Supreme Court’s WOTUS ruling will shake things up across the board

By Bonner Cohen, Ph. D. June 23rd, 2023 44 Comments @ CFACT

Editor's Note:  As you can see this was published a little over a year ago, but in light of the SCOTUS ruling on the Chevron Doctrine, and Trump's almost sure election, I think it's a good idea to remind everyone why his efforts to dismantle the deep state and their corrupt and disgusting schemes they've employed to destroy Americans and the Constitution.  RK 

Last month’s landmark Supreme Court ruling in Sackett v. EPA not only narrowed the scope of the Environmental Protection Agency’s (EPA) authority to regulate wetlands, but it will also have reverberations far beyond the Clean Water Act (CWA).

What began as an effort by Michael and Chantell Sackett to build their dream home on their 0.63-acre lot near Priest Lake in northern Idaho morphed into a 16-year legal battle that ended in a victory for the couple and a defeat for EPA when the High Court ruled that their property was not a wetland and thus not subject to EPA regulation under the 1972 CWA. But in decreeing that the only wetlands EPA could regulate were those with a “continuous surface flow” to a navigable water, such as a lake or river, the court rendered a judgment that will affect other federal environmental statutes as well.

Removing the need for many projects to obtain permits under Section 404 of the CWA, which governs dredge-and-fill discharges, will erase important triggers for National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) reviews, according to George Glicksman, a law professor at George Washington University.

Effects on NEPA and the ESA

“The programs are intertwined in ways that aren’t immediately obvious,” he told Greenwire (June 15). As Greenwire explained:

“Both NEPA and the ESA require federal action to trigger a review, which in turn forces developers to consider their project’s effect on the environment and vulnerable species. Otherwise, a Section 404 forms this federal connection. But without a Clean Water Act permit, that federal nexus – in some cases – disappears.

Depending on the complexity of the project, NEPA, for example, can require either an environmental assessment or a much more comprehensive environmental impact statement (EIS). It can take years for federal officials to complete an EIS, prompting some developers to walk away from a proposed project out of sheer frustration. Before the Supreme Court’s May 25 ruling, an EIS, which included a project’s effect on a wetland with no continuous surface connection to a navigable body of water, prolonged the permitting process. With wetlands lacking that continuous surface connection no longer subject to CWA Section 404 permits, some environmental reviews will be shorter.

As it happens, the court’s ruling coincided with the enactment of a debt-ceiling agreement, which put time limits on the issuance of some federal permits. The result of both developments is less red tape.

Similarly, determining what constitutes a threatened or endangered plant or animal’s “critical habitat” under the ESA will become simpler in some cases because the types of wetlands subject to federal authority have been reduced.

By declaring the Sacketts’ bone-dry property a wetland, and then putting the couple through 16 years of litigation hell, EPA ultimately wound up diminishing its own authority under the CWA. As Professor Glicksman points out, the Supreme Court’s decision also affected two other environmental statutes. For decades, provisions of the CWA, NEPA, and ESA were skillfully used by regulators and special interest groups as a form of federal zoning to snuff out development not to their liking.

To be sure, the ESA is still a hopelessly cumbersome law with a terrible record of recovering vulnerable species. And NEPA still makes it difficult for the United States to carry out much-needed infrastructure projects. But the administrative regulatory state has been dealt a setback, and the country has moved a few steps closer to restoring the Constitution’s separation of powers.

Author

• Bonner Cohen, Ph. D.

  Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT, where he focuses on natural resources, energy, property rights, and geopolitical developments. Articles by Dr. Cohen have appeared in The Wall Street Journal, Forbes, Investor’s Busines Daily, The New York Post, The Washington Examiner, The Washington Times, The Hill, The Epoch Times, The Philadelphia Inquirer, The Atlanta Journal-Constitution, The Miami Herald, and dozens of other newspapers around the country. He has been interviewed on Fox News, Fox Business Network, CNN, NBC News, NPR, BBC, BBC Worldwide Television, N24 (German-language news network), and scores of radio stations in the U.S. and Canada. He has testified before the U.S. Senate Energy and Natural Resources Committee, the U.S. Senate Environment and Public Works Committee, the U.S. House Judiciary Committee, and the U.S. House Natural Resources Committee. Dr. Cohen has addressed conferences in the United States, United Kingdom, Germany, and Bangladesh. He has a B.A. from the University of Georgia and a Ph. D. – summa cum laude – from the University of Munich.

Why The Left Will Not Win

by Dr. Jay Lehr | Sep 22, 2022 | Courts, Global, Politics

 

 

A truly evil man named Noah Harari, a futurist advisor to the World Economic Forum (WEF), told the forum that they must become the majority and leave the rest behind. He was saying we don’t need regular folks. We don’t need carpenters, plumbers, hairdressers, mechanics, automobile workers, farmers, and ranchers. They are all lesser lights. What we want to accomplish on this planet is all for us.

Harari is a true Communist. Fascists desire to stamp out the rest of us. His type has been around almost from the beginning of time. President Kennedy recognized this evil, and perhaps it was one factor that led to his assassination. He said the following during his Presidency:

“We are as a people inherently and historically opposed to secret societies and secret oaths and secret proceedings, but we are opposed around the world by a monolithic and ruthless conspiracy that relies primarily on covert means for expanding its sphere of influence on infiltration instead of invasion on subversion instead of elections on intimidation instead of freedom of choice.”

“It is a system that has conscripted vast human and material resources for building a tightly knit, highly efficient machine that combines military, diplomatic, intelligence, economic, scientific, and political operations. Its preparations are concealed and not published. Its mistakes are buried, not headlined. Its dissenters are silenced, not praised. No expenditure is questioned, no rumor is printed, no secret is revealed. That is why the Athenian lawmaker Solon decreed it a crime for any citizen to shrink from controversy. And I am asking your help in the tremendous task of informing and alerting the American people. Confident that with your help, man will be what he was born to be, free and independent.”

Fortunately, only a numerically small group of people have benefited immensely from the lies of Lysenkoism described in part one of this essay. The rest of us are intended to suffer while being obedient. One of the most effective weapons the political left possesses today is its perceived appearance of popular support when it instead depends entirely on institutional authorities to force its delusions down American throats.

The left’s control is a complete and utter charade. The prevalence of the left’s worldview is an illusion constructed on lies told over and over by people in positions of power, authority, and influence. When the left’s sacred tenets are questioned, belittled, or mocked, their legitimacy unravels quickly. Positive signs now exist with recent developments.

One was a Supreme Court decision called West Virginia versus the EPA. West Virginia won a verdict that may disrupt the entire deep state. The global warming movement has succeeded with a friendly regulatory and judicial culture to back it up. This is soon to change.

When Congress passes legislation like the Clean Air Act or the Clean Water Act, the language is often very vague, allowing an agency with jurisdiction over air or water to fill in the blanks. They write the rules and regulations, which then have the force of law behind them. What this Supreme Court ruling effectively did was end the ability of unelected, unaccountable bureaucrats throughout the federal government, whether it’s EPA, FDA, CDC, or any agency such as the Department of Transportation, to make rules and regulations which control our lives but are not described in the new legislation. This is really the deep state we have heard so much about. It has never been a deep conspiracy against the public; it has been running our lives directly in front of us.

The Supreme Court decision in West Virginia v EPA ⏤ told the EPA they no longer had Congressional authority to regulate emissions from specific power plants. If they wanted that authority, they would have to go to Congress to get it. 

The phrase that the Supreme Court used was that if rules and regulations have a significant economic impact, they must be approved by Congress. We know that any law and regulation implemented by federal agencies have a significant economic impact. These agencies no longer have the power to control so much of our lives. This is a new precedent set by the Supreme Court.

The Supreme Court has thus restored the division of powers envisioned by the founding fathers. They meant for three branches of government, the executive branch, legislative, and court systems, to share control of the country. None of these three was allowed to be dominant over the others. It was entirely up to the legislative branch to enact laws, not the executive branch. 

The precedent set here will be far-reaching because it will go way beyond the power plants of West Virginia. It will enter into all regulatory debates occurring in the Federal bureaucracy. While the court is composed of the justices currently sitting on the bench, it is going to be extremely difficult for these unelectable unaccountable administrative agencies to do what they have been getting away with as what we called the deep state going back to Franklin Delano Roosevelt’s New Deal.

It was a substantial setback to this administrative, regulatory state, and it was a victory for the Constitution and the Rule of law. Fred Smith, the founder of the Competitive Enterprise Institute, once said, “the US Constitution isn’t perfect, but it’s a hell of a lot better than what we have now.” Well, Fred Smith was referring precisely to the phenomenon of unconstitutional regulations being imposed on the populace by unelected, unaccountable bureaucrats. They have now been sharply curtailed. It is indeed a very popular, very positive development.

You will see it play out in the near term when other cases come before the Supreme Court when bureaucratic agencies have gone beyond what Congress authorized them to do. One of those cases which bear directly on the climate debate will decide efforts to impose restrictions on water use.

An EPA rule called Waters of The United States (WOTUS) is a scheme for the federal government to take control of more land under the guise of protecting bodies of water initially thought to be navigable. EPA and Army Corps of Engineers have jurisdiction over navigable waters of the US and the discharge that goes into those bodies of water. Over time the word navigable was allowed to be ignored thanks to the vague language contained in the Clean Water Act (CWA). The Obama Administration supported this overreach, Trump canceled the rule, and Biden put it back. It amounts to Federal zoning on private land all over the country,

It violates all property rights and helps suppress energy production on private land because a case will be made that fracking operation or the extraction of oil or gas endangers a nearby body of water which could be 100 miles away and therefore in violation of the (CWA). 

This will end in front of the Supreme Court in the future.

This positive development coincides with the resistance to the deep state breaking out at the local level against various pieces of regulatory control both in terms of the climate debate and the fallout from our disastrous experience with battling COVID-19. 

We will topple the Left and its evildoers at the World Economic Forum, the United Nations, and dictatorial governments worldwide.

Under pressure, the Left will melt.

Read part one of this series: How The Left Succeeded

NOTE: Bonner Cohen, a Senior Fellow at the National Center for Public Policy Research, contributed to this article.

Dr. Jay Lehr

Dr. Jay Lehr is a Senior Policy Analyst with the International Climate Science Coalition and former Science Director of The Heartland Institute. He is an internationally renowned scientist, author, and speaker who has testified before Congress on dozens of occasions on environmental issues and consulted with nearly every agency of the national government and many foreign countries. After graduating from Princeton University at the age of 20 with a degree in Geological Engineering, he received the nation’s first Ph.D. in Groundwater Hydrology from the University of Arizona. He later became executive director of the National Association of Groundwater Scientists and Engineers.

The puddles in your yard are yours again

By Dr. Jay Lehr January 11th, 2020General Information 62 Comments @ CFACT

In 1972, I was serving as an advisor to the United States Environmental Protection Agency (EPA), which incidentally I helped to create and convince President Nixon to sign into law in 1971. I played a role in writing a number of important laws to protect our environment. One of them was the Clean Water Act (CWA). It prohibited the discharge of pollutants into navigable waters without a permit, which would include all streams and creeks that ran into our vast network of rivers. Those of us working with our natural resources were very familiar with the unconscionable act called “mid-night dumping” where by wastes of all kinds were dumped into our streams and stream-beds out of sight of the public.

Under the CWA, the EPA shared regulatory jurisdiction over these waters with the Army Corps of Engineers, which had historically overseen them. The Environmental Protection Agency, soon overtaken by the most radical liberal environmental zealots, expanded the definition of the types of waters protected by the Clean Water Act without clear legislative support. This is often the case when legislation leaves much latitude to unelected government officials. In this case, it truly lead to Federal control of puddles on a farmers land, ditches along highways, low spots at construction sites, mines and factories. The EPA argued that after a heavy rain, waters at these locations could eventually run off into navigable water bodies.

The public uproar against it lead dozens of trade groups to sue for relief. A few court victories were achieved, but none were wide spread. President Obama responded to this opposition by amending the CWA with a proposed regulation titled Waters Of The United States, better know as WOTUS, which removed the limiting words “navigable waters” thus intending to place EPA in charge of all U.S. water.

The outraged property owners , farmers and trade groups won a nationwide stay of the amended CWA in 2015 by the Sixth Circuit Court of Appeals only to have it overturned by the Supreme Court in January of 2018.

It mattered not how far from a stream your puddle existed. Five miles, ten miles or more, that water and the land containing it was no longer in your control. Anything you wished to do on that land required approval from EPA and in most cases the hiring of consulting engineers to fill out applications to satisfy the stringent requirements initiated by EPA.

This regulation has wreaked havoc on farmers and ranchers desiring to alter the drainage on their property. In the process of suing those breaking this law, EPA has destroyed families and bankrupted businesses. I have met some of these unfortunate people, all the more unfortunate if they chose to fight this egregiously over reaching government agency.

On December 12 of 2018 the Environmental Protection Agency under the direction of Trump’s new Administrator, Andrew Wheeler, along with the Army Corps of Engineers proposed a clear, understandable, and implementable definition of “waters of the United States that clarifies Federal authority under the Clean Water Act. Unlike the Obama administrations 2015 directive, the new proposal contains a straight forward definition that precludes control over the puddle in my backyard or yours. Final wording of the new rules that will amend the Clean Water Act should be complete early in 2020.

The cost savings to farmers and ranchers and all of us will be significant while in no way endangering the quality of our nations water ways. It will also allow business development on land precluded by the previous regulation, which President Trump correctly called a “massive power grab”. His promised overturning of WOTUS and his follow through has been a significant action of his administration.

This action brought forth celebration among many, many farm, ranch, construction and assorted business groups. As was expected environmental activist groups who make their money by scaring the public with false claims, have spoken strongly against revising the rules.

President Rhea Sun of the Natural Resources Defense Council said the old rule was “well supported by science and law”. I laughed when I read that.

Response from regular folks was indicated when 400 Tennessee farmers, ranchers and small business owners came to the Wilson County Exposition Center in Lebanon Tennessee a year ago to hear Andrew Wheeler highlight the proposed new ruling. Secretary of Agriculture, Sonny Perdue who had long fought for the repeal of WOTUS, was along with Wheeler. He hailed the redefinition proposal that clarifies federal authority under the Clean Water Act as a positive achievement for American agriculture”.

Trump’s Executive Order states that it is in the national interests to ensure that the nations navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

It is a good year for the puddles in all of our yards.

Author

• 
• Dr. Jay Lehr
  CFACT Senior Science Analyst Jay Lehr has authored more than 1,000 magazine and journal articles and 36 books.

Swamp-draining: More on Waters of the United States rule

The case of a farmer being sued by the Army Corps of Engineers for plowing his own land is a travesty of legislative intent.  But a fix may be in the works.

By Dale Leuck May 27, 2017

On May 25, Rick Moran detailed the plight of California-located Duarte Nursery, being sued by the Army Corps of Engineers (ACE) for plowing a small portion of a recently purchased 450-acre farm for the purpose of planting wheat.  Mr. Duarte purchased the land in recognition that significant portions were to remain fallow because they were wetlands protected by the Clean Water Act (CWA). 

But, after planting wheat for harvest in 2013 on a portion determined by a paid consultant not to be such protected wetlands, Mr. Duarte was sued by the Corps for "not obtaining a permit to discharge dredged or fill material into seasonal wetlands considered waters of the United States," according to USA Today.  The dredged or fill material would be particles of soil and/or chemicals loosened by plowing.  The amount of the fine sought against Mr. Duarte is some $2.8 million, with his attorney's fees, time wasted, and potential mitigation activities all significant added expense.....................More

Farmer faces $2.8 million fine after plowing field

Damon Arthur  May 22, 2017

A farmer faces trial in federal court this summer and a $2.8 million fine for failing to get a permit to plow his field and plant wheat in Tehama County. A lawyer for Duarte Nursery said the case is important because it could set a precedent requiring other farmers to obtain costly, time-consuming permits just to plow their fields.

“The case is the first time that we’re aware of that says you need to get a (U.S. Army Corps of Engineers) permit to plow to grow crops,” said Anthony Francois, an attorney for the Pacific Legal Foundation. “We’re not going to produce much food under those kinds of regulations,” he said. However, U.S. District Judge Kimberly J. Mueller agreed with the Army Corps in a judgment issued in June 2016. A penalty trial, in which the U.S. Attorney’s Office asks for $2.8 million in civil penalties, is set for August........To Read More......

2017 May Environment & Climate News:

The May issue of Environment & Climate News reports President Donald Trump announced in late March that he had approved the final leg of the Keystone XL Pipeline, linking oil fields in Alberta, Canada to refineries on the Texas Gulf Coast. The president had earlier approved the Dakota Access Pipeline. Both projects had been stalled and then blocked by the Obama administration.

Also in this issue:

• Trump has signed a multi-part executive order rolling back numerous climate policies restricting fossil-fuel development and use imposed by President Barack Obama's administration.

• In a threat to private property nationwide, a federal court ruled the U.S. Fish and Wildlife Service can list private property as critical habitat even if no members of an endangered species exist on the property.

• A Massachusetts plan to reduce greenhouse-gas emissions will result in higher emissions overall for New England.

• North Dakota is spending more than $1 million to remove 48 million tons of trash, abandoned vehicles, and propane tanks left by anti-pipeline activists.

• Calling it a "horrible rule," Trump ordered the Environmental Protection Agency and U.S. Army Corps of Engineers to review and reconsider Obama's Waters of the United States (WOTUS) rule.

Observations From the Back Row: 6-29-11

Why do anti-aviation group Plane Stupid, and perennial hippie hangout, Greenpeace hate Gaia?

This is from the Daily Bayonet….skewing the clueless since 2006. RK

Both Greenpeace and Plane Stupid celebrated when Heathrow airport’s planned third runway was cancelled, in part because of protests led by their merry bands of gap-year student activists who climbed all over things that didn’t belong to them. Greenpeace and Plane Stupid wants to save the planet from airlines, but it’s a cosmic rule that hippie action is always met by the equal and opposite force of unintended consequences.

Delays caused by restricted capacity at Heathrow comes at a high cost to the planet:

Sixty per cent of arrivals into Heathrow Airport are caught up in holding patterns above the capital, at a massive cost to the economy and great frustration to passengers. Figures compiled by air traffic control service NATS have revealed that jets circling for a cumulative 55 hours a day are burning 190 tons of fuel and discharging 600 tons of co2 into the skies above London, costing £119,000 in wasted fuel every day. You have to change a lot of light bulbs to save 600 tons of CO2.

If the planet was a living, breathing organism capable of sentient thought, it would probably shake the hippies off like so many fleas, just to save itself from the stupid. Take that, Gaia!

My Take – This statement has been shown to be imminently true. You can’t fix stupid!

EPA regulations — our economy’s golden goose? By Steve Milloy

Every dollar spent complying with federal regulations returned anywhere from $2.13 to $14.90 during the 2000s, according to a new report from the White House Office of Management and Budget (OMB). EPA rules accounted for approximately 84% of this alleged regulatory largesse. Needless to say, the OMB report is total nonsense.

First, the OMB report is not a re-analysis of costs and benefits claimed by federal agencies or a retrospective analysis of actual costs and benefits. The report simply parrots and adds up what the hallucinatory agencies have previously claimed.   In particular and as we pointed out in “EPA’s Clean Air Act: Pretending air pollution is worse than it is,” EPA benefits estimates are LOL-ably wild, if not entirely imaginary.  It’s really sad that OMB — once a respected champion of cost-benefit analysis — has been reduced by the Obama administration to bootlicking arithmetic.

My Take - I recommend following the link to Steve’s analysis in, "EPA’s Clean Air Act: Pretending air pollution is worse than it is", you will find it fascinating. I find it hard to believe that these people would think even for a second that the insane could believe this nonsense. Under this rationale we would have to assume that the problem with the economy is that government isn't nearly big enough and that there are far too few regulations determining all that we do. Really? During the Wilson administration (which LITERALY turned into a fascist regime during WWI) they took pride in the fact that they eliminated, actually outlawed, "755 types of drills in their campaign to "strip from trade and industry the lumber of futile custom and the encrustation of useless variety" - as though one plow were the right plow for every field, as though one drill were the right drill for ever hole." These people never get it. This is what is necessary for innovation and advancement. That is the primary reason socialism ultimately fails everywhere in the world. Central planners cannot possible think as well or know as much as the other 99.9999999% (or whatever the number actually is) of the population. If a certain kind of drill is unnecessary the market place will fix that. No one will buy it. They don’t need some bureaucrat who went to college and then into government to tell them they don’t need it. RK

Owners of land taken over by feds getting day in court Supremes to review EPA decision it controls residential parcel in Idaho
"With this case, the Supreme Court confronts important issues for property rights and due process. When the government seizes control of your land, and you disagree with the justification, shouldn't you be allowed your day in court? Just as important, should EPA be a law unto itself, without meaningful accountability to the courts and the Constitution?"……..

And it's not just the Sacketts' land that could be subject to such orders. The foundation arguments suggest that private property across the nation could be at risk. The legal team noted that between 1980 and 2001, the EPA issued up to 3,000 compliance orders every year across the nation. "The reality of the Sacketts' situation is that they have been unambiguously commanded by their government not to complete their home-building project, to take expensive measures to undo the improvements that they have made to their land, and to maintain their land essentially as a public park until the property is 'restored' to the satisfaction of the EPA. They have been threatened with frightening penalties if they do not immediately obey; but they have been refused the prompt hearing they should have received as a matter of right in any court," Pacific Legal argued.

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