No. of Recommendations: 6
bighairymike: The EPA should not be able to declare the half acre swampy area on one corner of my property is a federal waterway, regulate it, and that be the end of it.
The statute was actually pretty clear: the wetland had to be "adjacent" to a waterway, not be a waterway. Since it was adjacent, the high court said, well, then let's go to Plan B: the clear-statement rule.
Justice Kagan wrote (bolding mine):
As the majority concedes, the statute “tells us that at least some wetlands must qualify as ‘waters of the United States.’” Ante, at 18–19. More, the statute tells us what those “some wetlands” are: the “adjacent” ones. And again, as JUSTICE KAVANAUGH shows, “adjacent” does not mean adjoining. See post, at 4–6; supra, at 1–2. So the majority proceeds to its back-up plan. It relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power “over private property” — particularly, over “land and water use” — it must adopt “exceedingly clear language.” Ante, at 23 (internal quotation marks omitted). There is, in other words, a thumb on the scale for property owners — no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting. See supra, at 2. Even assuming that thumb’s existence, the majority still would be wrong. As JUSTICE KAVANAUGH notes, clear-statement rules operate (when they operate) to resolve problems of ambiguity and vagueness. See post, at 11; see also Bond v. United States, 572 U. S. 844, 859 (2014); United States v. Bass, 404 U. S. 336, 347 (1971). And no such problems are evident here. One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be — which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majority concludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to “correct” breadth.
bighairymike: One example is the EV Mandate.... You are commanded to sell so many by some date they say to automakers with about zero consideration whether the citizenry would desire and buy such a vehicle in the numbers mandated.
Again, the federal government does not have an EV Mandate. We discussed this already. The environmental protection agency can set emission standards but the car companies can get to those standards any way they want. General Motors announced in January 2021 that it would no longer sell gas-powered cars by 2035, and other leading automakers similarly promised rapid shifts. That was before the Biden administration was settled into their desks in their new offices.
