How Antonin Scalia Launched Trump’s Stealth Attack on Clean Water

Steve Zwick

The President of the United States can’t repeal a law like the Clean Water Act, but the Trump Administration is going ahead with plans to undermine the CWA by severely limiting the long-evolving rules that underpin it. It’s the latest episode of a saga that we have been covering since early last year.

12 September 2019 | In 2006, US Supreme Court Justice Antonin Scalia tried to overturn centuries of precedent by whipping out his Second Edition of Webster’s New International Dictionary and latching on to a definition of “waters” that he found there.

In so doing, he concluded that the federal government of the United States could only protect “streams[,] . . . oceans, rivers, [and] lakes,” but not the bulk of the wetland systems that fed them.

It was a limitation a that excluded 98 percent of continental US waterways, and if followed it would mean that anyone could dig up wetlands (which he dismissed as “puddles”), dredge them, or fill them without regard for downstream consequences – which is exactly what people used to do before President Nixon signed the Clean Water Act in 1973.

Scalia’s opinion lay dormant for over a decade, but the Trump Administration plans to adopt it this week, effectively undermining the Clean Water Act without having to repeal it.

How is such action possible?

Critics argue that it isn’t, and the decision is sure to face court challenges under something called the Administrative Procedures Act. That’s what happened last year, in the first chapter of this saga, which we have been covering almost from the start.

To understand this week’s move, we suggest you dive into our five-part series, “Waters of the United States,” and the two episodes of the Bionic Planet podcast related to it.

The Bionic Planet Podcast

Bionic Planet is available on all podcatchers, including RadioPubliciTunesStitcher, and on this device here:

The Series

We covered the saga as it unfolded, and that coverage became a highly-cited history of the Clean Water Rule. You can find it here:

Why Are 11 US States Suing The EPA And Army Corps Over Water Quality?

In early 2018, the state of New York filed suit against the US Environmental Protection Agency and the Army Corps of Engineers to block the Trump administration’s suspension of guidance on clean water. In this three-part series, we examine the convoluted history of water regulation in the United States

Wetlands In The Clean Water Act

Congress passed the Clean Water Act in 1972, but it was slowly amended and refined. By 2000, the Army Corps of Engineers and the Environmental Protection Agency had settled on clear definitions of what constitutes “waters of the United States”. Not everyone, however, agreed with them.

The Rapanos Decision

In 2006, Supreme Court Justice Antonin Scalia jettisoned two centuries of legal precedent to redefine “Waters of the United States” as only being rivers, streams, and lakes. It’s a definition that left 98 percent of the country’s waters unprotected by federal federal agencies, but was largely ignored – until Donald Trump ordered the EPA to make it the law of the land.

Writing The New Rule

The Trump administration wants to “repeal and replace” a rule for defining which waterways are and are not protected by the Clean Water Act, and environmentalists say Trump’s proposal would leave 80 percent of all US waters unprotected. In this fourth installment of a five-part series, we see how the EPA and Army Corps of Engineers forged the current rule over four arduous years.

With Pruitt And Kennedy Gone, What Happens To The Clean Water Rule?

US Environmental Protection Agency boss Scott Pruitt is gone, replaced by an oil industry lobbyist named Andrew Wheeler. Supreme Court Justice Anthony Kennedy will soon be gone as well — to be replaced, no doubt, by someone less environmentally conscious. Here’s why that’s bad news for US waterways.


Steve Zwick is a freelance writer and produces the Bionic Planet podcast. Previously, he was Managing Editor of Ecosystem Marketplace, and prior to that he covered European business for Time Magazine and Fortune Magazine and produced the award-winning program Money Talks on Deutsche Welle Radio in Bonn, Germany.

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