RSN: Mark Gray | I Arrived at Route 91 as a Reporter. I Left as a Survivor of a Mass Shooting
27 September 22
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"I don’t think any of us want our calling card to be Route 91, but it can be inescapable at times," writes Mark Gray, who came under fire while on assignment in Las Vegas in 2017
I saw a woman a few feet from me get shot — fragments of the bullet hit my jeans. I watched thousands of people run for cover, fearing their last breath was imminent. It was pandemonium as bullets peppered Las Vegas Village. I was one of the lucky ones; I was physically unharmed. Mentally, though, I’m still a little bruised. I remember crying in the car on Oct. 2 when Chris Stapleton’s “Broken Halos” came on the radio, and anytime I hear Aldean’s “When She Says Baby,” which he had just started singing when the gunfire began, I get worked up.
Over the past five years, I’ve gone through every emotion and talked to a trauma counselor to make sure what I was feeling was “normal.” Still, my thoughts regularly return to Route 91. In meeting up with fellow survivors at a baseball game this past May, many said they too couldn’t go a few hours without thinking about the shooting. Survivors shared their experiences with me, and they listened intently as I spoke of mine. Many of us covered our ears, closed our eyes and hugged when fireworks accompanied a post-game concert by country singer Josh Turner.
Those damn fireworks.
I don’t think any of us want our calling card to be Route 91, but it can be inescapable at times. People who weren’t there want to ask what it was like, and we’ve all developed our stock answers: “I thought it was fireworks”; “I was a few feet from one of the first people shot”; “Everyone thought there were multiple shooters”; “We escaped when there was a break in the shooting.” I always add, “I army-crawled to get my laptop before leaving.”
Eventually, someone will ask how I’ve been able to carry on. The short answer is: you just do.
Sure, I look for exits now when I enter venues and I go silent every time I drive that portion of the Strip. But I also wonder if I’ll ever have to escape from another mass shooting —considering these tragedies seem to happen on a daily basis in the U.S.
Route 91 will always be a part of my identity and I can’t avoid that. I can’t avoid the range of emotions that come over me when I hear Aldean sing. I can’t avoid thinking of the victims when I see the words “Vegas Strong.”
From left, The League's Matteo Salvini, Forza Italia's Silvio Berlusconi, Brothers of Italy's Giorgia Meloni and Noi Con l'Italia's Maurizio Lupi attend the center-right coalition closing rally in Rome on Thursday. Italians have elected their country's most right-wing government since the end of World War II. (photo: Gregorio Borgia/AP)
Biden has yet to even nominate an ambassador to Italy, a decision that has frustrated and puzzled many in the diplomatic community.
The victory of a right-wing coalition led by Giorgia Meloni—who once described the European Union as “rotten to its core” and has praised Italy’s fascist leadership under Benito Mussolini—poses a material threat to the alliance that has successfully united the West, four current and former diplomats told The Daily Beast. Without a permanent presence in Rome, one former ambassador said, the Biden administration risks “losing the voice in the room” best equipped to represent President Joe Biden during a critical moment in European politics.
“One of the most dangerous parts of Trump’s legacy is the way he shredded and deconstructed, and otherwise impaired, not only our reputation and standing abroad, but actual diplomatic infrastructure, including in embassies and multilateral organizations,” the former ambassador said. “So there is added need for a crop of ambassadors who can repair those relationships—particularly in places like Italy, like Belarus, which have seen a sort of… democratic backsliding.”
Italy is the last major European country, and one of only three on the entire continent, without a confirmed U.S. ambassador or a formally announced nominee to serve as the top American official in the country. In February, Axios reported that financier Stephen Robert was under consideration for the post, but seven months later, no nomination has materialized. Many aspiring ambassadorial nominees have been entangled in difficulties over personal and financial disclosure requirements, particularly wealthy political appointees with complex financial holdings.
Multiple diplomats speculated that the post is being held for House Speaker Nancy Pelosi (D-CA), echoing a rumor that has circulated on Capitol Hill for months. Pelosi is still running for re-election to her San Francisco-based congressional seat, but is likely to lose the speakership in the aftermath of the midterm elections—a potential opportunity for the 82-year-old to enjoy a state of “semi-retirement” in one of the most coveted posts in Europe, as one former career Foreign Service official put it.
“She would be a perfect candidate, honestly, if she could be confirmed,” they said, in a rare show of support for so-called “politicals” by a career officer. “But waiting two years to name a nominee to a country that’s backsliding into fascism is borderline malpractice.”
Pelosi’s office did not respond to a request for comment.
Historically, the U.S. ambassador post in Rome is considered a plum position for wealthy or influential allies of the president’s—the villa that serves as the ambassador’s residence is an object of particular envy—and longtime warm relations between the U.S. and Italy have typically ensured few diplomatic hiccups. Alumni include investor Lewis Eisenberg under President Donald Trump, litigator John R. Phillips under President Barack Obama, and private equity tycoon Ronald Spogli, who was President George W. Bush’s roommate at Harvard Business School.
But the election of the far-right coalition in Sunday’s snap parliamentary elections could upset the status quo in international relations between Italy and the United States, not to mention the rest of Europe.
Meloni, who began her political career as the vice president of a now-outlawed neo-fascist political party, campaigned to become Italy’s first female prime minister on a populist and traditionalist platform of “God, country, family”—a slogan with deep fascist connotations in Italy—with a particular hostility to immigrants and LGBTQ people. Last month, Meloni tweeted a video of a Ukrainian woman being sexually assaulted by a male asylum-seeker, a video she said was intended to emphasize her pledge to “secure the cities” but which ended up identifying the rape victim.
The victory of Meloni’s coalition is only the highest-profile success of far-right movements in Europe, but comes at a time when the integrity of the pro-West, pro-European alliance is of particular strategic importance to the United States. Though Meloni has vowed to continue Italy’s support of Ukraine as it seeks to expel Russian forces that invaded last winter, her coalition partners have expressed support for Putin and the invasion.
“Putin was pushed by the Russian population, by his party and by his ministers to invent this special operation,” said Silvio Berlusconi, the infamous former prime minister and tax fraudster who is now one of Meloni’s coalition partners. Berlusconi, one of Putin’s oldest allies in Europe, blamed military support for Ukrainian forces by the West for preventing the Russian military from replacing the government of Volodymyr Zelensky “with decent people” and finishing the invasion “a week later.”
Matteo Salvini, another coalition partner who has been photographed wearing a screen T-shirt emblazoned with Putin’s image and the motto “ARMY OF RUSSIA,” has called for rolling back sanctions on the Kremlin and accepted a trip to Moscow funded by the Russian government last May until the “peace mission,” as he called it, was canceled after a public outcry.
With Meloni and these allies soon to be at the helm, one former diplomat told The Daily Beast, the United States needs an authoritative advocate for American and Western interests in Rome “on Day One.”
“When you’re the ambassador, you’re not representing yourself, you’re not representing the State Department, you’re representing the president of the United States of America,” they said. “Your counterparts in your host country, no matter how oppositional or hostile they are to the position of the United States government, are not going to walk away from the table when the president of the United States—or their chosen representative—is seated across from you.”
When asked, every diplomat who spoke with The Daily Beast said that they were confident that Biden’s eventual nominee would be more than qualified to navigate a now-tricky relationship with the Italian government. Biden, a former chair of the Senate Committee on Foreign Relations, has stated that qualifications
“Whatever political appointee he chooses is likely to be very carefully considered in terms of, what’s the case that could be made with their existing skills and experience,” the former ambassador said. “Every president appoints a few of these people who have bundled $50 million, but I don’t think he’s going to put himself in that position, given the challenge that this ambassador is going to face.”
The White House did not respond to a request for comment on what has caused the delay in naming a nominee, but has emphasized in the past that the career Foreign Service officials who man the ship in between ambassadorial confirmations are more than capable of keeping things afloat.
Speaking with reporters on Monday, White House press secretary Karine Jean-Pierre said that she would not “engage in any hypotheticals” about Italy’s future cooperation with the United States, but promised that the Biden administration “ will work with the new Italian government on the full range of shared global challenges.”
But the direct relationship between president and ambassador can be enormously helpful in navigating high-stakes diplomatic relationships, one former senior diplomat said, particularly when a message needs to be conveyed that is seen as being directly from the president.
While career Foreign Service staff can keep an embassy working for an entire term, they said, “the relationship between a president and an ambassador—who outranks every official in the federal government in-country except the president—is a critical line of communication. A chargé [d’affaires] answers to a deputy undersecretary. An ambassador answers to the president.”
Barbara Walter, political scientist and author of 'How Civil Wars Start' tells ProPublica that the vital signs of healthy democracy are in decline around the world. (photo: Mauris Becker/Picture Alliance)
Why are so many people now embracing demagogues? Barbara Walter, political scientist and author of “How Civil Wars Start,” tells ProPublica that the vital signs of healthy democracy are in decline around the world.
To try to understand what, exactly, is happening, I talked with Barbara Walter, a political scientist at the University of California San Diego who studies democracies across the world. Her book “How Civil Wars Start” has become a bestseller. Rather than talk about the prospects for political violence, we discussed why many democracies are retrenching and how the U.S. stands alone — and not in a good way.
This conversation has been edited for length and clarity.
Can you walk through the vital signs of democracy that you and other political scientists have been tracking and that are trending the wrong way in the U.S. and elsewhere?
So there are probably five big data sets that measure the quality of democracy and countries around the world. They all measure democracy slightly differently. But every single one of them has shown that democracies around the world are in decline. And not just the fledgling democracies, but sacrosanct liberal democracies in Sweden, the U.K. and the United States.
These indices are like vital signs, but instead of for your body, it’s for our body politic. What are the most important ones?
So, empirically, we can’t rank order them. But we know what the good things are, and if you start attacking them, you’re attacking the vital organs.
One is constraints on executive power. You want lots of checks and balances on the executive branch. Here in the United States, you want to make sure that the legislative branch is strong and independent and willing to check presidential power. You want to know that the judicial branch is the same. Another one would be rule of law. Is the rule of law actually respected? Is it uncorrupted? You don’t want a system where certain individuals are above the law. If you want to become, say, Orban 2.0, you place loyalists in the Justice Department who are beholden to you and not to the rule of law.
You also want a free and open press, so that your citizens get high-quality information and they can make good decisions. Another one is you really want a competitive political environment, so that there’s a level playing field for people who are competing for power. You could make a very uneven playing field by party. So you can restrict the vote, you can make voting more difficult.
So these are all vital: Do you have constraints on the executive? Do you have the rule of law, so that there’s accountability? Do you have a level playing field, so that there can really be popular participation?
Another warning sign you’ve talked about is when a party becomes less about policy and more about identity, a shift one can see in the Republican Party in recent years. Can you talk about it?
The Republicans have always had a challenge that they were the party of wealthy Americans and business. The problem is wealthy Americans will always be a very small minority of Americans. So for wealthy Americans, they have to convince at least some nonwealthy Americans to support their platform. How do you do that? Well, you do it with issues of identity, their sense of threat, their sense of fear, their sense of the world is changing and “I’m being left behind.” It’s very effective.
I want to get to why we see these dynamics playing out across so many countries. You cite three dynamics. One is that the dominant caste in many nations, white people, is trending toward minority status. Another is increasing wealth concentration, where rural areas are often losing out. And then there’s a new medium that has risen that is unregulated and unmediated: social media.
On No. 3, the new medium, I would state it stronger than that. It’s not that it’s unregulated per se. It’s that it’s being driven by algorithms that selectively push out the more extreme incendiary messages.
You also wrote about another concept that I hadn’t heard before: ethnic entrepreneurs. These are politicians like, say, Slobodan Milosevic, the former Serbian strongman, who recognize an opportunity in appealing to the fears of a particular group.
Yep. He was not a nationalist. He was a straight up Communist. And again, that gets back to the difference between a political party based on ideology and one based on ethnicity. He became the leader of the Serb party.
So he saw which way the wind was blowing and he put up a sail. And that’s what an ethnic entrepreneur does?
Yes, but it can also be more strategic than that. Milosevic really had a problem in that communism was over. And if he wanted to stay in power, he was going to have to compete in elections. How is he going to get elected? And then he’s like, “Oh, like the largest ethnic group, and in this country are Serbs. I’m Serb!” If I can convince the Serbs during this time of change and insecurity and uncertainty when everyone’s a little bit on edge that unless they support a Serb, the Croats are gonna kill them, then then I can catapult myself to power. That’s classic ethnic entrepreneurship.
I want to ask you a last question I’ve been thinking about a lot myself. Like a number of news organizations, we’ve created a team devoted to covering threats to democracy. But after I read your book, I stopped referring to it as that because it occurred to me that the term threats to democracy reinforces a story that we Americans tell ourselves: that we already have a true democracy, the best darn one in the world, and we just need to protect it.
Our American democracy, even when we were happy with it and thought it was doing really well, it already had a whole series of undemocratic natures that no other healthy liberal democracy has.
Our electoral college, nobody has that. That was a compromise to rural states. We have the fact that our elections are run by partisan agents. No other healthy liberal democracy has that. Canada, this enormous country, has an independent electoral commission that runs all of the elections. Every ballot is the same no matter if you vote in Prince Edward Island or the Yukon. Or that we allow so much money to be injected into our system. Nobody else has this.
So we have not only these undemocratic features but a whole number of vulnerabilities that if you really did want to somehow cement in minority rule, you could do this legally. So in many ways we have a terrible system that’s ripe to be exploited.
Protesters shout as they join thousands marching around the Arizona Capitol after the Supreme Court decision to overturn the landmark Roe v. Wade abortion decision Friday, June 24, 2022, in Phoenix. (photo: Ross D. Franklin/AP)
An arizona judge ruled on friday that a 1901 ban on nearly all abortions in the state can be enforced after being blocked for about 50 years.
"Yesterday’s ruling in Arizona is dangerous and will set Arizona women back more than a century – to a time before Arizona was even a state," Jean-Pierre said in a statement.
The decision would force survivors of rape and incest to bear the children of their assaulters, while leaving health care providers to face imprisonment of up to five years for fulfilling their duty of care, she said.
"While we await next steps on any implementation of the law, the potential consequences of this ruling are catastrophic, dangerous, and unacceptable" she said.
Jean-Pierre said U.S. President Joe Biden and Vice President Kamala Harris would continue to push Congress to codify the 1973 Roe v. Wade decision legalizing abortion that was overturned by the Supreme Court in June.
The Arizona ruling by Pima County Superior Court Judge Kellie Johnson granted a request by the state's Republican attorney general to lift a court injunction that had barred enforcement of Arizona's pre-statehood ban on abortion after the Supreme Court decision.
Johnson's ruling bans all abortions in Arizona except when the procedure is necessary to save the mother's life.
Biden suggested on Friday that the election of two more Democratic senators in November elections would open the possibility of Democrats removing the filibuster, a legislative roadblock that requires a 60-vote majority to overcome, which would enable Congress to restore federal abortion rights.
Democrats hold a bare majority in the Senate now, and two Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema, have opposed ending the filibuster.
Ending the filibuster would require a simple majority. For any such move to be successful, Democrats need to retain control of the House and gain two seats in the Senate. Most forecasters suggest Republicans are likely to gain House control.
Donald Trump rape accuser E. Jean Carroll and her lawyers arrive for her hearing at federal court during the coronavirus disease (COVID-19) pandemic in the New York, October 21, 2020. (photo: Carlo Allegri/Reuters)
A divided three-judge panel of the U.S. Court of Appeals for the 2nd Circuit said a lower court erred when it ruled that Trump’s accuser, E. Jean Carroll, could sue Trump personally for the allegedly defamatory statements he made about her during his presidency.
The Tuesday ruling was not the final word in the case, however.
The 2nd Circuit panel asked the top local court in Washington to weigh in on another key issue bearing on Trump’s potential immunity: whether Trump was acting “outside the scope” of his presidency when he allegedly defamed Carroll by casting doubt on her credibility and demeaning her personal appearance.
Whether or not Carroll’s defamation suit can proceed against Trump now hinges on how the D.C. Court of Appeals interprets local D.C. employment law.
Trump has denied raping Carroll. In a June 2019 interview with The Hill, Trump said Carroll was “totally lying” when she accused him of raping her during an encounter in a New York department store in the mid-1990s.
Trump added: “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened, OK?”
Carroll’s attorneys at the law firm Kaplan Hecker & Fink LLP said they were confident that the D.C. court would find that Trump’s comments fell outside the scope of his official duties.
“Donald Trump was not acting within the scope of his duties as President when he defamed our client, E. Jean Carroll because he was not serving any purpose of the federal government and because the comment ‘she’s not my type’ is not something one would expect the President of the United States to say in the course of his duties,” Carroll’s attorneys said in a statement, citing a dissent from the 2nd Circuit’s 2-1 ruling.
Alina Habba, an attorney for Trump, hailed Tuesday’s ruling by the federal appeals court.
“We are extremely pleased with the Second Circuit’s decision today in reversing and vacating the District Court’s finding in this matter. This decision will protect the ability of all future Presidents to effectively govern without hindrance.”
“We are confident that the D.C. Court of Appeals will find that our client was acting within the scope of his employment when properly repudiating Ms. Carroll’s allegations,” Habba added.
The Justice Department under both Attorneys General William Barr and Merrick Garland have argued in court filings that the former president’s comments about Carroll were made in the context of his official duties, and thus the U.S. government should be substituted for Trump as defendant in Carroll’s defamation case.
Separate from the defamation suit, Carroll intends to bring a civil suit against Trump for his alleged sexual assault, her attorneys said. The case will be brought under a New York law that takes effect in November and will permit alleged sexual assault victims to bring lawsuits that would normally be barred under the statute of limitations.
Cuba's President Miguel Díaz-Canel speaks to the press on Sunday after casting his vote at a polling station in Havana during the new family law referendum. (photo: Ramon Espinosa/AP)
The measure — which contains more than 400 articles — was approved by 66.9% to 33.1%, the president of the National Electoral Council, Alina Balseiro Gutiérrez, told official news media, though returns from a few places remained to be counted.
The reforms had met unusually strong open resistance from the growing evangelical movement in Cuba — and many other Cubans — despite an extensive government campaign in favor of the measure, including thousands of informative meetings across the country and extensive media coverage backing it.
Cuban elections — in which no party other than the Communist is allowed — routinely produce victory margins of more than 90% — as did a referendum on a major constitutional reform in 2019.
The code allows surrogate pregnancies, broader rights for grandparents in regard to grandchildren, protection of the elderly and measures against gender violence.
President Miguel Díaz-Canel, who has promoted the law, acknowledged questions about the measure as he voted on Sunday.
"Most of our people will vote in favor of the code, but it still has issues that our society as a whole does not understand," he said.
On Monday, he celebrated approval of the measure, tweeting "Love is now the law."
Passage "is to pay a debt to various generation of Cubans whose domestic plans had been waiting years for this law," he added. "As of today, we will be a better nation."
The measure had been approved by Cuba's Parliament, the National Assembly, after years of debate about such reforms.
A major supporter of the measure was Mariela Castro, director of the National Center for Sex Education, a promoter of rights for same-sex couples, daughter of former President Raul Castro and niece of his brother Fidel.
But there is a strong strain of social conservatism in Cuba and several religious leaders have expressed concern or opposition to the law, worrying it could weaken nuclear families.
While Cuba was officially — and often militantly — atheist for decades after the 1959 revolution led by Fidel Castro — Raul's brother — it has become more tolerant of religions over the past quarter century. That has meant a greater opening not only the once-dominant Roman Catholic Church, but also to Afro-Cuban religions, protestants and Muslims.
Some of those churches took advantage of the opening in 2018 and 2019 to campaign against another plebiscite which would have rewritten the constitution in a way to allow gay marriage.
Opposition was strong enough that the government at that time backed away.
A wake from a passing tugboat buffets the shoreline of the Mississippi River on March 18, in New Orleans, Louisiana. (photo: Andrew Lichtenstein/Getty)
Sackett v. EPA may prove to be the most significant attack on America’s clean water laws since the 1970s.
It’s an admittedly difficult question, that is now in the hands of the most conservative Supreme Court since the 1930s. And the Court’s Republican-appointed supermajority seems poised to deal a severe blow to the clean water law, in a case that could do significant harm to America’s efforts to prevent floods and to ensure that everyone in the country has access to safe drinking water.
The Clean Water Act prohibits “discharge of pollutants” into “navigable waters.” But it also defines the term “navigable waters” vaguely and counterintuitively, to include all “waters of the United States, including the territorial seas.” In Rapanos v. United States (2006), the Supreme Court’s last attempt to define the key phrase “waters of the United States,” the justices split three ways, with no one approach winning majority approval from the Court.
Now, Sackett v. EPA brings this question to a Court that’s moved dramatically to the right after former President Donald Trump filled a third of its seats. Though the specific dispute in Sackett seems minor — it involves a couple that wants to fill in wetlands on their residential lot near an Idaho lake — the case still gives the Supreme Court everything it needs to hamstring much of the landmark anti-pollution legislation.
Even in the best-case scenario for environmentalists, the Court’s new majority is likely to embrace the narrow reading of the Clean Water Act proposed by the late Justice Antonin Scalia in his Rapanos opinion. That approach, according to an amicus brief filed by professional associations representing water regulators and managers, “would also exclude 51% (if not more) of the Nation’s wetlands” from the Act’s protections, and could potentially exclude an even greater percentage of the nation’s streams.
Meanwhile the plaintiffs in Sackett, no doubt feeling emboldened by the Supreme Court’s recent hostility to environmental regulation, have come up with a reading of the Clean Water Act that is more restrictive than any of the approaches proposed by any justice in Rapanos. According to their brief, the “waters of the United States” are “limited to traditional navigable waters and intrastate navigable waters that link with other modes of transport to form interstate channels of commerce.”
If that approach prevails, huge numbers of streams, drainage ditches, and other small tributaries that may flow into major bodies of water — but that are not themselves large enough to be navigated by ships and other watercraft — could abruptly lose the Clean Water Act’s protections.
The stakes in Sackett are high because America’s waterways are so interconnected. Wetlands, even wetlands that do not directly border rivers or lakes, act as filtration systems that slow the seepage of pollutants into major waterways. And they also act as sponges that help control floods. Small streams, human-made drainage, and other narrow waterways typically empty into other bodies of water. So, if wetlands, streams, and the like are not protected from pollution, that pollution will inevitably poison major waterways.
But environmentalists have little reason to be optimistic about the Clean Water Act’s future after the law is interpreted by this Supreme Court.
The three approaches laid out in Rapanos, briefly explained
Once upon a time, Sackett would have been a fairly easy case. When federal laws are ambiguous, the Supreme Court’s decision in Chevron v. Natural Resources Defense Council (1984) typically instructs the courts to defer to an expert federal agency’s interpretation of that law. And the Biden administration is currently finalizing an interpretation of the phrase “waters of the United States” that merges both Scalia’s narrow definition and a more expansive definition offered by Justice Anthony Kennedy in Rapanos.
Indeed, in an opinion joined by the 2006 Court’s liberal minority, Justice John Paul Stevens argued that the Court should largely leave the question of which waters qualify as “waters of the United States” to executive branch agencies. The executive’s determination that certain wetlands are subject to Clean Water Act regulation, Stevens wrote in his Rapanos dissent, “is a quintessential example of the Executive’s reasonable interpretation of a statutory provision” which is entitled to deference under Chevron.
But Stevens’s deferential approach only received four votes. Four other justices, including three members of the Court’s current Republican-appointed majority, joined Scalia’s opinion calling for much stricter limits on the Clean Water Act.
“The phrase ‘the waters of the United States,’” Scalia claimed, includes only “relatively permanent, standing or continuously flowing bodies of water.” His definition does not include “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Scalia added that wetlands are only subject to the Act if they have a “continuous surface connection” with a “relatively permanent body of water” that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
As mentioned above, an amicus brief filed by experts on water regulation and management argues that Scalia’s definition would “exclude 51% (if not more) of the Nation’s wetlands.” It would also exclude many wetlands (and potentially, many streams and other bodies of flowing water) for completely arbitrary reasons. Because Scalia’s test requires a “surface” connection, for example, a wetland that connects to a major river via an underground channel would be beyond the Act’s ban on pollution — even though pollutants can flow through an underground stream just as surely as they can flow through a surface channel.
In any event, Scalia’s approach did not carry the day in Rapanos. The sole remaining justice, Kennedy, carved out a middle ground between Scalia and Stevens which called for less deference to federal agencies than Stevens advocated, but that also read the Clean Water Act more expansively than Scalia.
Under Kennedy’s definition, wetlands (and, most likely, narrow waterways) are subject to the federal law if they “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Thus, Kennedy’s rule looks at the nation’s water systems as a whole, and would prohibit pollution that meaningfully impacts important bodies of water — even if that pollution is discharged into a wetland that may be some distance from a major river or lake.
Why are wetlands so important?
The Sackett case is primarily a case about wetlands. In 2004, plaintiffs Chantell and Michael Sackett bought what a federal appeals court described as a “soggy residential lot” near Priest Lake in Idaho. The Sacketts have spent the last 14 years in litigation over whether they may fill in wetlands on this lot with sand and gravel.
(One reason why this case has gone on for so long is that it already took one trip up to the Supreme Court, in 2012, to determine whether the Sacketts filed their lawsuit prematurely. A unanimous Court determined that they did not.)
It’s reasonable to wonder why the government is fighting so hard to prevent the Sacketts from dumping sand and gravel — as opposed to, say, toxins — on their land. The answer is that even natural fillers like sand can destroy a wetland, and the government argues that wetlands play an essential role in maintaining a healthy national water system.
As the government explains in its brief, wetlands “provide flood control and trap and filter sediment and other pollutants that would otherwise be carried into downstream waters.” Similarly, the water managers’ brief explains that wetlands are particularly important because they are “more efficient at pollutant removal than other waters thanks to the slow, sometimes infrequent, rate at which water moves through them.”
Although maintaining wetlands does create costs — just ask the Sacketts, who were unable to develop their land for years — the water managers argue that preserving wetlands, headwaters, and other structures that efficiently filter the water supply “is less costly and more effective to prevent a loss in water quality than to treat contaminated water later on.”
In the likely event that the Court adopts Scalia’s proposed rule in Rapanos, that could place most of the nation’s wetlands beyond the Clean Water Act’s anti-pollution safeguards. And the Sackett plaintiffs ask the Court to go much further than Scalia would have gone, limiting the law’s protections to “navigable” waters. (The plaintiffs do concede that “non-navigable wetlands inseparably bound up with such waters” should also be protected.)
There are a few reasons to doubt that the Court will take this maximalist approach. Among other things, none of the justices in Rapanos, including the three current justices who joined Scalia’s opinion, took such an extreme view in 2006. And the government notes in its brief that the plaintiffs previously told the Supreme Court that they were “not disputing ‘the extent to which the Clean Water Act regulates tributaries of traditional navigable waters.’” So the Court may be reluctant to reward these plaintiffs for trying to expand the scope of the case midway through Supreme Court review.
Even if the Court does not accept the plaintiffs’ most expansive proposal, however, the stakes in this case remain quite high. Scalia’s rule would fundamentally alter America’s clean water regime, potentially removing the majority of wetlands from the Clean Water Act’s protections. And it would do so based on arbitrary distinctions such as whether the wetlands feed into larger bodies of water via a “continuous surface connection” or something more transient or subterranean.
And, without protection for these wetlands, America’s water system could lose much of its ability to filter pollutants out of our drinking water.
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