Not-so-supreme Science

Yesterday's non-decision by the U.S. Supreme Court on just how far the Army Corps of Engineers can go in telling developers what they can and cannot build produced no identifiable winners or losers. But a close look at the rulings hints at how the court will treat science in future cases.

In the end, the court couldn't agree on what the Clean Water Act was meant to do, so it sent Rapanos et ux., et al, v. United States back to the lower courts to sort out just what constitutes a wetland deserving of protection. One of properties in contention is depicted at right. You can see why there's no consensus.

It's one of those complicated cases that revolves around arcane definitions and a bewildering collection of precedents, but because nothing was really settled -- and I'm still not sure what it all means -- I'm not going to try to summarize. Here's one attempt to do that, if you're interested.

What I am going to do here is look at how each ruling -- plurality, dissent and the determining in-between judgment -- treated the science involved. First, the not-quite-winning plurality, which is a product of the four conservative judges, Scalia, Roberts, Alito and Thomas.

Their argument begins with a look at what "navigable waters" means by examining dictionary definitions and a suite of government laws and regulations. There is no effort wasted on physical descriptions or scientific concepts. And that pretty much sets the tone.

Eventually, it descends into pure sophistry. I am reminded of a certain recent commander in chief's musings on what the definition of "is" is:

The Corps' expansive approach might be arguable if the CSA defined "navigable waters" as "water of the United States." But "the waters of the United States" is something else. The use of the definite article ("the") and the plural number ("waters") show plainly that [subsection] 1362(7) does not refer to water in general.

And on and on. The right-wing quartet proceeds to discover that only permanent bodies of water count, eliminating any river or stream that ever dries up, including that famous non-body-of-water the Los Angeles River.

"Pollution" is also redefined to exclude "dredged or fill material" despite decades of legal precedent and common sense. It is a lack of respect for reality and common sense, in fact, that typifies their ruling.

Justice Kennedy, by contrast, manages to pay a fair bit more respect for the laws of nature in his deciding judgment, which sent the case back to a lower court and thereby managed to let the court off the hook.

He wastes little time returning logic to the pollution debate:

The term "pollutant" is defined as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.

Kennedy takes umbrage at Scalia et al's habit of playing fast and loose with the language, choosing instead to employ commonly accepted scientific understanding:

Contrary to the plurality's description... wetlands are not simply moist patches of earth [referring to "Scalia's use of terms like "wet meadows"]. They are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas."

Kennedy also is the only justice to refer to arguments about bigger-picture ecology and hydrology, writing that "nutrient-rich runoff from the Mississippi River has created a hypoxic, or oxygen-depleted, 'dead zone' in the Gulf of Mexico that at times approaches the size of Massachusetts and New Jersey."

The dissent, by Stevens, Souter, Ginsburg and Breyer, is even better, beginning with a look at the ecological purpose of the most important piece of law at issue, the Clean Water Act, which aims to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."

The dissent is riddled with scientific terms and explanations that suggest a genuine interest in how nature works. Here's one example:

Among other things, wetlands can offer "nesting, spawning, rearing and resting sites for aquatic or land species"; "serve as valuable storage areas for storm and flood waters"; and provide "significant water purification functions." ... These values are hardly "independent" ecological considerations as the plurality would have it -- instead, they are integral to the "chemical, physical, and biological integrity of the Nation's waters."

But the best comment comes in a separate note from Justice Breyer (that's him on the left):

If one thing is clear, it is that Congress intended the Army Corps of Engineers to make the complex technical judgments that lie at the heart of the present cases (subject to deferential judicial review). In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended.

Indeed. While it is good to see half the court has at least some respect for science, the last thing we want to see is a bunch of lawyers pretend to be scientists. I can only imagine what a court with a reliable conservative majority might do if and when faced with questions like "Are greenhouse gases pollutants?" or "Can intelligent design be taught in public schools?"

Yikes.