Activist Supreme Court supremely undermines role of wetlands in carbon sequestration

TOPICS:
This diagram illustrates the mechanisms by which carbon moves into and out of coastal wetlands: (1) Carbon dioxide in the atmosphere is taken in by trees and plants during the process of photosynthesis. This is called sequestration. (2) Dead leaves, branches, and roots containing carbon are buried in the soil, which is frequently, if not always, covered with tidal waters. This oxygen-poor environment causes very slow breakdown of the plant materials, resulting in significant carbon storage. (3) A small amount of carbon is lost back to the atmosphere through respiration, while the rest is stored in the leaves, branches, and roots of the plants.This diagram illustrates the mechanisms by which carbon moves into and out of coastal wetlands: (1) Carbon dioxide in the atmosphere is taken in by trees and plants during the process of photosynthesis. This is called sequestration. (2) Dead leaves, branches, and roots containing carbon are buried in the soil, which is frequently, if not always, covered with tidal waters. This oxygen-poor environment causes very slow breakdown of the plant materials, resulting in significant carbon storage. (3) A small amount of carbon is lost back to the atmosphere through respiration, while the rest is stored in the leaves, branches, and roots of the plants. (Source: NOAA, adapted from a figure in Sutton-Grier et al. 2014 Marine Policy)

Posted By: George Thomas Jr. 29 May 2023

Conservative justices disregard science and precedent in controversial 5-4 ruling severely limiting protections in the Clean Water Act.

In its recent Sackett v. EPA ruling, the conservative-led U.S. Supreme Court effectively removes protection for more than 100 million acres of the nation’s wetlands.

“If you’ve lately swum in a lake, happily drunk a glass of water straight from the tap, or sat down to a good fish dinner, you can appreciate what the law has accomplished,” Justice Elena Kagan wrote in her dissent. And with Sackett, she noted, the Court’s majority has appointed itself “as the national decision-maker on environmental policy.”

By removing protections for much of the country’s wetlands, the Court also jeopardizes the role wetlands have in addressing the climate emergency. Coastal wetlands in particular remove and store carbon 10 times greater than mature tropical forests.

The CWA’s origins indirectly trace to when the Cuyahoga River caught fire in Cleveland, Ohio, more than a dozen times in the 1960s due to pollution. At the time the Environmental Protection Agency didn’t even exist, and without the protection of government regulations, industry was free to pollute. “Since the Clean Water Act was passed in 1972, waterways around the country have been transformed into national treasures and economic engines,” the EPA wrote in a Oct. 18, 2022 news release.

Not a decision underpinned by science

In Sackett, the 5-4 majority redefined the CWA’s terminology, interpreting the use of “adjacent” to instead mean “adjoining,” thus removing protection for water not directly connected. “It’s not a decision underpinned by science, but rather a legal invention known as the ‘clear statement rule,’ a term the justices use when they want to assert their power to ignore Congress’s wishes and interpret the law solely as written,” Amy Westervelt wrote in The Intercept.

Ironically it is conservatives who for many years accused liberal justices of “judicial activism — where justices abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies — yet the current makeup of the Court is decidedly activist in its contempt for long-standing governmental regulatory norms.

As Ruth Marcus wrote in her Washington Post opinion piece:

Sackett reinforces what we already knew: This is a court that doesn’t like government regulation and it is going to do what it can — text and precedent be damned — to neuter it. Thus the majority, in last year’s West Virginia v. EPA, invented a “major purpose” test to limit the reach of another major environmental law, the Clean Air Act. In this case, it adopts another new test — when Congress exercises such power “over private property” it must use “exceedingly clear language” — to rewrite the Clean Water Act to its liking.

The Court’s conservative judicial activists aren’t stopping at Sackett. In the coming term the Court will consider another case challenging a decades-old precedent the government has used to enforce environmental, financial, and consumer protections.

Related Articles