New Supreme Court Justice Ketanji Brown Jackson was a lively participant Monday, as the Supreme Court heard arguments in a major case pitting environmental regulators against property rights advocates backed by industries with a history of pollution.
At issue were the 1977 amendments to the Clean Water Act, which Congress passed to strengthen the ability of the EPA to protect the waters of the United States, including wetlands adjacent to other waters. The case presents an opportunity for the conservative court to dramatically narrow the reach of the law.
On one side are conservative groups, business groups and oil, gas, coal and other industries often associated with pollution, and on the other side are environmental groups and government regulators. The case was brought by a couple who bought a plot of land near Priest Lake in Idaho, planning to build a house. But the EPA told them that they would have to apply for a permit because the construction could harm neighboring wetlands, which act as a filtering mechanism for Priest Lake.
Much of Monday's argument focused on what it means to be an "adjacent" wetland covered by the Clean Water Act. The property owners basically say the various wetlands that serve to prevent pollution do not abut their property.
While the argument was not decisive, indications are that five of the six conservatives were likely to side with the property owners, though Justice Brett Kavanaugh pointed out that the existing regulations have been applied by seven consecutive administrations, both Democratic and Republican.
Justice Neil Gorsuch, representing the apparent views of some of his fellow conservatives, took special issue with what he viewed as potential vagueness in the statute and appeared concerned that property owners could unknowingly violate the law. "How does ... any reasonable person know ... whether or not their land is adjacent to [protected waters]?" he asked. "I imagine that most of the water flow ... in quite a large geographic area drains into the lake eventually."
Justice Jackson emphasized in her early questions that the Clean Water Act's legislative purpose should be used to understand how it should be interpreted.
"My question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation's waters?" Jackson asked. "Are you saying that neighboring wetlands can't impact the quality of navigable waters?"
Justice Elena Kagan, in turn, stressed the significance of the words Congress used when writing the statute. "If you look to dictionaries, both legal and non-legal, what they show is that adjacency actually is not the same as touching or contiguity," she said. "Adjacency has something to do with proximity, of course, but the definitions are actually remarkably explicit about the fact that two things can be adjacent to each other without touching each other."
The court's other actions
In other actions, the court issued a bunch of orders dealing with many of the cases that piled up over the summer when the court was in recess. Among the cases the court declined to hear was an appeal brought by Mike Lindell, the MyPillow CEO who is a close Trump ally. He will now have to face a $1.3 billion lawsuit brought by Dominion Voting Systems. The company is accusing him of promoting false claims that its machines rigged the election.
In another action, the court turned away challenges to a federal ban on devices known as "bump stocks" that enable semi-automatic weapons to fire like a machine gun.
The court did, however, announce nine new cases they will hear this term, including a big social media case that could determine whether social media companies can be held financially responsible for content they host.
The family of a woman killed in Paris in a terrorist attack brought a challenge to the broad immunity that social media and internet companies have for material posted online. The case involves the algorithms that YouTube, owned by Google, has created to recommend content to its users.
In this case, YouTube, relying on its algorithm, referred some users to jihadi videos created by ISIS. The woman's family claimed YouTube violated U.S. anti-terrorism laws by employing an algorithm that spread ISIS-created content. But YouTube, like all the other internet-content purveyors, is protected from lawsuits under a different law, the Communications Decency Act, passed in 1996 before today's social media explosion. The act says that content hosts like YouTube can't be sued as the "publisher or speaker" for any information provided by other users.
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