SCOTUS Rewrites Clean Water Act and Murphy Drags His Feet
It was a really bad week for America’s wetlands and for flood prone neighborhoods in New Jersey. The same ultra-right wing Supreme Court that rolled back women’s reproductive rights, put millions of formerly regulated wetlands beyond the protection of the U.S. EPA because they were not contiguous to the nation’s surface waters, ignoring decades of precedent and basic earth science.
Trenton native son Justice Sam Alito, who wrote for the conservative majority opinion that radically rolled back essential wetland protections has no doubt seen the ravages of the mighty Delaware over his lifetime when it jumps its banks and converts West State Street to a mighty river.
But in weighing the equities in the case, the conservative court but their thumb on the scale in favor of the narrow property rights of the Idaho couple that sought to develop the marginal land. And in that decision, they threw to the wolves the millions of working-class Americans in places like Paterson, Rahway, and Sayreville who pay the final price when quick rising flood waters trap them and their children in basement apartments.
In an unusual alignment, Justice Brett Kavanagh wrote an opinion on behalf of the court’s liberal minority Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson that accused his conservative colleagues of rewriting the Clean Water Act” and dismissing “45 years of consistent agency practice.”
“By narrowing the (Clean Water) Act’s coverage of wetlands to only adjoining wetlands,” Kavanaugh wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.
“This is part of the rogue Supreme courts war on the environment,” Jeff Tittel wrote to InsiderNJ. “Now, with its shameful dismantling of wetlands and clean water protections, this roll back will mean more flooding and more water pollution. Once again, the Court ignores science and law while doing the bidding of agribusiness and corporate polluters. There is no bottom to treachery of this court rolling back decades of progress on the environment, woman’s rights, civil rights and democracy ”
“In New Jersey, the opinion may have some impacts but luckily New Jersey’s statutes and regulations do a better job of recognizing the importance of wetland to water quality,” wrote Michael Pisauro, an attorney, and policy director of the New Jersey based Watershed Institute. “To the extent interstate waters flow through states that do not have adequate protections, a strong state protection will have limited effect.”
Closer to home, Gov. Murphy continued his climate crisis fan dance by delaying yet again the roll out of the Inland Flood Protection Rule and the proposing of the New Jersey Protecting Against Climate Threats/ Resilient Environments and Landscapes Rules.
Without this long-promised update, development in New Jersey’s most chronically flooded lands will be based on outdated rainfall data from decades ago which in turn means greenlighting dozens of ill-advised projects like Bridge Point 8, a controversial warehouse development in West Windsor that’s a complex of seven warehouses with a total of 5.5 million square feet set on a 650-acre site.
“What I am concerned about is that I know from taking part in meetings with NJ DEP staff that the 5.4 million square foot Bridge Point site would not pass muster under updated flood maps, Wahrman told InsiderNJ during a phone interview. “We’ve been told that directly however, under these 1999 maps, believe it or not—ones that are 4 years old— predating any data on climate change and future precipitation and the very complicated modeling that DEP did—Bridge Point could slip through. In fact, it’s gotten one of the two permits from DEP.”
On May 22, dozens of New Jersey environmental leaders wrote Murphy that they were “deeply disappointed that these rules have been delayed” considering that the Governor’s own Executive Order 100 “called for adoption of these rules by January 2022, yet we are still waiting for them to be adopted or even proposed.”
“We, the undersigned organizations, representing hundreds of thousands of citizen members across the state, are writing to urge you to immediately adopt the pending Inland Flood Protection Rule and propose the New Jersey Protecting Against Climate Threats/ Resilient Environments and Landscapes Rules,” the coalition wrote. “Both sets of rules are urgently needed to protect New Jersey residents, municipalities, businesses, and the environment from the impacts of climate change.”
The letter continued. “During the last weekend in April, two back-to-back storms dumped almost two months’ worth of rain in two days on the Garden State. Once again, New Jersey residents spent a weekend dealing with overflowing rivers and streams, flood warnings, and even water rescues.”
The environmentalists noted a new hurricane season was about to start, and that it had been three and half years since Murphy issued his much-hyped Executive Order 100, and that a year and half had elapsed since rules were to be adopted.
“You promised to take action to protect New Jersey from the effects of these and even larger storms that have become the norm,” the group wrote. “Executive Order 100 was a bold and widely celebrated commitment by you and your administration. We urge you to take immediate and bold action to protect our communities from the devastating effects of climate change. We need your strong leadership and action to protect our state, and we expect you to fulfill your campaign promises regarding climate change and the environment.”
Gov. Murphy’s press office referred an InsiderNJ press query on the letter to the DEP, which did not return a call by press time.
Without this long-promised update, development in New Jersey’s most chronically flooded lands will be based on outdated rainfall data from decades ago which in turn means greenlighting dozens of ill-advised projects like Bridge Point 8, a controversial warehouse development in West Windsor that’s a complex of seven warehouses with a total of 5.5 million square feet set on a 650-acre site.
Tirza Wahrman of West Windsor is a former member of the town’s Environmental Commission and served in the Corzine and Christie administration as deputy attorney general in the Attorney General’s Environmental Practice Section.
“What I am concerned about is that I know from taking part in meetings with NJ DEP staff that the 5.4 million square foot Bridge Point site would not pass muster under updated flood maps, Wahrman told InsiderNJ during a phone interview. “We’ve been told that directly however under these 1999 maps, believe it or not– 24 years old— predating any data on climate change and future precipitation and the very complicated modeling that DEP did—Bridge Point could slip through. In fact, it’s gotten one of the two permits from DEP.”
“Governor Murphy has made bold and necessary statements that New Jersey needs to prepare for the future and protect itself from increased flooding caused by climate change,” wrote Pisauro, with the Watershed Institute. “That additional flooding is occurring now and yet we wait. Every day we wait, more and more developments qualify under the old, out of date, not protective standards. That is locking in decades of unnecessary, additional flooding that our communities will suffer through.”
Pisauro continued. “We will all pay for these delays in the costs to rebuild our homes, stores, offices, roads, and bridges. We will pay the cost of rescuing people trapped in flood waters. All of this is unnecessary, because the tools, i.e., the regulations, have been ready for over a year and yet, we still wait losing opportunities to mitigate flooding.”
“Governor Murphy’s placing an indefinite hold on DEP’s adoption of the inland flood protection rules reveals a cavalier response to climate change, contrary to his proclaimed bold leadership,” wrote Elliot Ruga, policy, and communications director for the Highlands Coalition. “The proposed rules, designed to build higher and to better respond to the stormwater conditions of today, updating rules that were based on clearly obsolete rainfall statistics going back 30 years. Every structure permitted under the existing rules, when we know better, is unnecessarily putting property and life at risk.”
Gov. Murphy’s Executive Order 100 cited a 2019 report “New Jersey’s Rising Seas and Changing Coastal Storms” prepared by Rutgers University for the Department of Environmental Protection (“DEP”) that showed “that sea-level rise projections in New Jersey are more than two times the global average and that the sea level in New Jersey could rise from 2000 levels by up to 1.1 feet by 2030, 2.1 feet by 2050, and 6.3 feet by 2100, underscoring the urgent need for action to protect the State from adverse climate change impacts.”
In the late summer of 2021, Hurricane Ida took 90 lives in total when it inundated a nine-state swath of the Northeast. Damage estimates for New Jersey ranged between $8 to $10 billion and in the $7.5 to $9 billion range in New York.
In October 2012, SuperStorm Sandy caused $70.2 billion worth of damage, left 8.5 million people without power, and destroyed 650,000 homes and was responsible for the deaths of at least 72 Americans.
Hennelly again loses credibility with the first few sentences of this lengthy, lying diatribe.
He refers to the “ultra right wing supreme court”. Nothing is further from the truth. It is not.
He speaks of the “roll back of women’s reproductive rights”. Well, even former liberal Justice Ginsburg was quoted as saying Roe v Wade was inaccurate and would be overturned someday. Now it’s properly in the hands of the states.
Hennelly is again spinning a false narrative opinion as accurate and precise. He drones on and on. He seems to think that the more words he writes the more people will believe him to be a brilliant intellectual. This too is far from the truth.
Six of the nine justices are so far right of straight they cannot even recognize the principles of the Rehnquist court: stare decisis et non quieta movere. Two are sexual offenders while most are morally compromised by the standards applied to every other judge in the nation. Your droning assertions do not form a coherent argument.
As always, I enjoyed your insightful, informative column. Bob Hennelly.
Although in my nineties, I still want to grow in wisdom, understanding, and empathy. Your columns help me in this regard.
Your kindness, your goodness your caring for the vulnerable shines through your writing.
Bless you.
PZ, Sr. makes some wild-eyed assertions about the US Supreme Court having 6 justices so far right of straight that they don’t recognize principles of the Rehnquist court regarding stare decisis. Stare decisis has been around in Europe since the 14th century and the U.S. since its inception in the late 1700’s. One of the primary purposes of this doctrine is to ensure continuity, uniformity, and certainty in the law. Rulings should be made according to precedent to ensure fairness and consistency and to promote judicial efficiency (i.e., save time and money).
Also, since cases are judged based on prior precedents, the judiciary is somewhat protected from external political or personal attacks or bias based on personal interest. This reinforces the belief that common law court judgments are solely based on legal and neutral considerations, making it easier to achieve legal and policy goals. The principle of stare decisis ensures that individuals with similar cases are treated the same way and that judges in lower courts do not make rulings that are out of line with those established by higher courts.
However, stare decisis isn’t always followed to the letter. For example, as far back as medieval England, common law courts decided against precedents they regarded as “bad law,” because there were no reliable written reports of these cases, or they felt the rulings did not apply to the matter at hand. Even Justice Ginsburg thought Roe v. Wade was “bad law”. And, you now have a justice that can’t even define what a woman is. Now, that’s really “bad law” if the issue comes before this particular justice.
As for comments that 2 of the justices are sex offenders, those are slanderous/defamatory/libelous comments, since there’s been no proof, whatsoever of what you say. In fact, the accusers of the 2 justices have been found to have made fraud and false statements. It’s like me saying that you’re a pedophile on social media. There’s no way to clear your name, even if you’re innocent, and it’s out there forever.