Sam interviews Stephen Vladeck, law professor and author of the NY Times bestseller, The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Follow Steve on Twitter at @steve_vladeck and sign up for his Substack here: stevevladeck.substack.com.
Then, we talk to Julian Gonzalez, senior legislative counsel Earth Justice about the recent ruling that undermines the Clean Water Act and related attacks on the environment coming from the Supreme Court. Learn more about the work of Earth Justice at earthjustice.org.
Next weekend, join us in the streets of DC on the one year anniversary of the Dobbs decision which overturned abortion rights demanding legal abortion nationwide: https://riseup4abortionrights.org/june-24-2023-one-year-without-roe-take-your-fury-back-into-the-streets/
Starting June 29 – July 2 the fascist anti-LGBTQ group “Moms for Liberty” will be holding their summit in Philly. Stay tuned for details on how to mobilize to defend people targeted for attack by this group, particularly the trans community.
Refuse Fascism is more than a podcast! You can get involved at RefuseFascism.org. We’re still on Twitter (@RefuseFascism) and other social platforms including the newest addition: mastodon.world/@refusefascism
Send your comments to [email protected] or @SamBGoldman. Record a voice message for the show here. Connect with the movement at RefuseFascism.org and support:
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Music for this episode: Penny the Snitch by Ikebe Shakedown
SCOTUS, The Shadow Docket, & The Fascist Assault on the Environment
Stephen Vladek, Julian Gonzalez
Refuse Fascism Episode 160
Sun, Jun 18, 2023 8:23AM • 49:13
Stephen Vladeck 00:00
This danger of the shadow docket is really manifested in how the court has used it in the last five or six years. There’s this remarkable tendency starting around 2017 in which the court is granting or denying emergency relief based on just the partisan political preferences of the justices. Over the last generation, we’ve seen the court able to claim more and more power, we’ve seen the executive able to claim more and more power. To me, the shadow docket is in many ways a symptom of a broader disease and that disease is just unaccountability.
Julian Gonzalez 00:30
Sackett versus EPA, this case was brought by the Sacketts who are Idaho landowners. They’re backed by oil and gas industry, mining companies, developers, corporate agribusiness, you name it. Before the Clean Water Act was passed, you had rivers on fire, you had rampant sewage pollution. You’re already seeing some states move to weaken their own environmental laws in the wake of Sackett. This dispute about what waters the EPA can regulate under the Clean Water Act, it’s very much a culture war issue at this point.
Sam Goldman 01:20
Welcome to Episode 160 of the Refuse Fascism podcast, a podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers, host of the show. Refuse Fascism exposes analyzes, and stands against the very real danger and threat of fascism coming to power in the United States. In today’s episode, we’re sharing two interviews on the Supreme Court. First, we’ll share an interview with Stephen Vladeck, discussing his new book, The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, followed by a conversation I had with Julian Gonzalez, senior legislative counsel with Earth’s Justice regarding Sackett versus EPA.
Sam Goldman 02:11
Thanks to everyone who goes the extra step and rates and reviews the show, on Apple podcasts, or wherever you listen, if you appreciate the show, and want to help us reach more people who want to refuse fascism, go, be a gem, and write a review and drop five stars wherever you listen to your pods. Please tell the people out there in podcast land why you listen, and they should too. Subscribe/follow so you never miss an episode. And of course, keep up all that great commenting and sharing on social media. Thank you, thank you to everyone over on patreon.com/refusefascism for supporting the show at $2 or more a month.
Before we get into it, we wanted to underscore the need for vigilance that we discussed last week in light of the violent MAGA movement’s response to the Trump indictment. That they did not turn up and out in Miami at Trump’s arraignment does not mean the fascist movement, or the violence that is so central to it, has subsided. As Chauncey DeVega over at Salon.com aptly noted: “The threat of violence from Donald Trump’s MAGA forces is still very real. Don’t let your guard down because his MAGA militants did not appear at the courthouse in Miami, like the Avengers in a Marvel movie to save him from being arrested.”
Right now, the MAGA base is comforted by a Republi-fascist party firmly in defense of Trump, and advancing the fascist program in state houses across the country. Committed to a fully revanchist program promising vicious weaponization of law enforcement and much more against all enemies should they re-seize power. This year, Pride month has become a focal point in the concerted fascist push to violently suppress and outright eliminate the LGBTQIA community.
Tess Owens, at Vice, detailed that: “The specter of anti-LGBTQ violence has cast a dark cloud over this Pride month. Far right extremists, buoyed by mainstream GOP policy and rhetoric, have been laser focused on anti-LGBTQ hate and conspiracy theories for the last year, with particular focus on attacking trans rights and events that involve kids. Many of the protests targeting the LGBT community in the last year have drawn an array of Neo Nazis, white nationalists, Proud Boys and weapons.”
As part of this dynamic, the problematic commercialization of Pride has been turned on its head, with Target tossing most of their Pride-related products after becoming a target of repeated fascist violence; Starbucks, at least regionally banning Pride decorations, and Dodger Stadium becoming a site of virulent anti-gay and anti-trans protests by thousands of bloodthirsty Christian fascists on Pride night.
While each of these developments is in and of itself noteworthy, and each has their own dynamics, the larger reality is that in the current moment, these represent significant strides in the erasure of LGBTQ people from the public square, especially considering the broad geographic and democratic reach of Target and Starbucks. This is on top of massively increased hateful, “protests” at Pride events across the country, well beyond the Westboro-type regulars, though no less fascist and unhinged, many involving significant threats of violence.
As fascist state houses are ending access to gender affirming care, and erasing LGBTQ people from curriculums, sports and schools, as reactionary local governments are denying permits for Pride festivals and marches, as the GOP has its eyes on regaining the White House in a short 18 months with trans bans on the tip of their tongues, with fascist foot soldiers at the ready, these attacks on the most public acceptance of LGBTQ people must be recognized as part of a genocidal fascist agenda. And everyone should be defending the rights and lives of LGBTQIA people as part of refusing to accept a fascist America. No more ceding public discourse and public squares. With that, here is my interview with Steve Vladeck.
We are ten days from marking one year without Roe, but as today’s guest makes clear, we can’t talk about Roe without the shadow docket decision that helped us get here. You might have first learned about what the shadow docket is and the impact it has on September 21 2021, when the Supreme Court declined to take action to halt SB8, the Texas, bounty enforced abortion ban, forcing clinics to close, abortion funds to shutter, and those with reproductive capacity living in a post Roe world while Roe was still on the books — those who might help them, prevented it from doing so under fear of these bounty laws — women forced to travel for care or give birth against their will.
Today, we’re going to explore the shadow docket, what role it is playing in transforming how laws are made or taken away, and how it has empowered the court in new, and I would say, troubling, to say the least, ways. So, to do that, I’m so honored to welcome Stephen Vladek. He’s the Charles Allen Wright chair in federal courts at the University of Texas School of Law, and he has a new book called The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Rightly so, been on the New York Times’ bestseller list for at least — please correct me if I’m wrong — it might be three now weeks. In addition to that for a non lawyer, let me just say, it’s a really accessible breakdown of the courts and the shadow docket, and give some really fascinating history on the Court in general for the non lawyer audience. So welcome, Steve. Thanks for coming on.
Stephen Vladeck 08:46
Thanks, Sam. Good to be with you.
Sam Goldman 08:47
First off, I feel like we can’t talk to the audience that we’re reaching without first talking about: How does the Supreme Court usually work? How does a decision usually get there?
Stephen Vladeck 09:01
The way I like to explain it is: Think about the Supreme Court as having sort of a three step process. The step we’re most familiar with is step three, where basically we are most focused on what happens at the end of a case when the Supreme Court hands down a lead the signed written opinion resolving a dispute conclusively, a la Dobbs. And that comes in a number of cases after two prior steps that we don’t talk about as much.
Working backwards, step two is the stage where the supreme court is deciding whether to take the case in the first place using a very obscure Latin term called certiorari, which we just shorthand to cert. And Sam, that process is laden in obscurity. The votes to grant or deny cert are almost never public. The orders granting or denying cert are never explained, and that’s how the Supreme Court decides which cases it’s not gonna hear.
Even before that, there’s a step one, which is at some point in a lower court, if there’s a ruling that a party wants to put on hold while it takes time to get to steps two and three, they might go to the Supreme Court for what’s called emergency relief, or a stay, or to undo a lower court’s stay, where they’re not asking the justices to rule conclusively on the merits, but they are asking the justice is to upset the status quo for however long it takes for the case to get back to the court. So the shadow docket is basically steps one and two, which turns out to be actually well over 99%, of what the Supreme Court actually does, and the book is designed to make those first two steps more accessible to folks who don’t sort of spend their days living, breathing, sleeping the Supreme Court.
Sam Goldman 10:46
One of the things that I found really helpful in your book was understanding that this wasn’t always the way that decisions were made. I grew up with a lawyer dad, and he always would talk about how rare it is and how difficult it is to get the Supreme Court to hear a case; that it wasn’t a common thing. And now we see a lot of — not decisions, but — orders that they do make. And that is something different than decades ago. If you could talk a little bit more about how the shadow docket differs from how decisions are made. What stands out that people should understand?
Stephen Vladeck 11:27
The short version is that we’re used to the long, thorough opinions as the mechanism by which we measure the Supreme Court’s work. For better or for worse, Dobbs comes down and we read it, and we have all these reactions to what Justice Alito writes for the majority because he had to write something — versus for example, when the court let Texas’ six week abortion ban go into effect on September 2021, and it barely wrote a paragraph about why it was doing so — versus February 2022, when the court put back into effect, Alabama’s unlawful congressional district maps and didn’t provide any rationale for why it was intervening.
The hallmark of what we think of as a typical Supreme Court decision is process — is multiple rounds of briefing, oral argument, lengthy, principled justifications, and the shadow docket has none of that. Maybe there’s a round of briefing, but the dispositions are typically unsigned and unexplained. It is exceptionally rare for the court to have oral argument on an application. It’s had one instance of that in the last 50 years. It’s not pernicious by itself. It’s just a set of procedures that are meant for decisions that aren’t supposed to be that impactful. One of the reasons why I wrote the book is because you can hardly go a week these days without seeing one of these decisions that’s actually remarkably impactful, and trying to figure out why that happened, whether this is the justices own fault. What do we do? and how did we get here? That’s a big part of why I wrote the book.
Sam Goldman 11:27
I was curious — I had written down that I wanted to hear more about, beyond being an academic interest of yours, definitely, as you read the book, you get a sense of this being a larger concern about the state of democracy in this country, and the need for you to reach an audience broader than lawyers to understand what is happening, and to explore possibly why this is happening.
Before we talk about, specifically, the recent changes in the shadow docket and the implications there. I wanted to talk a little bit more about, ion your title itself, it says: how the Supreme Court uses stealth rulings to amass power and undermine the Republic. I was wondering whether you could explore a little bit more with us the danger that you see posed in the possibility of this being a mechanism to undermine the Republic.
Stephen Vladeck 13:52
if we go back to first principles — why do we give unelected judges all this power? — the short answer is because for better or for worse, it is a staple of our constitutional system, that we need independent judges, hence why we don’t elect them, to have the last word when it comes to protecting minority rights, when it comes to protecting against the tyranny of the majority. But in exchange, the idea is that these are judges acting as judges.
The Supreme Court has itself said for decades, that its legitimacy comes from its ability to provide principle justifications for its decision making, not because we’re gonna agree with the principles in every or even many cases, but hopefully, we’ll at least agree that there are principles. The danger of the shadow docket is really manifested in how the court has used it in the last five or six years. As the book shows, there’s this remarkable tendency starting around 2017 in which the court is reacting or denying emergency relief based not on adherence to any set of coherent neutral legal principles, but rather based on just the partisan political preferences of the justices.
That’s a real problem in the context in which they’re not providing a rationale because it makes it way too easy, once the partisan valence of the case has flipped, for the court to come out the other way and not have to explain why in [e.g.] a case that favored Republicans intervened, and in a case where the legal questions look very similar — it just happened to favor Democrats — they didn’t.
That’s where we get to the undermining the Republic charge, because especially in election cases, as chapter six of the book documents, there’s this really horrifying pattern, starting in 2020, where the court is intervening through emergency applications, through unexplained grants of relief, in cases that favor Republicans, but when a case comes along that actually is enormously important to Democrats in Florida, and where the arguments for intervention were just as compelling, if not more compelling, all of a sudden, the court sits on his hands. That’s the problem, Sam, of the shadow docket, which is because we are deprived of neutral justifications, we’re deprived of any ability to say this is actually a court behaving as a court, as opposed to politicians voting up or down for results that they do or do not favor.
Sam Goldman 16:07
Thanks for that. Steve. I was thinking about how we’ve talked about the impact that — on the show, we call it the Trump regime, you’d call it — the Trump administration has played in really remaking the judiciary overall; stacking the Supreme Court, the role that they played in transforming the courts, through federal judge appointments, and so on and so forth. But we haven’t talked specifically about this aspect that you detail in your book, you talk in depth about how, while the modern shadow docket began in death penalty cases in the 1980s, it really exploded with the Trump — again, our words, not yours — regime. The number of cases, it’s just stunning how many orders they put through, and how many requests the administration tried to get through. I was hoping you could tell us a little bit more about how Trump in particular transformed the role that the shadow docket plays.
Stephen Vladeck 17:07
The short version is that when Trump comes to office in 2017, he goes out and adopts all of these controversial and arguably illegal policies that are promptly challenged in federal courts, and they’re blocked, and they’re subject to a series of so called nationwide injunctions. What happens is, the Trump Justice Department takes a specially aggressive and novel approach, what we call it step one, to go into the court early and say: Hey, we’re going to be back in a couple of years to tell you why you should rule in favor of these policies, but until that you should let us carry these policies into effect.
This starts with travel ban 2.0, but it quickly extends to the ban on military service by transgender individuals, it extends to some abortion cases, it extends to other immigration policies, where what had in the past been a mechanism, really primarily for dealing with last minute challenges to executions, all of a sudden becomes a mechanism for dealing with a whole wide array of challenges — to federal policies where there’s no emergency, where the the emergency is, such as it is, is depriving the executive branch of the ability to enforce its policies for some period of time when lower courts had blocked them. We had never, before that point, thought of that as an emergency. It affects this profound shift in when and how the Supreme Court is intervening, because if it really is an emergency, every time a government policy is blocked, then there are a lot of emergencies out there, and lots of cases where Supreme Court intervention is thus called for.
Sam Goldman 18:42
That’s really clarifying. One thing that stood out to me in that chapter — I was just looking for the exact quote — was where you wrote — you were talking about those who are gonna look at this more cynically, but I guess that’s me — the posed being that “the shadow docket thereby provided the justices with a means of controlling executive branch policies without having to take a position on their legality; policy without law.” To me, that was a really clarifying aspect. What that means, if you just compare the treatment of things that were brought by the Trump administration and things that have been brought since, through the Biden administration, and the compare and contrast. I was wondering why you think that is? Is it the composition of the court? or is it something else?
Stephen Vladeck 19:31
In a world in which these procedural shortcuts make it easier for justices to just vote their political preferences, I guess it’s not very surprising that a court with six justices appointed by Republican presidents are going to have the results favor and align with the preferences of contemporary Republicans. I think it actually reflects a deeper pathos, which is a general lack of accountability on the part of the Supreme Court. I think that’s really what separates the moment we’re in right now from prior periods in the courts history.
We’ve had conservative majorities on the court in the past. We’ve had periods with a lot of deeply unpopular rulings from the Supreme Court, and we survived them. To me, what was different about those prior periods from the one we’re in today isn’t who’s on the court right now. It’s how unaccountable the current court is. Part of the story the book tries to tell is that for the better part of 200 years, the court was meaningfully accountable to Congress. Congress pulled a lot of levers and exerting control over the court. Congress controlled which cases the court heard, Congress controlled the justices travel, Congress controlled the justice facilities, Congress controlled the justices budget, I mean, everything.
That’s all fallen by the wayside. I don’t know that this is necessarily a plank of any sort of longer term legal agenda, I just think that it became an incredibly convenient flaunt of exercising what is effectively political power. It took emerging public criticism for anyone to realize that maybe this was actually not an appropriate way for the court to be behaving. To me, the shadow docket is in many ways a symptom of a broader disease, where the disease is just unaccountability.
Sam Goldman 21:11
Why do you think we’re seeing so much unaccountability in this moment? Especially in light of the swirling controversies that surround the court that are larger, as you said, than just the shadow docket?
Stephen Vladeck 21:24
In part it’s because we haven’t thought about the court this way for a long time. In part it’s because there’s no longer a middle in Congress, and so the days in which you would have liberal Republicans and conservative Democrats who might actually join cause on asserting Congress’s power as an institution are in the past. It’s been 35 years since Congress meaningfully exercised any control over the courts docket. In that respect, it’s part of this broader phenomenon, where the separation of parties has replaced the separation of powers.
What that has meant is that over the last generation, we’ve seen the court able to claim more and more power, we’ve seen the executive, whether a Democratic or Republican, able to claim more and more power. Both of those things are happening because there’s a vacuum where institutional constraints from the legislature had historically exerted downward pressure on the other branches. You know, Madison writes in Federalist 51: ambition must be made to counteract ambition. There’s a lot of institutional ambition on the court right now, there’s a lot of institutional ambition in the White House, there is no institutional ambition in Congress. There are a lot of different problems that can be traced to that breakdown.
Sam Goldman 22:33
I’m wondering whether you see any underlying connection between the shadow docket and the the larger ethical issues that surround, or loom over the supreme court right now — in particular with Justice Thomas?
Stephen Vladeck 22:50
I think they’re flip sides of the same coin. The ethical issues are just as much a symptom of the same problem, which is lack of accountability. When Senator Durbin asks Chief Justice Roberts to come testify, and Roberts, his response is that it would raise separation of powers concerns and risk of affronting judicial independence, that’s not how we would have thought about the relationship between Congress and the court as recently as 30 or 40 years ago.
The ethics story is slightly different, because there’s more of a personal role there. You can have lots of justices who aren’t getting into these kinds of stories. But the broader problem is the same, which is an institution that is not beholden to anybody else, is not looking over its shoulder, is keeping its own counsel about what its rules and practices ought to be. Therefore, when things hit the fan, feels no pressure from outside to change its ways. Again, what you learn about the court when you don’t just focus on the merits docket.
Sam Goldman 23:50
It really is shocking and stunning, how free [chuckles] to do as they wish they are. I mean, with just thinking about that. There’s often — like every few years — where groups of people will say: So and so needs to be impeached, when I think it’s like one justice ever has been impeached. I’m not saying that that’s the solution to every ethical issue, either. But that that isn’t even something that would remotely be a fear or concern, or something that they would have to watch for, I think is a little shocking.
Stephen Vladeck 24:27
Keep in mind, the last time we’ve had a real scandal involving a sitting justice was Abe Fortas in 1969, and Fortas resigned, at least in part because he feared impeachment, but also because Chief Justice Earl Warren went to Fortas and said: Hey, buddy, you’ve got to resign for the good of the court. That’s also institutionalist approach. That is putting the institution above the people. I think part of where that came from, was Warren’s concern that if Fortas didn’t resign, the political branches would exercise has all kinds of other power over the court in ways that would damage the court. That’s just not where we are today.
Part of why I wrote this book, part of why I hope folks who maybe don’t spend all their days and nights thinking about the Supreme Court will still read it is because I actually think that part of how we got here is a very lawyerly insistence that what matters from the Supreme Court is just its merits rulings, when it’s just increasingly apparent that that’s just a small slice of the pie.
Sam Goldman 25:31
I want to thank you for coming on and sharing your expertise, your insight, your perspective, your time with us. And I want to thank you for this book. I think it’s a really important contribution. We’re gonna link to it in the show notes. For folks who want to read more from you after they’re done reading your book, where should they go?
Stephen Vladeck 25:51
If you still can stomach Twitter, I’m there @Steve_Vladeck. I have a Substack newsletter about the Supreme Court called One First, which is at SteveVladeck.substack.com. I think that’s probably the two best places to find me, at least for the moment.
Sam Goldman 26:08
Perfect. Thanks so much.
Stephen Vladeck 26:09
Thanks, Sam. Great to be with you.
Sam Goldman 26:10
Next Saturday, June 24, marks one year since the illegitimate, Trump packed, fascist Supreme Court overturned Roe v Wade, ripping away nationwide abortion rights. I’ll be headed back to the scene of the crime to join the Rise Up for Abortion Rights contingent at the Women’s March in Washington DC, raising the demand: legal abortion on demand and without apology nationwide and everywhere.
Declaring forced motherhood is female enslavement, rise up for abortion rights. Join me, 11am, at Columbus Circle. Find a link to the signup in the shownotes. We’ll be posting some coverage over on our socials, so be sure to follow @RefuseFascism, and chip in to support our coverage on the show from the protest by donating over at RefuseFascism.org, or signing up to become a patron. Now, here is my interview with Julian Gonzalez from Earth Justice.
Sam Goldman 27:14
On this show we have talked a great deal about the illegitimacy of the current Supreme Court, now stacked with what we on the show would call fascists — three of whom were appointed by now criminally indicted Trump — and, these appointments, remember, are for life. Listeners of this show are very familiar with the Dobbs decision that overturned the right to abortion in this country and also have been following the news about other decisions that affect the overall functioning of society, people’s rights, so on and so forth.
Here’s the thing, though, the Supreme Court is ruling terribly on just about everything. Although, wow, am I pleasantly surprised by today’s ruling on the Indian Child Welfare Act. Anyway, this past May in Sackett versus EPA, the Supreme Court decided to attack the Clean Water Act, which coincidently, like Roe, has been in place for half a century. To get into this case, what the implications are, and more, I am happy to welcome on Julian Gonzalez who serves as Senior Legislative Counsel for Earth justices Healthy Communities Program in Washington, DC. Welcome. Thanks for coming on.
Julian Gonzalez 28:26
Thank you for having me.
Sam Goldman 28:27
Before we get into the Sackettt case, can you tell us a little bit about Earth Justice and the work that you do?
Julian Gonzalez 28:34
Earth Justice has been around for a while. A long, long time ago, they started out as the legal defense arm of the Sierra Club, another large environmental nonprofit, and eventually they split off, although still work with the club very closely represent the club a lot. So Earth Justice, as another entity, was founded in 1971. They’ve been around for about half a century. We represent clients, mostly community groups, tribes, labor organizations, occasionally other environmental nonprofits that are larger as well. We do this pro bono, we use the power of environmental law and different environmental statutes to try to lessen the pollution burden that a lot of communities have to face, that they often bear disproportionately.
Over the years, although litigation is definitely the core part of Earth Justice’s identity, the organization has grown to complement our litigation with communications efforts, with outreach. I’m part of our policy and legislation team, which is why I’m here in Washington, D.C., so we try to work with members of Congress, with the administration, with agencies, even though at times, we’re often suing the administration too. So we’re trying to do everything we can in partnership with folks on the ground throughout the country to really ensure that the laws that protect us from pollution are strengthened — not only remain in place but are strengthened. When attempts are made to weaken those laws at the expense of folks around the country, we’re here to try to defend that as well.
Sam Goldman 30:08
Really important work. Can you tell us what happened with the Sackett case and the implications,
Julian Gonzalez 30:14
I guess the best place to start is the who of the Sackett case. And then we can get into what happened, the implications and the wild opinion that was issued by the court. Sackett versus EPA, this case was brought by two people, the Sacketts, who are Idaho landowners. We can just cut to the chase, they’re backed by the polluting industry of oil and gas industry, mining companies, developers, corporate agribusiness, you name it. They’re also represented by the Pacific Legal Foundation — we can get into who they are as well, if you want. They’re a longtime anti-environmental legal group that is bankrolled by the kind of folks who you think would bankroll such a group and their origins go back to the 70s as well, when we in this country started making a lot of progress in creating the EPA and creating the Clean Water Act, and their first client was the maker of DDT.
Those are the kind of actors here along with EPA. So this dispute between the Sacketts and EPA actually goes back quite a number of years to 2007. They had purchased a parcel of land in Idaho that was subject to Clean Water Act protections. This land included sensitive wetlands that were not too far from Priest Lake, which is a very large lake in Idaho, the property that they had required a wetlands permit from EPA for development. They did not get a permit. They dumped half an Olympic swimming pool’s worth of sand into the wetlands without a permit.
EPA said: Hey, you have to undo that and get a permit under the Clean Water Act; that’s how this works. And instead of saying: Okay, we’ll do that, our bad — they sued. And this legal battle has been meandering and pretty complicated and gone up and down, and this is actually the second time they’ve been before the Supreme Court in 14 years, now. There were a couple of things in play here. One was whether the Sacketts wetland itself was subject to the Clean Water Act.
The Supreme Court ruled — if you look at the decision, you’ll see it was 9-0, and that can be kind of confusing, right, because you will read in the news about a dissent and backlash and multiple different opinions. What had happened in the actual decision was a 9-0 agreement that the Sacketts property, that the Clean Water Act did not apply to it. What the actual dispute and the majority of the decision was about was, what exactly is the scope of the Clean Water Act.
The Clean Water Act grants EPA the authority to regulate “navigable waters” of the United States. It defines “navigable waters” as the waters of the United States, but it doesn’t really have a super clear definition of that in the statute itself. So courts have long held, including the Supreme Court multiple times, that EPA has the authority to figure this out; to interpret this term. That’s what agencies do. They’re there because they have scientists, they have experts.
The EPA has the authority to regulate certain waters under that term, including not just large bodies of waters, like lakes and rivers, but also ecosystems that are adjacent to those lakes and rivers, like wetlands, because two of the important goals of the Clean Water Act are to protect the chemical, biological physical integrity of our nation’s waters, and you can’t do that if you don’t regulate things like wetlands, which are huge factors and filtering pollutants in preventing floods and just maintaining the integrity of our ecosystems.
Another goal of the Clean Water Act was to ensure that all of our nation’s lakes and streams and waters were fishable and swimmable by 1985. It is 2023. We’re a long way past 1985. We’ve made a lot of progress since the Clean Water Act was passed, but we still have a long way to go. We can talk about the state of our country’s water a little bit later if you want, but I bring that up because a lot of the times you may hear folks say: Oh, that was just an aspirational goal in the legislation. The folks who say that are the same people who, as we’ll get into, choose to very selectively determine when Congress said what they meant and when Congress didn’t say what they meant.
When you have two extremely ambitious goals like that, that lend themselves to the natural conclusion that: Yes, the Clean Water Act is broad, and yes, it is powerful — because the goals are very ambitious, and very important. Those things are not an accident. This dispute about what waters the EPA can regulate under the Clean Water Act, it’s a third rail in D.C. and around the country. It’s very much a culture war issue at this point. You have oil and gas and developers and the Farm Bureau on one side and literally everyone else on the other side.
What happened in the case was Justice Alito wrote a majority opinion 5-4, so he was joined by four other justices. Basically explaining that in his view, Congress has to be exceedingly clear when they want to infringe on private property rights. This rule does not appear in the Constitution. This is not something that has been stated in prior Supreme Court cases. This is kind of a doctrine that they just came up with? Out of somewhere?
For somebody who considers themselves a justice who relies on the text of the Constitution and the text of laws, it is interesting that this doctrine stems from no text that we know of. Justice Thomas also wrote an opinion which actually went even further. I really want to emphasize how radical the opinion was, they ruled that adjacent waters have to be indistinguishable from waters to be regulated under the Clean Water Act. In their view, when they say indistinguishable, they mean it has to look just like a water, like a river or a stream, which wetlands are not right like, you know a wetland when you see one, for the most part, even though hydrologically a wetland and a river are indistinguishable and connected ecosystems, visually, they’re different.
This interpretation of what wetlands should get covered under the Act is really narrow in scope. To give you two points that illustrate how radical this is, the Trump administration, like other administrations, had created a regulation to help interpret the term ‘waters of the U.S.’ to help in their case, now what waters were covered because they want less waters covered so they can have more development and pollution without consequence. Justice Alito’s opinion goes further than the Trump administration’s regulation on what waters are covered by the Clean Water Act.
There are some waters and wetlands that the Trump administration would have protected under the Clean Water Act that, under Justice Alito’s opinions are likely not protected. It was so radical that Justice Kavanaugh, no friend of the environment, wrote in concurrence with Justice Kagan about the rules, pretty much saying: Y’all have gone too far, y’all have pulled definitions out of nowhere, and this is not something I’m cool with. That was definitely a surprise for those of us in the environmental legal community. So that’s kind of what happened from a legal perspective. The implications, we’re still sorting out, you know. EPA has to figure out what they’re going to do, things will happen at the state level, both in state legislatures and in state environmental agencies.
So there’s a lot of moving pieces, but it is really bad news for the environment, for people who rely on water for drinking water, for people who rely on wetlands to protect from flooding in an age where we’re getting more floods due to climate induced storms and rainfall and things like that, in a time where lots of folks don’t have access to affordable water or clean water — places like Flint still don’t have clean water — in a time where lots of people’s waters are still polluted by agricultural pollutants by PFAS.
There’s still a lot of water crisis going on, and these folks are over here in the court, restricting the effectiveness have, in my opinion, the most effective environmental law, the Clean Water Act. It gives folks the power to do citizen suits. If you look at how many lawsuits have been initiated under different environmental laws over the last 50 years the Clean Water Act is in first place by like a lot, because it’s a really important and powerful tool. It’s just a really unfortunate and, frankly, insane decision.
Sam Goldman 38:21
It’s completely, in my opinion, in line with the majority of the court’s effort to undermine the role of federal agencies. EPA is an example of that. They’re seeking to do that with many other federal agencies as well, even while there is the particularity of what they want to do ambition-wise or who they support in terms of ripping up the environment. The definition of adjacent became a really big deal, as you were talking about, in this ruling, which simply, in my understanding, meant that the majority use this word to undermine and obscure what is at stake — whether or not the EPA has oversight of wetlands, which are connected to other sources of water.
I thought it was really helpful how you talked about some of the possible implications and what this could open up across the country. I was wondering if there were specific examples of what may happen as a result, and what sort of effects that will have as part of helping people understand the significance of the Clean Water Act
Julian Gonzalez 39:23
On an ecological level, if a wetland is developed — if developers are allowed to pour sand and gravel and stuff into a wetland to build a house or build a wall — that removes a critical tool, so to speak, of environmental protection; a natural tool. Wetlands are really important. They store water to prevent and mitigate floods. They filter pollutants before they reach other bodies of water. They support forestry, food, seafood production, recreation — lots of really important impacts.
Historically, over the last 100 years, just the way things have gone in this country, and coastal development has gone crazy, we don’t have hardly any wetlands compared to what we used to. And you’re seeing that in a lot of the places that are impacted by super storms on the coasts, and even in inland communities in places like Iowa, these floods are devastating. With increasing pollutants from agriculture, in particular removal of wetlands is the removal of an important tool. What that means for communities is if you live in a state that has good state level protections, that’s awesome, great for you, right.
But if the state upstream of you has terrible state protections, and no longer can rely on EPA and federal protections, than that means your water is going to get more polluted despite your state doing everything it can. And most states do not do everything they can. Many states — about a third of the states — have laws on the books that say: Our environmental regulations are not allowed to be more strict than EPA’s. What we’re headed towards, right now.
If things continue to go poorly, is a situation which we saw before the Clean Water Act was passed. Before the Clean Water Act was passed in the 60s, you have rivers on fire, you had a rampant sewage pollution. The issue was a regulatory framework really relied on states to protect the health of folks within their borders. Interstate protections for the environment were not really a thing as far as water pollution went. Once the Cuyahoga River was on fire.
Once these news stories were blowing up across the country, people were alarmed at this, right. This was part of our country’s environmental awakening in the 70s with the founding of the EPA, and you had EPA created the Clean Water Act, passed in bipartisan fashion, Reagan vetoed it, they overrode the veto. That’s how popular this stuff was back then, because people realized that whatever we’re doing right now is not getting it done; this is not working. And that was a consensus thing that everybody agreed with.
The framework of everybody do their own thing does not make sense for water, because water does not follow borders, water goes downstream, it goes underground, goes above ground, evaporates, comes back down, like it doesn’t care about our maps. That’s not how water works. You can ask a first grader, they know that, it’s really simple. The Clean Water Act was made to reflect that. It’s not a perfect law, but the central premise that we need a backstop, and we need minimum standards, and we need a system whereby if folks want to pollute or develop, they have to do XYZ, they have to get a permit to get permission to do that. They often have to mitigate the impacts.
This was all groundbreaking at the time and very sensible, but if the number of waters that the Clean Water Act has protected shrinks, then we’re back in a place where you’re relying on your local protection. And that’s just bad news because that’s not how water works. It’s gonna result in a snowball effect. There are Supreme Court decisions, like overturning Roe vs. Wade, where you’ll see the impact very quickly. This isn’t the sort of thing where you will see that impact tomorrow or this year, but it will happen.
You’re already seeing some states move to weaken their own environmental laws in the wake of Sackett. This creates what’s called a race to the bottom where if you want to make money, if your state wants to check business, polluting industries and developing industries, you just weaken environmental laws and cross your fingers and hope that XYZ exploitative industry comes and does their work in your state, communities be damned. That’s what we’re looking at.
Sam Goldman 43:25
Thinking about this case, this isn’t the first time that the court has stepped in to oppose EPA’s authority. Last year there was West Virginia versus the EPA [JG: mmhmm], these anti EPA rulings essentially interfere with laws that had been on the books, as we talked previously about, for 50 years. In the case of Dobbs, the court was reversing its own ruling, Roe allowed abortion rights as a judicial matter, but wasn’t a law, though we could easily argue it should have become a federal law — anyway. In this case, though, the court reached over the legislative and executive branches to interfere with these other branches.
I’m wondering, is that a larger trends that we should be concerned about as it relates to the unraveling of basic environmental regulations that, as you point to, we should actually be strengthening. And is there more that we should be looking at in that regard.
Julian Gonzalez 44:16
As I alluded to the way in which they reached their outcome, Justice Alito’s outcome is extremely worrisome. My Earth justice colleague, our vice president of programs, Sam Sankar, has been on a number of shows and podcasts talking about this decision. And the way he describes it is if West Virginia versus EPA and their major questions doctrine, which is — it was a tool that the court created to deregulate the Clean Air Act. The way Sam puts it is that is if West Virginia versus EPA gave polluters, a knife, Sackett gives them the machine gun. The reason is because this rule, we can call the clear statement rule, essentially says that if Congress wants to regulate private property, they have to state so clearly.
What does that mean? You ask a hundred different lawyers, you probably get a hundred different answers. The Supreme Court is gonna be the one to interpret that to whatever they see fit. And lower courts might interpret that to whatever they see fit. There are a lot of bad lower courts out there as well. That’s not something that is confined to only being applicable to the Clean Water Act. That’s something that was designed to undermine the enterprise of environmental regulation.
The whole point of environmental regulation is we regulate what people do on property for the benefit of everybody, because pollution moves. That’s the entire idea of environmental law. And this is a weapon that they have designed to undermine that. Who’s to say what is clear enough at this point? We’ll probably wait for Justice Alito to tell us that Congress didn’t say this or that in the right font, and therefore they shouldn’t be regulating solar cells private property to improve air quality or water quality, toxics disposal, or whatever. So it is definitely bad news as far as undermining environmental regulations. AndI suspect, even though we had West Virginia versus EPA last year, and Sackett this year, they’re definitely not done.
Sam Goldman 46:11
I want to thank Julian so much for coming on sharing his expertise and perspective with us. See the show notes to connect with Earthjustice.
I wanted to alert folks that next week we’re going to bring you all the deets on the Moms for Liberty, aka Moms for Fascism summit, coming to Philly June 29 through July 2, bringing with them Trump, DeSantis, Haley and more, and will be training their Christian fascist stormtroopers to run for school boards and terrorize teachers, students and the LGBTQ community at large. Aiming to erase them from public life with viciousness nationwide. So tune in next week, where we’ll be covering this; all you need to know about Moms for Liberty, the danger they pose, why they’re coming to Philly and ways for people to act. Save the dates, June 29 through July 2, because folks should be turning up and out in Philadelphia at the end of this Pride month to defend the lives and rights of LGBTQ people, to defend Black history and Black lives, the rights of kids to have a real education and against the overall fascist program they are a part of the hammering into place.
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