue
| that the random wetlands actually can be under its
| jurisdiction, if they affect the water in other states, eg.
| through ground water flows etc. However, they will need to pass
| a new law to assert that, instead of leaning on old law that
| clearly did not mean to cover this.
|
| You can also raise the counterpoint here: 45 years of precedent
| says they're included, and if you don't like it, pass a law
| saying it doesn't.
| zdragnar wrote:
| Congress shouldn't have to constantly pass laws just to tell
| the executive branch that they are abusing their powers.
| That's what the judiciary is for.
|
| My uncle has a small stream running through his back yard,
| counted as "navigable water" despite the fact that I could
| jump across it as a child and it wasn't deep enough to
| support anything but a paper boat.
|
| I'm also not saying we shouldn't have protections for the
| environment, but loose interpretation of rules is how you get
| corruption and abuse.
| cmh89 wrote:
| > That's what the judiciary is for.
|
| Right, and the judiciary has 45 years of precedent that the
| wetlands are included. This radicalized illegitmate SCOTUS
| just threw out the protections because their corporate
| owners benefit from it.
| loeg wrote:
| I don't know why you say this doesn't "strike down"
| protections. Isn't this exactly what "striking down" means, in
| the context of the US judicial system?
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