Commentary: Big Tent Ideas

BONNER COHEN: Biden White House Starts End Run Around Supreme Court WOTUS Ruling

President Joe Biden speaks on the phone with EPA Administrator Michael Regan and Ohio Governor Mike DeWine about the toxic train derailment in East Palestine, Ohio, Tuesday, February 21, 2023, at the Warsaw Marriott Hotel. (Official White House Photo by Adam Schultz)

At an April 23 “Water Summit” at the White House, the Biden administration announced a multi-agency plan reasserting the federal role in determining the future of wetlands in the wake of last year’s landmark Supreme Court Decision limiting Washington’s authority to regulate “waters of the United States” (WOTUS).

The administration’s move on wetlands appears to be part of a concerted effort to get as many rules and regulations as possible in place by the end of the year, in the event there is no second Biden term.

In April, alone, the Biden Environmental Protection Agency (EPA) issued new rules setting stricter emissions standards for heavy-duty trucks, buses, and other vehicles by 2027, mandated steeper emissions cuts from new natural gas power plants and existing coal plants, and approved a California plan to mandate zero-emissions locomotives on all rail lines in the state by 2030, a move that could be adopted by like-minded states thereby crippling the nation’s vast freight rail network. Zero-emissions locomotives simply do not exist and are not likely to by the arbitrarily set deadline.

To these emissions-related climate policies can now be added to the White House’s effort to tighten federal control over lands and bodies of water.

“The America the Beautiful Freshwater Challenge: A Partnership to Conserve and Restore America’s Rivers, Lakes, Streams, and Wetlands sets a bold, new national goal to protect, restore, and reconnect 8 million acres of wetlands and 100,000 miles of our nation’s rivers and streams,” the White House said in a Fact Sheet.

“To achieve the new national freshwater protection goal and to ensure that our freshwater resources are protected for current and future generations as part of the America the Beautiful Freshwater Challenge, the Biden-Harris administration is also launching a new initiative that calls on states and other governments and entities, including Tribes, interstate organizations, cities, and local communities to advance their own policies and strategies for conserving and restoring America’s freshwater systems,” the White House said. “Over 100 inaugural members from across the country have signed on to support freshwater restoration in their communities, including ten states, eight Tribes, and 24 local governments.”

The initiative can be seen as part of the administration’s larger “30X30” plan, a scheme unveiled in January 2021 to “protect” at least 30% of the nation’s land and water by 2030. That plan was later dubbed “America the Beautiful,” a phrase that has now been incorporated in the new “America the Beautiful Freshwater Challenge.”

The 30X30 plan has run into stiff resistance at the state and local level, where many rural community leaders fear it will bring federal control over land and water use decisions, as well as pose a threat to property rights.

For its part, the White House makes no secret that its latest wetlands initiative is in response to the Supreme Court’s 2023 ruling in Sackett v. EPA, “which dramatically reduced federal protections for wetlands in one of the largest judicial rollbacks of environmental protections in U.S. history.”

In truth, the High Court clarified — at long last — the vague language of the 1972 Clean Water Act that had hitherto allowed EPA and the U.S. Army Corps of Engineers to claim regulatory jurisdiction over millions of acres of wetlands and other isolated bodies of water with no direct connection to ”navigable waters of the United States.” The Supreme Court’s decision pulled the legal rug out from under the Biden administration’s plans to impose federal zoning on millions of acres of private and public land across the U.S under the guise of protecting wetlands.

Other than announcing it will spend over $1 billion to improve drinking water quality on Tribal lands, $11 million to combat Western megadroughts, $70 million to upgrade dams, culverts, levees, and other water infrastructure and $123 million for the National Oceanographic and Atmospheric Administration (NOAA) to expand its coastal management programs, the White House was vague about how it plans to reassert jurisdiction over wetlands. Administration officials must know that any move they make that violates the Supreme Court’s Sackett ruling will invite a flood of lawsuits.

Having proclaimed it is taking an “all of government” approach to what it says is a “climate crisis,” the Biden team is simply practicing what it preaches. All these moves will face stiff legal challenges in any event, so why not push the envelope on putting wetlands back under EPA’s control?

Bonner Russell Cohen, Ph. D. is a senior policy analyst with the Committee for a Constructive Tomorrow (CFACT).

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.