Waters of the US

Much contemporary judicial interpretation supposes, in the words of Justice Scalia: “garbage in, garbage out.”  Where a judge is confronted by a law, so long as that law is constitutional or not in direct conflict with another law, it is that judge’s responsibility to uphold the oath of her office and apply the law as written.  While reasonable people can always disagree on the meaning of a given text as it applies to a given situation, some language and concepts are so clear as to allow for only the smallest amount of interpretations.  As Scalia explains, in these instances, if people do not like a judge’s decision, the legislature, not the judiciary, has the responsibility to rectify any problems.

Although the above points sound obvious, this type of judicial interpretation has not always dominated judicial philosophy.  Rather, this new breed of judicial integrity arose antagonistically in response to what was understood as liberal judicial activism.  Unfortunately, however, this purist-sounding type of interpretation has never been applied evenly or balanced.  The approach is often used to justify unpopular decisions or to justify judges’ reneging on their responsibility to uphold a modicum of justice in our society (incidentally, Scalia believes justice is not his business, despite his title).

Where these supposed strict-interpretation judges, however, often find themselves in a bind is where they confront laws which are contrary to their desires.  That is, this new breed of judicial interpretation arose as a mechanism to combat the sweeping social reforms that occurred as a result of the Warren Court throughout the beginning of the second half of the past century.  However, during that period, broad environmental legislation was passed which contemporary conservative judges today are unwilling to uphold.    Perhaps that is why this past November the Supreme Court refused to hear Friends of the Everglades v. South Florida Water Management District.

Though I think all interested in American environmentalism should learn about the nuance of the Clean Water Act, I will not delve too deeply into the intricacy of that law here.  However, to those interested I would recommend The Clean Water Handbook (American Bar Association) by Mark Ryan (if the high price tag doesn’t dissuade you).  Suffice it to say that the Clean Water Act prohibits all discharge of pollutants from point sources into waters of the United States without a permit.  This one clause has been the spring for an era of dramatic environmental rehabilitation.  Although we are unfortunately a long way from the goal set by the Act (completely clean waters by 1985), America’s waterways are healthier than they have been in many generations.

Still, environmental rehabilitation has never been easy.  A number of presidential administrations have gone to great lengths to undermine the Clean Water Act; though some such attempts may have been justified in light of the circumstances, the fact remains that such attempts were counter to environmental interests and counter to the democratic principles which led to the development of the Clean Water Act.  Of course, it comes as no surprise that the intensely political office of president will oftentimes lead to corruption of firmly established law in favor of public whim.  Less excusable, however, is how judges can often be complicit in such manipulation.

In Friends of the Everglades, a 2009 case which began in south Florida and ended up in the Eleventh Circuit Court of Appeals in Atlanta, the court considered “whether the transfer of a pollutant from one navigable body of water to another is a ‘discharge of a pollutant’ within the meaning of the Clean Water Act.”  Specifically, the court queried whether pumping water from a complex system of dikes and canals contaminated with a high number of nutrients into a wetland along Lake Okeechobee constituted an addition of a pollutant.

The EPA, during George W. Bush’s presidency, had promulgated a regulation which supposed that it is not an an addition to navigable waters to move existing pollutants from one navigable water to another.  This position has come to be known as the “unitary waters theory.”  Put simply, this EPA regulation contends that all waters of the United States are the same.  Thus, transferring water from one body of American water to another can never be covered by the Clean Water Act because no addition ever occurred.  The Eleventh Circuit deferred to the EPA’s interpretation of the Clean Water Act and held that the water transfer did not constitute a discharge and thus required no permit.  The Supreme Court refused to hear the case on appeal.

Plenty of time can (and has) been spent deriding the legal interpretation of the court in Friends of the Everglades.  What else could waters (stress the “s”) mean if all American waters were the same?  But I am confronted with a question which requires no legal analysis whatsoever.

We all must wear a different hat at different times.  At times I like to wear the poetic hat.  Other times I wear my legal hat.  My science hat.  Still, I have sought in my own life to fuse all of these interests into one smorgasbord of philosophical inquiry.  I have never found this fusion so frustrating as I do when I think of unitary waters.

I think my difficulty stems from the fact that, more than any other issue I confront, unitary waters actually makes explicit the three hats I mentioned above.  Certainly the legal is implicated, but so too are science and art.  My scientific mind brews brackish.  My poetic mind can barely form a couplet.

The many waters of my life were, certainly, all connected.  They were connected through my own visceral experience with them, but also through a very tangible hydrological cycle.  Clouds do not really seem to care whether the hydrogen and oxygen molecules within them came from the Gulf of Mexico, Lake Baikal, or the waters of Lethe.  However, once the rain has fallen and the clouds parted, we all must recognize that each water is distinct.

I think of the time I spent in South Dakota one summer, going cliff diving in some of the most beautiful places I have ever been.  And I remember my high school years spent along Florida’s Gulf Coast hoping for the future to come.  The Hudson River of my college years.  Those waters were not one piece of water–scientifically, poetically, or legally.  They were unique and they were worth protecting.

What saddens me most about all this is not that my own personal sense of America’s waters has been perverted.  What saddens me most is that that perversion can only lead to the further degradation of that which I hold so dear.

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