POLLUTERS are discovering they can dump toxic chemicals into ponds, marshes and seasonal creeks without fear of retribution, the New York Times reports (http://www.nytimes.com/2010/03/01/us/01water.html?hp). The Environmental Protection Agency is powerless to stop them. Why? Because the Supreme Court has decided that language in the Clean Water Act (CWA) of 1972 barring "the discharge of pollutants into the navigable waters" of America doesn't necessarily refer to bodies of water you can't sail a boat down. It might. But then again it might not. And through that legal loophole, which ensures that companies can reasonably claim they didn't know dumping was illegal, millions of gallons of oil, lead, and zinc have flowed:
“Cases now are lost because the company is discharging into a stream that flows into a river, rather than the river itself,” said David M. Uhlmann, a law professor at the University of Michigan who led the environmental crimes section of the Justice Department during the last administration.
The mess stems from two decisions, Solid Waste Agency v Army Corps of Engineers (http://www.law.cornell.edu/supct/html/99-1178.ZS.html) in 2001 and Rapanos v United States (http://www.law.cornell.edu/supct/html/04-1034.ZS.html) in 2006. William Rehnquist's majority opinion in the former case gives you the gist: "[T]he term 'navigable' has...the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made." I'm not sure whether Mr Rehnquist addressed why Congress might have wanted to keep it legal to pour mercury into the water supply so long as one does so through a small enough tributary. But the issue does raise the question: what on earth was Congress thinking when it inserted the word "navigable" into that legislation?
You can sort of get an idea by looking at the shibboleths being flailed by industry groups that oppose fixing the legislation. (The Clean Water Restoration Act (CWRA) would amend the law so it again applies to wetlands and tributaries, just as it did before the 2001 decision.) The Orwellian "Waters Advocacy Coalition (http://www.protectmywater.org/)", for instance, is one of the most deceitful examples of false-flag anti-environmentalist propaganda I've ever seen. Its website begs the reader to "support the Clean Water Act", which it worries the new legislation will "undermine". But guess who registered the website (http://www.sourcewatch.org/index.php?title=Waters_Advocacy_Coalition#cite_note-1)—that's right, the always eco-friendly National Mining Association (http://www.sourcewatch.org/index.php?title=National_Mining_Association) (NMA). The NMA and other lobbying groups representing the farm industry and manufacturing are telling their members that the CWRA would mean the EPA could claim jurisdiction over puddles.
Clearly, this kind of fear is what Congress was trying to avoid by inserting the word "navigable". Legislators should have found a better word. They might, after all, have foreseen that the argument would devolve to this level. But ultimately this kind of situation reminds me of nothing so much as the excuses my seven-year-old daughter develops to avoid having to clear her plate after dinner. If people are truly determined to abuse language in order to render commands and prohibitions meaningless, there's no way to stop them.
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‘Navigable’ waters debate on hold
Should we not be debating why anyone can pollute free without controls or limits?
All these waters dump into navigable waters! Is it not in everyones interest (public interest) not to pollute our environment. Monte Hines
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