The Supreme Court’s devastating blow to the Clean Water Act

Supporters of the Clean Water Act demonstrate outside the U.S. Supreme Court, which just made it harder for the federal government to police water pollution. (AP Photo | Jacquelyn Martin, File)AP

Even in these highly polarized times, clean water should be a bipartisan issue. So should reducing the risk of flooding. Wetlands like bogs or swamps help on both fronts, acting as nature's sponges, filtering our water with their plants and holding back millions of gallons of floodwater from our streets.

All Americans should be up in arms, then, about the Supreme Court's recent decision to gut the Clean Water Act, a move so extreme that even Justice Brett Kavanaugh recognized that it defies logic, breaking with his conservative colleagues to side with the more liberal justices.

In a 5-to-4 decision, Justice Samuel Alito's majority opinion narrowly interpreted the Act to find its protections don't apply to more than half of our nation's 100 million acres of remaining wetlands, exposing them to pollution with no penalty – along with the rivers, streams, lakes and ponds connected to them.

That's disastrous for our country, and we’re not immune from its effects in New Jersey. What we need now is for Congress to step in and make the intent of the law explicit, and for the Murphy administration to tighten up state regulations to ensure that we’re protecting our wetlands. Because even though New Jersey has strong rules, we still depend on this federal backstop.

"This is a full-frontal attack on the intent of the Clean Water Act," Doug O’Malley, the director of Environment New Jersey, told us last week. "And in a warming climate," he added, "we are more dependent upon our state wetlands than ever before."

What could have been a very narrow decision supporting an Idaho couple who didn't want to get a permit to build on a wetland instead became an opportunity for this court to fashion a new policy for the entire United States, stripping protections from a bipartisan measure that had been settled law for decades.

The Alito opinion interpreted its protections to apply only to the wetlands that directly adjoin large bodies of water like rivers and lakes. This ignores science and basic common sense: Protecting our water supply means not just the wetlands that are touching the waters, but the wetlands that are nearby. Because when they fill up, the water flows across grass or prairie until it catches a stream – so the idea that pollution upstream is not going to impact people's water downstream "violates gravity," says New Jersey environmentalist Jeff Tittel. "That's the part about it that's just so specious."

Kavanaugh, writing for himself and the liberal justices, agreed the Idaho couple should prevail but said he would have ruled for them on narrower grounds – this majority opinion has "rewritten the Clean Water Act," he maintained, ignoring its text as well as "45 years of consistent agency practice." It will harm the federal government's ability to control water quality and flooding nationwide, he argued.

Just one acre of wetland can store more than a million gallons of floodwater, so think about what it means when we allow a developer to fill that in – then multiply that by tens of millions of acres to get a sense of the scope of this decision. It jeopardizes the neighborhoods and sources of clean drinking water of millions of people.

And since rivers like the Delaware or the Ramapo flow into New Jersey from New York and Pennsylvania, we could see more flooding in our cities because of what happens in those states. Whether it's rolling back decades of progress on women's rights or the environment, this is a rogue court that "cares more about protecting special interests than the public interest," as Tittel says.

And the fear now is that more rules that are fundamental bedrocks of environmental protection could be thrown out. Imagine if all these decisions had to go through Congress or a state legislature; we’d be mired in gridlock. That's why we have administrative agencies. Yet the court is attacking the Environmental Protection Agency's ability to do its job, curbing its authority to protect our air, and now our water. What's next?

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