So, amid the flapping currently surrounding the Supreme Court about health care legislation, it might seem impossible that the high court could have been worrying about anything else this month….or even practically this year. Or really, ever, since people seem to be getting pretty upset over health care. However, there has been a lot going on in the judicial world, and some of it should catch the attention of enviro folks. I’m going to do my best to put on a legal hat and discuss this, although those of you who might be reading that have actual formal education in the law (hi, Carol!!! how’s law school?), feel free to weigh in!
OK, so it's not exactly a hat. But if we were in Britain, I'd totally go to law school just for the sweet wig.
Meanwhile, back in the US, the people in this big building here:
Ever wonder what their heating bill looks like?
…they handed down a decision that was reported in POLITICO last week regarding whether or not the process of judicial review can be applied to rule-makings by an agency – specifically, the EPA.
The case went something like this: an Idaho couple were told by EPA to reverse grading on their land after a determination by the agency that their property included wetland area protected by the Clean Water Act. The work they performed was done without the necessary permit that should have been obtained. As it stood, the couple had to means to challenge the EPA determination except to simply refuse to pay fines – which accrued daily with each additional refusal to pay and added up to millions.
The new determination by the court did not decide this particular case, but it did provide a potential out for this couple and anyone who might face a similar situation in the future. The Supreme Court ruled that determinations made by the agency are subject to judicial review, the process by which a court can strike down a decision made by the executive (or legislative) branch of the federal government if a judge finds that the decision is arbitrary, unconstitutional, or outside the jurisdiction of the law.
For those of you unfamiliar with the law (probably most everyone reading this), wetlands are protected under Section 404 of the Clean Water Act. EPA and the Army Corps of Engineers have wide berth when it comes to regulating the discharge of waste material as well as dredge-and-fill operations having to do with wetlands. What is most debated, though, is the fact that the bodies of water (whether river, lake, stream, creek, wetland, whatever) protected by the Clean Water Act must be “waters of the United States.” Based on this, conservatives tend to argue that EPA has no business regulating small bodies of water, water bodies that cut through private land, farmland, etc, and that the reach of “big government” and “regulations” into people’s lives should be limited. Hence the objection raised by the Idaho couple: if it’s private land, what business does EPA have determining that it’s a wetland? And what can I do if I disagree?
To wetland or not to wetland, that is the question.
What business indeed?
The problem with this – and virtually all jurisdictional limits that are placed on regulations – is that media-based pollutants tend to be somewhat of a nuisance when it comes to their willingness to respect municipal and regulatory boundaries. It might be your stream, on your land, which is private property, and within your right to stand around pouring paint thinner into it all day long. But what happens when your stream connects to a larger body of water, say, the Potomac River? Are you just polluting your own water? Or are you polluting water that is, through the interconnectedness of the watershed, water of the United States? Is all water considered water of the United States? Or is it just not your fault if you pollute, and it goes down river, becuase, well that’s somebody else’s problem – this is America, and we have rights and freedom?
Or maybe you just never really liked wetlands much anyway.
I’m not trying to be one-sided here, but we’ve got a fundamental impasse. On one hand, the law clearly isn’t written to extend to private property. On the other hand, we can’t protect our main bodies of water if there are smaller problems on all the bodies of water feeding them, compounding the issue. That’s bailing water out of the leaky boat without plugging the hole.
And stepping back a bit further: whose determination is it, anyway? In this specific case – which allows for judicial review of EPA’s determination of what is a ‘wetland’ – who should be the one making the decision? Which is the fundamental difficulty with most environmental regulation: there are always two ways of looking at the problem. One is the science, and the other is the policy.
A team of cutting-edge wetlands scientists from the U.K.
To take the first angle, clearly a judge – an expert in the law of the United States – is most equipped to determine whether or not EPA is keeping with the spirit of the legislation. On the other hand, that judge has no training in what precisely a ‘wetland’ is, nor are they educated enough in critical topics such as ecology and hydrology to know how that particular tract of land fits into overall efforts to protect and ensure water quality.
Don't worry - he's just a lab tech.
Agency scientists, whose entire careers are based on making these decisions, would obviously have the training, expertise and knowledge to make the most educated scientific decision. Is it then simply the job of lawyers arguing one side or the other to call the most qualified witnesses? Is it the job of the agency to give the judge a crash-course in water quality and wetland science? And even if the science says that the land is worth protecting, is that a good policy? Where does the science end and the policy begin?
Which leads us to a larger question – maybe even a moral question: Whose interests are we most concerned with protecting, anyway? Do we err on the side of protecting the rights of the individual to alter, modify, dispose of, or destroy their property as they see fit? If I purchase a priceless artifact – say, a work of art that cannot be replicated or reproduced – is it then within my rights to burn it? Or is there a moral obligation here to structure laws and regulations in a way that protects and ensures the good of the general public? If my modifications will cause harm to others and detriment to the overall water quality of an area – arguably ‘harming’ others – is that still within my right?
These are big questions my friends, and ones which I suspect we will be pondering for years to come.
Or at least until this guy comes up with an answer.
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