Environmental Defense Criticizes Supreme Court Ruling

Environmental Defense today criticized the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States, which held that under the Clean Water Act the US Army Corps of Engineers cannot prevent the pollution of isolated water bodies simply because they are used by migratory birds.

“The decision today puts in jeopardy perhaps a fifth of the water bodies in the United States, ranging from portions of the Everglades to the country’s most important breeding grounds for ducks,” said Tim Searchinger, senior attorney with Environmental Defense.

“This decision, while superficially supporting states’ rights, in fact undermines state efforts to protect wetlands and prevent surface and groundwater pollution,” said Searchinger. “The history of the last 30 years makes clear that state environmental efforts work best when they are buttressed by federal minimum standards. This decision could pull the rug out from under many state clean water efforts.”

“Twenty-two states explicitly bar state rules tougher than federal standards, so it is clear that states fear to protect their own environments unless they know industries can’t simply move to other states in search of more lax rules,” added Searchinger. “It is ironic that the Supreme Court calls for relying on states to protect isolated water bodies when many states make no effort to protect them.”

“Despite today’s decision, the Army Corps may be able to protect isolated water bodies on some basis other than use by migratory birds. Filling isolated ponds typically means that water that would have been stored in them must now go elsewhere, which sometimes causes flooding and pollution. The decision doesn’t discuss whether the Clean Water Act can regulate these water bodies because of these impacts downstream,” said Searchinger.

“The Supreme Court has also given itself a broad, vague new doctrine to strike down environmental laws it doesn’t like,” said Searchinger. “Congress is rarely more explicit about how its laws should apply than in this case. The Court has thus opened the door to many similar challenges to other environmental rules.”