Clean Water Act under attack

It looks like some of Bush’s “friends” are calling in their markers.

The Supreme Court is set to begin to hear arguments in two cases challenging the scope of the Clean Water Act. Two Michigan property owners want to develop land that is protected under the act. One has been said to call enviromental regulators “Nazis”, and has tried to circumvent the law.

One landowner, John Rapanos of Midland, Mich., filled 50 acres of wetlands with sand in the 1980s so he could offer the property for sale to a shopping mall developer. The land is 20 miles from Saginaw Bay but is linked to it by ditches and streams. Rapanos was convicted in 1995 of a criminal violation of the Clean Water Act and could face a prison sentence if the Supreme Court rules against him.

If the Court rules against the Clean Water Act then as little as 50% -or as much as 99% according to the quoted article- of Americas navigable waters would lose their protection against pollution.

Federal authority would extend to “virtually every body of water in the nation — every brook and pond, every dry wash — that has any connection with navigable waters, no matter how remote,” warned a coalition of water suppliers, farmers and the states of Alaska and Utah in one of more than 50 briefs filed with the court.

…Federal agencies would be powerless to prevent “the discharge of sewage, toxic pollutants and fill into … the large majority of our nation’s rivers, streams and other waters,” said clean-water agencies from two-thirds of the states, including California.

The landowners are challenging the federal government’s jurisdiction over their property.

“This case is about the federal government overstepping its authority, not about whether our water will be clean,” said Rapanos’ lawyer, Reed Hopper of the Pacific Legal Foundation in Sacramento. If federal authority was limited, he said, wetlands would still be “subject to vigorous protections imposed by states.”

Of course, if this guy sells his land to someone who just happens to poison the water that’s just on his land then he’s also polluting the water my children and I will potentially absorb by running through the rain (can’t do that anymore, I guess…hmmph). Or how about the fish that we eat, because that same pollution will eventually make it to the lakes and oceans where we get our water-living feasts. So, we decide to stop eating fish, ok. Then we must also stop eating all other kinds of meat because those animals have potentially drunk from the dirty stream, river, or even pond- unless you can guarantee that some of those polluntants don’t go into the air when that water evaporates and then promise me it won’t fall into those animals’ watering holes. Does his rights as an individual landowner trump the rights of the citizenry as a whole?

Ecologically, wetlands serve multiple functions: They filter pollutants from storm runoffs, limit flooding by absorbing water from heavy rains, and provide habitat for fish and wildlife.

If the Clean Water Act, which protects navigable waters, is interpreted to allow widespread degradation of wetlands, “it would be like saying you cannot cut down a tree, but are free to poison its roots,” said attorney James Murphy of the National Wildlife Federation, one of numerous conservation groups taking part in the case.

Of course, it’s just like the Bush-bots to refuse to see the potential to destroy the enviroment which their grandchildren will eventually inherit. Why not? They’ve done so much future damage already, why not make everyone live in a bubble and suck their own sweat through a tube like they do in Dune.

The legal arguments in the briefs pit two recent Supreme Court precedents against each other. In a 1985 California case, United States v. Riverside Bayview Homes, the court observed that Congress had intended “to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” Referring to the role of wetlands in protecting larger waterways, the court said that activity in wetlands abutting open waterways could be controlled by the corps.

In this case, the government argues that the court should extend the authority of the corps to wetlands abutting tributaries of actually navigable waters. The constitutional lever through which the control is exercised is the Commerce Clause, which provides for federal control both over direct avenues of commerce â€” like waterways crucial to trade â€” and over issues that “substantially affect” interstate commerce.

In 2001, in an Illinois case, Solid Waste Agency of Northern Cook County v. United States, the court said the corps overreached its legal and constitutional authority by claiming control over an isolated quarry. The quarry had filled with water and was used by migratory birds, which are protected under federal law. The court ruled that there had to be a “significant nexus” between the regulated wetland or stream and true “navigable waters.” If not, regulation of the water body fell to the state.(source-NY Times)

Some states say they don’t have the resources to protect the water by themselves. Also, they could potentially be affected by states that allow pollution of waterways and wetlands, while they have restricted destruction and pollution of their own water.

This is Alito’s first case on the bench (of the SCOTU), but he was part of the appeals court “that rejected a federal agency’s water cleanup plan and limited private citizens’ ability to challenge water pollution under the Clean Water Act.” Luckily, the EPA and many other enviromental groups are weighing in on this. Unluckily, Bush made it obvious in 2001 that he wanted limited federal power in regulating the nation’s water supply. The articles didn’t say whether he (or his buddy, Gonzales) are going to file a brief with the Court. It’s unclear of how this will turn out.

I’m hoping, for all of us, that they have enough sense to see that granting two lowly developers permission to pollute their own land is to deny us the right to live in a safe enviroment. What’s good for the corporation is not necessarily good for the world.

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