When I was applying to law schools, I remember writing that I wanted to become a lawyer, rather than a scientist, because that’s where the action was – lawyers would actually make environmental policy. This was ridiculously small-minded of me, and over the course of my career I have come to learn that the worlds of science and policy are inextricably linked. Unfortunately, not everyone learned this lesson -- today’s New York Times has a compelling story of what happens when a bunch of lawyers (in this case, five members of the United States Supreme Court) ignore science.
As I have written here, here, here, here, here, and here, the Clean Water Act – our country’s chief safeguard against water pollution – has been broken by a pair of Supreme Court decisions that suggest the law as it is currently written cannot protect certain kinds of water bodies. The decisions upset the longstanding rule that protected water bodies broadly, including wetlands and other “non-navigable” water bodies that are not connected to other surface waters, as well as a host of small streams (such as ones that do not flow year-round).
That principle was based on basic science -- so basic, in fact, that when I told my then 7- or 8-year-old son what I was working on, he was dumbstruck by the idea that it would be okay to pollute smaller headwaters, given their obvious relationship to the rest of the watershed. Scientists tell us that wetlands, even so-called “isolated” ones, curtail flooding, filter polluted runoff, provide critical habitat for a host of critters, and recharge underground drinking water sources. The smaller streams in the upper reaches of watersheds perform similar functions, and their destruction or pollution has predictable results for downstream waters.
The Supreme Court’s contrary approach was wrong on the law – the decisions overturned previously settled understandings that were faithful to the Act and to how Congress intended it to operate, and that prior interpretation had served the nation well for most of three decades. But the decisions were even worse on the facts; when the Court ignored elementary school science in favor of a legalistic reading, it forced pollution control officials to go through a time- and resource-intensive process to prove that a given water body has a significant enough relationship to a “navigable” one before protecting it. The practical result has been that thousands of water bodies have been cast aside as unprotected, as NRDC and a number of other conservation groups described in a pair of reports, available here and here.
Thankfully, as the Times describes today, there is a ready solution. The Supreme Court said that its decisions were based on the language of the Clean Water Act -- language that Congress can change. A bill called the Clean Water Restoration Act is pending in Congress right now; it would restore protections to the kinds of water bodies that the law previously protected and that today are in limbo. A compromise version of the bill has already passed a key Senate committee thanks to the leadership of Chairman Boxer and Senators Baucus and Klobuchar. The House of Representatives needs to act next, and the Chairman of the relevant House committee, Representative James Oberstar of Minnesota, has vowed to move companion legislation to fix the problem. You can help, by telling Chairman Oberstar that you support moving now to finally fix the law, and by getting in touch with your own representative to urge him or her to support a fix. Please do.
We need to make ourselves heard on this because there are powerful political forces working against it. Several industries that historically have been regulated by the Clean Water Act have lined up to oppose the bill, and have orchestrated a scheme to try to convince Congress to ignore the scientific need to correct the legal problem. As the Times reports:
“The game plan is to emphasize the scary possibilities,” said one member of the Waters Advocacy Coalition, which has fought the legislation and is supported by the American Farm Bureau Federation, the National Association of Home Builders and other groups representing industries affected by the Clean Water Act.
“If you can get Glenn Beck to say that government storm troopers are going to invade your property, farmers in the Midwest will light up their congressmen’s switchboards,” said the coalition member, who asked not to be identified because he thought his descriptions would anger other coalition participants. Mr. Beck, a conservative commentator on Fox News, spoke at length against the Clean Water Restoration Act in December.
Let’s hope that our leaders in Congress can see through the scare tactics to the scary scientific fact that failing to protect our critical water bodies will hurt public health and the environment.