Rather than relying on the hyperbolic reaction of conservatives I thought I would take a look at the actual deicision. http://s3.amazonaws.com/static.texastri ... rder_1.pdf

And the actual rule. http://s3.amazonaws.com/static.texastri ... rder_1.pdf

The court thought that the EPA went to far in asserting the right to regulate all tributaries of interstate waters, waters used in inter-state or foreign commerce and the territorial seas. The court felt that it was too broad of a definition, that at least some tributaries would not have any significant effect on the regulated water they flowed into. The court also thought EPA's determination that all waters 4,000 yard distance from a regulated waterway and with a significant nexus to it could be regulated was arbitrary.

Let's be clear here. It's not like the EPA is asserting the right to regulate all ditches and streams unrelated to an inter-state waterway. It has to be a tributary of something like the Colorado river. The EPA is saying we want to be able to regulate all tributaries of something like the Colorado river to ensure it stays unpolluted and the judge is saying hold on you haven't shown that ALL tributaries are going to affect the chemical,physical and biological integrity of the waterway because the definition of tributary is too broad (basically a tributary is defined as having bed and banks and a high-water mark).

Ditches are excluded from regulation unless they they are a relocated tributary or excavated tributary or flow into a regulated waterway. But since tributaries are only local waterways with no distance limitations only ditches within 4,000 feet of an inter-state waterway could be regulated (my interpretation-- you can look at the rule itself).

Artificially irrigated areas are excluded. Artificial lakes and ponds are excluded.

Yeah it's crazy that the EPA would seek to regulate tributaries of a waterway like the Colorado. I'm not sure that the judge is correct, really. Any tributary flowing into the Colorado could contribute a small amount of damage to the waterway and the sum result of the damage caused by the tributaries could be significant. The judge thinks that only some tributaries could have a significant effect and thinks the rule should be more narrowly tailored. Reasonable people can disagree on that I suppose. As for ditches and streams...ok if you're 4,000 feet from a national waterway and the EPA determines your ditch has a significant nexus to that waterway... Then you might have problem.

This is hardly an intrusion on state sovereignty or an agency out of control. It's epic hyperbole to describe it as such.

freeman3 wrote:Yeah it's crazy that the EPA would seek to regulate tributaries of a waterway like the Colorado. I'm not sure that the judge is correct, really. Any tributary flowing into the Colorado could contribute a small amount of damage to the waterway and the sum result of the damage caused by the tributaries could be significant. The judge thinks that only some tributaries could have a significant effect and thinks the rule should be more narrowly tailored. Reasonable people can disagree on that I suppose. As for ditches and streams...ok if you're 4,000 feet from a national waterway and the EPA determines your ditch has a significant nexus to that waterway... Then you might have problem.

This is hardly an intrusion on state sovereignty or an agency out of control. It's epic hyperbole to describe it as such.

Sorry, but you're off-base. They already regulate tributaries--that's how they wound up polluting the Colorado River recently (thus helping, no doubt, California's drought). This case was about more than what you are describing.

Furthermore, if you could see the massive impact of the CWA . . . well, it has to be seen to be believed. We have "wetlands" that are regulated that could never, in a thousand years) be designated "tributaries." It doesn't matter. They're regulated.

But, let's say you're right. Did the EPA just discover the importance of tributaries? If not, why weren't they regulated before? Maybe because Congress didn't authorize that? Well then, in a Constitutional system, who decides what the limits of a law are? If Congress didn't authorize the regulation of tributaries, what gives the EPA the right to seize that authority?

Well, Congress manifested an intent to keep navigable waters clean and that basically means some kind of regulation of non-navigable waters that flow into navigable waters. There is a good discussion of this in US v Rapanos in Judge Kennedy's concurrence (relied upon on the current case).http://www.oyez.org/cases/2000-2009/2005/2005_04_1034

Judge Kennedy establishes that Congress did have the intent that non-navigable waterways be regulated to ensure that navigable waters be protected. It is also common sense--how effective would protection of navigable waterways if waters flowing into them could be polluted without the EPA being able to do anything about it?

With wetlands they could be a significant distance (not limited by 4,000 feet) from the navigable waterway but significant nexus must be established. That is really the ultimate test--does the water ultimately flow into the navigable waterway. If the water--tributary, stream,wetland, whatever--does not ultimately flow into the navigable water it is not subject to regulation. Of course it is hard to draw the line as to what is a significant nexus and hence you have litigation. But it is not the sign of an out-of-control agency but one that is trying to fulfill a mandate to prevent pollution of the nation's waterways.

And yeah Congress did intend that the EPA regulate tributaries that pollute navigable waterways . Not in express terms-- because Congress is not going to necessarily get that detailed--but it is covered by the broad mandate that Congress gave the EPA.

freeman3 wrote:Well, Congress manifested an intent to keep navigable waters clean and that basically means some kind of regulation of non-navigable waters that flow into navigable waters. There is a good discussion of this in US v Rapanos in Judge Kennedy's concurrence (relied upon on the current case).http://www.oyez.org/cases/2000-2009/2005/2005_04_1034

Judge Kennedy establishes that Congress did have the intent that non-navigable waterways be regulated to ensure that navigable waters be protected. It is also common sense--how effective would protection of navigable waterways if waters flowing into them could be polluted without the EPA being able to do anything about it?

Justice Kennedy is, of course, just about a consistent voice. *cough*

In any event, my two points are:

1. Congress did not have any intent to regulate non-navigable, non-tributary waterways. Nevertheless, they are often regulated.

2. I find the idea that Kennedy discovered intent that Congress didn't write to be yet another "novel" interpretation of the law. He seems to "just know" what Congress intends, even if they didn't.

With wetlands they could be a significant distance (not limited by 4,000 feet) from the navigable waterway but significant nexus must be established. That is really the ultimate test--does the water ultimately flow into the navigable waterway. If the water--tributary, stream,wetland, whatever--does not ultimately flow into the navigable water it is not subject to regulation. Of course it is hard to draw the line as to what is a significant nexus and hence you have litigation. But it is not the sign of an out-of-control agency but one that is trying to fulfill a mandate to prevent pollution of the nation's waterways.

Right. And, if you didn't live in a desert, you'd realize that understanding basically permits the EPA to regulate most of the United States.

And yeah Congress did intend that the EPA regulate tributaries that pollute navigable waterways . Not in express terms-- because Congress is not going to necessarily get that detailed--but it is covered by the broad mandate that Congress gave the EPA.

Thank you for making my argument: the EPA must be destroyed.

fate

1. Congress did not have any intent to regulate non-navigable, non-tributary waterways. Nevertheless, they are often regulated

.

Perhaps because originally Congress didn't understand the interconnected nature of wetlands and otehr bodies. In fact, I'll quote the Congressional Research Service report on that.
You'll note that the technical people involved in writing regulations for the EPA have extensive expertise. Congressmen do not.
That's why agencies are provided with mandates and empowered to write regulations. They have the knowledge, and resources to carry out that task.

According to the agencies, the new rule—which they now refer to as the Clean Water Rule—
revises the existing administrative definition of “waters of the United States” in regulations
consistent with legal rulings—especially the recent Supreme Court cases—and science
concerning the interconnectedness of tributaries, wetlands, and other waters to downstream
waters and effects of these connections on the chemical, physical, and biological integrity of
downstream waters. The agencies assert that the rule also reflects their expertise and experience
in administering the CWA, including making more than 120,000 case-specific jurisdictional
determinations since 2008. The rule is particularly focused on clarifying the regulatory status of
surface waters located in isolated places in a landscape (the types of waters with ambiguous
jurisdictional status following the Supreme Court’s 2001 ruling in SWANCC) and small streams,
rivers that flow for part of the year, and nearby wetlands (the types of waters affected by the
Court’s 2006 ruling in Rapanos).
In developing the rule, EPA and the Corps relied on a synthesis prepared by EPA’s Office of
Research and Development of more than 1,200 published and peer-reviewed scientific reports;
the synthesis discusses the current scientific understanding of the connections or isolation of
streams and wetlands relative to large water bodies such as rivers, lakes, estuaries, and oceans.
The purpose of the scientific synthesis report was to summarize current understanding of these
connections, the factors that influence them, and the mechanisms by which connected waters
affect the function or condition of downstream waters. The document was reviewed by EPA’s
Science Advisory Board (SAB), which provides independent engineering and scientific advice to
the agency and which completed its review in October 2014.

https://www.fas.org/sgp/crs/misc/R43455.pdf

Fate

They already regulate tributaries--that's how they wound up polluting the Colorado River recently (thus helping, no doubt, California's drought

The polluting event occurred August 10 of this year. (And was cleaned up within a week.) The drought in California has been going on 4 years
Please explain your insight.
.
http://www.cbsnews.com/pictures/californias-drought/

rickyp wrote:Fate

They already regulate tributaries--that's how they wound up polluting the Colorado River recently (thus helping, no doubt, California's drought

The polluting event occurred August 10 of this year. (And was cleaned up within a week.) The drought in California has been going on 4 years
Please explain your insight.
.
http://www.cbsnews.com/pictures/californias-drought/

Please recant your nonsensical view of the "fourth branch of government."

Fate

Please recant your nonsensical view of the "fourth branch of government."

Sure.
And you admit you had no clear idea of how government agencies or the executive branch are empowered to act when you started blathering on about unconstitutional actions on their part. Or on the part of the executive branch.

Meanwhile, in Washington, the part of the government that you think should be involved ever more directly in running things is getting set consider shutting down the government again.

rickyp wrote:Fate

Please recant your nonsensical view of the "fourth branch of government."

Sure.
And you admit you had no clear idea of how government agencies or the executive branch are empowered to act when you started blathering on about unconstitutional actions on their part. Or on the part of the executive branch.

Meanwhile, in Washington, the part of the government that you think should be involved ever more directly in running things is getting set consider shutting down the government again.

Crazy is just too kind. You're dishonest.

All right boys, enough.

I agree with you that executive departments are starting to make their own rules. But I am still not convinced that you can actually put something in a constitution constraining the power of a constitutional court that would actually hold for very long, when the constitutional court (Supreme Court) has the authority to interpret the constitution that's supposed to be constraining it. My point was that, no matter how carefully worded the clauses of limitation on the supreme court are, it will erode pretty quickly. The only thing that can be done to constrain the authority of the USSC is for all parties to ignore a judgment. In order for THAT to happen, it would not be a judgment that is favored by some and disfavored by others--as was the recent decision in favor of same-sex marriage--but one that was ridiculous enough to be shunned by almost everybody in the remainder of the body politic. And it is unlikely that the Supreme Court would make a rendering so hated by all, that both sides of the aisle--and conservatives, liberals and moderates alike--would be tempted to simply ignore it.

And it would not be in our best interests to start ignoring the court (not enforcing its judgments). Why? Because then which judgments were enforced and which were not would depend on the government of the day. Such an attitude toward the law would not simply shrink the court's power, it would tear the government apart, and rend the constitution in ways you cannot possibly imagine, possibly leading to civil war at worst or, at best, give absolute power to the executive and legislative authorities in totally unconstrained ways (unconstrained even worse than what you're complaining about).

So I think the way that the Justice of the Peace who refused to enforce the court's judgments by not allowing gay marriage in *her* courtroom (excuse me, but it belongs to the People, not to her) is not acting in the people's interests, or even that of the Constitution.

JimHackerMP wrote:All right boys, enough.

I agree with you that executive departments are starting to make their own rules. But I am still not convinced that you can actually put something in a constitution constraining the power of a constitutional court that would actually hold for very long, when the constitutional court (Supreme Court) has the authority to interpret the constitution that's supposed to be constraining it.

Which begs the question: is the Supreme Court always right when they interpret the Constitution?

I think the answer is unquestionably "No!" (see Dred Scott, and it was 7-2!)

My point was that, no matter how carefully worded the clauses of limitation on the supreme court are, it will erode pretty quickly. The only thing that can be done to constrain the authority of the USSC is for all parties to ignore a judgment. In order for THAT to happen, it would not be a judgment that is favored by some and disfavored by others--as was the recent decision in favor of same-sex marriage--but one that was ridiculous enough to be shunned by almost everybody in the remainder of the body politic. And it is unlikely that the Supreme Court would make a rendering so hated by all, that both sides of the aisle--and conservatives, liberals and moderates alike--would be tempted to simply ignore it.

I think ignoring the USSC is exactly what the clerk in Kentucky is doing. Frankly, she has a point: does the USSC have the right to fundamentally ignore the 10th Amendment and go with Justice Kennedy's feelings? I think the answer is "No."

(As I've said before, I think the Court could have said the "full faith and credit" clause would force other States to accept marriages conducted in States permitting homosexual marriage. However, that is a far cry from what it did--and it had no authority to redefine marriage. That is a legislative act, and one reserved to the States. Note well: the USSC did not federalize marriage. It did not set a uniform age, nor uniform standards for licensing. Why not? . . . Because it is a State issue!)

Lincoln ignored Dred Scott. But, it was not universally "hated."

And it would not be in our best interests to start ignoring the court (not enforcing its judgments). Why? Because then which judgments were enforced and which were not would depend on the government of the day. Such an attitude toward the law would not simply shrink the court's power, it would tear the government apart, and rend the constitution in ways you cannot possibly imagine, possibly leading to civil war at worst or, at best, give absolute power to the executive and legislative authorities in totally unconstrained ways (unconstrained even worse than what you're complaining about).

But, this is exactly where we are heading! Our government is acting lawlessly! Municipalities and States ignore Federal law--and the Federal government ignores them doing it. What is that? We have the seeds of anarchy being sown.

The best way to change laws you disagree with (if you are in power) is to enforce them to the letter. The people will demand change. However, when you willfully ignore SOME laws, why would you expect the people to respect the law? The government is teaching us the law is subjective!

So I think the way that the Justice of the Peace who refused to enforce the court's judgments by not allowing gay marriage in *her* courtroom (excuse me, but it belongs to the People, not to her) is not acting in the people's interests, or even that of the Constitution.

That's not exactly the situation. She is not a justice of the peace. She is a county clerk.

That said, I understand your point. I just don't agree. She is no more in violation of the law than the mayor of San Francisco (and dozens of mayors of other cities) who refuses to cooperate with ICE. Either the Constitution of the US is the law of the land or it is a buffet line of laws from which one may choose what one will enforce and what one will not.

Furthermore, this is a case where there is not Constitutional justification for the ruling. Yes, yes, the 14th Amendment and "equal protection." By that reasoning, there can be no difference in age requirements, etc. for marriage either. In other words, by that reasoning, marriage IS a Federal institution. That's rubbish. That is far beyond the scope and intent of the 14th Amendment and anyone with a 7th grade education understands that. The problem is that "feelings" have exceeded rational, dispassionate thought.

Ultimately, we either have States or we don't. The inevitable result of Kennedy's "logic" would be a Federal government without limitation. If the States cannot regulate marriage, what can they regulate? Was the 14th Amendment intended to be a cudgel to crush the 10th Amendment?

I don't think so.

Fate

However, that is a far cry from what it did--and it had no authority to redefine marriage

You and Kim Davies wacky lawyer are alone in thinking this....

hacker

I agree with you that executive departments are starting to make their own rules

They have always had the ability write regulations that are considered law. This is not a new development in US governance. Congress understood that it could not oversee and run government in a detailed way. It could only write the enabling legislation and set the agencies objectives out.
In 1946 the APA attempted to provide Congress with greater over sight. But if you read about the APA you'll understand in part why Agencies have the ability to write rules and regulations designed to help them execute their objectives in an increasingly complex world.
This is not, unconstitutional. Congress, in enabling agencies, is acting Constitutionally. And Agencies by creating the regulations that are required for them to carry out their mandated objectives.... are acting as instructed.
If these agencies were doing something unconstitutional or beyond their mandate or authority, there would be far more clear cut legal decisions proving this.... and there aren't.
The problem is not unconstitutionality... Its constitutionality and the over lapping and confusing definitions of authority and powers.
Just read how difficult the review of an agency regulation is for the courts ...

The separation of powers doctrine is less of an issue with rule making not subject to trial-like procedures. Such rulemaking gives agencies more leeway in court because it is similar to the legislative process reserved for Congress. Courts' main role here is ensuring agency rules conform to the Constitution and the agency's statutory powers. Even if a court finds a rule unwise, it will stand as long as it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law".[11]

https://en.wikipedia.org/wiki/Administr ... cedure_Act

But, this is how your system is designed to work.... From day one.

rickyp wrote:Fate

However, that is a far cry from what it did--and it had no authority to redefine marriage

You and Kim Davies wacky lawyer are alone in thinking this....

Bet me.

They have always had the ability write regulations that are considered law. This is not a new development in US governance. Congress understood that it could not oversee and run government in a detailed way. It could only write the enabling legislation and set the agencies objectives out.

Um, that's not quite right. https://en.wikipedia.org/wiki/United_St ... rative_law

They have to be tethered to actual law. And, that's where it's getting out of control--and hypocritical. For example, the EPA has sent people to JAIL for less than it did in Colorado. What do you think about that?

The problem is not unconstitutionality... Its constitutionality and the over lapping and confusing definitions of authority and powers.

Wrong. We have a government that things it is the center of the country. It is no longer a government "of the people," but a government "above the people." That's the problem.

Of course, you refuse to acknowledge it. You love BIG government. There's nothing too big or oppressive for you. The beauty of it is that your statist vision is immaterial. You have no voice in American governance.

Thank God.

Nope, the government isn't over-reaching . . . except everywhere you look.

Drug Enforcement Administration agents have been accessing personal medical files without a warrant, generating a backlash from doctors and privacy advocates who say the practice is intrusive and unconstitutional — and have taken the agency to court.

“It’s just not right,” Texas attorney Terri Moore said.

The controversial record searches are part of the government’s effort to crack down on illegal “pill mills” and prescription drug abuse. But they’ve set up a clash over privacy rights, and a legal battle is now playing out in the 5th and 9th Circuit appeals courts. Lower courts have issued conflicting rulings to date, with one backing the DEA and another demanding the agency get warrants if it wants to look at patient records.

http://hotair.com/archives/2015/09/12/s ... a-warrant/