Tangle - The Supreme Court's Clean Water Act decision.

Starting point is 00:00:00 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is Chinatown is streaming November 19th, only on Disney+. yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.

Starting point is 00:01:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, an independent, nonpartisan, subscriber-supported politics podcast where we summarize the best arguments from across the political spectrum on the news of the day, and then you get a little bit of my take. I am your host, Isaac Saul, and today we are going to be talking about the Clean Water Act, and more specifically, the Supreme Court case Sackett v. EPA. This is a pretty complicated story, but I think we have a good episode for you today that kind of breaks it down and ensures you get a wide range of views. And then of course, I've got some strong feelings on this one. I mean, I think this is a really big deal. So before we jump in, as always, we'll kick it off with our quick hits.

Starting point is 00:02:10 as always, we'll kick it off with our quick hits. First up, the House Rules Committee approved the bill to raise the debt ceiling, moving it to a floor vote that will take place on Wednesday night. Despite some opposition on both sides, the bill is expected to pass. Number two, Minnesota Governor Tim Walz signed a bill approving recreational marijuana, making Minnesota the 23rd state to legalize adult-use cannabis and the third Midwestern state to do so. Number three, FBI Director Christopher Wray said he will meet with Representative Jim Comer, the Republican, to discuss the probe into the Biden family finances. us the probe into the Biden family finances. Number three, Ukrainian drones struck wealthy districts in Moscow on Tuesday, damaging three buildings with no reported injuries. Number five, Florida Governor Ron DeSantis began his campaign for president by criticizing former President Trump's handling of COVID and saying the former president moved left on several issues like criminal justice reform. Well, the Supreme Court has issued an opinion in the case of a family

Starting point is 00:03:19 who's pushed 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. This case goes back 15 years when the EPA, citing the landmark Clean Water Act, blocked an Idaho couple from building a house on their property because there was a wetland on it and the property was next to a big lake. All nine justices agreed the EPA didn't have the authority to regulate these homeowners' property, but there was stark disagreement over how to determine when a body of water can and should be protected. If something is considered to be a wetland, then it's protected under the Clean Water Act. It's much harder to build on it. It's much harder for businesses, in this case homeowners, to use it. And people can think of

Starting point is 00:04:11 it almost like preserving a historic landmark. Once you say this is a historic landmark or once you say this is a wetland, it's going to be much harder to either tear it down or build on it. harder to either tear it down or build on it. On Thursday, the Supreme Court established a more stringent test to determine whether the Clean Water Act applies to certain wetlands, limiting the Environmental Protection Agency's authority over them. The decision will have broad implications for agriculture, energy, and mining industries. For decades, courts and agencies have struggled to define what bodies of water and wetlands are protected by the CWA. The Clean Water Act prohibits the discharge of pollutants into navigable waters, which includes waters of the United States and territorial areas.

Starting point is 00:04:58 However, several court decisions and agency rule changes have modified this definition over time. The case before the court was Sackett v. Environmental Protection Agency, which involved Michael and Chantel Sackett, a couple who had been battling with the federal government for more than 15 years for the legal right to build a house on a lot near a large lake. In 2007, the EPA asked them to stop construction of their home, threatening fines of $40,000 per day. The lot is 300 feet from Priest Lake, but because it contains wetlands protected by the CWA, the EPA claimed the land fell under the law's protection. The EPA argued that while the wetlands feed into a non-navigable creek, that creek drains into navigable Priest Lake and won a federal court

Starting point is 00:05:43 battle in the Ninth Circuit to continue blocking construction. In that case, the court embraced a test outlined by Justice Anthony Kennedy that requires a significant nexus between wetlands and waters for the area to be covered by the CWA. But the court reversed that ruling on Thursday, with Justice Samuel Alito drafting an opinion arguing that the Clean Water Act only applies to water that blends or flows into a channel used for interstate commerce, according to SCOTUSblog. Drawing in large part from previous opinions written by Justice Antonin Scalia, Alito wrote that the CWA covers only those relatively permanent, standing, or continuously

Starting point is 00:06:23 flowing bodies of water, forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes. He said adjacent waters must be indistinguishably part of a body of water that itself constitutes waters under the CWA, which requires a continuous surface connection, so there's no clear demarcation between waters and wetlands, even if that connection is somewhat broken by low tides or dry spells. Alito rejected Kennedy's test, arguing that it was implausible and would make it difficult, if not impossible, for landowners to determine if the CWA applied to their property.

Starting point is 00:07:00 The justices were unanimous in their decision that the Sackett's property did not fall under the CWA's protections. However, they were deeply divided on why and how to define waters of the United States under the CWA. Perhaps most notably, Justice Brett Kavanaugh joined the three liberal justices in an opinion criticizing Alito's new definition. The court's new and overly narrow tests may leave long-irregulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agency's regulatory authority, with negative consequences for water of the United States, Kavanaugh wrote. Instead, Kavanaugh argued for a more expansive test, under which the CWA would apply to wetlands next to a large body of water or separated by a man-made or natural barrier. body of water or separated by a man-made or natural barrier. Under this test, the wetlands on the Sackett's property still do not fall into those categories, but wetlands on the other side of levees, like the one on the Mississippi River, would. Kavanaugh also argued that Alito's new test is novel and vague enough to perpetuate the kind of legal ambiguity he himself had criticized.

Starting point is 00:08:01 Environmental groups also criticized the ruling. Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers, Sam Sankar, the senior vice president of programs at Earthjustice, said. The lawyers who represented Michael and Chantel Scott celebrated the ruling. It returns the scope of the Clean Water Act to its original and proper limits, Damien Schiff, one of their attorneys, said, courts now have a clear measuring stick for fairness and consistency by federal regulators. Today, we're going to explore some arguments about this ruling from the left and the right, and then I'll share my take. First up, we'll start with what the left is saying. Many on the left criticized the ruling, calling it terrible news for our nation's water.

Starting point is 00:08:58 Some argue that the conservative justices are ignoring the intent of the law. Others suggest that Alito had redefined the text of the law to achieve the political outcome he wanted. In Vox, Ian Millhiser said this is terrible news if you care about clean water. As Justice Brett Kavanaugh writes in his dissenting opinion, Justice Samuel Alito's majority opinion in Sackett v. EPA is likely to hobble the law's ability to protect several major waterways, including the Mississippi River and the Chesapeake Bay, Millhiser said. It is an admittedly difficult question on how to read a vague provision of the law defining waters of the United States, but Alito picked the narrowest

Starting point is 00:09:36 definition. As an amicus brief filed by the professional associations representing water regulators and managers warned, this new definition will exclude 51%, if not more, of the nation's wetlands from the act's protections. Wetlands often act as filtration systems that slow the seepage of pollution into major waterways and as sponges that help control floods. Alito's fast and loose approach to statutory text could drastically limit the nation's ability to fight water pollution. In the Washington Post, Richard J. Lazarus said the effect of the ruling will likely be devastating. Congress was not at all shy about the geographic reach of the Clean Water Act. The statute targeted discharges into navigable waters, but Congress also expressly defined that

Starting point is 00:10:20 to include all waters of the United States. Since the mid-1970s, the courts have uniformly agreed that Congress intended, with that expansive definition, to extend the law's protections far beyond traditional navigable waters to include wetlands, intermittent streams, and other tributaries that feed into the nation's major rivers and lakes, he wrote. In a unanimous opinion for the court almost 40 years ago, Justice Byron White explained why, Lazarus said. While on a purely linguistic level it may appear unreasonable to classify lands wet or otherwise as waters, the court said such a simplistic response does justice neither to the problem faced by the government nor to the realities of the problem of water pollution

Starting point is 00:11:01 that the Clean Water Act was intended to combat. However, Alito embraces Scalia's simplistic response that takes the dictionary definition of waters and ignores the Clean Water Act's purpose. In Slate, Mark Joseph Stern said the new test is so indefensible that Alito even lost Brett Kavanaugh. The court's decision in Sackett v. EPA is one of its most egregious betrayals of textualism in memory, Stern said. Put simply, the Clean Water Act protects wetlands that are adjacent to large bodies of water. Five justices, however, do not think the federal government should be able to stop landowners from destroying wetlands on their property. Alito's opinion is remarkably brazen, so much so that Justice Kavanaugh accused him of failing to stick to the text. The law expressly protects waters of the United States like rivers and lakes, as well as

Starting point is 00:11:50 wetlands adjacent to these waters. Congress added the wetlands provision in 1977 to codify the EPA's definition of adjacent, which also happens to be the actual definition, bordering, contiguous, or neighboring. Under that interpretation, the one Congress adopted, wetlands that neighbor a large body of water remain protected, even if they aren't directly connected. Too bad, Stern said. The court declared that instead of applying the statute's words, it would impose a different standard, protecting only wetlands with a continuous surface connection to large bodies of water. Alright, that is it for what the left is saying, which brings us to what the right is saying.

Starting point is 00:12:41 Many on the right praise the ruling, arguing that it should bring clarity to the law. Some suggest that this will serve landowners and citizens who struggle to decipher when they are violating the law. Others call it a blow against the bureaucratic state of America's regulatory agencies. National Review's editors praised Alito for bringing clarity to the law. Chief Justice John Marshall famously described the job of the courts to say what the law is. The courts are supposed to read the law, not write it, the editor said. Sometimes, however, the written law leaves much unanswered. At a certain point, while it is important that the Supreme Court adhere to the text written by Congress, it is even more important that it settle on an answer that tells Americans what the law is and what it is not. That is what

Starting point is 00:13:21 the court did on Thursday in Sackett v. EPA. As written, the CWA left landowners in a perpetual state of uncertainty. Nothing is more central to the rule of written law than the law be certain and knowable, the editor said. Courts and agencies have struggled to define the statutory boundary of CWA, and now Alito offers clarity. This may not be the only possible reading of the CWA, but it makes the best sense of what Congress wrote in a way that is actually comprehensible as law and provides fair notice to citizens of what they may be jailed for doing. Fair-minded readers may disagree, but it is much easier for owners of property to determine when waters adjoin navigable waters than to enter into

Starting point is 00:14:00 disputations of what is or is not nearby enough to qualify. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season?

Starting point is 00:14:41 Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca. The Washington Examiner's editors called it a huge win for the rule of law. In 1986, the EPA issued its Migratory Bird Rule, which asserted the EPA CWA jurisdiction over any water anywhere that could or would be used as a habitat by migratory birds. The EPA admitted in

Starting point is 00:15:22 court that this definition of waters of the United States granted them jurisdiction over every swimming pool, puddle, and ditch in the country, the editor said. The Supreme Court rejected this decision, but the EPA then issued new regulations that, according to a 2006 Supreme Court decision, gave it jurisdiction over virtually any parcel of land containing a channel or conduit through which rainwater or drainage may occasionally or intermittently flow. That 2006 Supreme Court case struck down the EPA's definition of waters, but it failed to find consensus on a new definition. The EPA then borrowed Justice Anthony Kennedy's significant nexus test and used it to assert control over pretty much any drop of water anywhere in the country. assert control over pretty much any drop of water anywhere in the country. Thursday's decision gets five justices to agree on a working definition, while dissenters failed to offer a working

Starting point is 00:16:10 definition of their own. This did not gut anything, as factories, power plants, and homes that abut a body of water are still subject to EPA jurisdiction. So is a property that abuts wetlands directly connected to any standing body of water. But homeowners like the Sacketts, whose property is separated from wetlands by a 30-foot road that touches a creek that feeds into a lake, no longer have to worry. In the New York Post, James Bovard called it a blow against bureaucratic tyranny. Since 1972, federal agencies have changed the definition of wetlands jurisdiction 13 times, Bovard wrote. Up to 100 million private acres fall under federal sway, depending on the definition of wetlands, which could be dry 300 days a year. Because the Clean Water Act imposes strict criminal liability, farmers plowing their own fields can be treated like midnight dumpers heaving barrels of dioxin

Starting point is 00:17:01 into a river. The EPA demanded the Sacketts get a Federal Clean Water Act permit to build their house, their lawyers complained, because Priest Lake is a navigable water. A non-navigable creek connects to Priest Lake. The non-navigable creek is connected to a non-navigable man-made ditch. The non-navigable man-made ditch is connected to wetlands. These wetlands, though separated from the Sacketts lot by a 30-foot-wide paved road, are nevertheless similarly situated to wetlands alleged to exist from the Sacketts lot by a 30-foot-wide paved road, are nevertheless similarly situated to wetlands alleged to exist on the Sacketts lot. EPA persisted even though the agency recognizes that no water at all, surface or subsurface, flows from the Sacketts lot to the wetlands or to the ditch across the street. All nine Supreme Court justices agreed Thursday that federal bureaucrats had no right to seize control over the Sackett's property.

Starting point is 00:17:55 Alright, that is it for the left and the right are saying, which brings us to my take. So let's start with where I'm most confident. One, we live in an over-regulated country. Two, the Clean Water Act has been a remarkably successful piece of legislation, even if it is ambiguously written. Three, Alito has seriously overstepped, and I think his definition is going to do some serious harm to our waterways. For all the criticism of regulatory overreach in the United States, criticism I often participate in, the CWA remains a remarkable piece of legislation.

Starting point is 00:18:35 We consider it common sense now that we shouldn't use all of our bodies of water as a dump site for industrial pollution, but that wasn't always the case. And the regulation of pollution, which is still allowed with permits, has transformed our waters into places that are on aggregate much safer to fish and swim in across the country. It's also obvious that protecting standing or, dare I say, navigable bodies of water like oceans, rivers, lakes, or creeks is not the only necessary action to keep them clean. Wetlands flow into these bodies of water, so do subterranean waterways. Allowing the pollution of those waterways would set us back and do serious harm to the bodies of water most Americans obviously want to protect, as the Clean Water Act was designed to do. Wetlands in particular are crucial. They filter and purify water. They slow runoff to larger bodies, which prevents

Starting point is 00:19:20 floods. So, on the raw outcome here, I think it is a net negative that fewer wetlands are going to be protected. Textualism, as conservative justices often frame it, is about embracing the plain meaning of text in the law and how that text was understood at the time a law was written. The CWA's original intent was quite obviously to give the EPA broad authority over our waterways, and the original text does not anywhere define waterways of the United States as being limited to surface connection of said waterways. In creating his own definition, Justice Alito appears to be doing the exact thing he so often criticizes. He is writing the law, not telling us what the law is. As Stern noted under what the left is saying, Congress

Starting point is 00:20:02 didn't just broadly define the waters of the U.S., it also called for protecting wetlands adjacent to those waters. Congress didn't accidentally decide to include the adjacent provision in 1977. It was meant to codify including wetlands bordering bodies of water. That, to me, seems to quite evidently mean wetlands next to large bodies of water, even if they aren't connected by surface water. Alito's new definition seems to expressly contradict the intent and the actual text of the CWA's authors. The most remarkable thing about this case to me is that Alito and the conservative justices didn't have to do this. The Sackett family could have safely built their home and still can. All nine justices agree here. The four justices in the minority

Starting point is 00:20:46 interpret the law in a way that supports the Sackett's case. What they disagree on is how to read the CWA moving forward. Kavanaugh's criticism of Alito did not read like someone intentionally seeking out a middle ground. It reads like a conservative justice who earnestly believes his colleagues have gone too far. As Kavanaugh writes, Alito's new definition isn't a new reading of the statutory text, but a new invention of the law. None of this is to say I disagree with the spirit of the Sackets' fight. That they had to do battle for 15 years with the federal government only to get a unanimous ruling in their favor is no small thing. I agree with so many of the conservative commentators who criticize the

Starting point is 00:21:25 increasingly complex web that makes up our current system and also share the sentiment that this law has left far too many citizens, agencies, and courts unsure of what constitutes a protected waterway. I'm sure some of the currently protected land that will now get developed will be managed safely and should fall under other stringent environmental protections. As Alito put it, some interpretations of the law gave federal jurisdiction to any soggy backyard anywhere in the country. But in responding to all those wrongs, Alito and the conservative justices have committed several of their own. They've divorced the law from the legislator's intent, essentially rewriting it in a way that fits the outcome they sought. And in doing so, they've exposed far too many wetlands and thus our waterways to the threat

Starting point is 00:22:10 of exactly the kind of pollution we had put in the past. There was a good middle ground here, one carved out cleanly by Kavanaugh, but the court opted for something much different. So what good outcome could result from all this? Congress can go back to the drawing board and rewrite the law to make it clearer, and states can beef up their own enforcement to ensure they protect their water and land. For now, that'd be the best path forward. Alright, that is it for my take, which brings us to our reader question today. This one is from James in Rogers, Arkansas. James said, why wouldn't the logic of Section 230 of the telecom law also be applicable

Starting point is 00:22:51 to the firearms industry? Not the law itself, but the underpinning logic that bad people might use good things for the wrong purpose. So this is an interesting question, James. Thank you for asking it. It's interesting for two reasons. First, I've actually made this comparison before when discussing Section 230 with friends or colleagues. Second, when I've asked this question, it's the other way around. Why hold

Starting point is 00:23:14 Google responsible for terrorism when we wouldn't hold gun manufacturers responsible for shootings? As you noted, and just to be clear, Section 230 isn't about guns, which is why it doesn't apply legally. The entirety of Section 230 says no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Additionally, gun manufacturers have their own law shielding them from liability. The Protection of Lawful Commerce in Arms Act passed in 2005, which protects manufacturers from injury resulting from the misuse of their products. This act has been used to broadly protect gun manufacturers, and since its passage,

Starting point is 00:23:54 no manufacturer accused of negligence has even gone to trial. Philosophically, the comparison seems simple enough. Companies who make illegal products shouldn't be responsible for illegal things people do with it. But the usages are so clearly different. As we wrote when we first covered Section 230, content aggregators and platforms are curational. If I search YouTube for car engines and in two easy clicks I find a video on how to make a bomb, that would be like buying a gun and having it come with a booklet telling me how to track down my enemies and kill them. That is just not what's happening. Frankly, the telecom and gun industries are so different in what they do that different logic and different laws should apply. But while the gun industry has plenty of legal protection, that doesn't mean there is an interest in challenging

Starting point is 00:24:38 that protection through legislation. We have a link to a story on just that thing in today's episode description. All right, that is it for our reader question today. It is Wednesday, so today we are featuring our Blindspot Report. Once a week, we present the Blindspot Report from our partners at Ground News, an app that tells you the bias of news coverage and what stories people on each side are missing. The Left missed a story this week about the financing of Black Lives Matter, which paid its executives millions while being $9 million in the red last year. The right missed a story about Texas passing a bill that would allow public schools to hire chaplains as school counselors. All right, next up is our numbers section. The estimated number of pounds of pollution that the Clean Water Act keeps out of U.S. waterways every year is 700 billion. The

Starting point is 00:25:34 approximate percentage of the time the Army Corps of Engineers analyzes a landowner's property and finds that the EPA has jurisdiction is 75%. The rough estimate of the number of rivers in the United States is 250,000 and the share of rivers that got safer for fishing between 1972 and 2001 is 12%. The portion of land in the 48 continental United States that are considered to be wetlands is 5.5%. All right, and finally, our have a nice day story. Ottawa's Regine Fairhead is the fastest 96-year-old woman in the world. On an incredibly hot day in Canada's capital, Fairhead completed the Ottawa Tamarack Race Weekend 5K in 51 minutes and 9 seconds, beating the previous record for a woman between the ages of 95 and 99 by just 39 seconds. Fairhead had not been a runner or considered herself an athlete in her younger years. Now, she's a world record holder. I've been telling everybody, to me, age is just a number,

Starting point is 00:26:36 Fairhead said. You know, if you feel good, do something. Through her efforts, Fairhead has raised over $7,400 for the Pearly Health Foundation so far this year. National Post has the story, and there's a link to it in today's episode description. All right, everybody, that is it for today's podcast. As always, if you want to support our work, please go to readtangle.com. And don't forget that we are hosting a live event in Philadelphia. I'm going to keep reminding you until you go buy some tickets already, please go get them. Uh, there's a link on our website, retangle.com backslash live. You can find tickets there. You can also find them in the episode

Starting point is 00:27:14 description of today's episode. We'll be right back here. Same time tomorrow. Have a good one. Peace. Peace. by Diet 75. For more on Tangle, please go to readtangle.com and check out our website. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, Thanks for watching! and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot.

Starting point is 00:28:40 Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.

Tangle - The Supreme Court's Clean Water Act decision.

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