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PaperclipPerfector  1yr ago (text post)   28780 thread views

Culture War Roundup for the week of May 29, 2023

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A decade ago the supreme court unanimously ruled that people are actually allowed to appeal federal agency rulings to the court system, which the Obama administration did not want.

That is not the worst summary of a legal issue I have ever heard, but it isn't great. The Administrative Procedures Act provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704. The issue in the case was whether "final agency action" had yet occurred. Not whether "people are actually allowed to appeal federal agency rulings to the court system," since people have been doing that successfully for decades.

Biden's EPA, which had attempted to define the navigable waters of the united states to mean any land on which there is any standing water at any time of the year.

No, 40 CFR 120.2 defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." And according to the Court's decision, that definition dates to the early 1980s. And see, eg, People of State of Ill. v. Outboard Marine Corp, 619 F.2d 623, 627 fn 14 (2nd Cir. 1980) (quoting the rule). It was not a creation of "Biden's EPA," as you imply.

40 CFR 120.2 defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

Isn’t this backwards? Are you allowed to use CFR to interpret United States Code? Regulators can’t claim jurisdiction unless a statute grants them jurisdiction right?

No, administrative agencies always promulgate regulations which interpret statutes; they have to, because statutes are always going to use broad terms. " "Congress simply cannot do its job absent an ability to delegate power under broad general directives. . . . Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'" The key issue is how much deference courts should give to those interpretations.

More specifically, the statute give the EPA power regarding "the waters of the United States," but does not define that term further. Someone has to specify what that means, and initially that is going to be the administrative agency. Ultimately, it will be the courts, of course, or Congress itself, since if it does not like a regulation it can amend the statute accordingly.

"constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'"

That's the whole issue though right? Congress told EPA to regulate "the waters of the United States", there was some amendment passed that implied that this includes "wetlands adjacent thereto" (because you know, what else are you gonna do about this?), then the EPA decided that this means they can regulate any relatively flat area with reasonably high annual precipitation (i.e. the most densely populated parts of the country).

Plessy died because it was no longer possible to maintain the legal fiction that segregated facilities were "separate but equal". When Chevron dies (and it will) it will be because it is no longer possible to maintain the legal fiction that agencies are operating within reasonable interpretations of statutes.

I don't even know what to say to this. You admit below that the Obama administration's position was that the Sacketts should not be allowed to appeal the EPA penalty through the court system. But you worded your quibble as if you're trying to insinuate that this wasn't the case.

Worse, the Biden EPA announced the new definition of waters of the united states in December 2022. Your claim that it dated from the 1980s is deceptive at best. But you worded your claim very carefully to imply rather than state something plainly untrue.

To be fair, the enforcement action against the Sacketts started in 2007 (that is, the Bush admin); they were probably meant to cement down a post-Rapanos expansive rule that covered any waters with a 'significant nexus' to navigable waters. And Rapanos was, in addition to being the sorta guy that just made a delightful punching bag, also meant to cement down a 1989-era redefinition (ie, HW Bush or Reagan) that was nearly as broad, in turn.

November 26, 2007, my bad. I thought they only started building their house that year, and the enforcement came later.

All I can say is that you need to read more carefully.

You admit below that the Obama administration's position was that the Sacketts should not be allowed to appeal the EPA penalty through the court system

No, as I said, the administration's position was that the Sacketts should not be allowed to appeal the EPA decision YET, whereas OP implied that the Administration's position was that no one should be able to appeal EPA and other agency decisions AT ALL; OP said that Court ruled that "people are actually allowed to appeal federal agency rulings to the court system, which the Obama administration did not want."

Worse, the Biden EPA announced the new definition of waters of the united states in December 2022. Your claim that it dated from the 1980s is deceptive at best.

Leaving aside that your link shows that the rule did not take effect until March 20, 2023, which obviously was far too late to be the rule under which the EPA issued its order, and more than 5 months after the October 3, 2022, oral arguments in the case, what I said was:

40 CFR 120.2 defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." And according to the Court's decision, that definition dates to the early 1980s. And see, eg, People of State of Ill. v. Outboard Marine Corp, 619 F.2d 623, 627 fn 14 (2nd Cir. 1980) (quoting the rule). It was not a creation of "Biden's EPA," as you imply.

And, if you had bothered to look at that 1980 case I cited, you would have seen that it says:

The Environmental Protection Agency provides the following definition for "navigable waters":

(t) "Navigable waters" means "waters of the United States, including the territorial seas." This term includes:

...

(2) Interstate waters, including interstate wetlands;

...

(6) Wetlands adjacent to waters identified in paragraphs (t)(1)-(5) of this section ("Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. . . .

So, as I said, the definition I quoted has been used by the EPA to define "wetlands" since at least 1980.

Also, why do Democrats like swamps (or, as they call them, wetlands) so much?

  • water filtration to capture agricultural runoff

  • water retention to replenish the aquifers

  • biomass generation to capture carbon

  • waterfowl habitats

Also wetlands dampen the blow of hurricanes, flash floods and general storm surge; protecting human lives and reducing soil erosion. In addition to the obvious direct destruction of dry land, the soil erosion can allow salt water to enter fresh water ecosystems, killing most life within them, then the decaying dead plants stop anchoring the soil and cause even more aggressive erosion. Salt water flooding in previously protected fields also badly damages soil fertility.

Hurricanes start slowing down and losing strength as soon as they leave open ocean, and waves weaken and break by hitting all the foliage, sandbars and shallow waters. The more wetland you have as a buffer between the ocean and human settlements the better.

Getting rid of those is about as bright as taking all the padding out of a helmet.

I do not think the EPA knows what navigable means. A plain language reading would be a waterway that you could travel along by boat.

Plain language is irrelevant when the term is defined by statute. The CWA defines navigable waters as "waters of the United States", and gives the EPA authority to define that further, pursuant to their usual rulemaking authority. So the relevant definition here isn't of "navigable" but of "waters of the United States", and those are defined pretty thoroughly in the regulations as well as by at least three supreme court decisions. Even if I took your definition at face value it woudn't make sense considering the purpose of the act. The stream closest to my house definitely isn't navigable by any plain language definition of the term, but it feeds into a major navigable river only a few miles downstream, where it flows across the property of a steel mill. To say that the mill could avoid the need for an EPA permit simply by dumping into the stream instead of the river itself would completely subvert the purpose of the act. So the definition naturally includes any waterways that connect to actually navigable waterways.

I do not think the EPA knows what navigable means.

Well, here is a bit of the history, according to the Supreme Court:

After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining "the waters of the United States" to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed. Reg. 31320 (1975). More importantly for present purposes, the Corps construed the Act to cover all "freshwater wetlands" that were adjacent to other covered waters. A "freshwater wetland" was defined as an area that is "periodically inundated" and is "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." 33 CFR § 209.120(d)(2)(h) (1976). In 1977, the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition reads as follows:

"The term `wetlands' means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." 33 CFR § 323.2(c) (1978).

In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR § 323.2 (1985).

United States v. Riverside Bayview Homes, Inc., 474 US 121, 123-124 (1985)

Note that, in that case, "The [lower] court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of "navigable waters," intended to allow regulation of wetlands that were not the result of flooding by navigable waters. Under the court's reading of the regulation, respondent's property was not within the Corps' jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. . . . We now reverse."

Moreover:

On a purely linguistic level, it may appear unreasonable to classify "lands," wet or otherwise, as "waters." Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious.

Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history and underlying policies of its statutory grants of authority. Neither of these sources provides unambiguous guidance for the Corps in this case, but together they do support the reasonableness of the Corps' approach of defining adjacent wetlands as "waters" within the meaning of § 404(a). Section 404 originated as part of the Federal Water Pollution Control Act Amendments of 1972, which constituted a comprehensive legislative attempt "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101, 33 U. S. C. § 1251. This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, "the word `integrity' . . . refers to a condition in which the natural structure and function of ecosystems [are] maintained." H. R. Rep. No. 92-911, p. 76 (1972). Protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control pollution, for "[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source." S. Rep. No. 92-414, p. 77 (1972).

In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into "navigable waters," see CWA §§ 301(a), 404(a), 502(12), 33 U. S. C. §§ 1311(a), 1344(a), 1362(12), the Act's definition of "navigable waters" as "the waters of the United States" makes it clear that the term "navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term. See S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 (1972) (statement of Rep. Dingell).

474 US at 132-133.

So, apparently the Court thinks that the EPA does indeed know what "navigable" means, or at least what Congress meant by "navigable." Note also that the EPA's interpretation is almost 50 years old; if Congress disagreed with it, it could have amended the statute to annul the EPA's interpretation.

Also, why do Democrats like swamps (or, as they call them, wetlands) so much?

Note that the regulation at issue was originally promulgated in 1976, under a Republican administration. And, as the quote above says, wetlands are "loved" for purposes of the Clean Water Act because "[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source." S. Rep. No. 92-414, p. 77 (1972).

There was a time that draining swamps was among the greatest achievements of the government.

We don't worry about malaria any more, and wetlands have many benefits

There was a time that draining swamps was among the greatest achievements of the government.

Fun footnote in the court's opinion:

Leovy v. United States also reflected the law’s longstanding hostility to wetlands: “If there is any fact which may be supposed to be known by everybody, and, therefore, by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances.” Traditionally, the only time wetlands were the subject of federal legislation was to aid the States in draining them. Wetlands preservation only gained traction due, in large part, to advances in firearms technology that made waterfowl hunting feasible.

The issue in the case was whether "final agency action" had yet occurred.

It's a bit worse than that; Sackett (2012) asked whether an agency's final ruling with penalties counted if the agency might change its mind about enforcement, but it also had to decide that "The Clean Water Act is not a statute that “preclude[s] judicial review” under the APA, 5 U. S. C. §701(a)(1)." And SCOTUS had to make that conclusion because the government argued such preclusion seriously. Indeed, the lower court decision references cases that accepted that explicitly.

No, 40 CFR 120.2 defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." And according to the Court's decision, that definition dates to the early 1980s.

The poster is probably referring to various rulemakings and interpretations around that rule, which has been repeatedly modified: the 2023 final rule actually starts with a relatively complete (if not exactly unbiased) summary of the recent history, but also see the 2014 NPR, 2020 final rule, timeline 2001-2016 here.

The definition of "wetlands" in the CFR was not changed, but not all wetlands were covered by the Clean Water Act's past interpretations. I can't find the 1980 version from a quick search, but the 1986 guideline is here (cw: large pdf): it explicitly only covered "interstate wetlands" and "wetlands adjacent to waters (other than waters that themselves are wetlands)", where adjacency required "means bordering, contiguous, or neighboring", with some exceptions for manmade structures and beach dunes. By contrast, Obama- and Biden-area rules do not require adjacency, but merely a "significant nexus", pulling the term directly from Kennedy's concurrence in Rapanos (ie, and thus a term that was not used before 2006).

Estimates on exactly how many acres this covered are hard to come by, not least of all because every expansive WoTUS rule also advocated a case-by-case analysis, and probably didn't include literally every place to ever have standing water, but the claim that it didn't expand the area or coverage significantly doesn't pass the sniff test.

wetlands adjacent to waters (other than waters that themselves are wetlands)", where adjacency required "means bordering, contiguous, or neighboring"

How far is "neighboring", they're 300 feet away from the lake.

This case is weird because the objectionable part doesn't seem to be the idea that the ditch on their land has some relation to the water quality of the lake, but the treatment of gravel and sand as pollutants. If they had been dumping highly toxic waste on marshy land next to a ditch that flowed into Priest Lake we wouldn't care whether it's technically adjacent or not, we'd understand that some amount of the water-soluble pollutants are going to make it into the lake. The maddening part is treating construction sand like toxic waste.

Having had to secure an erosion and sedimentation permit, there's good reason for treating sand and gravel as waste. It may not kill fish the way a more traditional toxin will, but it can seriously gum up an ecosystem enough to have the same effect on the health of a stream or lake. There is a whole host of Federal regulations concerning how much fill you can dump into a lake.

Right, but nobody was planning to dump fill in the lake as a part of this homebuilding process I shouldn't think?

If the Sacketts were to dump a bunch of diesel on their property, it's plausible that this could pollute the lake -- but sand and gravel to not travel in the water table this way, and should be regulated separately if the EPA is going to take an expansive enough definition of "waterway" to cover groundwater pollution.

There's a lot of good policy arguments in favor of more specific and expansive regulations for more specifically dangerous materials. There are even good policy arguments in favor of regulating large changes to water runoff, including those done by the safest construction sand and gravel -- you can fuck up a lot of ecology with a giant dam, after all, and even without a basement the typical house is a large dam.

Some of these regulations exist, either at the federal level in other laws, or in some or all states. But it is easier to redefine things.

So…is the OP a partisan hack or not?

A bit. At the very least, there's a ton of history here crossing 50 years across multiple political allegiances and a lot of 'non-political' regulation well before the Biden or Obama administrations. But not as much as gdanning's response suggests.

No, 40 CFR 120.2 defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." And according to the Court's decision, that definition dates to the early 1980s.

That helps clarify part of what I saw about the case (the Reason video from six months ago) where the EPA also demanded they plant wetland plants on the land where none such plants grew. Ridiculous.

To be fair, a lot of wetlands plants are pretty hardy, if only because the definition is so expansive. You're probably thinking cattails or mangroves that require regular inundation to thrive, but the EPA and Army Corps of Engineers includes a broader framework of plants that merely require highly hydrated soils, including some dogwoods and willows.

That frame of logic was part of the reasoning some previous short-lived attempts at very expansive definitions of 'wetlands' (eg, in the late 1980s, must have seven consecutive days water no more than 18 inches underground).

That would definitely make my entire town wetlands

That reminds me that I need to uproot the "wetland grasses" on my land that are growing in the middle of all the other stuff.

but the claim that it didn't expand the area or coverage significantly doesn't pass the sniff test.

And, if that had been OP's claim, there would have been no need to correct it. Similarly, had OP discussed the "adjacency" issue, as you do, and which was the actual point of disagreement between the justices in the recent decision, there would have been little reason to comment. But instead OP made a specific claim, i.e., that "wetlands" includes "any land on which there is any standing water at any time of the year," which is clearly not true.

I'm not sure it is clearly not true; there's a reason I wrote and emphasized probably, here, and the Sackett's property is already a pretty far outlier from the common read.

Is is clearly not true because the regulation clearly doesn't say what OP says it does. OP said it says one thing, when it says something else. Whether the Sackett's property falls within the (actual) regulatory definition is an entirely different issue.

PS: Again, not that it matters to the issue of OP's misstatement, but see the photos at the end of the Ninth Circuit opinion here. That does not look like " a pretty far outlier from the common read."

The site's google maps location is available here. The statute's definition to directly quote the opinion "the CWA prohibits the discharge of pollutants into only “navigable waters,” which it defines as “the waters of the United States, including the territorial seas,” 33 U. S. C. §§1311(a), 1362(7), (12)(A) (2018 ed.)".

The EPA's ability to literally ever find standing water ever seem more an example of the problem rather than a defense, unless you think the Congress of 1972 meant to include happy meal toys in their concept of navigable, and not care whether it'd have to teleport through dirt to go anywhere.

Now you seem to be making a different claim, i.e., that the regulatory definition of "wetlands" is inconsistent with the statutory defintion of "waters of the United States." That may be, but what does that have to with OP's erroneous claim?

The OP's claim was that :

Biden's EPA, which had attempted to define the navigable waters of the united states to mean any land on which there is any standing water at any time of the year.

Ignoring for now the nitpick that what the Biden (and Obama) EPA attempted and what made it into the final rule don't have to be the same thing, the Sackett property pictures in the lower court opinion seems to be a literal case of an environment where areas that had standing water only for a part of the year.

EDIT: to be clear, I think pushing back about it being certainly including any land which had any standing water for any time would be somewhat reasonable, but your implication that the current rule either a) had no modifications since the 1980s, or b) depended solely on the term wetlands, is not reasonable.

your implication that the current rule either a) had no modifications since the 1980s,

Well, the definition that I cited is exactly the same now as it was in 1980, and is exactly the same as what the Court says it was a few years later. So unless they changed it, then changed it back to the exact original language, my inference that the definition had no modifications since the 1980s is perfectly reasonable.

your implication that the current rule . . . depended solely on the term wetlands

OP made a claim that "Biden's EPA . . . attempted to define the navigable waters of the united states to mean any land on which there is any standing water at any time of the year." What can that possibly mean, other than a claim about what constitutes "wetlands," given that, as I said, 40 CFR 120.2 (ie., EPA regulations) defines "waters of the United States" to include wetlands, and "wetlands" to mean "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." How could OP's claim about how Biden's EPA defines navigable waters possibly be anything other than a misstatement of that regulation, which is the current EPA regulation that defines navigable waters?

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