Environmental Defense Criticizes Supreme Court Ruling

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


“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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