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Environment Legal, Laws, and Regs

Sackett v EPA: Today’s the day

Today’s the day when the second Sackett v EPA case is heard in the Supreme Court. The consequences of today’s imbalanced Supreme Court could be devastating to the quality of the waters in our country.

I’ll be writing about this case after the oral arguments. In the meantime, I’m putting together a page (Sackett v EPA Documents and articles) with links to documents I’ve collected over the years. All of the court documents aren’t fully linked, but the key set of material is the EPA Administrative Record. This set of documents contains the reports and photos that form the background for the EPA case.

The Sacketts contend that they needed no CWA permit because their land was separated from Priest Lake by a road, and therefore, there is no contiguous connection between the wetlands on their land and the lake. The EPA contends that a manmade structure, such as a berm, dike, or in this case, road, does not alter the fact that the wetland does, indeed, have a significant impact on the lake.

These arguments directly relate to the question that this hearing is supposed to address. But the Sackett lawyer, the infamous Pacific Legal Foundation, decided to blow the case up by challenging what constitutes a ‘tributary’ in the Clean Water Act—a challenge that could have disastrous impact on our waters in the country.

The courts should not address the latter challenge—it’s not included in the question related to the case—but as we discovered last year, this Supreme Court plays by a different set of rules now.

You can listen to the oral arguments at this link.

Categories
Legal, Laws, and Regs

A post-Roe world…15 years ago

There has been a lot of conjecture about what it means to have a post-Roe world. Can states make it illegal for women to travel to other states for an abortion? Can we talk about abortion services on the internet? Can abortion counselors work in anti-choice states?

Alito pretends that the issue of abortion is over and done; SCOTUS has figuratively wiped its hands and walked away. However, as he must have known, rather than settling law, Dobbs triggered chaos.

I went searching for writings on a post-Roe world and discovered an excellent paper by Harvard Law’s Richard Fallon Jr. The paper is titled “If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World“. It’s freely available (no paywall). And it was published in 2007, 15 years before today’s turmoil.

The professor touches on all of the topics I opened with, and more. He asked the same questions we’re asking, and then provides enough explanation of the law for us to come away knowing there are no simple answers to any of them.

For instance, Kavanaugh seeks to reassure us that women will still have freedom to travel to other states to get the abortions they seek.

May a state bar a resident of that state from traveling to another state to obtain an abortion?” he wrote in a concurring opinion. “In my view, the answer is no based on the constitutional right to interstate travel.

However, as Professor Fallon carefully details, the pregnant individual may be able to travel to another state, but abortion providers in that state may not be able to provide the healthcare they need. And that’s the kicker: can a state forbid an abortion provider in another state from providing a service to the anti-choice state’s citizen?

In substance and effect, the Court would need to weigh one state’s interests in protecting fetal life against another state’s interests in making abortion within its territory a matter of individual conscience, and it would need to do so while, at the same time, taking account of the implications of national citizenship. So much for the idea that the overruling of Roe v. Wade would remove hard decisions about abortion regulation from the judicial province.

Not just interstate travel: could states punish a citizen for getting an abortion in another country? Could the people who assisted the person be criminally charged? Civilly sued? That trip to California or Canada may not be as straightforward as you think.

Frankly, Kavanaugh’s assurances on the freedom of interstate travel are just as duplicitous as his assurances about support for precedents.

I don’t think I understood until this week how much our freedoms, our rights, the very existence of our country and government, now seem to exist solely on the sufferance of the Supreme Court.

We only need to turn to the last page and the last paragraph of Professor Fallon’s work to see a summary of the post-Roe world we now live in (I added the emphasis):

As I have emphasized repeatedly, my aim is not to judge whether Roe v. Wade should be overruled. But when contemplating the possible eradication of that jurisprudential landmark, we ought to have a clear-eyed view of the constitutional consequences. If Roe were to go, it would not go gently. Instead, its departure would roil the waters of constitutional law and surrounding politics and churn up a host of new controversies. No matter how much the Supreme Court might wish to extricate itself from abortion debates, it could not imaginably do so.

Categories
Legal, Laws, and Regs

We dissent

I woke up June 24 feeling little different than when waking up the day after Trump was elected President. I woke up knowing everything has changed, and not for the better.

Alito’s Dobbs decision gutting abortion rights in this country has triggered a massive upheaval in the rights of over half the population, and all because of five justices determined to impose their viewpoints and their beliefs on society. Five justices, of whom three were hastily selected by a President who didn’t even win the popular vote.

But it wasn’t just Roe v. Wade that was tossed out. No, this same group of people have enshrined gun rights as the second most important freedom, following that for religion…if you follow a specific type of religion. And they haven’t even begun their determined march into overthrowing everything that makes this country good. I suspect before the end of the week is out, we’ll see an attack on the very fabric of our government, as this small group of elites continues its unthinking drive to wreck havoc on our society. They’ve already hinted they’re coming after rights for the LGBTQ+ community and birth control.

Justices Breyer, Sotomayor, and Kagan penned a very rare joint dissent against Alito’s pretense of a decision. In it, instead of using the usual “We respectfully dissent” they just wrote

“We dissent.”