0:00:00.1 S?: We'll hear argument first this morning in case 101062, Sackett versus the Environmental Protection Agency.
0:00:10.4 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Sackett v. EPA. The ruling is from the current term and continues the Court's campaign to dial back regulation.
0:00:27.8 S?: Well, the Supreme Court has issued an opinion in the case of a family whose push to build a new house on wetlands was said to have violated the EPA's Clean Water Act, and the Justices ruled in the family's favor, weakening the water pollution laws.
0:00:43.4 Leon: The Court could have stopped at ruling that the building project could go forward, but instead the conservative majority went further, and used the case to narrow the definition of wetlands, putting an entire swathe of waterways and ecosystems at risk. This is 5-4, a podcast about how much the Supreme Court sucks.
0:01:07.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have banned our civil rights like Twitter banning its bravest and coolest posters.
0:01:18.5 Rhiannon: Salute.
0:01:19.2 Michael: That's right. [laughter]
0:01:20.5 Peter: I'm Peter, I'm here with Michael.
0:01:23.7 Michael: Hey, everybody.
0:01:24.5 Peter: And Rhiannon.
0:01:26.4 Rhiannon: Hi.
0:01:26.7 Peter: Old news at this point.
0:01:27.9 Rhiannon: Michael was banned from Twitter.
0:01:29.8 Michael: Yeah.
0:01:29.8 Peter: But it's the first time that Michael has been back on the podcast since being banned from Twitter for making an anti-Semitic comment.
0:01:41.5 Michael: It's... I mean, I guess technically, yes, that's true.
0:01:43.4 Peter: Technically true. Now, Michael is Jewish and was doing it satirically, which on Elon Musk's Twitter is unacceptable, you need to be genuinely anti-Semitic or you're out.
0:01:56.9 Michael: That's right.
0:01:58.1 Rhiannon: Yeah. They're coming down really hard on fake anti-Semitism.
0:02:01.4 Michael: Yeah, that's right.
0:02:02.1 Peter: They don't want the actual Nazis to be undermined, and that's important.
0:02:07.6 Peter: To be clear, Michael did one of those things where you're imitating someone stupid and you say something offensive and then you end it with, I'm a very smart person, 'cause you're doing an imitation of them as a dumb asshole. When you see that I'm a very smart person, you know the person's doing satire, but some fucking 23-year-old Proud Boy intern at Twitter didn't agree, so he's toast.
0:02:29.3 Rhiannon: Yeah. That's right. This is a lifetime permanent ban.
0:02:32.3 Michael: I'm done.
0:02:32.8 Peter: Yeah, he's done forever.
0:02:33.8 Michael: I will say, I think I would've been a little more careful about posting something like that, but I was on vacation. I hadn't been posting for a few days. It's pretty wild how quickly your self-protection muscles atrophy on this stuff, but I think that's a good thing. Twitter was twisting my brain in bad ways. Maybe it's not a representative sample, but my post-Twitter life has been good so far. I find it highly correlated with seeing Alaskan wildlife.
0:03:01.6 Rhiannon: You were on a cruise, right?
0:03:03.6 Michael: Yeah, I was on a cruise in southeast Alaska, it's the area kind of that like runs along Canada on the coast there. We went to Glacier Bay, did some hiking, saw a bunch of wildlife. It was really cool. There was a 5-4 super fan on the boat.
0:03:25.3 Rhiannon: No.
0:03:25.8 Peter: That's rough, I gotta be honest.
0:03:27.3 Michael: No, she was cool. She was chill. She was friends with some other people we had made friends with. And we were just like chatting and she was like, "Wait, what podcast do you host?" Like putting it together.
0:03:38.3 Rhiannon: Wow.
0:03:38.6 Michael: It was pretty wild. She was trying to be very respectful of my privacy, and I appreciate that. Cool to meet a fan in the wild, figuratively in the wild and literally in the wild.
0:03:50.4 Peter: That's our demographic, wealthy young people who travel all over the world.
0:03:56.1 Michael: That's right. But yeah, it was a lot of fun. It was good to disconnect.
0:04:00.0 Peter: And yet a reminder that you can never escape.
0:04:01.8 Rhiannon: That's right.
0:04:02.4 Peter: There will always be fans.
0:04:03.8 Michael: Yeah, that's right. Although, now permanently disconnected from Twitter, so that's nice.
0:04:11.5 Peter: All right. Today's case, Sackett v. EPA, this is a case from just a few weeks back about that beautiful life-giving force, one of the top things that we need the most, water. The Clean Water Act gives the EPA, the Environmental Protection Agency, the authority to regulate pollution in the "the waters of the United States." The question here is what bodies of water that covers exactly, and specifically to what extent it covers wetlands.
0:04:49.6 Peter: The Supreme Court in a 5-4 decision holds that wetlands are only covered by the Clean Water Act if they are directly connected to larger bodies of water, a decision that leaves the majority of American wetlands unprotected by the law. So, Rhi, I'm going to hand it over to you for background.
0:05:09.1 Rhiannon: I'm giving a thumbs up in the Zoom.
0:05:12.7 Peter: Nice.
0:05:13.1 Rhiannon: And the thumbs up in the Zoom just mimicked my physical thumbs up.
0:05:18.8 Michael: Well, look at that. Yeah.
0:05:19.8 Rhiannon: Does it always do that? Did you guys just get an emoji reaction of a thumbs up?
0:05:24.0 Michael: I saw that.
0:05:24.6 Rhiannon: It just did that without me clicking it. Oh, my God, it's doing it again. It like loads. Holy shit!
0:05:30.0 Peter: Why isn't mine doing it?
0:05:31.0 Michael: Mine doesn't do that.
0:05:32.0 Rhiannon: I don't know. That's really weird. Anyways.
0:05:36.1 Rhiannon: In another sense, that just paralyzed me, just, just stopped, straighten my steps. I'm also paralyzed right now by Peter's pronunciation of wetlands.
0:05:46.8 Michael: Wetl'nds.
0:05:47.5 Rhiannon: Wetl'nds. [laughter]
0:05:48.1 Peter: I was debating earlier whether it's wetl'nds or wetlands, and I feel like I read wetlands in my brain, but then, when I went to say it, I was like, "Wetlands? That's too much."
0:05:58.9 Rhiannon: I'm going wetlands.
0:06:00.0 Peter: Okay. I'll follow you guys. I trust it.
0:06:02.6 Rhiannon: We're proceeding with wetlands in this episode. Okay. Yeah. Let's talk background. Let's talk about how this stupid case made its way to the Supreme Court for the Supreme Court to make a super stupid decision. So back in 2004, this couple, Michael and Chantell Sackett, bought a little over half an acre just off of Priest Lake in the Idaho Panhandle. They started to excavate the lot and they were filling it with gravel, with plans to build a house there. Now, side note, the Sacketts actually own an excavation company. So not only are they familiar with sort of the mechanics, the logistics, the construction, if you will, that needed to be done here, you can assume also that they know a little something about EPA regulations.
0:06:51.1 Peter: Right, and perhaps have a vested interest in what those regulations look like.
0:06:56.7 Rhiannon: That's right. So their excavation of the site bothered a neighbor. And in 2007, a neighbor made a complaint which alerted the EPA, the Environmental Protection Agency, to the Sacketts' construction. The EPA ordered that the Sacketts halt their work, because the EPA determined that the Sacketts' land partially contained a federally protected wetland. Now, the Clean Water Act gives the EPA power to...
0:07:25.2 Peter: You can see how it was a little cumbersome, right?
0:07:27.1 Rhiannon: What?
0:07:29.6 Peter: Wetland.
0:07:32.5 Rhiannon: Now, the Clean Water Act gives the EPA power to regulate all waters of the United States. So the EPA was acting under that authority when it ordered the Sacketts to stop construction, remove the gravel, and not build anymore until they had gotten a permit from the Army Corps of Engineers. The Sacketts turned around and sued, and for the past 14 years, this case has been making its way up and down the federal appellate court system.
0:08:00.8 Peter: So who do you like less? The snitch neighbor who gazed out across a lake and saw them doing construction and decided to snitch to the EPA, or the Sacketts who are dumping gravel onto some rare bird on the edges of this lake? Both very unlikable characters in my mind.
0:08:21.1 Rhiannon: So the argument that the Supreme Court concerns itself with in this case from this past term, is whether the wetland... Wow.
0:08:28.9 Peter: Mm-hmm. Mm-hmm.
0:08:30.7 Rhiannon: Interesting.
0:08:33.8 Rhiannon: Is whether the wetland that the Sacketts filled with gravel and wanted to build on top of counted as water of the United States that the EPA can regulate and protect, okay? So let's talk about the Clean Water Act. Before passage of the Clean Water Act in 1972, this country's waterways smelled and looked like shit.
0:08:55.4 Peter: Absolute trash.
0:08:56.6 Rhiannon: Water pollution was extremely, extremely bad. It was an economic, environmental, and public health crisis. By the 1960s, rampant contamination in the country's waterways had brought rivers, lakes, et cetera, across the country almost to the brink of just being a vat of acid, effectively, right? Dead, biologically dead. That's my gender, biologically dead.
0:09:25.5 Rhiannon: Not really a waterway so much as like a chemical fucking dumpster, right? The Cuyahoga River that runs through Cleveland and into Lake Erie famously became so polluted with industrial waste that it caught on fire on more than one occasion. Waterways in many US cities were not much more than sewage receptacles. Industrial and municipal waste was flowing freely into the water before the passage of the Clean Water Act. Industry discharged mercury into the Detroit River at a rate of 10 to 20 pounds per day. This is exceeding public health limits on in-stream water for mercury by more than six times.
0:10:09.8 Peter: Just poisons the human mind cannot comprehend.
0:10:13.0 Rhiannon: Right. Right.
0:10:14.1 Michael: If you're wondering why Millennials and Gen Z seem so much more politically sane compared to Gen X and Boomers, it's 'cause they were drinking their body weight in mercury every day.
0:10:27.4 Rhiannon: We're talking about Mad Hatter, right? It is also estimated that the per year rate of wetlands loss from the 1950s to the 1970s was around 450,000 acres. That is per year loss of wetlands. Side note, I've been to Galveston. I know what this fucking desecration looks like. Needless to say, we needed some federal regulation. Anyone ever heard of regulation? Sam Alito has nightmares about the stuff. The Clean Water Act is passed in 1972, and it has numerous provisions for pollution prevention, pollution control, and cleanup requirements that states, municipalities and industries have to abide by.
0:11:12.7 Rhiannon: The CWA says that sewage plants and entities that discharge wastewater can't dump into waterways without pollution-limiting permits, for example. It says that facilities that stored large amounts of oil near bodies of water, they have to have oil spill prevention and response protocols. And it also says that states have to have plans and preparedness protocols for water cleanup if waterways get so polluted that they can't be used for fishing or swimming. The Act also implements standards for pollution control, and it prohibits discharge of radiological and biological warfare agents into water. It prohibits discharge of radioactive waste and medical waste into protected waters.
0:11:56.0 Rhiannon: Beyond that, and this is relevant for this case, the Clean Water Act requires that industrial and commercial developers get approval before filling in waters like wetlands. This is what the Sacketts did, right? They were filling in a wetland with gravel. And then even with approval, sometimes developers under the Clean Water Act are additionally required to mitigate the impact of their activities. They might be required to create, preserve, or enhance another water resource. This is all under the CWA, and the CWA has had an incredible positive impact on water in the US. One example I read said that industry discharge standards put in place by the CWA currently prevent more than 700 billion pounds of toxic pollutants being dumped into the country's waters every single year.
0:12:44.5 Peter: What?
0:12:45.0 Rhiannon: So if your drinking water comes from a river like the Potomac, you have the Clean Water Act to thank. Its impact is absolutely massive.
0:12:54.3 Michael: God. Fucking corporations in this country are so disgusting.
0:12:58.3 Rhiannon: Disgusting.
0:13:00.5 Michael: Disgusting.
0:13:00.5 Rhiannon: They disgust me.
0:13:01.9 Michael: That we need this, right? That we so desperately need this, because otherwise they'd literally just dump shit out their back door.
0:13:11.0 Rhiannon: Yes.
0:13:11.5 Peter: If they could just put mercury in a hose and spray pedestrians with it they would, but it's more palatable to just shoot it into the river.
0:13:20.9 Rhiannon: Right. And that's why we need the Clean Water Act. So how are the mandates of the Clean Water Act implemented? What waterways exactly are protected by the Clean Water Act? It comes down to one phrase in the law. So federal laws before the Clean Water Act said that the EPA, again, that's the federal agency that enforces the Clean Water Act, among other things, that the EPA had oversight of the "navigable waters of the United States." But the CWA changed that language and expanded the EPA's oversight not just to navigable waters, but all "waters of the United States."
0:13:57.6 Rhiannon: So then it's like, okay, what does that phrase refer to then? Your law professor would be like, "Well, does that apply to the pot of water I have on my stovetop?"
0:14:10.5 Rhiannon: So the EPA developed an accepted definition of what water sources qualified as "waters of the United States." It said that waters included all waters that could affect interstate or foreign commerce, as well as wetlands adjacent to those waters.
0:14:27.2 Peter: The idea being that the federal government might not have jurisdiction over waters that are not sort of interstate, right. So it's not every body of water within the country, it's those waters that might impact interstate commerce or whatever.
0:14:44.4 Rhiannon: Right. Yes, exactly. Now, remember, the Sacketts were ordered by the EPA to stop development on a wetland. So the question in this case is about interpreting this definition. Does the wetland that the Sacketts are building on count as waters of the United States, which includes wetlands adjacent to waters? But there's a broader question the Court is taking up too, not just is the wetland on the Sacketts' half acre protected by the Clean Water Act, but what wetlands in general does the Clean Water Act cover?
0:15:16.7 Peter: Damn. What a neighbor dispute. Like your shitty neighbor in the middle of Idaho reports you to the EPA, and you're like, "Fuck you. I'm taking this to the Supreme Court over the span of two decades."
0:15:29.5 Michael: Fourteen years. Dude, if you're the neighbor who reported them, even though they eventually won their case, that's a victory.
0:15:37.4 Rhiannon: For real.
0:15:37.8 Peter: Absolutely.
0:15:38.5 Michael: You've made their life miserable for 14 years.
0:15:40.7 Rhiannon: If you're listening, DM, we want to talk to you, neighbor.
0:15:43.6 Peter: All right, let's talk about the law here. The last major Supreme Court case about this portion of the Clean Water Act was Rapanos v. US from 2006. There the liberals and the conservatives dueled over the interpretation of the law with no one getting a majority of the votes because Justice Kennedy sided with neither. So there was an open question about exactly which waters were covered by the law. Everyone was proposing different tests. The liberals wanted to maintain a broad definition from a case in the '80s called Riverside Bayview and Scalia and the conservatives argued for a narrow definition, while Kennedy sort of staked out a middle ground.
0:16:30.5 Peter: Now, first things first in this opinion, all nine Justices agree that the law does not apply to the Sacketts' particular lot under any interpretation of the Clean Water Act. They are not, according to the Court, on a wetland adjacent to a water of the United States, right? Meaning adjacent to one of those big lakes or rivers that might impact interstate commerce.
0:16:58.7 Peter: So the Sacketts win, their stupid neighbor loses. That could be the end of this case. But the majority wants to go a little further here, and they want to provide a definitive answer to the question of what exactly the Clean Water Act covers. There is agreement that the primary thrust of the Act is to cover these generally permanent continuous bodies of water, lakes, rivers, and so forth. But then the law explicitly says that it also covers wetlands adjacent to those bodies. So the next question becomes, what does "adjacent to" mean? And even though they don't really need to answer that question here, the conservatives seize upon this opportunity to answer that question for themselves and restrict the jurisdiction of the EPA.
0:17:50.1 Michael: Right. Exactly.
0:17:51.2 Peter: Classic Supreme Court...
0:17:54.2 Michael: Bullshit.
0:17:54.6 Peter: Dumb shit fucking...
0:17:56.5 Rhiannon: Only a fucking problem that a lawyer could conjure, right? It's a problem created by fucking lawyers.
0:18:04.0 Peter: So Sam Alito writes the majority, and he holds that the term "adjacent to" only covers wetlands that have "a continuous surface connection to those bodies of water," those lakes and rivers, et cetera, meaning that wetlands that connect with larger bodies of water underground, for instance, would not necessarily be covered. This is the standard that Scalia had proposed in that case back in 2006, but couldn't quite get a majority. And it feels like it has to be one of the most fucking baby brain standards ever, because it's literally like, "Well, I can't see it when I'm standing on top of the ground so it's not real." This is the Clean Water Act for people who legitimately lacked object permanence.
0:18:56.3 Rhiannon: That's right.
0:18:58.0 Peter: Like the fucking mommy peekaboos, the water away and they're like, "Whoa, not covered."
0:19:02.7 Rhiannon: Right, right, right.
0:19:03.9 Peter: The fucking water connects underground, bro, it's still connected.
0:19:09.4 Rhiannon: Yeah, it's how water works, actually.
0:19:13.0 Peter: So it kind of goes without saying, but this interpretation inhibits the function of the law. The purpose of the Clean Water Act, in my opinion, was to keep water clean.
0:19:23.4 Michael: Whoa.
0:19:23.8 Peter: But if the regulations do not account for water that is directly connected to the body of water being protected, then that body of water is not actually protected. If the fucking water that is physically flowing into a lake is being polluted, then the lake is being polluted, too. This is not a complex concept. I imagine that Justice Alito would understand this concept. If I pissed in some water adjacent to the water that he was drinking, I feel like he would get it.
0:20:00.2 Michael: Yeah. As he watches the water that he's drinking slowly turn yellow, he would understand.
0:20:07.6 Peter: He's like, "Oh, adjacent to, right." So Kagan points out in her dissent, which is very good, that adjacent to doesn't even necessarily mean directly connected to in like common speech. She uses the example of two houses separated by a fence, right? No one would ever say that they aren't adjacent to one another just because there's a fence separating them. So she's pointing out that like, forget the whole like surface versus underground sort of thing, there are all sorts of like little "barriers" between bodies of water that might exist, and yet they are still adjacent to one another.
0:20:51.7 Peter: And to put in perspective where the Court is here, their interpretation is to the right of Trump's EPA, who made it easier in all sorts of ways to pollute the water, but they still found that like man-made barriers in bodies of water that would like turn one body of water, so to speak, into two, that those bodies of water were still adjacent to one another, which is no longer true under this definition, because there is no continuous surface connection. So yeah, we're to the right of Donald Trump here.
0:21:26.5 Peter: Now, another argument Alito makes is that the Clean Water Act is so broad that landowners are at risk of prosecution for "such mundane activities as moving dirt." What he's referring to here is the definition of pollutants in the Clean Water Act, which includes rock and sand, right? Which might seem a bit aggressive, but you have to keep in mind that a lot of what functions as pollution was like builders digging up fucking plots of land and then dumping into water, right?
0:22:02.9 Rhiannon: Yes, exactly.
0:22:03.6 Peter: So this is a weird argument for a lot of reasons. One is that it's actually a complaint about the type of things the Clean Water Act categorizes as pollutants, right? What he's actually saying is like, "Oh, you can't dump fucking dirt into protected water?" So that basically means that he's saying that he personally feels the definition of pollutant is too broad, and since he can't change that, he's going to just limit the applicability of the law by narrowing the scope of the waters protected by the law.
0:22:33.9 Rhiannon: Right. And we should say, what is a pollutant is a bit of a pet project for Sam Alito, right? He is on the record back in 2017 at least saying that carbon dioxide is not a pollutant, for example. So yeah, he is activated on this issue and here just sort of like attacking that notion through another area of the law, through something that isn't about the issue of what is a pollutant.
0:23:02.0 Peter: Right, just brazen, like fully substituting his own judgment for the clear language of the law...
0:23:09.1 Rhiannon: Totally.
0:23:09.6 Peter: Which Kagan also points out in her dissent and calls out quite aggressively that he's just doing policymaking here, which I think is obvious, right? He's just being like, "Well, if you interpret it this way, landowners can get in trouble for activities that I consider mundane." And it's like, well, yeah, that's what the fucking law says, doesn't it? And by the way, it's not that mundane. He's like, "Whoa. What, you can't move dirt anymore?" But what he's actually talking about is some fucking residential real estate company like uprooting half a forest and dumping it into a lake.
0:23:42.3 Rhiannon: You know what, this like wrangling of this definition in the law, what counts as a water that is adjacent to another water, and then just the like oversimplification by this dumb fuck Alito by saying, like, water that's adjacent is just water that touches on the surface, right? It had me thinking, it took me back to studying for the bar in Texas. Back then when I took the bar, you had to learn oil and gas. It is Texas. You had to learn oil and gas law, and I remember that there are incredibly specific and detailed legal rules in Texas about property rights and ownership of oil that is at the surface versus oil that's underground, right? Gas that can be extracted from underground, who owns it, right? What you can do with it. Mineral rights.
0:24:35.2 Michael: Can you like tap into like some sort of reserve that extends beyond your property, below the surface.
0:24:43.5 Rhiannon: Exactly. Below the surface.
0:24:44.8 Peter: Can you drink someone else's milkshake?
0:24:46.9 Rhiannon: Right, period. Mineral rights extremely extensive in Texas, right? You have a whole incredibly specific comprehensive body of law about what amounts to property rights businesses making money. Extremely wealthy Texas residents, what made them their money. But here, when it's about protecting water, when it's about what the EPA can do, when it's about clean water, it's just like, "Eh. It's what I can see on the surface. That's it." [chuckle]
0:25:23.6 Michael: It's funny that that's what it made you think of. Do you know what it made me think of?
0:25:27.3 Rhiannon: What?
0:25:27.6 Michael: This sketch comedy show from the '90s called the State. They have a sketch where there's a prison, in Texas, actually...
0:25:37.0 Rhiannon: Coincidentally, yeah.
0:25:38.4 Michael: And there's a wide open gate that leads to the highway to Dallas, and the warden's like, "But that gate is off limits as a personal favor to me." And I just imagine Alito just looking at someone dumping pollution into wetlands like three feet from navigable waters and being like, "Ah, but if we put some orange cones here and tell them that the navigable waters are off limits, then we're all safe. Then it's all good." That was what I thought of, not the body.
0:26:13.4 Michael: Personally.
0:26:15.9 Rhiannon: Well, this is just my trauma.
0:26:17.4 Peter: I again, just thought of pissing in Alito's water.
0:26:21.8 Rhiannon: Yeah, we got that, Peter.
0:26:25.2 Michael: So we should talk about Thomas's concurrence, which was joined by Gorsuch. So Peter mentioned that all this sort of flows from Congress's power over interstate commerce. Congress has the ability to regulate interstate commerce that has always incontrovertibly included what are called the channels of commerce, which are how goods are moved. And that includes not just trains and highways and things like that, but navigable waters. And that's where their authority flows for this. That's why it's interstate waters that are covered and not purely interstate ponds and such.
0:27:10.0 Michael: And so he goes on at length about how their jurisdiction typically has been limited to interstate commerce navigation, essentially. And that includes not just what waters they can cover, but what types of things they can do with those waters. And he says mainly it's to keep the channels of commerce flowing, so you can't obstruct boats bringing goods from state to state. He doesn't come out and say that he thinks all this anti-pollution stuff is unconstitutional, but he strongly, strongly hints that he thinks this entire thing is unconstitutional and throws in some shots at the New Deal just for good measure. Just for good measure how much he hates the New Deal and the expansive view of Congress' commerce power.
0:28:05.5 Rhiannon: We know he can hold a grudge.
0:28:06.9 Michael: So all that stuff Rhiannon was saying about rivers on fire. Go fishing. Just don't eat whatever you catch because it's probably poisonous. Thomas would more than happily send us back to those days.
0:28:23.1 Peter: Well, you can't put a super yacht on a wetland, all right. Thomas doesn't give a shit about that.
0:28:29.1 Rhiannon: The Kavanaugh concurrence, Kavanaugh writes separately. This is a concurrence in the judgment where Kavanaugh agrees with just the narrow holding of the majority, that the bottom line conclusion that the wetlands on the Sacketts' property, that's not covered by the Clean Water Act, right. But the rest of this opinion by Kavanaugh is a dissent. He does not agree with the majority's definition of wetlands covered by the Clean Water Act as those that have a continuous surface connection to other waters. This is a pretty textualist argument, because he says the Court is narrowing the words used in the Clean Water Act. The Clean Water Act covers waters and "adjacent wetlands," but the Court here is interpreting adjacent to be adjoining. Kavanaugh using his big brain and saying like, "Those are two different words. They mean two different things."
0:29:21.9 Rhiannon: But beyond the textualism in the opinion, though, there is a nod here by Kavanaugh to federal agency expertise, federal agency practice over the course of decades, there are big consequences, he says, right. Some adjacent wetlands that have long been regulated by the Clean Water Act will now no longer be protected by the law. And he says there are "significant repercussions for water quality and flood control throughout the country." Kavanaugh says that the majority's definition of wetlands kind of flies in the face of like decades of EPA practice, right.
0:30:01.5 Rhiannon: He points out that this definition is, like you said, Peter, to the right of the Trump administration's interpretation of the Clean Water Act's coverage. The eight administrations since 1977 have had. Kavanaugh says. Dramatically different ideas of how to regulate the environment, obviously. But all of them recognized that the Clean Water Act's coverage of adjacent wetlands meant something more than adjoining wetlands, which is what the majority says, right.
0:30:27.4 Rhiannon: He says there's also some federalism and vagueness concerns, blah, blah, blah, blah, blah. But what's interesting to me about Kavanaugh here is he is giving some force, right, to the Executive Branch's consistent practice on this issue over the course of the past 50 years. It's not something you expect from the modern conservatives on the Court, who a big part of the ideology is lessening the power of the administrative state.
0:30:54.1 Michael: Yeah. But you know, they didn't see Avatar 2, The Way of Water. But...
0:30:57.8 Rhiannon: Kavanaugh was moved.
0:30:58.8 Michael: Kavanaugh saw it three times. He cried in the theater.
0:31:02.6 Peter: You thought you could slip by Brett Kavanaugh with adjacent, when you actually mean adjoining? No. No. You think you can get that by his big brain? Nothing gets around him. When we started this episode, we told you about the Sacketts, but no conservative political interest makes its way up to the Supreme Court on the backs of a single family. They all will get funding and support from some conservative organization or another.
0:31:37.5 Rhiannon: Yeah. Ka-ching ka-ching.
0:31:38.7 Peter: The Pacific Legal Foundation that helped bring this case. Now, every now and then we will touch on the weird organizations that bring these cases. This is a well-funded group of libertarian perverts, who specialize in property rights cases. But when I say property rights cases, I mean like the right to pollute part of property rights.
0:32:04.9 Michael: Yes.
0:32:04.9 Peter: Right. They were founded in 1973 by a team of staffers for then-Governor Ronald Reagan. Many hits throughout the years, including defending the use of DDT.
0:32:18.3 Rhiannon: Gorgeous.
0:32:18.6 Peter: If you want a old school, deep cut. Advocating for the use of herbicides in national forests, and recently a little sidetrack into opposing COVID regulations. So just a storied history here. Also not to be confused with the Pacific Justice Institute, which filed an amicus last year in Dobbs comparing abortion to slavery and saying that it was a violation of the Thirteenth Amendment on that basis. That is a separate group of conservative perverts.
0:32:55.0 Rhiannon: How many times have we said, though, these organizations, all of them, there are like less than 10 buzzwords, and they just put them in the random... Yeah, exactly. They put them in the random output machine.
0:33:08.1 Michael: It's like a slot machine. You just press it, and then like one, two, three, they come up.
0:33:12.4 Rhiannon: Yeah. Institute for Justice...
0:33:14.9 Peter: I actually didn't realize these were different... I had always confused the foundation and institute thing, and then I was only writing a piece for Balls and Strikes a few weeks back where I realized that these were separate organizations. I was like, "What the fuck? What are the chances?"
0:33:30.4 Michael: I really like the symmetry of the Clean Water Act is passed in 1972 and then they found this organization in 1973.
0:33:38.4 Rhiannon: Exactly.
0:33:39.5 Michael: They were just like, "This cannot stand."
0:33:41.8 Peter: Right. You're on Reagan's staff and you love DDT.
0:33:45.0 Rhiannon: Right. Exactly. And you hate the Clean Water Act, right?
0:33:49.1 Michael: Right, exactly.
0:33:49.3 Peter: Yeah. There were also a bunch of amicus briefs filed in this case in favor of narrowing the Clean Water Act, including from such disinterested parties as the National Association of Home Builders, the National Stone, Sand and Gravel Association, the American Exploration and Mining Association and the American Petroleum Institute, in addition to the usual list of rancid demons like Claremont and the Chamber of Commerce and Cato and all those fuckers. Just a group of concerned citizens [laughter] looking out for the scope of the law and the scope of the Constitution.
0:34:32.8 Rhiannon: That's right. But that's exactly something I wanted to talk about, particularly, Michael, you just talked about the timing of the creation of the Pacific Legal Foundation being in 1973, a year after the Clean Water Act is passed. We talked in the Sierra Club episode a couple weeks ago about the death in the 1970s of public law litigation, right, actions brought on behalf of the public in the public interest and how the Supreme Court killed those efforts in cases like City of Los Angeles v. Lyons, Sierra Club, so many others, right?
0:35:03.7 Rhiannon: But I don't think public law litigation is really dead, right? It's been co-opted, it's been hijacked. Today there is a completely different ascendant idea of what public interest law is. It is extremely well-funded, extremely conservative, "public interest, legal organizations bringing lawsuits." Right? And it is a reaction. Almost all of these organizations were created as a response, as a reaction to the perceived successes of public interest litigation for liberal causes in the '60s and '70s, right? They have co-opted the term public interest. Their causes are to benefit the wealthy in highly individualized conservative arguments about freedom, right?
0:35:51.7 Rhiannon: The ADF, another one of these organizations, the Alliance Defense Fund, they litigate for the insertion of religious symbols and practices in public spaces. We have the Pacific Legal Foundation here launching litigation campaigns, like Peter said, against the environmental regulatory regime, against the welfare system.
0:36:11.6 Peter: Now, they could create a giant cross made of entirely mercury in the Everglades after this ruling. Merge their interests.
0:36:22.6 Rhiannon: And so many others, Americans For Prosperity, the Alliance Defending Freedom and what these "public interest organizations" do is they reflect the values of conservatism in the judicial system specifically, right? Their tenets are the protection of economic rights, they want to secure a place for religion in the public square, they are suing to protect traditional moral values as they define them. And of course, they are protecting the rights of private property owners, just like the Sacketts.
0:36:57.1 Peter: It's the doctrine of us, right. Stuff for us, stuff we like.
0:37:02.0 Rhiannon: Exactly.
0:37:02.5 Peter: We are rich, we own property, we are religious, and those are their causes.
0:37:08.7 Rhiannon: Right. And we're doing it, they say, under the guise of freedom, we're doing it as a public interest cause.
0:37:15.0 Michael: Yeah. It was wild. I felt like I was taking crazy pills reading this opinion because it was like, there are several periods where Sam Alito just gets so frustrated and just lets it out. And he's like, "What is a landowner to do in such situations? The plight of the landowner." Landowners this, landowners that. It's like what, fuck, the median American does not own land. [laughter]
0:37:45.0 Peter: Also, he's saying landowner and he wants to evoke like some guy who's got a little plot of an acre that he's trying to do some work on, but what he actually means is like fucking construction companies that are buying and selling land.
0:38:05.4 Rhiannon: Right, developers.
0:38:05.9 Peter: Developing residential and commercial properties all across what was once protected wetland.
0:38:12.5 Rhiannon: Exactly.
0:38:13.7 Peter: Or at least trying to dump fucking sand and gravel that they dug up into those once protected wetlands.
0:38:20.2 Michael: Yeah, that's right. The other thing that was sort of driving me crazy in this opinion is it's like fashioned as, this is all statutory interpretation. And I was trying to figure out what it was that was making me so crazy. And I think what it is, is this, to Peter's point from early in this episode, the question is ultimately, when you dump pollutants, are they going to make their way into protected waters, right? That is the question that the EPA has been trying to answer for 50 years. And the Court makes a lot of hay out of all these different definitions it's used, the significant nexus, adjacent to, blah, blah, blah, all these terms to try to define what is a protected wetland. But what they're doing is they're just trying to make sure that pollution does not make its way from point A to point B, with point B being a protected waterway. That's it.
0:39:26.1 Michael: And the problem with this is, the problem that conservatives have with so much right now, which is that, a lot of shit is connected. And that would just give the EPA a lot of power. And much with commerce clause in general, and the fact that we all engage in national and international markets all the time now, and so the power to regulate interstate commerce has become very expansive. The fact that waterways are connected, the fact that dumping in place A ends up polluting a water table and waters in place B is inconvenient ideologically for them.
0:40:10.4 Michael: And so what you get is this craziness where he's saying, the EPA says, "Well, adjacent wetlands are covered if they possess a significant nexus to traditional navigable waters. And he says, "That interpretation is inconsistent with the background principles of statutory construction." Who gives a shit? Are they connected or not, right? Is there a nexus or not? Is pollution making it from them to navigable waters or not? Either they are or they aren't. Background principles of statutory construction mean jack shit to the people who wrote this law and the people trying to enforce it and the people who enjoy clean water. What are we talking about?
0:40:54.4 Peter: Also, it's not inconsistent with any fucking principle.
0:40:57.9 Michael: I mean, yeah, I disagree with him on that point too.
0:41:00.0 Peter: Let's put it this way. There are like a fucking billion principles of statutory interpretation. You can always find one where that's not super consistent with a given reading.
0:41:08.3 Michael: I think on the textualism, yeah.
0:41:09.8 Peter: But the fucking pollutant goes through the water from the wetlands to the protected body of water. It's just not complicated.
0:41:21.8 Michael: Yeah, it's not, and they try to make it sound really complicated. And so when you're reading it, it's like, what the fuck are they talking about? But it's trying to work around the very obvious fact that, yes, polluting wetlands that are not connected visually will still pollute covered waters, and we should be able to prevent that. And that is something that I think most Americans agree upon, which is why this has been an uncontroversial success for 50 years, right?
0:41:58.1 Peter: Before we sign off, I do want to talk about judicial activism, which I don't like to say, 'cause it just gets like bandied about as a term by everyone, I think, a bit freely. Just sort of generally means things that the Court does that I don't like. But if you were to try to narrow down what it might actually mean, maybe it would mean, like, A, when the Court substitutes their own policy preferences for the extremely clear directives of Congress, like Alito does here, when he just talks about how the Clean Water Act is too broad, in his opinion. And B, maybe a clear example of judicial activism is when the Court takes up issues that it doesn't actually need to take up to resolve the conflict before it, right? All nine Justices said that the Sacketts win.
0:42:50.7 Peter: The Clean Water Act does not apply to their lot. The conservatives could have left it there, basically being like, we don't need to revisit the legal framework. But instead, they seized the opportunity to write some new law that they wanted to write. That's judicial activism, right? That feels to me like a coherent definition of what judicial activism actually is, and this Court does it all the time.
0:43:16.7 Michael: Absolutely.
0:43:23.5 Peter: Next week, DeShaney v. Winnebago County, a long-requested case that we haven't done because it's rough.
0:43:32.3 Michael: Yep.
0:43:33.2 Peter: But we need to do it. It's about the state's obligation to step in and prevent child abuse by a custodial parent. You can see that it's not going to be good, folks, but it's an important one. We're going to do it.
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0:44:21.6 Peter: We'll see you next week.
0:44:23.1 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support, and our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.
0:44:52.7 Peter: Now, should I have used poisoning his water instead of pissing in it?
0:44:57.1 Michael: No.
0:44:57.6 Rhiannon: I think it's funny.
0:45:00.0 Peter: Okay.
0:45:00.4 Michael: Pissing is funnier.
0:45:00.4 Rhiannon: Yeah.
0:45:00.7 Peter: All right.