Supreme Court decisions threaten freshwater future

THIS ARTICLE WAS ORIGINALLY PUBLISHED ON THE ALABAMA POLITICAL REPORTER ON JULY 17, 2024

Click here to read at Alabama Political Reporter

In June, Alabama Rivers Alliance joined more than 100 cities, states, Native American tribes, businesses, and nonprofit organizations as part of the America the Beautiful Freshwater Challenge. This challenge sets a bold national goal to protect, restore, and reconnect 8 million acres of wetlands and 100,000 miles of our nation’s rivers and streams by 2030. Protecting these freshwater resources will enhance all of the diverse uses of water – for drinking water, for our environment, and for our economy.

There is nowhere in America where protecting these invaluable freshwater resources is more important than in Alabama. With more than 132,000 miles of rivers and streams, as well as the greatest amount of freshwater aquatic biodiversity in the country, our state is home to an unmatched wealth of water resources. Alabama Rivers Alliance continues to advocate for policies to better protect Alabama’s waters.  

Unfortunately, protecting our water resources is getting a lot harder. A series of recent Supreme Court decisions severely limited the Environmental Protection Agency’s ability to safeguard our nation’s freshwater resources. Sackett v. EPA, handed down in June of 2023, eliminated protections that stretched back to Ronald Reagan’s presidency for many rivers, streams, and wetlands. 

This was not only a blow to 40 years of bipartisan consensus, but also to the health of wetlands throughout our country. Filling or polluting wetlands has impacts that cascade downstream throughout a river basin. Filling in wetlands destroys habitat for aquatic species, waterfowl, and amphibians, making hunting, fishing, or recreating on rivers and streams less enjoyable. Because wetlands act as spongy filters, retaining excess water and filtering it before it enters rivers and streams, eliminating or shrinking wetlands can also cause increased flooding and higher drinking water costs. In Sackett, the Supreme Court limited our ability to protect these valuable services wetlands provide.

In the past two months, the Supreme Court handed down two further decisions which threaten to blow up decades of protections for the environment, workers, and consumers: Loper Bright Enterprises v. Raimondo, and Corner Post, Inc. v. Board of Governors. Loper Bright did away with a forty-year-old precedent which gave decisive weight to executive agencies’ reasonable interpretations of the laws they implement. This doctrine, known as Chevron Deference, acknowledges the simple fact that these agencies are staffed by experts in their field, who are trained to understand the complexities of aquatic ecosystems, public health, engineering, and other highly specialized subjects. 

Agency regulations are also strengthened by robust public engagement and feedback before they become law. Despite these procedures to incorporate both expert knowledge and public opinion, the Supreme Court has now given unelected federal judges the power to second-guess agency expertise and public feedback to remake environmental protections, labor rights, and consumer protection safeguards as they see fit.

If Loper Bright spilled the gasoline, the decision in Corner Post lit the match. Loper Bright gave unelected federal judges permission to ignore the products of carefully considered agency decision-making informed by community feedback. Corner Post allows anyone to give them the opportunity to do so. By eliminating the statute of limitations to challenge many federal regulations, laws that have been on the books for decades are now ripe to be challenged by anyone who thinks they can find a judge shameless enough to say that Americans’ rights to clean rivers and affordable drinking water are less important than a legal technicality or activist judicial philosophy. 

This will also unleash a tidal wave of litigation over what had been settled law – good for lawyers, but not so great for the rest of us. No matter what you care about – good governance, environmental protections, voting rights, or even just a stable legal and regulatory environment to facilitate business growth – this tendency to ignore expertise and discard decades of durable bipartisan precedent should be cause for concern.

It will likely take decades to reverse this “judges know best” trend that has emerged in the federal courts. People, businesses and groups committed to good government will have to come together and bridge the gaps between environmental, labor, and public health advocacy. The only way to reverse this trend is for all of us who care about a functioning, just, and flourishing society and economy to stand up for our values and the value of good government. 

In the meantime, states will have to step up to protect our rivers, streams, lakes, wetlands, and other freshwater resources. 

Today, the Alabama Rivers Alliance asks Governor Ivey to join the 13 other states across our country who have joined the Challenge. There’s no state where the stakes are higher when it comes to protecting freshwater resources. Alabama must be at the forefront of a freshwater future that values all of the uses of our water resources and ensures that we defend our rights to clean water.