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Biden administration will roll back Trump’s weakening of Clean Water Act protections

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The heart of the issue is a long-running battle over just what ought to count as the “waters” of the United States, when it comes to providing the anti-pollution protections of the Clean Water Act. The Obama administration’s rule greatly broadened the scope of the act by including wetlands, streams, and other small waterways that had previously gone unprotected. This meant that polluters leaking fertilizers or other toxins into small streams, including streams that might flow only during wet months but not try ones, could be held to account using the Clean Water Act that already protects the larger bodies of water they flow into. It was a logical move; restrictions on the dumping of toxic material into the national water supply are considerably weakened if polluters can simply do the dumping farther upstream, in places where the rules do not apply.

The new rules were absolutely hated by farm bureaus and other agricultural lobbyists. By broadly expanding the range of anti-pollution regulations to include even seasonal wetlands and the like, considerable new portions of their membership suddenly found themselves subjected to rules prohibiting the runoff of fertilizer and agricultural chemicals used in nearby fields. Conservative farming communities, in particular, lost their minds over what has previously been seen as a God-given right to pollute in their own personal neighborhoods.

Developers were similarly up in arms. Anyone who has seen a modern housing development being constructed can attest that the usual method starts with a large-scale reshaping of the land that flattens each hill and either fills gullies or redirects them into concrete channels or underground pipes. If seasonal creeks could no longer be paved over or turned into storm drains for draining the new development’s streets, megadevelopments of the sort preferred by the largest development companies would suddenly require far more expensive designs.

Trump’s team scrubbed the rule in 2019, instead formulating a new one focused only on protecting “navigable” waters. The short version might be “if you can’t put a boat in it, it doesn’t count,” and Trump’s conservatives thus nullified the majority of the new protections.

The Biden EPA now finds itself searching for a new version that will restore most of those protections—because, again, agricultural and development runoff is responsible for massive amounts of pollution, a problem both for drinking water supplies downstream and one that threatens the major waterways that are inarguably protected by the Clean Water Act—while possibly coming to a compromise position that does not result in agricultural lobbyists erupting over the existential threat caused by having to block fertilizers from entering nearby waterways, or development lobbyists declaring that our very way of life is threatened if bulldozers have to choose more delicate paths around natural features.

This may well be impossible, of course. If the metric is simply one of keeping prohibited toxins out of natural waterways and local drinking supplies, it seems possible that a common definition could be reached. Once you start getting into the “right” of property owners to erase streams from existence or redirect water from new streets and lawns into whatever culverts can least expensively make it someone else’s problem, things get dicier.


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Live coverage: August 3, 2021 Ohio special election primaries

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Polls close at 7:30 PM ET in the Buckeye State, where voters will select candidates for the Nov. 2 general election in the 11th and 15th Congressional Districts. The Democratic primary in the 11th District and the Republican primary in the 15th District are the main events, and we’ll be live-blogging the results. You can check out a preview of those contests here.

Washington will also be holding top-two primary contests for mayor of Seattle and King County executive; the polls close at 11 PM ET/ 8 PM local time.

Results: OH-11 | OH-15 | Washington

Tuesday, Aug 3, 2021 · 11:37:46 PM +00:00 · David Beard

Welcome to tonight’s liveblog! Polls have closed in the Ohio 11th and 15th special Congressional primaries. Turnout for the OH-11 primary has already surpassed 78,000 votes, which is more than the 2020 primary vote total for this seat.

Tuesday, Aug 3, 2021 · 11:50:27 PM +00:00 · David Beard

With just over 20k votes tallied in the 11th district Democratic primary, Cuyahoga County Councilwoman Shontel Brown is leading former state Sen. Nina Turner by 56%-36%.

Tuesday, Aug 3, 2021 · 11:56:05 PM +00:00 · David Beard

Over in the 15th district Republican primary, Tump-backed coal company lobbyist Mike Carey has an early lead with 36% of the vote, followed by State Rep. Jeff LaRe with 18% and State Sen. Bob Peterson with 15%. Only about 5,000 votes have been tallied there, though, so it’s still very early.


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Biden sets record for judges and more diversity on federal bench, thanks to filibuster reform

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“We’re so pleased with both the pace and high quality of the Biden nominees, particularly that so many come from all corners of the legal profession,” Nan Aaron, outgoing president of the Alliance for Justice, told the Associated Press. “It’s a wonderful departure from previous Democratic administrations.” It really is, reflecting a prioritization of the judiciary that previously only Republicans seemed to hold.

That means that rock stars like Ketanji Brown Jackson, a potential Supreme Court nominee, are advancing. She was the first of Biden’s picks to be seated, and is the first Black woman confirmed for an appeals court seat in a decade. Other recent appointees are Tiffany Cunningham, the first Black judge in U.S. history for the Federal Circuit (the court that hears appeals from every jurisdiction primarily on patents), and Candace Jackson-Akiwumi, only the second Black woman on the U.S. Court of Appeals for the Seventh Circuit.

Myrna Pérez spent 15 years as a voting rights advocate at the Brennan Center for Justice. Her confirmation hearing was in mid-July. Her fierce advocacy for voting rights makes her the most controversial among appeals court nominees—she would become the only Latina on the Second Circuit, filling a role previously held by now-Supreme Court Justice Sonia Sotomayor. “The right to vote keeps us free. It protects us from tyranny. It is preservative of all other rights,” she said at the hearing. “And as an advocate, I have been duty bound to ensure that the promises this Constitution makes about being able to participate in your own self governance are actualized.”

Certainly with a deep belief in our democratic system like that, she’s not going to get Republican votes. But she doesn’t need to because there isn’t a filibuster for judicial nominees any more, thanks to Harry Reid and his decision in 2013 to change the filibuster rule. That’s the one thing that got Obama those nominees he did get seated—it broke McConnell’s blockade on lower court judges—and meant that many fewer vacancies for the former guy to fill.

Which means fantastic people like these are getting onto the courts to help dilute the effect of the Trump/McConnell judges. That’s a fantastic thing, once again demonstrating that getting rid of the filibuster can make good things happen.

We need more of them on the courts, all the way up to the very top: the Supreme Court. Because McConnell has packed the courts with an unprecedented number of unqualified and extremist jurists, many of whom are young and will be there for decades. Extremists who are far out of the political and cultural mainstream of America. They have to be countered. Fighting for justice demands it. These fantastic new judges need backup.

Neither filibuster reform nor expanding the courts needs to be scary for Democrats right now. Both could very well be necessary if democracy as we know it survives.


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Biden admin is allowing Stephen Miller to continue dictating immigration policy

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Legislators, advocates, and medical experts alike have been calling on the Biden administration since Day One to end the anti-asylum Title 42 policy, which was revealed by the Associated Press last October to have been implemented under political pressure from the previous administration. CDC experts at first refused to endorse it, saying there was no public health reason to do so. “That was a Stephen Miller special. He was all over that,” a former Pence aide said in that report. “There was a lot of pressure on DHS and CDC to push this forward.” 

These political officials were salivating over it for a reason. It’s proven more effective than any physical wall, advocates have said, quickly deporting hundreds of thousands of people. 

But months into the new administration, officials refused to end the policy, instead agreeing during negotiations with the ACLU to ease restrictions and process a small number of vulnerable asylum-seekers at at time. But advocates also continued pressure on the administration to end it outright, noting the harm it has inflicted on Black migrants in particular. Under the policy, more Haitians have been deported in the first months of the Biden administration than the previous administration carried out in a whole year.

“We must be decisive and unapologetic in our efforts to dismantle racist and discriminatory policies. Title 42 is no exception,” Massachusetts Rep. Ayanna Pressley said. In a clear indication of that, the previous president’s unlawfully appointed acting Department of Homeland Security secretary, Chad Wolf, cheered the Biden administration’s decision to keep Title 42 in place.

The New York Times reports that the Biden administration had considered phasing out the policy by the end of summer. Roughly one month later, that plan was scrapped, supposedly out of concerns over the delta variant. “Delaying those plans, possibly through the end of the year, is sure to be welcomed by Republicans who have proposed legislation to maintain the rule for as long as necessary,” the report continued. 

Groups including the ACLU, Texas Civil Rights Project, Refugee and Immigrant Center for Education and Legal Services (RAICES), Center for Gender & Refugee Studies, Oxfam, ACLU of Texas, and ACLU of the District of Columbia say the policy violates “longstanding immigration statutes requiring that asylum seekers receive a full and fair proceeding to determine their right to protection in the United States.” While unaccompanied children and some families are being allowed to enter the U.S., many are still being quickly expelled back to danger. Now groups are returning to court to attempt to restore the asylum system.

“We took the government to court over Title 42 because the lives of children, entire families, and extremely vulnerable people are on the line,” said Texas Civil Rights Project senior attorney Karla Marisol Vargas. “It’s beyond cruel to use an obscure public health rule to turn away families seeking safety without due process and functionally shut down our asylum system—it’s illegal. People have a legal right to seek safety in America and our government has the resources to safely process them into the country to have their cases heard. Initial promises on the part of the Biden administration to phase out Title 42 for only family units will not do enough. It is time to double down on the push to end Title 42 and force the government to follow the law.”

“It’s racist, it’s illegal, and it has no valid basis in public health, as medical experts have attested for over a year now,” said Center for Gender & Refugee Studies managing attorney Neela Chakravartula. “That the administration has chosen to continue this Trump-era policy, which violates our domestic and international legal obligations to refugees, is a moral failure and an abdication of leadership.”


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