“The waters of the United States.”

The interpretation of the above has been the subject of intense infighting among water users, polluters, agencies, and courts, ever since the Clean Water Act was passed.

Depending on the EPA’s enforcement of the Act, the definition has practically run the gamut from every raindrop to water directly in a tributary to a river.

It depends on the administration in power at the time and the situation before it. The EPA can be “flexible” at times.

The judicial cases have been less “loosely” interpreted and have generally been extremely broad, almost always simply deferring to how the agency interprets the words in the Act.

Some administrations (conservative) interpret it tightly, and some (liberal) loosen it so as to expand protections.

This is administrative law, meaning judges look at decisions made by an administrative agency. In this case, it’s the EPA. But the exact same principle and test run through the IRS, BLM, Fishing regulations, the Forest Service, any of them.

But one common thread has run through nearly all these cases. Justices have emphasized that they are neither lawmakers nor experts in the field; thus – their only job is to look at Congress’s law and then give “great deference” to the agency’s interpretation so long as it’s even in the ballpark.

This is how it must be. And that deference can go for environmentalists, or against us, for businesses or against them, the doctrine remains the same.

If the SCOTUS is going to overrule an agency simply because the Court just disagrees with the agency’s interpretation, then why have the agency?

To put it very simply, and remove my lawyer hat, if the agency’s interpretation is “reasonable” within the bounds of the law, the SCOTUS leaves it alone, and the agency wins.

Except this week.

And, in a remarkable twist, it was Brett Kavanaugh the threw the spear at the conservatives who decided they would redefine a term going directly against the law and agency.

I am going to defer to a brilliant summary by Loyola Law School Professor Jessica Levinson in an MSNBC report:

“The question before the court in this case was which wetlands are considered to be ‘adjacent’ to a body of water covered by the act, and therefore itself protected by the act,” she wrote. “While the court’s ultimate decision was unanimous, its reasoning was splintered. A thin five-member majority of the court, defying basic rules of legal interpretation, concluded that ‘adjacent’ means ‘adjoining.'”

That is literally almost all you need to know. The Clean Water Act says “adjacent” to a tributary of some kind and the agency used it as such to justify regulating water, well – adjacent to, but not connected to a tributary.

And this makes perfect sense because water runs downhill, and not just on top of the hill but underground the hill. Groundwater from that pond or wetlands will eventually get to that tributary, and that’s why “adjacent” is used in the Clean Water Act and interpreted by the agency as “near enough” to be adjacent.

But for the first time that I know of, the most conservative five, excluding Justice Kavanaugh, decided they preferred their own word and replaced adjacent with “adjoining” as “clarifying” the legislation.

A freshman in high school knows that the words do not mean the same thing. I know because I tested it with my daughter.

And dams sure, Congress knows how to spell “adjoining” and its definition but chose to use the word “adjacent” and its definition. If Congress wanted “adjoining,’ it would have said “adjoining.”

But the five didn’t like it because it would’ve led to the wrong result, giving the EPA more power, not less. Thus, they replaced adjacent with “adjoining” because they believed that that was what Congress actually meant to say. (Or, more accurately, that’s their reasoning.)

This, rightly, infuriated Kavanaugh, who actually used some of Justice Kagan’s opinion to trash Justice Alito, who wrote the controlling opinion. (The case was a 9-0 ruling, but how that can lead to entirely different results needs a treatise, which this post is in danger of already becoming.)

Kavanaugh wrote six words on his own that will shock a lot of people unfamiliar with SCOTUS opinions, but these six words may as well have been a grenade:

“I would stick to the text.”

It’s a brutal sentence telling Alito exactly what Alito and the five just did. Alito, in particular, just appointed himself as above Congress and the agency (under the President) by inserting a word Alito liked better because it kneecaps the EPA.

Alito’s decision to ignore decades of “deference to a reasonable interpretation of the straight text,” is nearly as jaw-dropping as the decision to ignore decades of precedent and overrule Roe.

From this point on, one will see conservative jurists – especially those with an agenda, the type that Trump put in place, now citing this case as precedent to insert “better words” that Congress “actually meant to say” but didn’t.

And screw deference.

Kavanaugh is – from the evidence we’ve seen – a rapist and a horrific jurist when it comes to freedoms under the due process clause, but in this one case, he is exactly right.

It is just too bad that in the same case, the conservatives used their extra hole card and were able to get their way because they have a 6-3  advantage. So Kavanaugh crossing the line did nothing.

Alito won.

You always will when you get to put a new word into the law and convince your buddies that the word “works better” to get the desired result.

But at least Kavanaugh took his shot. There might be a bit of divisiveness within the conservatives on the court and that is a good thing.

Because there’s only one way to get the other one back, join the liberals and pound your right-wing enemy.

I can be reached at [email protected], and @JasonMiciak