Some 50 years ago, members of Congress were forceful and united regarding a desire to clean up and protect the United States’ waterways. Such unity is needed again from a legislative body that too often these days succumbs to division and directionless meandering. Lawmakers must defend and bolster the Clean Water Act, which is being gutted by the Supreme Court.
The law was enacted in 1972, during an era when the nation was finally coming to grips with the environmental degradation wrought by unfettered industrialization. The Clean Air Act was passed in 1963; the National Environmental Policy Act was approved in 1969; and the Environmental Protection Agency was established in 1970.
Events such as a smog disaster that covered New York City and a river that caught fire in Cleveland had starkly demonstrated how industrialization had befouled our environment.
Locally, TV reporter Tom McCall — who later became governor of Oregon and brought national attention to the state’s groundbreaking environmental policies — aired a documentary about the Willamette River called “Pollution in Paradise.” It detailed industrial waste being poured into the water that “churns at river’s bottom, forming into rafts that rise to the surface in sluggish, foul-smelling masses of filth.”
Congress approved the Clean Water Act in 1972. The final bill passed the Senate in a 74-0 vote and the House in a 366-11 vote. President Richard Nixon vetoed the legislation, but Congress overrode that veto with overwhelming majorities in both chambers.
The reason was clear, as articulated by Sen. Howard Baker, R-Tenn.: “As I have talked with thousands of Tennesseans, I have found that the kind of natural environment we bequeath to our children and grandchildren is of paramount importance. If we cannot swim in our lakes and rivers, if we cannot breathe the air God has given us, what other comforts can life offer us?”
The Clean Water Act is clear about the scope of those comforts, expressly applying it to all “waters of the United States.” In a unanimous 1985 Supreme Court decision, Justice Byron White wrote: “It may appear unreasonable to classify ‘lands’ wet or otherwise as ‘waters,’ ” but “such a simplistic response … does justice neither to the problem faced by the (government) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.”
But a new Supreme Court is actively undermining those combat efforts. By a 5-4 majority in Sackett v. Environmental Protection Agency, the court last week rolled back protections for wetlands and determined that the EPA’s definition was too broad. Under the court’s view, dumping pollution requires a permit only for waters that are “relatively permanent, standing or continuously flowing bodies of water … ‘streams … oceans, rivers, and lakes.’”
The problem with that reasoning is obvious. Pollution dumped into a wetland does not remain there; it is not static. Pollution affects wildlife habitat and finds its way into larger bodies of water, crossing county lines and state lines and reaching people who are far from the emitter. In a dissenting opinion, Justice Elena Kagan wrote that the ruling, “prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”
Members of Congress must respond with the resolve demonstrated by their predecessors. They must pass legislation to keep pollution out of our nation’s waterways, lest the Supreme Court return us to an era of environmental degradation.
