The U.S. Chamber Backs Water Pollution
Co-authored by: Kendall Chappell, Gabriela Carson, Nina Jacobs, and Grant Van Robays, April 1, 2022
The U.S. Chamber of Commerce continues to advocate for a strict interpretation of “Waters of the United States,” a notion that would allow corporations to pollute significantly more bodies of water without a permit.
For months, the U.S. Chamber of Commerce fought to prolong the harmful Trump-era Navigable Waters Protection Rule, which deregulates the Clean Water Act and furthers water insecurity. The Chamber's efforts have ultimately failed, as the EPA and U.S. Civil Works halted the Rule’s implementation after a federal judge struck it down. Sacrificing our important waterways to the subject of a destructive free market, the U.S. Chamber of Commerce wielded the Navigable Waters Protection Rule as a pass to pollute. The Chamber’s lawyers advocated to maximize the window of opportunity for industry to pollute our navigable waterways and in the process fast-track carbon infrastructure.
What is fracking?
Fracking, or hydraulic fracturing, is a water-intensive process that injects a mixture of water, sand, and chemicals known as proppants into a well to break up underground bedrock to free up oil or gas. Put another way, drillers want access to valuable natural gas or fossil fuel reserves trapped thousands of feet below the surface in massive rock formations. To do so, they pump millions of gallons of water (mixed with small amounts of sand and potentially hazardous chemicals) at high pressures to fracture the bedrock and funnel oil or gas up to the surface. This water is usually taken from groundwater and surface water sources, which can put a strain on local water resources, especially in regions growing more and more water scarce due to climate change. The contaminated wastewater post-fracking is then stored in designated storage pits and tanks. In some cases, however, unknown chemicals can be disposed of into bodies of freshwater and pose risks to public drinking water.
Due to the obvious concern over contaminated drinking water, the EPA underwent a lengthy review in 2016 of fracking and its impacts on drinking water resources. The final report concluded that fracking can impact drinking water under some circumstances and has in some cases resulted in contamination of public drinking sources. Researchers documented key factors and circumstances that heighten the risk of contaminating and/or negatively impacting drinking water, such as withdrawing water in areas of low water availability, spills during the management of fracking fluids and chemicals or produced water that result in large volumes or high concentrations of chemicals reaching groundwater resources, and the injection of fracking fluids into wells with inadequate mechanical integrity. Importantly, the EPA report claimed to have not found evidence of “widespread systemic impacts” of fracking on the nation’s drinking water. Did spills and contamination happen? Absolutely, but only a handful of isolated incidents. Case closed, right? Not so fast.
It is vitally important to consider a few things here before giving fracking a clean bill of health. First, the EPA analysis noted that large data gaps and uncertainties surrounding fracking and its effects on drinking water remain. Second, the report’s executive summary was edited the day before release to make the “no widespread systemic impacts” claim. In previous drafts, researchers were more emphatic of the instances whereby fracking contaminated drinking water. In other words, the report was curiously changed on the eve of its release to potentially downplay or minimize the true impact of fracking on water. Furthermore, fracking is known to degrade groundwater and surface water quality and induce seismicity from the injection of fluids into wells. It is important to keep these adverse effects of fracking in mind, regardless of whether it leads to widespread contamination of drinking water.
The EPA is tasked with monitoring federal waters for unsafe chemicals and contaminants, but an independent, peer-reviewed study by an EPA scientist suggests that certain labs are inadequate for detecting fracking chemicals (common fracking chemicals include methanol, ethylene glycol, and propargyl alcohol.) The aforementioned study, which was conducted in Pavillion, Wyoming, concluded that wells in Pavillion “were contaminated with fracking wastes that are typically stored in unlined pits dug into the ground...the entire groundwater resource in the Wind River Basin is contaminated with chemicals linked to hydraulic fracturing.” Methanol concentrations especially identify fracking as the cause of contamination. In addition, fracking in shallow wells in Pavillion poses a greater risk to drinking water supplies due to proximity to aquifers.
There is a justified concern about fracking and its water contamination potential among many communities. This concern extends to the NWPR’s wording, which does not specify how waterways that are connected below the surface should be handled. One term frequently cited in challenges to the NWPR is “subsurface hydrology.” Subsurface water, commonly referred to as groundwater, “may return to earth’s surface as perched flow, such as from a spring or seep, or subsurface (baseflow) return to streams, creeks, and rivers.”
Groundwater makes up about 30 percent of the world’s drinking water supply, and can mix with nearby wetlands, lakes, and rivers, all of which support communities and diverse forms of life.
History of U.S. Chamber’s Involvement
There are many stakeholders affected by the delineation of federal waters. In 1972, the Clean Water Act (CWA) made discharging any pollutant from a point source into navigable waters illegal without a permit. Clean Water programs derived from the Clean Water Act largely apply to Waters of the United States (WOTUS), as they are considered to be “navigable waters.” In 1986, the Code of Federal Regulations further defined navigable waters as “waters that are subject to [oceanic] tides and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” The definition of “navigable,” however, is highly contentious. One fact that is not disputed is that there has been a lack of consistency in the governance of waters in the United States. The lack of a clear definition on what constitutes “navigable” waters has led to decades of debate and ultimately allowed the courts to define the term.
In 2015, the Obama administration’s Environmental Protection Agency (EPA) and Army Corps of Engineers implemented an expanded and more concrete definition of federal waters that increased their jurisdiction. In 2017, President Trump’s Executive Order 13778 directed the EPA and Army of Civil Works to review the definition of WOTUS in the CWA. The executive order sought to “ensure the Nation’s navigable waters are free from pollution while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Trump administration then repealed this 2015 Rule in favor of the Navigable Waters Protection Rule (NWPR), which “reduced the scope and oversight of the EPA and Corps in traditionally non-navigable waterways” under the CWA. Hence, the NWPR would clarify where environmentally-damaging extractive activities such as hydraulic fracturing, also known as fracking, could occur. This legislation removed federal pollution oversight from some tributaries and many lakes, ponds, and wetlands. The EPA estimates the NWPR removed CWA protections from 18 percent of the nation’s streams (including more than a third of streams in the arid west) and over 50 percent of the nation’s wetlands.
The U.S. Chamber of Commerce has issued statements throughout the debate process advocating for small businesses that could benefit from the NWPR. Most are written by Chuck Chaitovitz, the Chamber’s VP of Environmental Affairs and Sustainability. According to his profile on the Chamber’s official website, he has worked in strategic communications and marketing as well as consulting for various water projects. In an open letter to Damaris Christensen (EPA) and Stacey Jensen (Army Corps of Engineers) that was posted before the NWPR was vacated, Chaitovitz suggested more time for review on the future of the NWPR on behalf of the Chamber. The letter argues that a more precise definition of federal waters would “promote both long-term environmental stewardship and economic recovery,” in response to the pandemic and its economic repercussions. The Chamber has advocated for clarity, stability, and consistency when it comes to rulings.
The statement also suggests that longer time to deliberate would ensure a better assessment of stakeholder input, including those concerning environmental justice. However, challenges to the NWPR have typically been more reflective of those with actual environmental justice concerns.
The Chamber’s team of lawyers are skilled and experienced – they should know better than to support the continued use of the Navigable Waters Protection Rule. Seven of their lawyers have significant government litigation experience, all of their lawyers have significant private sector litigation experience, and four clerked for Justices on the U.S. Supreme Court. With this experience, you would think these lawyers wouldn’t advocate for a provision that a federal judge recognized as a "rule making process of errors" and “causing serious environmental harm”.
In 2020, President Biden revoked President Trump’s Executive Order 13778 with the goal of “protecting public health and the environment and restoring science to tackle the climate crisis.” Knowing it could take years for the Biden Administration to make a new definition of Navigable Waters, the Chamber has attempted to extend the use of Trump’s water deregulation in tune with their policies that habitually prioritize businesses' profits over human and environmental health. The Chamber filed amicus briefs supporting the continued use of the NWPR in:
State of California v. Regan
South Carolina Coastal Conservation League v. Regan
Northern Plains Resource Council v. U.S. Army Corps of Engineers
In these cases, the Chamber submitted amicus briefs that defended ‘remand without vacatur,’ a judicial process that allows agency orders or rules to remain in effect after being sent back for further agency proceedings. By doing so, the Chamber aimed to give industry a larger window to pollute and to create infrastructure and buildings whose construction would otherwise be blocked for their environmental harm.
A network of trade groups and advocacy organizations funded by the oil and gas industry have aggressively lobbied the NWPR. Once the NWPR was vacated, another statement was posted on the Chamber website, this one credited to the Waters Advocacy Coalition. It states that “maintaining the NWPR is vital for continued economic growth in the US and has far-reaching implications for the businesses that provide 85% of the economy and the families that rely on them for jobs and goods.” They also advocate for clear rules in water protection legislation, and represent businesses from various sectors. The WAC’s homepage identifies it as a proponent of the NWPR and business interests. Under the name of “Waters Advocacy Coalition”, groups with notorious anti-climate records — including the U.S. Chamber — have sent recommendations to the EPA and the U.S. Army Corps of Engineers on how to define “Waters of the United States”. Some of these groups, including the American Petroleum Institute, also have members with direct links to fracking (e.g. ExxonMobil, Chevron, ConocoPhillips, Halliburton).
These groups lobbied on the ruling in order to gain economic savings that occurred when the Navigable Waters rule took a narrow view. Pipeline company EQT Corporation argued that if the ruling ended up expanding the CWA’s jurisdiction, corporations would be required to apply for more permits and be held accountable for water waste, spill prevention, dredging and filling wetlands, and oil storage — all of which would “delay the development of our natural gas and oil projects.” By bypassing the time and money for federal permits that would have been needed to begin construction, corporations wasted no time in their quest for profit. In late 2020, Twin Pines Minerals began to work on their titanium dioxide mine by Georgia’s Okefenokee Swamp. This swamp is home to the largest National Wildlife Refuge east of the Mississippi. Yet Twin Pines Minerals were able to mine there because the wetlands were no longer protected under the NWPR, saving them tens of thousands of dollars in permit costs and fees. Environmentalists were quick to note that such mining “could cause irreparable harm to a fragile ecosystem that serves as a habitat for alligators, bald eagles and other protected species.”
On August 30th, 2021 the NWPR was vacated, which has introduced even more gray area into business proceedings. There was some uncertainty as to which legislation should be followed: the Obama era 2015 ruling, or the accepted, narrower definition of federal waters before it. And where does the Supreme Court come in? Strict delineations are most important when “projects involve more difficult issues, such as impacts to intermittent creeks and ditches.” Businesses crave explicit instructions detailing eligible disposal sites, for instance.
On September 3rd, 2021, the attorneys general of seventeen states, D.C., city of New York and the California State Water Resources Control Board urged the EPA to adopt pre-2015 Clean Water Act regulations. They argued that NWPR “removed protection for important waters, undermines and ignores the CWA’s water quality objective, contradicts well-established science, and fails to adequately consider the States’ reliance on the prior long-standing regulatory framework.” We must return to the framework before NWPR until the EPA releases a new definition of “Waters of the United States”. This will ensure that real federal oversight protects many of America’s most crucial waterways. If successful, the attorney general’s appeal to EPA administrator Regan will prevent any near-future attempts by the USCC to remove CWA protections.
In December of 2021, the EPA and Army Corps of Engineers proposed a new rule. One of the major changes would be the inclusion of “‘other waters’ that meet either the relatively permanent standard or the significant nexus standard” in the expanded definition of WOTUS. The “significant nexus” term has been especially contentious, and its meaning is defined as “waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.” As recently as October of 2021, the Chamber weighed in on the significant nexus issue, again citing lack of clarity as its weakness.
Impact of Lobbying Groups
The Chamber’s clear preference for a narrow interpretation of WOTUS is not unique – many business-aligned interest groups have similarly been advocating for the Trump-era rule. The courts have become an essential arena for these groups, allowing them to advocate for their preferences directly. This is why it is so important that the Chamber, along with many other interest groups, are using judicial elections to fund those who appear to be most aligned with their ideals.
According to several studies conducted in recent years, large donations have a significant impact on who judges choose to rule with. According to a study by Michael S. Kang and Joanna Shepherd, “a $1,000,000 contribution would increase the average probability that a partisan judge would vote for a business litigant in a tort case by an astounding 60%.” A different study by the American Constitution Society puts this value into proportions, stating that a justice who receives half of their contributions from a pro-business group would be expected to side with business interests nearly 2/3s of the time.
With the increase in campaign contributions has come an increase in the percent of incumbents defeated: in 1980, 4.3% of incumbents in nonpartisan races were defeated and 26.3% of incumbents in partisan races, while in 2000 those numbers were 8% and 45.5% respectively. Furthermore, over six times the money has been raised in state supreme court races between the 1989-1990 cycle and the 2009-2010 cycle; specifically, less than $6 mil was raised in 1989-90 while over $38 mil was raised in 2009-10. In terms of public perception, 76% of voters and 46% of judges believe that campaign contributions have some sort of influence on decisions.
Ultimately, much of the money going into judicial elections are derivatives of the Koch Brothers and their plethora of related lobbying groups. These groups are behind many of the campaigns of the Justices in the Wisconsin supreme court.
One instance of these groups funding justices who had to decide important environmental cases occurred in 2019 in the Wisconsin Supreme Court.
In 2017, Enbridge Energy was planning to upgrade one of its lines, which runs through Wisconsin. The company needed a conditional-use permit to build a pumping station, which one of the Wisconsin counties granted as long as the company carried extra spill insurance. However, state lawmakers intervened and passed a law banning counties from requiring specific insurances for certain oil companies. Despite this ban, the county kept the requirement in place. In this case, Enbridge wanted to strike the insurance requirement, while those near the pipeline wanted an injunction to enforce it.
The lawyer who represented the landowners said the justices are obligated to the state’s business lobby despite what the correct decision is legally; they specifically saying “the majority will do as Wisconsin Manufacturers and Commerce directs.”
In the case, the Wisconsin Manufacturers and Commerce filed a court brief siding with Enbridge--this company also donated to numerous of the justice’s campaigns. The conservative majority includes Chief Justice Patience Roggensack and Justices Annette Ziegler, Rebecca Bradley and Daniel Kelly, who first joined the supreme court between the years of 2007 and 2020.
Rebecca Bradley: Rebecca Bradley was elected to the court in 2015. In her election, several outside groups spent over $1 million dollars total in fundraising for her. The majority of this money was spent by the Wisconsin Alliance for Reform, a group with ties to the Koch Brothers. This group spent $1.8 million on ads against her opponent.
Daniel Kelly: Daniel Kelly was elected to the court in 2016, and left in 2020. The two major contributors to his campaign were the Republican State Leadership Committee and Wisconsin Manufacturers and Commerce. These groups donated a total of over $1.4 million. The Republican State Leadership Committee’s biggest funder in 2016 was the U.S. Chamber of Commerce, though it dropped to number 2 in 2018. In 2018, its biggest funder was the Judicial Confirmation Network. Another significant donor is the Judicial Crisis Network, which is funded substantially by the Wellspring Committee, a company founded with the help of the Koch Brothers.
Annette Ziegler: Annette Ziegler was elected to the court in 2007. Her campaign first started the trend of over $1 million spending towards state supreme court campaigns by outside interest groups.
Patience Roggensack: Patience Roggensack was elected to the court in 2003. The money that went to her race was mostly funded by the Judicial Crisis Network through the Wisconsin Club for Growth. The Judicial Crisis Network put $500k into her reelection campaign in 2013. Other groups which donated to her reelection campaign include the Wisconsin Manufacturers and Commerce, as well as the Wisconsin Realtors Political Fund.
This also applies to judges who are appointed by the President. Generally, these judges will be referred by congresspeople from their state-- the congresspeople can also be influenced by special interests to choose certain nominees. In the 2020 Senate Judiciary Committee, throughout their political careers, have received 13 million from oil companies total. Over the twelve members, these numbers range from over $200,000 to over $4 million per senator.
Judge Terry Doughty was referred by two U.S. Senators; Bill Cassidy’s campaign has made over $1 million from oil companies between 2013 and 2018; John Neely Kennedy has made over $600k from oil companies between 2015 and 2020.
In the Western District of Louisiana, Doughty denied several environmental groups permission to intervene in multiple oil leasing suits which aim to overturn Biden’s oil and gas moratorium on federal lands. In doing so, Doughty narrowed the scope of the litigation to simply whether the Biden Administration had the authority to pause leasing in offshore waters and federal lands. He also denied moving the Louisiana case to wyoming.
Due to several Supreme Court cases in recent years, what these corporations are doing is technically legal. However, there is reason to believe that it violates the U.S. Judicial Code of Conduct. Cannon 2B forbids outside influence, specifically stating that “a judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” However, despite this and as mentioned earlier, almost half of all judges and 76% of voters believe these contributions do influence decisions. Several studies also indicate otherwise.
Despite this, judicial misconduct cases are few and far between. According to an NBC News article, while thousands of judicial complaints are filed each year, only a handful result in sanctions or a resignation. Furthermore, according to Reuters, thousands of judges who have specifically broken the law or their oaths remain in their positions. Just because there has been no action taken against these judges does not mean they are doing what is expected of them; this is clearly not the case.
Looking Ahead: The Chamber’s Continued Meddling
The world is approaching a tipping point with climate change, as highlighted by the UN's Intergovernmental Panel on Climate Change’s latest report that the UN’s Secretary-General called a “code-red for humanity.” We must act urgently to mitigate our environmental harm before it is too late. We do not have time for the Chamber’s deregulation which allows high-pollution industries to have a frenzied grab for money and power. We need strong climate policies now, including a clear definition that preserves our waterways for future generations.
The U.S. Chamber of Commerce will continue to fight for free market polluting principles that show their greed and disregard for our planet. It does not begin nor end with the Navigable Waters Protection Rule. They have a clear history, with Congress calling on the Chamber to speak about their role in climate disinformation.
Since 2005, the USCC has been involved in dozens of cases pertaining to the CWA, either through filing amicus briefs, an intervenors-defendant, or as a plaintiff, often in a role opposing policies that protect the health of our water. The Chamber must listen to the science and get on the right side of history. However, just as the Chamber denied climate change until 2019, this trade organization won’t change until corporations force the Chamber’s hand. Until companies stand up to the Chamber, either by demanding internal change, discontinuing donations, or withdrawing from the US Chamber entirely, the Chamber will continue to defend climate disaster.