April 30, 2020

Howard A. Learner

Safe, Clean Water Matters

The Trump Administration is at it again. While Americans are focused on dealing with COVID-19 pandemic challenges and stresses, the Trump EPA used that distraction as cover for publishing its final replacement of the 2015 Clean Water Rule.

This misguided action rolls back regulatory standards designed to protect community rivers, creeks, streams and wetlands that provide safe clean drinking water, essential wildlife and fish habitat, and recreational use and enjoyment for many people.

Chicago Mayor Richard J. Daley famously said “good government is good politics.”  President Trump must have missed that lesson. This is both bad government and bad politics.

Why this is bad government:

The Trump EPA’s justification here is legally flawed. For what should be treated as “waters of the United States,” they chose to rely on U.S. Supreme Court Justice Scalia’s opinion in the Rapanos v. United States case (2006), which had only four votes – not the five votes required to be a majority decision. Justice Kennedy’s separate concurring opinion, which disagreed with much of Justice Scalia’s reasoning, became the controlling law. Justice Kennedy concluded that for purposes of applying the Clean Water Act, particular wetlands or intermittent streams need not be directly adjacent and have a continuous surface connection to a navigable water, but must have a “significant nexus” – namely, a connection by which the wetland or intermittent stream affects the water quality of the navigable water.  OK, that might be confusing, but that’s the law.

The U.S. Court of Appeals for the 7^th Circuit, which covers Illinois, Indiana and Wisconsin, held that Justice Kennedy’s opinion is the controlling precedent, not Justice Scalia’s opinion. That the Trump EPA prefers Justice Scalia’s view isn’t a proper basis for ignoring the controlling law. That’s bad government.

Why this is bad politics:

Midwestern swing voters care about safe, clean drinking water in ways that rise above partisan politics. Ann Selzer’s recent polling research for the ELPC Action Fund found that 89% of the 601 registered voters polled in Southwest Wisconsin said safe clean drinking water is the most important issue to them. Southwest Wisconsin is a key swing area of the nation’s key swing state in the November 2020 election, and clean water polled higher here than infrastructure, health care, education, and agriculture. Ms. Selzer’s polling and focus groups conducted for ELPC in Northwest Ohio, and in Grand Rapids and the Detroit “exurbs” in Michigan, found similar results of overwhelming public support for safe clean water in those swing states as well. The message is clear: it’s bad politics to mess with safe clean water if you want to win Midwest voters in November.

ELPC will fight back and play to win to stop this misguided Trump EPA rollback from taking effect. President Trump’s attacks on safe clean water are just plain wrong. The public deserves better.