Our nation’s foundational laws that protect our clean water, public health and ecosystems have taken a significant step backwards with the Supreme Court’s decision in Sackett v EPA, and the bad compromises attached to the federal debt ceiling deal. The smoke from the Canadian wildfires that is making our air dangerous this week underscores that it’s urgent that we act now to reverse these recent devastating decisions and to fight for a more just and clean future.
The Supreme Court Leaves Wetlands Out to Dry
On May 25, 2023, the Supreme Court delivered a devastating decision for wetlands across the country. In Sackett v. EPA, the Court severely undercut clean water safeguards by limiting Clean Water Act (CWA) protections to only wetlands that have a continuous surface connection to traditional navigable waters. The question presented before the Court in Sackett was to identify “the proper test for determining whether wetlands are ‘waters of the United States’” (WOTUS) for purposes of the CWA. Unfortunately, in yet another decision counterproductive to society penned by Justice Alito, the Court decided in favor of an Idaho couple who challenged the EPA by arguing the agency had no right to limit construction on their property despite its proximity to nearby navigable waters. The effects of this decision to narrow the definition of WOTUS that ignores science are likely to be catastrophic for wetland protections given the hydrological interconnectedness of many adjacent wetlands with surface water bodies.
The Chesapeake and coastal bays region cannot afford to wait and find out how detrimental of an impact the Sackett decision will have on its wetlands. Given that this decision affects the jurisdiction of EPA under the federal CWA, it is up to states to either enact or more strictly enforce their own wetland protections. Fortunately, Virginia, Maryland, and Pennsylvania require state environmental agency permitting for activities affecting virtually all relevant state waters, including nontidal wetlands. In fact, all of Virginia’s wetlands are protected by state law, with the Commonwealth’s definition of protected waters including, “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.” Maryland requires permits for construction on both tidal and non-tidal wetlands, as well as requiring that there be “no net loss” of wetlands, and has a Critical Area law regulating land within 1,000 feet of a shoreline. The importance of wetlands’ trapping of polluted runoff cannot be understated, as wetlands slow the flow of nutrients, sediment and chemical contaminants into rivers, streams and the Bay. States within the Chesapeake Bay region must act soon in order to avoid the consequences of the Supreme Court’s decision in Sackett and ensure the survival of our wetlands.
The Debt to Pollution Pipeline
A thirty-plus trillion dollar debt sounds like an incredibly worrying problem, regardless of where you stand on party lines. The Fiscal Responsibility Act (FRA) was drafted and debated amongst several lawmakers in an effort to raise the debt ceiling and avoid a default that would have global ramifications. Unfortunately, the FRA contains more pages focused on the Mountain Valley Pipeline than it does on the debt ceiling. The FRA includes an appalling free pass for the Mountain Valley Pipeline, exempting the project from environmental laws and judicial review if project developers can show they can’t comply with the law. The decision to include Mountain Valley Pipeline as a part of the FRA sets a dangerous precedent for future deals presenting an avenue for polluters and their favorite lawmakers to weaken environmental protections and advance their own interests. It comes as no surprise that Senator Joe Manchin (D-WV), a long-time supporter of the Mountain Valley Pipeline, receives three times as much in contributions from pipeline companies than the next highest recipient of pipeline political contributions.
The FRA also makes substantial changes to the National Environmental Policy Act (NEPA), which requires federal agencies to examine the environmental impacts of major proposed projects like highways. NEPA’s required environmental analyses will be weakened, directing agencies to only consider “reasonably foreseeable” environmental impacts and narrowing the definition of “major federal action.” The change requires environmental analyses to be done within one year and more detailed environmental impact statements to be done within two years, with project applicants being allowed to sue if the timelines aren’t met. To make matters worse, agencies would not be required to undertake new scientific or technical research as part of the review process.
A three hundred mile plus pipeline does not sound like a solution to a thirty trillion plus dollar debt, especially when it will cross hundreds of waterways and wetlands, the latter of which is even less protected in light of the Sackett Supreme Court decision. While the FRA may help the nation avoid default, it threatens water quality across our region and takes a giant step back in addressing our climate crisis. We only need to look out our windows all along the East Coast this week to see hazardous air conditions due to out-of-control wildfires in Canada to realize the idiocy of weakening our environmental laws while accelerating the construction of fossil fuel infrastructure. Our future generations demand that we do better – before it’s too late.