Federal Judge Takes Dump On Clean Water Act In 24 States
To oversimplify a bit, would-be polluters (and the 24 mostly Republican-run states who sued the EPA) would really prefer that the definition only include bodies of water that are fairly permanent and obviously connected to other bodies of water, like lakes or rivers or wetlands, and streams that flow pretty much year round. At the outside, they'd also include "semi-permanent" stream and riverbeds that are frequently dry, like the LA River, but that drain into other bodies of water when it rains.
Nutty environmentalists and scientists — and the December 2022 EPA rule — point at hydrological data showing that nasty stuff in one place can very easily get into water downstream even if you don't see a stream right there, so the EPA rule includes wet spots — even sometimes-wet spots — that have a "significant nexus" to navigable waterways.
Ranchers and agribusiness and developers claim this is tyrannical overreach and an excuse for the EPA to require expensive, time-consuming permits even if a hypothetical "roadside ditch" nowhere near any major waters might conceivably be linked to another body of water. I recall seeing that "roadside ditch" example as far back as the '90s; the anti-enviros love that ditch almost as much as they love complaining that all of modern progress is cancelled by crazy hippies who won't let the snail darter go extinct.
In yesterday's ruling — which includes a fine history of the fight over defining WOTUS, even if the ruling itself is crap — US District Judge Daniel L. Hovland put a hold on enforcement of the rule by EPA and the Army Corps of Engineers while the case goes forward. Hovland's ruling piggybacks on a previous injunction in a case that blocked the rule in Texas and Idaho, blocking the rule in a total of 26 states. Here is a handy map of the Polluters' Friends, from EarthJustice:
Not surprisingly, land-messers-uppers of all stripes were delighted by the ruling, like Todd Wilkinson, the president of the National Cattlemen’s Beef Association, who, come the revolution, will be what's for dinner.
Once again, the courts have affirmed that the Biden administration’s WOTUS rule is overreaching and harmful to America’s beef farmers and ranchers. [...] Cattle producers in 26 states now have some additional certainty while this rule is being litigated and we are optimistic that the Supreme Court will provide nationwide clarity on the federal government’s proper jurisdiction over water.
And yeah, considering the current drift of the Supremes, that may turn out to be the case — but it may help that in addition to the EPA being one of the defendants, the case is also being defended by EarthJustice on the behalf of four tribes in the affected states — the Chickaloon Village Traditional Council (Alaska), Rappahannock Tribe (Virginia), Tohono O’odham Nation (Arizona), and White Earth Band of Minnesota Chippewa Tribe. Justice Neil Gorsuch, as we've noted before, has a particular interest in cases affecting tribal sovereignty, so that might overcome his usual inclination to let corporations do anything they want. Or not.
For its part, the EPA issued a statement saying that it and the Army Corps of Engineers are reviewing the order, but that it considers the December 2022 rule the best interpretation of the Clean Water Act, and noting that the rule remains in effect in the rest of the states. (So move there if you like clean water, basically. This national divorce is coming along just great.)
The court's injunction came just a week after President Joe Biden vetoed a Republican-led attempt to kill off the EPA rule through the Congressional Review Act. That resolution passed in the GOP-led House and picked up four votes in the Senate from Democrats — Joe Manchin, Jon Tester, and both Nevada senators, Catherine Cortez Masto (!) and Jacky Rosen (!) — plus Arizona independent Kyrsten Sinema, who caucuses with corporate lobbyists.
In his veto message, President Biden said that overturning the rule would
leave Americans without a clear definition of “Waters of the United States”. The increased uncertainty caused by H.J. Res. 27 would threaten economic growth, including for agriculture, local economies, and downstream communities. Farmers would be left wondering whether artificially irrigated areas remain excluded or not. Construction crews would be left wondering whether their waterfilled gravel pits remain excluded or not. The resolution would also negatively affect tens of millions of United States households that depend on healthy wetlands and streams.
And now, for half the USA, that is exactly where yesterday's decision leaves us — in a roadside ditch, exactly where polluters would like us to be.
[AP / EarthJustice / Reuters / Order in West Virginia et al v. EPA / White House / Photo: AdA Durden, Creative Commons License 2.0]
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The Devil's Advocates of Easter
This year, instead of the rise of a zombie messiah, we had some other things appear on Easter. So let's dive right into the Sunday shows and marvel at these very undesirable peeps.
Trusty The Clown
We briefly mentioned one of Donald Trump's lawyers, James Trusty, last week. But he really grabbed our attention in his appearance's this week on NBC's "Meet The Press" and ABC's "This Week."
Trusty, who's representing Trump in his whole dragon-like documents hoarding case, tried to defend his client by using a defense that he clearly won't make in court. Trusty kept trying to make a false equivalence between Trump's lying, hoarding, and obstruction versus President Joe Biden's transparent attempts at cooperation regarding classified documents.
It was so ludicrously stupid, in fact, that Chuck Todd's long dead journalistic spirit rose briefly from its grave.
TODD: [...] In this case, not only is he [Trump] not cooperating, he is actively not cooperating. And, again, he did not comply with the subpoena. That’s – the end of the day, that’s the obstruction charge. Why didn't he comply with the subpoena? There was a subpoena for all classified documents. He did not comply with the subpoena. He was caught not complying with the subpoena because of the — the search warrant ending up turning up more classified documents. How do you explain him defying a subpoena?
TRUSTY: Chuck, the Democratic narrative, which you're touting right now to try to draw a distinction —
TODD: It's just a set of facts.
TRUSTY: Well, let me finish. Let's —
TODD: I mean, why call it a Democratic narrative? It's a set of facts.
TRUSTY: Because you're ignoring —
TODD: He defied a subpoena.
TRUSTY: You’re ignoring a set of facts. Let's talk about Delaware. You've got a vice president that has documents for decades in these — in this Chinese-funded Penn Biden Center, right? You've got absolute obstruction there because we don't even have any sort of —
TODD: How is that obstruction?
TRUSTY: Because he had no right to have those documents. He didn't have any ability —
TODD: Right. And did he refuse to turn them over when he found them?
TRUSTY: Well, I don't know. It was hidden for so many months.
I'm not an attorney, though Wonkette has some very brilliant ones who write for us, but I'm pretty sure that "but they broke the law, too" might not be a great defense in court. But to answer Trusty's very dumb question: No, Biden did not refuse to turn anything over and has been as cooperative as possible with NARA to comply with proper archiving and record keeping. That, in essence, is the difference. Because as much as Trump likes mentioning Nixon's $18 million payment for records, which Todd also pointed out he said in that Sean Hannity interview, the former president and his lawyers seem to miss the lesson from Watergate: The cover-up is always worse than the crime.
On "This Week," Trusty was asked about Trump's targeting of the judge's family overseeing his case and tried to excuse it.
TRUSTY: I don’t have any experience with this judge, and, again, my practice as somebody who has been in the criminal justice lane for about 35, 36 years is to not, you know, jump on to any bandwagon when it comes to criticizing. I think the criticisms of the family were not something personal. It was pointing that they have a bias. That they have a political interest that is contrary to President Trump’s.
If Trusty wants to talk about biases and political conflicts involving judges, we have a neat story involving some Nazi memorabilia. That said, considering his zealot followers and that whole case involving a certain day in January 2021, maybe it would be best if a criminal defendant did not put innocent people in harm to intimidate a judge.
Lowering The Barr Again
ABC's "This Week" with Jonathan Karl had on Bill Bar, the former attorney general and the answer to "what would happen if Carl Fredricksen became evil like his idol?"
If you are feeling deja vu from last week, it's understandable. Barr even tried making the same point again about the New York state case being a political prosecution.
BARR: Well, it's a crime — falsifying a business record is a crime if it is part of a fraudulent scheme, if it was a fraud, it was committed in the course of fraud. And I don't see anywhere specified in here exactly what the fraud was.
Based on this and his Mueller Investigation summary, are we sure Barr has decent reading comprehension?
Unlike Trusty, Barr could at least point out the obvious bad strategy of criticizing/targeting the judge and prosecution on his case.
BARR: I don't think it’s appropriate or wise. I mean, the president is notoriously -- lacks self-control and he frequently gets himself into trouble with these midnight tweets and other things. The thing with the baseball bat, for example, was very imprudent of him to do in the middle of the night, and, you know, these are gratuitous comments and aren’t particularly helpful. [...] the president, unfortunately, has a penchant for engaging in reckless and -- and self-destructive behavior that brings these kinds of things on him. In many respects, he is his only -- he's his own worst enemy. [...] And also on the January 6th stuff. That was reckless behavior that was destined to end up being investigated. So it doesn't surprise me that he has all of these legal problems.
If only there was a warning sign that Trump did not respect the Constitution or the law and that anyone who assisted him made it worse ...
But if you think Barr cares for our country, it's made clear his real fear is the idiocy of the Republican base.
BARR: [...] I think part of the reasoning behind it is that they know this is a red flag to a big portion of Trump's base. And that they're going to rally to him because they feel that this is persecution. And that will strengthen Trump's hand throughout the process. I also think though, as far as the general election is concerned, it will gravely weaken Trump. He is already, I think, a weak candidate that would lose. But I think this sort of assures it.
The prospect of Republican primary voters continuing to elect the worst general election candidates is honestly the most schadenfreude ending for a political party's viability since the Whigs.
Have a week.
