my knowledge of boring civil engineering gets me more interested in this than probably 99.9999% of people, but the SCOTUS just ruled on a Clean Water Act case and set what's apparently a new definitive standard for jurisdiction
I'm not 100% sure whether this effectively settles the WOTUS definition and finally voids Rapanos, since its directly a question of pollutant regulation rather than state vs federal jurisdiction, but I assume the latter is inherent to the issue
haven't read my whole way through yet, but ;
https://apnews.com/fcee565b9fed5b001e9b3fce9ed00c24https://www.supremecourt.gov/opinions/19pdf/18-260_5i36.pdfthe court ruled 6-3 rejecting both the 9th circuit's standard of "fairly traceable" pollutants and the EPA's strict interpretation of navigable waters, instead created a new standard of "functionally equivalent", which allows the EPA's regulations to be applied to pollution passing through waterways that are not navigable, as long as they are immediately passing into a navigable waterway. I think that this reasonably doesn't say the EPA controls state lands those waters pass through, and instead that its still exclusively the jurisdiction over the navigable waters that gives them authority to regulate point sources even if they are not immediate to the waters. So long as they fulfill that 'functionally equivalent' standard.
But man, while the conservative dissent wanted to side with the EPA, its remarkable that every single justice joined an opinion rebuking the 9th's "fairly traceable" standard. I think Alito's dissent excoriated it the best:
Quote
And the same is true for the test adopted by the Ninth Circuit. The Ninth Circuit held that a permit is required if a pollutant that reaches navigable waters is “fairly traceable,” but there is no real difference between “fairly traceable” and “originally from.” Unless a pollutant is “traceable” to a point source, how could that point source be required to get a permit? And the addition of the qualifier “fairly” does not seem to add anything. What would it mean for a pollutant to be “unfairly traceable” to a point source? Traceable only as a result of a method that is scientifically unsound? In that situation, why would a court consider the pollutant to be traceable to the source in question at all? So if a pollutant can be reliably determined to have originally come from a point source, a permit would appear to be required under the Ninth Circuit’s test.
Respondents, instead of defending the Ninth Circuit’s interpretation, argue that a discharge from a point source must be the “proximate cause” of a pollutant’s reaching navigable waters. Brief for Respondents 12. But as the Court concludes, ante, at 6, there is no basis for transplanting this concept from the law of torts into the Clean Water Act, and it is unclear what it would mean in that context. For these reasons, of the two possible interpretations of the statutory terms, the better is the interpretation that reads “from” to mean “directly from
Its the kind of logical take-down that should be happening at a middle school debate, not at the supreme court. How did the 9th circuit create such a flawed standard that you can just turn it on its head and point out that it has no falsifiable inverse. What would "unfairly" traceable even look like? Was the EPA supposed to tell polluters they could have a five minute headstart before they release the hounds? They never adequately explained this. Making the statute even *more* vague than it already is, doesn't solve anything. That's what got us into the mess
anyway I think a reduction ad absurdum demonstrates both why the 9th's usual bullshit and the conservative dissent both had impractical ideas. If you took the 'fairly traceable' standard, then the EPA could claim jurisdiction over every inch of the planet and a mile above and below the crust as pollution is dispersed in parts per trillion by normal environmental dynamics. If you took the EPA's strict navigable waters standard, then a chemical plant could dig a 20 foot long ditch to a river and call it an arroyo and dump their waste and say they're under state jurisdiction by technicality. And exploitative technicalities are dumb and anthithetical to the rule of law whichever way they go.
This post was edited by Goomshill on Apr 23 2020 02:13pm
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