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.

The grid gets NERC'd and NEPA'd

Craig Rucker, President CFACT

It's no secret that the Biden Administration is a disaster for the American energy economy.  In case you don't have enough government acronyms in your life, or if you just love alphabet soup, here are two often overlooked government / quasi-government entities that are now front and center when it comes to keeping our lights on and our economy rolling.

• "NERC" stands for North American Electric Reliability Corporation.
• "NEPA" stands for National Environmental Policy Act.

The Biden Administration is mishandling both of them. David Wojick posted this to CFACT.org:

"The North American Electric Reliability Corporation, or NERC for short (rhymes with jerk), recently released a report warning of likely blackouts across much of America this summer... My question is, instead of reporting this pending calamity, why is NERC not preventing it? What is not reported, and seems to be little known, is that NERC is a quasi-regulatory federal agency whose mission is to maintain reliability."

David asks an excellent question which he goes on to answer. The Biden Administration's adherence to climate dogma appears to be preventing NERC from doing its job and keeping the electric grid safe.

Similarly the ideologues who control the Biden Administration are taking giant steps backward toward using NEPA not to legitimately safeguard nature, but as a pretext for the anti-development crowd to thwart progress.  Ironically, even "renewable" energy projects!

CFACT senior policy analyst Bonner Cohen explains at CFACT.org:

"The NEPA process was notorious for its red tape and litigation, which put many projects on hold indefinitely and led to the abandonment of numerous others. Over the decades, environmental groups became skillful at using NEPA to scuttle highways, bridges, mining operations, oil and gas pipelines, oil and gas wells, and anything else not to their liking. Large infrastructure projects require significant upfront capital investments, and the prospect of drawn-out litigation and bureaucratic foot-dragging common to NEPA gave investors an incentive to put their money elsewhere."

Now the Left is faced with their own pet projects running right smack into their own pet delaying tactics. As explains:

"Local resistance to wind turbines shooting hundreds of feet into the air and to putting thousands of solar panels with backup batteries on rural lands is picking up steam across the U.S." 

NEPA is just the law to stand in their way. Free markets are efficient.  Bureaucracy is anything but.

Under Joe Biden American bureaucracy is failing to perform important tasks, such as keeping the electric grid reliable, while performing roles Congress never intended, such as blocking economic projects to no meaningful environmental benefit.

For nature and people too.

Trump Is Completely Remaking A Law Enviros Often Use To Stymie Oil Pipeline Construction

Chris White January 9, 2020

President Donald Trump announced Thursday his plans to dramatically change an environmental law activist groups and their attorneys often use to wrap oil projects in years of bureaucratic red tape.

Trump plans to exempt privately funded projects from undergoing environmental reviews, a significant change that would make building mines and pipelines much easier, The Washington Post reported. Energy producers are cheering the move.

The changes will narrow the scope of the National Environmental Policy Act (NEPA), a 50-year-old law requiring agencies to assess the impact a big project could cause to the environment...........

“America is a nation of builders,” the president said at the White House while explaining his decision. “Yet today it can take more than 10 years to get a permit to build a simple road,” he said. “It’s big government at its absolute worst.”

It can often take years for a project to move forward while going through the NEPA process.

Instead of taking a decade, the new rule will allow projects to go forward after less than two years, Trump noted............ Unions and energy producers are calling the president’s move a long-needed change. ..........To Read More....



My Take - You may wish to view, Time To Modernize Archaic Environmental Rules. 

Time To Modernize Archaic Environmental Rules

Gerard Scimeca January 11, 2020

With the new decade upon us, policymakers should make a New Year’s resolution to revamp a set of environmental rules that are more outmoded than the disco era and leisure suits they predate.

Recently, 33 industry groups sent a letter to the White House Council on Environmental Quality Chair Mary Neumayr requesting to “expeditiously proceed” with plans to modernize the outdated National Environmental Policy Act (NEPA) regulations.

NEPA was enacted with the best of intentions while the Environmental Protection Agency was still in its infancy. It began, modestly enough, as an effort to better understand potential negative impacts that major construction projects would have on their surrounding environment prior to moving forward.

While the EPA has had its problems with overreach and burdensome bureaucracy, it has at least helped to make the air easier to breathe. By contrast, however, NEPA has almost no environmental legacy to benefit America. In fact, its sole purpose seems to be to choke the life out of the economy..........To Read More......

 

My Take - The problem with all these environmental laws and agencies is as long as they exist they can be, and will be abusive.  These agencies are all filled with activists who merely hunker down until the administration changes, and then they come out of their holes and start the entire process of abuse all over again.  The only fix is repealing these laws, eliminating these agencies, and getting rid of the bureaucrats that infest them.  Then review what worked and put that into legislation with:

1. Sunset all laws and regulations, Departments, agencies and bureaus.  No law, regulation or office should be allowed to exist forever.  Force the Congress to re-authorize the laws, and offices that enforce them.  There should only be four Deparments of the Federal government: State, Treasury. Defense, and Justice.  All others should be eliminated.
2. Place restrictions on the federal courts to review laws.  The federal judiciary is filled with political hacks and is out of control.  But the Constitution gives the Congress right to determine the jurisdicion of the federal judicary, including the Supreme Court, which is the only Federal Court autorized by the Constitition.  All other Federal Courts are creations of the Congress.
3. End "standing" by activists.  The Endangered Species Act was the first to give standing to outside concerned groups regrading the implementation of federal law.  End that.
4. Make it impossible for future bureaucrats to re-interpret the laws.
5. Eliminate