fbpx
Connect with us

Louisiana Illuminator

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

Published

on

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.”

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

SUBSCRIBE

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.

SUPPORT NEWS YOU TRUST.

DONATE

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.

Read More

The post U.S. Supreme Court narrows scope of Clean Water Act appeared first on lailluminator.com

Please follow and like us:
Pin Share

Louisiana Illuminator

Landry removes job requirements, trumps local authority for industrial tax breaks

Published

on

lailluminator.com – Greg LaRose – 2024-02-22 05:00:54

Landry removes job requirements, trumps local authority for industrial tax breaks

by Greg LaRose, Louisiana Illuminator
February 22, 2024

Companies that receive major breaks on their local property taxes to invest in large industrial projects in Louisiana will no longer have to set hiring goals to get the incentive, plus they won't need approval from local taxing authorities if the governor is in favor of their proposal.   

Gov. Jeff Landry signed an executive order Wednesday that upends the standards and approval process that's been place for the Industrial Tax Exemption Program (ITEP) since 2016. The signing took place during the governor's appearance at a Louisiana Association of Business and Industry luncheon, according to the Baton Rouge Business Report

“This program is about capital investment. It is not about job creation,” Landry said.

Since 1998, Louisiana has awarded more than $20 billion in local tax breaks to industry through its Industrial Tax Exemption Program, according to an Ohio River Valley Institute analysis. 

Flow from the ITEP spigot slowed significantly in 2016 then-Gov. John Bel Edwards issued an executive order that required local approval of industrial tax exemptions. He also reduced the tax break available from 100% of property taxes to 80% and inserted a job-creation requirement for companies. Landry's order keeps the tax reduction at the same level.

The executive order he signed Wednesday also condenses the process for companies to receive local approval on their tax exemptions. Previously, each local body that collects property taxes had to approve tax breaks independently with a separate public hearing. For example, a parish school board could approve the tax exemption, but a parish council or sheriff could reject it. The business would then receive a partial tax break.  

Landry's new arrangement calls for a single parish industrial board, which would include representatives from the taxing agencies, to consider ITEP applications. Its vote would apply to all local agencies that receive property taxes, meaning companies would get approval a total tax break or none.

The executive order also upends the sequence of approval to award industrial tax exemptions, placing ultimate power in the governor's hands. Local approval has been necessary for an ITEP request to advance for consideration to the state Board of Commerce and Industry, a 24-member panel of appointees from business groups and the governor. 

Now, under Landry's order, companies will first submit their applications to the Board of Commerce and Industry. If their request is approved, the state panel will then notify a parish industrial board that it must hold a public hearing on the application within 45 days.

However, the order says little about what weight the local recommendation has in the ITEP approval process or how it factors into the governor's decision.

“Input from the Local ITEP Committee is important for consideration of an industrial tax exemption; however, it should not unduly delay the ITEP application process,” the order reads.

In an email, the Illuminator asked Landry spokesperson Kate Kelly about the governor's ability to override a local ITEP vote.

“The governor is the final say,” Kelly said.

Together Louisiana, a coalition of church and civic groups, has been highly critical of the state's generous ITEP giveaways. In a statement Wednesday, the group questioned whether Landry's order turned the incentive program into “a gift.”

“If a corporation gets a tax exemption, not to bring in a new plant or create jobs, but just as a public subsidy for its routine capital investments — investments, that is, that would have happened anyway — the result is not economic development. It's the opposite,” the Together Louisiana statement said. 

“In that scenario, local communities don't get new economic activity, but they still lose the millions in tax revenue from their schools, roads and police,” the statement continued. “They lose jobs — the teachers, construction workers, sheriff's deputies and others who would have provided the services that went unfunded. And their property taxes start going up, to fill the holes in the tax base left by each new round of gratuitous giveaway.”

Without any job requirements, companies can now apply for tax exemptions for most any large-scale investment in Louisiana. Landry's order does specify that maintenance expenses, environmental compliance upgrades and replacement parts that are not part of an extensive restoration do not qualify for ITEP awards.

The order goes into effect for all ITEP applications moving forward, effective Feb. 21, but does not apply retroactively to applications or exemptions.

SUPPORT NEWS YOU TRUST.

DONATE

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.

Read More

The post Landry removes job requirements, trumps local authority for industrial tax breaks appeared first on lailluminator.com

Please follow and like us:
Pin Share
Continue Reading

Louisiana Illuminator

Criminal justice reform advocates ask court to force Legislature to hear from public

Published

on

lailluminator.com – Piper Hutchinson – 2024-02-21 16:51:56

Criminal justice reform advocates ask court to force Legislature to hear from public

by Piper Hutchinson, Louisiana Illuminator
February 21, 2024

Three Louisiana criminal justice reform advocates have asked a state court to prevent the Legislature from discussing several proposals until more public testimony is heard on the bills. 

Their petition was filed Wednesday in 19th Judicial District Court in Baton Rouge by Norris Henderson, executive director of Voice of the Experienced, Ronald Marshall, chief policy analyst with Voice of the Experienced, and Erica Navalance, a staff attorney with the Promise of Justice Initiative. Read the full petition below. 

They contend House Administration of Criminal Justice Chair Rep. Debbie Villio, R-Kenner, has irregularly limited public input over two days of hearings during a special session on crime policy. The agenda for the session features a string of bills, with Gov. Jeff Landry's support, that call for harsher consequences for criminals.   

The committee enacted a rule to limit each public commenter to three minutes and cut off public debate after proponents and opponents of a bill each testified for one hour. The three-minute rule is a common practice at the Capitol, but overall time limits are seldom used. 

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

SUBSCRIBE

Committee members said they supported these rules to get through testimony more quickly. On Tuesday and Wednesday, the committee had a full schedule of bills that attracted a large number of public comments. The special session doesn't have to end until March 5, but leaders have suspended the rules several times in order to expedite hearings on bills rather than letting them lay over for a day between hearings. 

House Democratic Caucus Chair Rep. Matthew Willard of New Orleans and other Democrats have criticized Republicans for fast-tracking legislation that would almost totally reshape Louisiana's criminal justice system, giving the public limited opportunity for input. 

The court petition seeks to prevent the full House of Representatives from discussing the bill until the House Criminal Justice Committee holds another hearing to allow more public comment. The complainants say they traveled to Baton Rouge to testify, but the committee's time limits prevented them from speaking. 

House Speaker Phillip Devillier, R-Eunice, defended the committee, arguing two hours of discussion per bill is reasonable, and that the Legislature is allowed to suspend the rules to advance bills. 

The complainants want to pause debate on four bills: 

House Bill 4, by Rep. Julie Emerson, R-Carenco, which limits post-conviction relief opportunities. House Bill 6, by Rep. Nicholas Muscarello, R-Hammond, which expands the methods by which Louisiana executes people and shields records related to executions from public viewHouse Bill 9, by Villio, which eliminates parole in almost all circumstances House Bill 10, by Villio, which limits good time credits and credit for time served

 

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.

Read More

The post Criminal justice reform advocates ask court to force Legislature to hear from public appeared first on lailluminator.com

Please follow and like us:
Pin Share
Continue Reading

Louisiana Illuminator

Biden unveils latest round of student loan cancellation to aid 153,000 borrowers

Published

on

lailluminator.com – Jennifer Shutt – 2024-02-21 16:26:30

Biden unveils latest round of student loan cancellation to aid 153,000 borrowers

by Jennifer Shutt, Louisiana Illuminator
February 21, 2024

President Joe Biden expanded his push to eliminate student loan debt Wednesday, saying during a speech the initiative is part of a campaign promise to address the “broken” system.

“While a college degree is still a ticket to a better life, that ticket is too expensive,” Biden said. “And too many Americans are still saddled with unsustainable debt in exchange for a college degree.”

Biden, who made his remarks while on a trip to California that also included fundraising for his 2024 campaign, argued that canceling student loan debt not only helps those who receive the benefit directly, but those in their communities.

“When people's student debt is relieved, they buy homes, they start businesses, they contribute, they engage in the community in ways they weren't able to before and it actually grows the economy,” Biden said.

The latest round of student debt forgiveness includes nearly 153,000 borrowers and a total of $1.2 billion in debt, according to a fact sheet from the White House.

Those receiving loan forgiveness are enrolled in the Saving on a Valuable Education or SAVE repayment plan, have been paying back their loans for at least 10 years and originally took out less than $12,000 in loans.

This week's actions bring total student loan cancellation by the Biden administration to $138 billion for nearly 3.9 million people, according to the fact sheet.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

SUBSCRIBE

Repayments tied to income, family size

The so-called SAVE Plan allows borrowers to set their student loan repayments based on their income and family size, not the amount of student loan debt they hold.

“The SAVE plan ensures that if borrowers are making their monthly payments, their balances cannot grow because of unpaid interest,” according to the White House's fact sheet. “And, starting in July, undergraduate loan payments will be cut in half, capping a borrower's loan payment at 5% of their discretionary income.”

Education Secretary Miguel Cardona said on a call with reporters Tuesday there are about 7.5 million people enrolled in the SAVE Plan and that 4.3 million don't have a monthly payment.

“Many SAVE forgiveness recipients come from lower- and middle-income backgrounds,” Cardona said. “Many took out loans to attend community colleges. Some were at high risk for delinquency and default. That's why the actions we're announcing today do matter.”

Cardona said those eligible for this round of student debt cancellation would receive an email from Biden telling them about the move.

New FAFSA rollout criticized

Louisiana Republican Sen. Bill Cassidy said in a written statement the latest round of student loan forgiveness is misguided.

“The Biden Department of Education has been unable to fulfill their basic responsibilities mandated by Congress and essential to families, like implementing FAFSA,” Cassidy said, referring to the application college students fill out to access student aid, including grants, scholarships and loans.

The Biden administration's efforts to revamp the form have been marred by delays and errors. 

“Instead, they have spent a considerable amount of time prioritizing their student loan schemes to shift someone else's debt onto taxpayers that chose not to go to college or already paid off their loans,” Cassidy added. “This is unfair, manipulative and a cynical attempt to buy votes.”

Cassidy is the ranking member on the U.S. Senate's Health Education Labor and Pensions Committee, often referred to as the HELP Committee.

SUPPORT NEWS YOU TRUST.

DONATE

Supreme Court decision

Biden, speaking at the Julian Dixon Library in Culver City, California, criticized the U.S. Supreme Court for blocking his original student loan forgiveness plan. 

“Early in my term, I announced a major plan to provide millions of working families with debt relief for their college student debt,” Biden said. “But my MAGA Republican friends in the Congress, elected officials and special interests stepped in and sued us. And the Supreme Court blocked it. But that didn't stop me.”

Biden said the justices' opinion in that case led him to “pursue alternative paths” for student debt relief, which includes the announcement he made Wednesday.

Canceling some student loan debt, Biden said, is about giving people a chance.

“That's all we're doing … giving people a chance, a fighting chance to make it, because no one who is willing to work hard in America should be denied the opportunity to have that chance.”

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.

Read More

The post Biden unveils latest round of student loan cancellation to aid 153,000 borrowers appeared first on lailluminator.com

Please follow and like us:
Pin Share
Continue Reading

News from the South

Trending