Supreme Duplicity

Honor Daumier, Three Judges, 1858-60. The Art Institute of Chicago. (Public Domain.

Adjacent.  adj. and noun. 1. Next to or very near something else; neighboring; bordering, contiguous; adjoining.

When the U.S. Congress passed the Clean Water Act in 1972 mandating protection for wetlands “adjacent to the waters of the United States,” it didn’t say “adjoining,” “bordering,” or “contiguous.” It said “adjacent,” which according to the Oxford English Dictionary, means those things as well as the more expansive “very near” and “neighboring.” Recent usage, according to the OED, includes: “five miles away in an adjacent valley;” and “a parking lot adjacent to a soccer field.”

But if you are one of the conservative U.S. Supreme Court justices who value private profit over public good, adjacent means having a “continuous” surface connection to a thing.  By that logic, a bus can’t be adjacent to a soccer field unless the lot is covered in grass, or the field is covered in asphalt!

Since the Court has access to dictionaries with which to look up “adjacent,” there is only one explanation for last week’s decision in Sackett v. EPA: duplicity. That means “deceitful or double-dealing,” according to the OED. Because of this ruling, some 120 million acres of U.S. wetlands will now be subject to development: They can be filled with gravel and sand, clogged with concrete, or buried under toxic sludge. Fish will suffocate. Birds will lose their roosts and their dinners. And forget about the frogs, salamanders and newts threatened with extinction. And there’s another species that will also be endangered: Humans. The many people living in neighborhoods liable to flooding will no longer have a buffer – really a sponge – to protect them against sudden storms, sea-level rise and rivers that top their banks.

In truth, the Court has long been chipping away at the Clean Water Act and narrowing the meaning of “adjacent to waters of the United States” (AWUSA). The legal history is tangled, and to recount it all would be tedious for writer and reader. But here’s the gist of it: The original Clean Water Act entrusted definition of the term to the EPA and Department of the Army (i.e. US Army Corps of Engineers). A bit more than a decade later, the Burger Court affirmed its deferral to the EPA; but not content to leave well enough alone, inserted a specific definition of wetlands: They must be ‘‘inseparably bound up’’ with navigable waters and have ‘‘significant effects on water quality and the aquatic ecosystem.’’

Now that there was a fixed definition, it only took a new, more conservative court to deploy it like a cudgel to hammer away at administrative discretion. The Rehnquist Court, which included such legal luminaries as Antonin Scalia and Clarence Thomas, held in 2001 that the use of “non-navigable, isolated, intrastate waters” by migratory birds did not merit protection because they were not, you guessed it, “inseparably bound up” with the “waters of the United States.” (Note: the word “adjacent” has been dropped.) Five years later, they were at it again. This time, four justices of the Roberts Court determined that only ‘‘wetlands with a continuous surface connection’’ to a ‘‘relatively permanent body of water connected to traditional interstate navigable waters’’ merited protection. Justice Anthony Kennedy was the fifth and deciding vote, but his concurrence was slightly more liberal than the others, arguing that wetlands with a “significant nexus” to navigable waters could be granted EPA protection. That allowed the EPA regulatory status quo to remain. (But don’t try looking up “significant nexus” in any hydrology textbooks or the OED.)

There were a few more cases in subsequent years, but that’s where things stood until Sackett. The current version of the Robert’s Court, the most lawless, reckless and heedless since the days of Chief Justice Roger Taney and Dred Scott, has now feathered it’s hood by condemning people in the path of flooding and water contamination – mostly poor, Black, Latino or otherwise marginalized – to additional suffering and loss. But the Court is not the only culprit.

EPA has long been lax in its enforcement of the Clean Water Act, and its recent initiative – prior to last week’s decision — to update its understanding of AWUS is too little, and now too late. Moreover, after Sackett, EPA is off the hook when it comes to protecting wetlands and the waters adjacent to them. It will have the Supreme Court to blame every time a formerly protected wetland is paved over or plowed under. “Not our fault – It’s that dang court!”

What are our options? The most discussed are expanding the court to allow the appointment of several liberal justices, mandating term limits for justices, and impeaching justices. (Clarence Thomas, we’re coming for you first!) But none of those are likely in the foreseeable future. So, here’s the real bottom line on last week’s terrible, duplicitous, irresponsible, environment-destroying, climate-warming decision by the Supreme Court: It’s on us. We need to fight back. That means organize ourselves, our neighbors, and our communities to prevent local and state governments from paving what little paradise remains. It means protesting, boycotting, and otherwise blocking developers, by whatever means necessary, from destroying wetlands and the many species – including humans – that depend on them.

Stephen F. Eisenman is emeritus professor at Northwestern University. His latest book, with Sue Coe, is titled “The Young Person’s Guide to American Fascism,” and is forthcoming from OR Books. He can be reached at