The Supreme Court and the Swamp

6/1/23 – Some thoughts on the court’s decision to limit protections for wetlands

serviceberry flowering in Brownfield Bog, Maine / author photo

Hello everyone:

The title of last week’s essay, No Future Without Restraint, was a placeholder I meant to improve before publishing. I’ve given it a better title, The Beauty of Restraint, in the Field Guide archives. If the original title turned you off because it seemed too heavy or dark, I encourage you to give the essay a look. I think it’s one of my better recent pieces.

As always, please remember to scroll past the end of the essay to read some curated Anthropocene news.

Now on to this week’s writing

Years ago, back when I was spending a couple months per year hiking and traveling in New Zealand, I walked alone for nine days on the Dusky Track in Fiordland National Park. Fiordland is a wild and beautiful place, and it is a very, very wet place. Waterfalls are as common as clouds. So much rain falls in some of the fiords that there’s a thick layer of fresh water atop the ocean. For nine days, my boots were full of water and mud. I walked through calf- or knee-deep mud quite often, and sank up to my thighs several times. And this was in a drought; it didn’t rain once while I was there.

It was a lovely walk, as all wet walks are. The wet areas of the Earth are always deep, challenging, mysterious, abundant, and vibrant. Wetlands are wombs of biodiversity and nurseries of abundance. Frogs and turtles, fragile anywhere else, are at home. Plant and tree roots tangle together in a riot of moist soil and dappled light. Young fish thrive in salt marshes and mangroves. Above all of it, birds flit and soar where we swear and sink. Things that bite, from mosquitoes to crocodiles, guard the gates to all this beauty and strangeness.

Wetlands control floods, absorb wave energy, clean water, restore aquifers, and add astonishing depth and complexity to habitat. They sequester CO2, pump out oxygen, and nurture many of the richest collections of species on Earth. They will be absolutely vital as climate change and other Anthropocene forces accelerate extinctions and catastrophic weather events. And, if we’re paying attention, they remind us that life begins with water.

In a wonderful New Yorker article, Annie Proulx relates that Henry David Thoreau has been called the patron saint of swamps. In his essay, “Walking,” Saint Thoreau made his opinion clear:

Yes, though you may think me perverse, if it were proposed to me to dwell in the neighborhood of the most beautiful garden that ever human art contrived, or else of a Dismal Swamp, I should certainly decide for the swamp.

I’m no Thoreau, but I recognize wetlands as lovely and integral to the lifeblood of this planet. I’ve canoed in the Okefenokee, earned soggy blisters in Fiordland, and attended year after year to the brief but life-affirming spring choruses from vernal pools here in Maine. One evening in a local marsh here, Heather and I were so close to an American bittern that we could hear it inhaling deeply before uttering his haunting, resonant “oong-ka’ choonk” territorial call.

Yet in recent centuries wetlands have largely been treated as wet wasteland and an obstacle to civilization. The U.S. has the worst record, having reduced 221 million acres of wetlands to 103 million acres by 1990. (I’ve written before about the wonders of beavers, noting that there were once perhaps 100 to 400 million of them in North America, 10 to 75 per square mile. You can imagine the scale of the wetlands they maintained.) Proulx cites research describing how an exploding U.S. population looking to convert the country into farms and cities wiped out about half of the nation’s wetlands by the 1980s. A 1990 study from U.S. Fish and Wildlife estimated that Americans erased 60 acres of wetlands every hour in the 200 years after the Revolutionary War. We’re still destroying 60,000 acres per year.

Globally, this destruction has intensified. Swamps, fens, bogs, and marshes have gone the same way as forests, which have been cut back as much in the last 100 years as they were in the previous 9000. Actually, according to the Ramsar Convention on Wetlands, we are losing wetlands three times faster than forests.

For a bit of (relatively) good news, a recent study rooted in a much more careful analysis declared that global wetland loss is much less than previously estimated. But the study is titled “Extensive global wetland loss over the past three centuries,” so keep the cork in the champagne. The authors found that “only” between 21% and 37% of wetlands around the planet have been wiped out; previous estimates, which assumed that wetland loss in the developing world occurred at the same rate as in the U.S. and Europe, were in the range of 50% to 87%. For more on the study and on the beauty and importance of wetlands, I recommend this excellent post from

Gabe Popkin

at

The Nature Beat

, who reminds us that

In modern parlance, wetlands are biodiversity hotspots, ecologically punching far above their modest sizes. Wetlands occupy only about five percent of the continental U.S., yet nearly half of our threatened and endangered species depend on them for survival, according to the EPA. Globally, an estimated two in five species depend on wetlands.

from “Extensive global wetland loss over the past three centuries” / Nature

Whatever the actual percentage of wetlands lost, the loss is an ecological crime and a hallmark of the shortsightedness of Anthropocene culture and economics. If life begins with water, and if wetlands are the heart of natural diversity, then we’ve attacked the heart of life. But we knew that already. The evidence is all around us. Looking at that evidence is part of the purpose of this Field Guide.

And now, here in the U.S., the rate of wetland loss and contamination could be about to get much worse, just when we desperately need to end the destruction and rebuild what we can.

In a grotesque ruling on May 25^th, in Sackett v. EPA, a conservative 5-4 majority on the U.S. Supreme Court decided to severely limit the protections provided to wetlands by the EPA’s enforcement of the Clean Water Act (CWA). A majority of wetlands in the U.S. – an estimated 100 million acres – will no longer be protected from pollution or destruction, despite half a century of precedent, popular support from voters, and abundant scientific evidence for the importance of clean waters.

The Clean Water Act of 1972 (updated in 1977) empowered the EPA to protect WOTUS, the “waters of the United States.” The CWA does not define WOTUS, but defers to the expertise of the EPA and Army Corps of Engineers to do so. There’s been a back-and-forth over the decades, but generally WOTUS has been defined as “navigable” waters – streams, rivers, lakes, ocean, etc. – plus any wetlands connected or adjacent to them. The concern underlying the CWA (originally called the Federal Water Pollution Control Act) has always been to prevent pollution or other loss of water quality.

This new ruling is the end product of many years of industry-led reshaping of the U.S. judiciary in order to eliminate regulations. Picking judges is proving to be a more successful tactic than trying to influence the much more chaotic legislative branch, not least because in elections industry faces stiff opposition from the majority of voters who prefer a healthy environment.

Specifically, the ruling prevents the EPA from protecting a wetland if it doesn’t have a “continuous surface connection” joining it to a navigable body of water. To make a bad decision foolish, the court insisted that the definition of “adjacent” only means “connected,” rather than the common definition of “next to” or “nearby.” That’s not how we understand it, though; neighboring houses on a street are adjacent to each other, but they’re not connected.

“If you’re in an area with a lot of wetlands, but those wetlands are not directly connected to a continuously flowing water body, then those wetlands are no longer protected by the Clean Water Act,” one expert told the Times. Or as the Intercept put it,

The court took the Sacketts’ case as an opportunity to open up a broader discussion about what exactly the Clean Water Act is meant to protect, changing the law completely and removing protections from any wetland not immediately connected to a body of water…

It’s not a decision underpinned by science, but rather a legal invention known as the “clear statement rule,” a term the justices use when they want to assert their power to ignore Congress’s wishes and interpret the law solely as written.

And to make a foolish decision absurd, the ruling also states that even a wetland that’s been orphaned from a body of water by a human structure isn’t protected. Any road cutting through a connected marsh, for example, can turn a portion of that marsh into a worthless amputation, a damp hole to be polluted or filled in.

In fact, the case the Court ruled upon, Sackett v. EPA, involved a road in Idaho that cut off a piece of a wetland and left what a lower court called “a soggy residential lot,” but which was, from the perspective of any other species on Earth, wet habitat with water-loving life. The Sacketts, being a member of our species, filled in the area with dumploads of gravel in preparation for building a house (see photos above).

The EPA jumped in, and the Sacketts sued. They haven’t built the house yet, but with the help of major polluting industries (mining, agriculture, oil and gas, developers) eager for an anti-regulation permission slip, the Sacketts have managed finally to win their case and, in the process, endanger most of the country’s wetlands and biodiversity.

Justices Kagan and Kavanaugh each wrote a dissent articulating why the decision fails to comport with reality. Kagan noted the Court’s shift from allowing the experts at federal agencies to do their jobs to its “appointment of itself as the national decision-maker on environmental policy,” while Kavanaugh reminded the Court of the basic pollution-control logic behind the Clean Water Act:

There is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes and other waters.

There’s a lot more I haven’t mentioned about this case, which you can find in good summaries from the Times, the Intercept, and Inside Climate News. And there’s a lot to be said about the drama in the human theater here, not least the shenanigans that led to the Court’s conservative majority, and the willingness of the conservatives to abandon their “textualism” when it suits them. But my interest is in the real world, where many plants and animals live in or adjacent to wetlands, and where the ruling, if not addressed by better legislation from Congress, will have dire consequences when we can least afford them.

So I’ll close with a few observations, starting with the political and ending with the eco-philosophical:

The good news, as I suggested above, is that Congress can, politics notwithstanding, simply clarify that the Clean Water Act protects all wetlands adjacent to navigable waters. “The court has spoken and now we need to look at ways to restore these protections,” Jim Murphy, director of legal advocacy for the National Wildlife Federation, told the Intercept.

“The primary way is to go back to Congress and have them make clear through legislation that these protections are in place as they were intended to be.” Murphy said that shouldn’t be a hard sell, as clean water tends to be popular with voters. “Seventy-five percent or so of Americans support strengthening the Clean Water Act across the board,” he said.

The better news is that federal law allows states to be more restrictive in these protections than the EPA. States can (and in many cases, already do) protect wetlands with mature, responsible regulations. But each state, and their residents, will now have to decide how they’ll respond to the seismic shift in federal wetland regulations. Those who want to keep the commonsense protections will probably have to rewrite legislation that stands alone from the now-weakened Clean Water Act. If you like the regulatory power of the CWA, get your state legislators on the phone and tell them what kind of damp and lovely world you want to live in.  

Remember the “drain the swamp” propaganda from the Trump administration? (I can hear Thoreau now, fuming at the insult to swamps.) It came, ironically, from an executive branch rife with nepotism, backroom deals, and loyalty pledges, but there are two more important ironies here. First, despite the Biden administration working to strengthen environmental regulations, it now owns the greatest threat to wetlands in half a century. Second, the Trump administration failed in a gross attempt to strip protections from U.S. wetlands, but had they succeeded it would have affected only about half of what the Supreme Court just put on the chopping block.

Historically, this ruling strikes me as a 19^th century decision in the midst of a 21^st century crisis. It’s as if these judges have lived in a windowless room for the last two hundred years, dining on the veneration of industry and drinking the Kool-Aid of trickle-down economics and constant growth. If you step back and look at this ruling in the context of the history of capital-driven environmental destruction, you can imagine it easily as the work of corporate AI reshaping the world to further its own goals, heedless of impact. The justices are merely worker bees serving the AI’s global purpose.

If maximizing profit is the algorithm, these actions make sense. Corporations now have the rights of people, but many times our power, and they want none of our obligations or responsibilities. They want to do the one thing they were built to do, and to do it they will grease the wheels of all three branches of government. As some unknown genius on the internet put it, “Machines built to eat people don't stop until they run out of people.”

The fact that the most powerful court in the most powerful country on Earth (the high court of empire, really) would, in the service of large-scale wetland destruction, twist language like an 8^th grader in a hurry – uh, I’ve decided that “adjacent” only means “connected” – tells me that at the core of this industrial/digital age is a deep and abiding ignorance of what normal life is. We’ve been partying for two centuries with a liquor cabinet full of oil, coal, and gas, and have lost touch with the reality outside.

That reality has for millions of years been built around the deep, mysterious, abundant, and verdant waters of wetlands, and still is. Without them, as we’re finding out, we lose depth, mystery, abundance, and verdancy in our lives. Not to mention a stable climate and an intact tapestry of life.

So, before you call your legislators, take a damp walk somewhere. You don’t need to go to Fiordland. Just get your feet wet and your mind clear. There’s a long slog ahead of us to get back to reality.

self-portrait as wetland creature / author photo

Thanks for sticking with me.

In other Anthropocene news:

From the Times, follow a research team as they monitor airborne pollutants from gas stoves in NYC apartments.

From Sam Matey at The Weekly Anthropocene, a good-news story about Niger, where despite poverty at home and chaos in neighboring nations the government has championed democratic norms and the people have reforested at least 12 million acres. Those trees in turn have become the foundation for a revolution in agroforestry, creating stable soils for the crops being grown beneath them.

From Scientific American, an op-ed titled “Population Decline Will Change the World for the Better,” from the population and sustainability director at the Center for Biological Diversity.

In related news, from NPR, a unanimous vote from an advisory panel is recommending that the FDA approve an over-the-counter birth control pill. Should the FDA decide to approve, the U.S. will belatedly join the more than 100 countries who already offer over-the-counter birth control pills. Learn more at Free the Pill.

From Inside Climate News, a story of researchers in Pennsylvania demonstrates that studying birds provides hard data about the changing environment and the importance of habitat restoration. One key takeaway: “It all goes back to the abundance of native plants,” explained [avian ecologist Nick Liadis]. If you really want to make a difference, he says, here’s the “trifecta”:

Plant an oak. Add bird-safe treatment to your windows. Keep your cat indoors. “Doing those three things can really, really help birds and their ecosystems.”

From Heather Cox Richardson at Letters From An American, a short and powerful primer on the habits and dangers of fascism. I include this here not because of the impacts of fascism on the natural world, but because I want you to bear in mind that the closer the U.S. (or any nation) verges on fascism, the less capable we will be at dealing with the climate and extinction crises. When democracy suffers, so does science, education, and media. Where democracy falters, so does the political process, i.e. the opportunity to discuss and create rational legislation.

From Newsweek, the ecological madness of disposable vapes. There’s lithium and copper in vape batteries, but vapes aren’t built to be recyclable. The 150 million vapes thrown away in the U.S. each year contain the equivalent of 6,000 Tesla batteries. The copper contained in all the vapes thrown away each year in the U.K. could “power hundreds of thousands of homes.”

From the Times, a profile of a Biden administration policy-maker who is “changing the way the government calculates the cost and benefits of regulation, with far-reaching implications for climate change.” Specifically, Richard Revesz is calculating the cost of regulation not based on its impacts on industry, but on its benefits for future generations. This is how, quietly, wisdom can actually be incorporated into policy.

From Grist, a better plan to use EV incentives: target “superusers” of gasoline rather than giving money away to everyone, including wealthy families who simply add an EV to their collection of gas-guzzlers.