On January 9th, Environmental Defense criticized the Supreme Court’s decision in Solid
Waste Agency of Northern Cook County v. United States, which held that
under the Clean Water Act the US Army Corps of Engineers cannot prevent
the pollution of isolated water bodies simply because they are used by
migratory birds.
“The decision today puts in jeopardy perhaps a fifth of the water bodies in the
United States, ranging from portions of the Everglades to the country’s most
important breeding grounds for ducks,” said Tim Searchinger, senior attorney
with Environmental Defense.
“This decision, while superficially supporting states’ rights, in fact undermines
state efforts to protect wetlands and prevent surface and groundwater
pollution,” said Searchinger. “The history of the last 30 years makes clear that
state environmental efforts work best when they are buttressed by federal
minimum standards. This decision could pull the rug out from under many
state clean water efforts.”
“Twenty-two states explicitly bar state rules tougher than federal standards, so
it is clear that states fear to protect their own environments unless they know
industries can’t simply move to other states in search of more lax rules,” added
Searchinger. “It is ironic that the Supreme Court calls for relying on states to
protect isolated water bodies when many states make no effort to protect
them.”
“Despite today’s decision, the Army Corps may be able to protect isolated
water bodies on some basis other than use by migratory birds. Filling isolated
ponds typically means that water that would have been stored in them must
now go elsewhere, which sometimes causes flooding and pollution. The
decision doesn’t discuss whether the Clean Water Act can regulate these
water bodies because of these impacts downstream,” said Searchinger.
“The Supreme Court has also given itself a broad, vague new doctrine to
strike down environmental laws it doesn’t like,” said Searchinger. “Congress is
rarely more explicit about how its laws should apply than in this case. The
Court has thus opened the door to many similar challenges to other
environmental rules.”
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