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U.S. Supreme Court narrows scope of Clean Water Act

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lailluminator.com – Jacob Fischler – 2023-08-31 08:12:01

U.S. Supreme Court narrows scope of Clean Water Act

by Jacob Fischler, Louisiana Illuminator
August 31, 2023

The U.S. Supreme Court in a major environmental decision on  Thursday overturned the Environmental Protection Agency's definition of wetlands that fall under the agency's jurisdiction, siding with an Idaho couple who'd said they should not be required to obtain federal permits to build on their property that lacked any navigable water.

All nine justices agreed to overturn the 9th Circuit Court of Appeals' ruling that endorsed the Biden administration's broad definition of waters of the United States, or WOTUS, the term for what falls under federal enforcement of the Clean Water Act.

But they published four separate opinions that showed a 5-4 split in how far they would allow federal jurisdiction to extend, with the conservative majority ruling to significantly narrow federal agency power.

“It is a substantial change to the way wetlands have been regulated under the Clean Water Act” since the law's 1972 enactment, said Ashley Peck, an environmental litigator and water quality adviser at Holland and Hart LLP. “It looks like it will eliminate jurisdiction for a huge amount of wetlands, particularly in the arid West.”

Conservative Justice Brett M. Kavanaugh and the court's three liberals concurred with the ruling in favor of Idaho landowners Michael and Chantell Sackett, but objected to the majority's narrow new standard, which they said introduced more uncertainty and would hurt water quality.

The Sacketts had sought to build on a piece of their property separated by a 30-foot road from a tributary to Priest Lake in the Idaho panhandle. Lower courts held they needed federal environmental approvals because of their land's connection to Priest Lake.

The Supreme Court heard oral arguments in their appeal in October.

‘Continuous surface connection' test

Writing for the court's majority, Justice Samuel Alito said the Clean Water Act applies only to wetlands with a “continuous surface connection” to the navigable waters like streams, lakes, oceans and rivers that are indisputably covered by the law.

Justice Samuel Alito wrote for the court's majority that wetlands must have a continuous service connection to navigable waters to be covered by the Clean Water Act. (Erin Schaff-Pool/Getty Images)

The Biden administration's definition — that said an area with an ecologically “significant nexus” to a navigable waterway was subject to Clean Water Act enforcement — would put nearly all waters and wetlands in the country under federal jurisdiction, with little room for state enforcement, Alito wrote.

Wetlands must be virtually indistinguishable from the navigable waters for federal jurisdiction to apply, he wrote.

That standard would limit the EPA and Army Corps of Engineers' authority to regulate wetlands, even in areas where no one had disputed federal power.

Alito, who was appointed to the court by President George W. Bush, praised the Clean Water Act for effectively curtailing water pollution. But he said the law “is a potent weapon” with severe penalties, and its power should be checked.

The text of the law uses both the terms “navigable waters,” which has a well-known definition, and “waters of the United States,” which does not, Alito wrote.

The EPA, Army Corps of Engineers and various courts have held that waters of the United States can include tributaries to navigable waters and even dry land with an ecological connection to those tributaries.

The inclusion in the statute of “navigable waters” means Congress was focused on the permanent lakes, rivers, streams and oceans that are generally included in that definition, even if some wetlands can also be regulated under the law, Alito wrote.

“Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read ‘navigable' out of the statute,” Alito said.

Some adjacent wetlands can still be considered waters of the United States, Alito said. But for the federal law to apply to a wetland, it “must be indistinguishably part of a” covered water, he wrote.

The ruling represents a sweeping shift in wetlands regulation, even for a conservative court with a recent history of restricting federal regulations.

“This was a broader brush than I expected,” Peck said. “This is always a possibility with this court, for certain, but I wasn't necessarily expecting to have the whole regulatory regime upended.”

In a statement, President Joe Biden called the decision “disappointing.”

“Today's decision upends the legal framework that has protected America's waters for decades,” he said. “It also defies the science that confirms the critical role of wetlands in safeguarding our nation's streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.”

Kavanaugh and liberals band together

Kavanaugh, with the court's three liberals joining, wrote that a continuous surface connection to navigable waters was not strictly necessary for wetlands to fall under federal jurisdiction. Waters can be adjacent without that connection, they said.

Supreme Court Justice Brett Kavanaugh, right, agreed with the court's liberals that wetlands adjacent to navigable waters can fall under federal jurisdiction. (Doug Mills-Pool/Getty Images)

Kavanaugh, in a notable departure from the usual alliance on the court, said the majority rewrote the law and introduced new questions about wetlands that have long been subject to federal jurisdiction.

“The Court's new and overly narrow test may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies' regulatory authority, with negative consequences for waters of the United States,” he wrote.

Kagan blasts judicial policymaking

Justice Elena Kagan wrote a separate concurring opinion with fellow liberal Justices Sonia Sotomayor and Ketanji Brown Jackson that criticized the court for policymaking.

Drawing parallels with her dissent in a decision last year that restricted the EPA's power to regulate carbon emissions at existing power plants, Kagan wrote that the court's conservatives simply substituted their policy preferences for what Congress actually enacted.

The majority in this case invented a standard that laws that impact private property must have “exceedingly clear language,” Kagan wrote, putting “a thumb on the scale for property owners,” and disregarding the public interest in clean water.

“A court may not rewrite Congress's plain instructions because they go further than preferred,” she said. “That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) ‘adjacent' to covered waters.”

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Lengthy legal fight

The case is part of a decades-long legal conflict to define the reach of the Clean Water Act.

Alito's majority opinion referenced the years of shifting definitions and the uncertainty provided in various court cases and agency regulations, calling it “the persistent problem that we must address.”

In general, agricultural interests, home builders and Republican officials have argued that the federal regulations impose an undue burden and should be applied narrowly.

“The Supreme Court just ruled that Biden's overreaching WOTUS interpretation is unconstitutional,” Missouri Attorney General Andrew Bailey, a Republican, said on Twitter. “This is a huge win for farmers across America.”

Environmental groups and Democrats have argued for a broader definition that they say allows the federal government to offer important protections.

“Federal protections that don't depend on local politics or regional polluter influence are essential to vulnerable and disadvantaged communities nationwide,” Jim Murphy, the director of legal advocacy for the National Wildlife Federation, said in a statement “The court's ruling removes these vital protections from important streams and wetlands in every state.”

Murphy called on Congress and state governments to adopt stronger standards.

The ruling doesn't necessarily limit the issue's long-running uncertainty, Peck said. While it settles federal jurisdiction for now, states, especially in the West, may decide to strengthen their own clean water laws and regulations, she said.

Reaction from Congress

Several Republicans in Congress responded to the ruling with enthusiasm.

“The Supreme Court's decision is clearly a decisive win for America's farmers, small businesses, property owners, and those who help build our infrastructure,” U.S. House Transportation and Infrastructure Chairman Sam Graves of Missouri and Water Resources and Environment Subcommittee Chairman David Rouzer of North Carolina said in a joint statement.

“This is great news for rural America!” Minnesota Republican Pete Stauber, the chairman of the U.S. House Natural Resources Subcommittee on Energy and Mineral Resources, tweeted.

“I'm glad to see the Supreme Court rightfully and unanimously blocked Biden's ill-conceived #WOTUS rule,” U.S. Sen. Joni Ernst of Iowa wrote on Twitter. “This is a big WIN for Iowa, where nearly every industry is impacted.”

“Kansans are best positioned to conserve our land and natural resources,” Kansas Republican U.S. Rep. Ron Estes said. “And they don't need Biden's bureaucrats 1000 miles away to regulate the rainwater that accumulates in ditches in rural parts of our state.”

Fewer Democrats publicly commented on the ruling, but Senate Environment and Public Works Chairman Tom Carper of Delaware said the decision undermines the EPA's ability to effectively regulate water pollution and puts “America's remaining wetlands in jeopardy.”

“I strongly disagree with the Court's decision, and I am deeply concerned about the future impacts of this case on clean drinking water, coastal and flood-prone communities, and wildlife across our nation,” Carper said.

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Louisiana Illuminator is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. maintains editorial independence. Contact Editor Greg LaRose for questions: info@lailluminator.com. Follow Louisiana Illuminator on Facebook and Twitter.

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Biden touts gun safety record to advocates, as son found guilty on felony charges • Louisiana Illuminator

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lailluminator.com – Ariana Figueroa – 2024-06-12 05:00:32

by Ariana Figueroa, Louisiana Illuminator
June 12, 2024

WASHINGTON — President Joe Biden on Tuesday touted his administration's efforts to reduce gun violence as the second anniversary of bipartisan gun safety legislation he signed into law approaches.

“Never give up on hope,” Biden said during an annual conference hosted by the advocacy group Everytown for Gun Safety.

The speech came hours after the president's son Hunter Biden was found guilty in a federal court in Delaware of lying on paperwork related to purchasing a gun and unlawfully possessing that gun, according to media reports.

The federal jury found Hunter Biden, who has struggled with drug addiction, guilty on three related felony charges: lying to a licensed gun dealer, falsely stating on an application for a gun that he was not using drugs and for unlawfully having the gun for 11 days.

He could face up to 25 years in prison, though as a first-time offender his sentence is expected to be much less severe.

The president has avoided publicly commenting on his son's case and he did not mention the verdict in his speech.

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Gaza protest

Shortly after Biden began his speech, he was interrupted by a protester who accused the president of being “complicit” in the high death toll of the Israel-Hamas war. The conflict has killed 35,000 Palestinians since Oct. 7, according to the Health Ministry in the Gaza Strip run by the Hamas-controlled government. An agreement over a U.S. backed cease-fire deal remains elusive.

The crowd immediately drowned out the protester. A group of protesters was removed, according to a White House pool report.

Biden tried to calm the crowd.

“That's alright,” he said. “Folks, it's OK, look they care, innocent children have been lost, they make a point.”

Law nears second anniversary

Biden went back to his speech, and thanked the gun safety advocates and survivors “who have turned their pain” into advocacy.

“You've helped power a movement,” Biden said.

The gun safety law Biden signed in 2022 was the most comprehensive federal gun safety legislation in nearly 30 years. It stemmed from two deadly mass shootings less than two weeks apart in 2022.

One was at an elementary school in Uvalde, Texas, where 19 children and two teachers were murdered, making it the second-deadliest mass shooting since the Sandy Hook Elementary School massacre in 2012.

The other was in Buffalo, New York, where a white supremacist targeted a Black neighborhood and killed 10 Black people in a grocery store.

Worries about guns in school mount as permitless concealed carry law looms

The 2022 law provided $750 million for states to enact “red flag laws,” which allow the courts to temporarily remove a firearm from an individual who is a threat to themselves or others as well as $11 billion in mental health services for schools and families. The law cracked down on straw purchases, illegal transactions in which a buyer acquires a gun for someone else.

The bill also requires those who are under 21 and want to purchase a firearm to undergo a background check that takes into account a review of juvenile and mental health records. It also led to the creation of the White House Office of Gun Violence Prevention.

The Justice Department also announced Tuesday it has charged more than 500 people under provisions of the gun safety law to “target the unlawful trafficking and straw-purchasing of firearms.”

The statutes “directly prohibit straw purchasing and firearms trafficking and significantly enhance the penalties for those crimes, providing for up to 15 years in prison,” according to the Justice Department.

“Criminals rely on illegal gun traffickers and straw purchasers to obtain the weapons they use to harm our communities,” Attorney General Merrick Garland said in a statement.

More work to do

Biden acknowledged that more needs to be done on gun safety legislation and he called on Congress to ban assault weapons and require universal background checks and safe storage of firearms. In a divided Congress, any gun-related legislation is unlikely to pass.

The last time Congress passed major gun legislation was 1994, when then-President Bill Clinton signed a ban on assault weapons that spanned 10 years. When it expired, Congress did not renew the ban.

Biden also took a jab at his rival, former President Donald J. Trump, and said that he won't tell people to “get over” a mass shooting.

After a school shooting in Perry, Iowa, the presumptive GOP presidential nominee said during a campaign speech in Sioux City, Iowa, that while the school shooting that left two dead – an 11-year-old student and the principal – was a “terrible thing that happened,” his advice was to “get over it. We have to move forward.”

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Louisiana Illuminator is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. maintains editorial independence. Contact Editor Greg LaRose for questions: info@lailluminator.com. Follow Louisiana Illuminator on Facebook and Twitter.

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Pair of U.S. House Dems add to chorus calling for Alito, Thomas recusals • Louisiana Illuminator

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lailluminator.com – Ariana Figueroa – 2024-06-12 05:00:51

Pair of U.S. House Dems add to chorus calling for Alito, Thomas recusals

by Ariana Figueroa, Louisiana Illuminator
June 12, 2024

WASHINGTON — U.S. House Democrats echoed Senate colleagues Tuesday in calling for U.S. Supreme Court Justices Clarence Thomas and Samuel Alito to recuse themselves from Jan. 6 cases, and for congressional Republicans to support passing an enforceable ethics code for the entire bench.

Reps. Jamie Raskin, ranking member of the U.S. House Committee on Oversight and Accountability, and vice ranking member Alexandria Ocasio-Cortez brought together fellow progressive Sen. Sheldon Whitehouse with experts and advocates for a roundtable discussion on the “ethics crisis” facing the nation's highest court.

Recent revelations of flags sympathetic to the “Stop the Steal” movement flown outside Alito's home have reignited simmering concerns over justices' conflicts of interest as they decide politically divisive issues. This year, justices are set to rule on access to the abortion pill and whether former President Donald Trump enjoys immunity from criminal charges alleging 2020 election interference, among other cases.

Raskin and Ocasio-Cortez delivered searing remarks, admonishing decades of court actions beginning with the 5-4 decision in 2000's Bush v. Gore that ultimately decided the presidential victory for George W. Bush. The lawmakers continued on to recent events that Ocasio-Cortez characterized as “corruption that is almost comical.”

“The Supreme Court as it stands today is delegitimizing itself through his conduct,” the New York Democrat continued in her opening statement. “Americans are losing fundamental rights in the process — reproductive health care, civil liberties, voting rights, the right to organize clean air and water because the court has been captured and corrupted by money and extremism.”

Raskin, of Maryland, said the “highest court in the land today has the lowest ethical standards.”

In his opening statement, Raskin characterized the court as “the judicial arm of the Republican Party,” drawing a throughline from Bush's appointments to the bench of Chief Justice John Roberts and Alito to Trump's appointments of conservative Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

“Now this right-wing corporate court, carefully designed to destroy Roe v. Wade and marry right-wing religion to untrammeled corporate power, has been demolishing women's abortion rights and contraceptive rights, civil rights law, voting rights law, civil liberties, environmental law, workers' rights and consumer rights, enshrining government power over people and corporate power over government,” Raskin said.

Raskin and Ocasio-Cortez's roundtable came less than a week after progressive House Reps. Pramila Jayapal of Washington and Hank Johnson of Georgia rallied with activists outside the Supreme Court urging an ethics overhaul.

That same day, Senate Minority Leader Mitch McConnell of Kentucky posted to X: “As the Supreme Court term ends, the Left is once again bullying Justices who refuse to take orders from liberal Senators. The Court should take any action it deems appropriate to reprimand unethical conduct by members of its Bar. And Justices should continue to pay this harassment no mind.”

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‘Keep the pressure on'

Whitehouse told Democratic members of the Oversight and Accountability Committee that Senate Democrats are shining a “heavy spotlight on the mischief.”

The Rhode Island Democrat has championed an ethics bill titled the Supreme Court Ethics, Recusal and Transparency Act, which advanced out of committee along party lines in July 2023 but has not received a floor vote.

“We need to keep the pressure on until they join the rest of the government in having a real ethics code with real fact finding and some prospects for comparing the facts that are found to the rules,” Whitehouse said.

The bill was introduced during the fallout from a 2023 ProPublica investigation revealing that Justice Clarence Thomas received gifts from and traveled with a major Republican donor.

A recent analysis by watchdog group Fix The Court illustrated that over the past 20 years the value of gifts received and likely received by Thomas dwarfs that of his colleagues.

Supreme Court orders Louisiana to use congressional map with two majority-Black districts 

Whitehouse again pressed the court in May after the New York Times published that an upside-down U.S. flag hung outside Alito's Alexandria, Virginia, home just days after former Trump's supporters breached the Capitol. The Times later revealed another flag carried by Jan. 6 insurrectionists flew outside the justice's New Jersey beach house.

Along with Sen. Dick Durbin, who chairs the Senate Committee on the Judiciary, Whitehouse requested a meeting with Roberts to urge Alito to recuse himself from cases related to the Jan. 6 attack. Roberts declined, and Alito responded to the senators, declaring he would not recuse himself.

“Thank you Sen. Whitehouse for always flying the flag right side up,” Raskin said.

The court ‘will decide all of this for all of us'

Kate Shaw, University of Pennsylvania law professor, told the lawmakers that the court is “conducting itself in ways that are fundamentally inconsistent with basic separation-of-powers principles that are a core feature of our democracy.”

“This is crystal clear right now, as it is every June, as the country waits with bated breath to learn whether and how the court will upend huge swaths of American law,” she continued.

“This year questions include whether and how the court could further erode the capacity of agencies to regulate in ways that protect our health and safety and well being,” and major firearms decisions, Shaw said.

The court will also decide whether laws on the books will “be used to hold accountable individuals charged with the attack on the Capitol, including the former president,” Shaw said. “And the court is asserting that it and essentially it alone will decide all of this for all of us.”

Over two dozen opinions are expected from the Supreme Court by the end of June.

Two decisions related to two Jan. 6 cases remain pending — one involving a former police officer who breached the Capitol and is seeking to have an obstruction charge dropped. The decision could affect hundreds of Jan. 6 defendant cases, and the 2020 election interference case against Trump, who faces the same obstruction charge.

The court is also set to decide whether Trump is immune from four federal criminal counts alleging he schemed to overturn the 2020 presidential election results and knowingly spread false information that whipped his supporters into rioting on Jan. 6.

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Louisiana Illuminator is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. maintains editorial independence. Contact Editor Greg LaRose for questions: info@lailluminator.com. Follow Louisiana Illuminator on Facebook and Twitter.

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Campaign cash for child care? Louisiana lawmakers decline to endorse it. • Louisiana Illuminator

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lailluminator.com – Julie O'Donoghue – 2024-06-12 05:00:35

by Julie O'Donoghue, Louisiana Illuminator
June 12, 2024

Five years ago, the Louisiana Board of Ethics told a political candidate she could use her campaign money to cover child care costs as long as the expense was related to her efforts to get elected. But state legislators declined to insert that policy into law this year.

They scuttled Senate Bill 153 to ensure candidates could use campaign dollars for election-related child care. 

The proposal passed the Louisiana Senate 31-3 but died in the House and Governmental Affairs Committee. Committee members said too many questions about the bill remained. 

The legislation's failure doesn't necessarily mean candidates can't use money raised for their campaigns to pay child care expenses. It just means the issue will be left up to the ethics board, which could reverse its 2018 decision at any time. 

“In some cases, it's better to have these individual decisions made, as they are, through [the ethics board],” House Republican Caucus Chairman Mark Wright of Covington said.

Former Rep. Ted James, D-Baton Rouge, wishes the Louisiana Legislature had made a definitive statement on the issue. As a candidate for Baton Rouge mayor and single father, James has sometimes wished he had child care for his 6 year-old daughter while campaigning. He has not used any election money for child care yet, but juggling his daughter during nighttime and weekend events can be difficult, he said.

“I think that the Legislature could have and should have put some clarity to it,” James said. 

What's a legitimate campaign expense in Louisiana has been interpreted liberally over the years. Candidates are allowed to use their funds for Mardi Gras parades, restaurant dining, flowers for constituents, charity golf tournaments, fuel and vehicle maintenance.

Several elected officials buy Saints and LSU football tickets with campaign money every year. They also collectively spent over half a million dollars in campaign funds to attend D.C. Mardi Gras, a four-day event that includes dozens of parties, in 2022. 

“If folks can use campaign money to buy Saints, Southern and LSU tickets, I certainly think [child care] should be permissible,” James said.

In the past, the ethics board has also waffled over whether campaign money can be used to cover child care costs.

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The board issued two opinions to male candidates in 2000 indicating they could use campaign funds to cover child care to attend fundraisers. Based on that decision, a group of men who ran for office, including U.S. Sen. John Kennedy, tapped their campaign accounts to cover child care for years. 

Then, in 2018, the board, with a different lineup of members, told legislative candidate Morgan Lamandre she could not use campaign money for child care. One member, former House Rep. Charles Emile “Peppi” Bruneau, told Lamandre her primary responsibility was to provide for her children, not to be a political candidate. 

After widespread criticism of the decision and Bruneau's remarks, the board backtracked a few months later in 2019 and voted 6-4 to allow Lamandre the child care expense. 

Senate President Pro Tempore Regina Barrow, D-Baton Rouge, sponsored the Senate bill this year to clear up any confusion that might remain. She said 31 other states already have a law on the books that allows campaign cash to be used for child care.

“I'm trying to codify what the [ethics board] ruling says,” Barrow said.

During debate on the bill, a handful of legislators implied child care should not be an allowable campaign fund use. 

“Are you aware we have a general prohibition against using campaign funds for personal expenses?” Sen. Blake Miguez, R-New Iberia, asked Barrow during debate on the Senate floor.

“Yes,” Barrow said. 

“So why are you bringing the bill?” Miguez replied. 

Miguez, who voted against Barrow's legislation, said allowing campaign funds to be used for child care would open “Pandora's box.” During the Senate debate, he listed utility bills, lawn care, car leases and “car notes” as costs that candidates might try to cover with campaign funds if child care became an allowable expense.

Legislators already use campaign money to cover car leases. Gov. Jeff Landry also put his campaign money toward paying “a portion of a note on a motor vehicle” for years until the ethics board told him to stop in 2022. 

“Don't you think that's very important to have [a candidate's] animal taken care of while they're out there campaigning?” Miguez asked Barrow during debate on her child care bill. 

“I know that you're not equating pet animals to children,” Barrow replied. 

“I'm not. I'm just giving you some specific examples of where this could go,” Miguez said.

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Louisiana Illuminator is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. maintains editorial independence. Contact Editor Greg LaRose for questions: info@lailluminator.com. Follow Louisiana Illuminator on Facebook and Twitter.

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