Wednesday, June 6, 2018

Can the Courts Defend Water Protections Against Assaults from Trump and the GOP?

The courts have shown that they can protect America's water resources from the Trump administration and the GOP. Few issues are more important to current and future generations than water management. Water is the key to life and directly related to some of the central concerns of our times including the all important issue of energy.  Water stewardship efforts are being adopted by countries, cities, businesses and citizens. However, if we are serious about our efforts to protect finite water resources we must concede that voluntary efforts must be enjoined by the enforcement of laws.

We are at a crossroads as we are witnessing profound changes to the distribution of water around the globe. A recent study by a team from NASA found that drier areas are getting dryer and wetland areas are getting wetter. In addition to natural cycles these observations were attributed to climate change and the way humans manage water. No matter how we parse the issue, effective water management strategies are absolutely essential for multiple levels of government and the business community.

Concerns about supply disruption and financial incentives have forced the business community to pay attention and recognize water as an essential resource. In response many businesses are voluntarily adopting commercial water conservation measures to deal with water scarcity and reduce costs. We are increasingly seeing leadership in the form of cohesive water stewardship strategies and a growing appetite for public-private partnerships. The beer industry's pioneering use of recycled or reclaimed water is a good example of innovations with tremendous promise.

Despite the actions of some businesses water protections have taken a turn for the worse in the US in recent years thanks to the Trump administration and the GOP.  Soon after Republicans took control of both legislative chambers in 2017 they passed a resolution to block implementation of a regulation known as the Stream Protection Rule that prohibited coal companies from dumping their waste into American waterways.

Trump expressed his disdain for the Waters of the United States (WOTUS) rule during the campaign leading up to the 2016 election. Shortly after being inaugurated he signed an Executive Order to dismantle the Clean Water rule. "It is such a horrible, horrible rule," Trump said as he signed the EO. "It has such a nice name, but everything about it is bad." He called the rule "one of the worst examples of federal regulation" and "a massive power grab." Trump's EPA subsequently suspended the rule.

In response to a government that is flagrantly hostile to water protections the courts have enforced and upheld existing protections. State attorney generals are litigating to challenge the Republican assault on water protections. A multi-state coalition led by New York Attorney General Eric Schneiderman are suing the EPA over the suspension of the Clean Water rule.

Early this year the Supreme Court unanimously ruled that cases litigating the Clean Water Act should be heard by federal and district courts. Dozens of parties have filed lawsuits over the regulation in both federal appeals courts and district courts.

While the justice system may be a powerful recourse it is not impervious to government.  Court actions in defense of water may soon be moot as the Trump administration has taken steps to repeal and replace WOTUS.

Laws are important but governments have the constitutional authority to change laws.  However, the constitution also endows people with the right to change governments.

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