Supreme Court rules against EPA in dispute over regulating wetlands

[BumRushDaShow]

36. From what I understand, this case was brought in 2007

which was under Shrub. And the courts agreed with the EPA through to the Appeals when the SCOTUS dug into it and sent it back to the lower court again. It was re-litigated and came back up with the same results through to the Appeals Court, but this time, the SCOTUS decided to do a cherry-picked smack-down.

I suppose we should be glad they didn't just throw the whole thing out (although that might be the intent - "death by a thousand cuts" ).

In Kagan's response -

A court may, on occasion, apply a clear-statement rule to
deal with statutory vagueness or ambiguity. But a court
may not rewrite Congress’s plain instructions because they
go further than preferred. That is what the majority does
today in finding that the Clean Water Act excludes many
wetlands (clearly) “adjacent” to covered waters.

And still more fundamentally, why ever have a thumb on
the scale against the Clean Water Act’s protections? The
majority first invokes federalism. See ante, at 23–24. But
as JUSTICE KAVANAUGH observes, “the Federal Govern-
ment has long regulated the waters of the United States,
including adjacent wetlands.” Post, at 11. The majority
next raises the specter of criminal penalties for “indetermi-
nate” conduct. See ante, at 24–25. But there is no peculiar
indeterminacy in saying—as regulators have said for nearly
a half century—that a wetland is covered both when it
touches a covered water and when it is separated by only a
dike, berm, dune, or similar barrier. (That standard is in
fact more definite than a host of criminal laws I could
name.) Today’s pop-up clear-statement rule is explicable
only as a reflexive response to Congress’s enactment of an
ambitious scheme of environmental regulation.

And she concluded with -

There, the majority’s non-tex-
tualism barred the EPA from addressing climate change by
curbing power plant emissions in the most effective way.
Here, that method prevents the EPA from keeping our
country’s waters clean by regulating adjacent wetlands.
The vice in both instances is the same: the Court’s appoint-
ment of itself as the national decision-maker on environ-
mental policy.

So I’ll conclude, sadly, by repeating what I wrote last
year, with the replacement of only a single word. “[T]he
Court substitutes its own ideas about policymaking for Con-
gress’s. The Court will not allow the Clean [Water] Act to
work as Congress instructed. The Court, rather than Con-
gress, will decide how much regulation is too much.” Id., at
___ (slip op., at 32). Because that is not how I think our
Government should work—more, because it is not how the
Constitution thinks our Government should work—I re-
spectfully concur in the judgment only.