October 17, 2022

Tack Into The Wind

Posted on October 17, 2022 by Chuck Becker


DeMo Crate, LLC,
Republic Canning Co.,

    Justice Toldyu[i] delivered the opinion of the Court, in which Justice Wingit joined; Justice Lucid files a dissenting opinion.


          Nestled between the vibrant city of Des Moines, Iowa[ii] and the opera-rich city of Indianola[iii], rests two industries that have battled each other for decades because they happen to share a common property line. A Des Moines crate making company, DeMo Crate, LLC (“DMC”), sits next to a metal fabrication company, Republic Canning Co. (“RCC”). For many years, DMC has been very vocal about the fact that RCC discharges large amounts of phosphorous-tainted wastewater by injecting it into the groundwater table below their facility. The phosphorous-laden water passes under the DMC facility, polluting the wells used by DMC, and ultimately discharges into the Racoon River.

          After many unsuccessful attempts to convince RCC to stop its polluting (mostly done by standing at the fence line and shouting “Stop Polluting!  You Are Monsters!”), DMC decided to bring the pending action asserting that it has a constitutional right to untainted groundwater and that the discharges violated EPA regulations. The District Court granted summary judgment to DMC on both claims. After all consideration that is due, we reverse and remand with direction.


          We first address DMC’s claim that the United States Constitution protects the right to have pollution-free groundwater on its property. 

          As set out in the recent case of Dobbs v. Jackson Women’s Health Organization, all Constitutional claims must start with an examination of whether the subject matter was addressed in the Constitution.[iv] For this analysis, we must consider the meaning of critical terms. “Groundwater” is a unique and distinct concept. It is not the same as “ground” or “water.” With that important observation made, we turn to an analysis of the constitutional claim.

          We have diligently searched the words of the U.S. Constitution and its Amendments.[v]  We were able to find references to “ground” and “water,” but, shocking though it may be to some, the term “groundwater” is found nowhere in those documents.[vi]

          The next question, then, is whether the protection of groundwater is “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.”[vii]  But how could it be so, if it was not even mentioned in the Constitution? Moreover, there was no significant concern for the environment until President Nixon created the EPA in 1970, just twenty-five months before Roe was decided.  Thus, the shallow-root finding of Dobbs[viii] certainly applies to the present case.  

          Based on our analysis, we hold that matters related to groundwater do not enjoy constitutional protection in any manner.


          DMC next claims that the regulations of the U.S. Environmental Protection Agency clearly prohibit RCC’s discharges. We agree that any reading of those regulations would identify multiple regulatory violations. The real question this Court wants to address, however, is whether the regulation of groundwater by the Agency can ever be within the power granted to it by the Clean Water Act.[ix]

          We are somewhat sensitive to the fact that DMC has argued that, since the mid-1970s, the environment and environmental regulation has, to a group of activists, been critically important.  But this argument does not so much support DMC’s position as refute it.[✖]  It would appear that DMC contends every environmental issue has “vast economic and political significance.”[xi]  We agree and we think it highly unlikely that a right-thinking Congress would place something as important as the environment in the hands of thousands of experts at EPA.[xii]  Thus, under the precedents we now choose to follow, we find this is a “major questions” case.[xiii]  For that reason, we hold that all environmental oversight rises to the level of major questions and must, therefore, be directly regulated by Congress. Additionally, following the doctrine of sequitur quod, briefing and arguing being unnecessary, we take this opportunity to hold that deference to agency interpretation is no more.[xiv]


          DMC, you and your ilk keep pounding your chest and screaming that the environment must be protected or we will all end up in an ash heap.  And the facts are on your side.  The problem is, this is not a lack-of-information issue.[xv]  Your attempts at high-volume education are not working.[xvi]  The opposition long ago dismissed your claims and is now deaf to them.[xvii]  Even if you believe this is a good way to gain the vote of the individuals across the aisle (which it isn’t), all you accomplish is to alienate half of Congress and give yourselves red chests. Find another way.[xviii]

          Likewise, RCC and your supporters, you say climate change isn’t happening.  Really? John McEnroe said it best: “You cannot be serious!”  And trying to argue that humans may not be the cause or that China must go first, is equally inane.[xix]  We are simply suggesting that denying science[xx] is not a particularly intelligent position.

          At least five of us in this country believe it is time for a different approach – a kinder, more profitable approach.  Like it or not, we live in a capitalistic society and there is a great deal of money that can be saved and jobs that can be created through environmental compliance.[xxi]  Even President Biden says so.[xxii]  Let us show you how to apply that lesson.

          RCC is directed to cease its water discharge.  Des Moines Water Works has developed a process to recover the phosphorous which they then sell to farmers — for a modest profit.[xxiii]  You are to sell your wastewater to DMWW for the cost of transportation.  And DMC, in the future, if you want to get RCC to take some environmental action, get creative and figure out a way they can save money from it (or at least break even).  You’ll find that does wonders for the environment . . . and your chests.[xxiv]


Lucid, J.

With as much respect as I can muster, I dissent:

When the doctrine of allegiance to party can utterly up-end a man’s moral constitution and make a temporary fool of him besides, what excuse are you going to offer for preaching it, teaching it, extending it, perpetuating it? Shall you say the best good of the country demands allegiance to party? Shall you also demand that a man kick his truth and his conscience into the gutter and become a mouthing lunatic, besides?

Mark Twain (1887)

[i] The Court notes that of its nine members, six have chosen to recuse themselves.  Justice Balance sees no future in the judicial branch, Justice Forall fell ill from recent rulings and the remaining four members own significant amounts of  Defendant’s stock so, although they point out there is no ethical requirement, they choose to step aside.

[ii] DSM USA – Rankings.

[iii]Chicago Tribune – World-Class Opera Grows Tall and Proud in the Corn Belt.    

[iv] Dobbs, 142 S.Ct. 2228, 2244 – 45 (2022).

[v] For purposes of this opinion only, we will consider the Amendments to be part of our Constitutional analysis without deciding whether they were, in fact, unnecessary surplusage and/or invalidly approved by the States, which we reserve for another day.

[vi] See Dobbs, 142 S. Ct. at 2242, 2245 (finding the word “abortion” was surprisingly not in the Constitution). Preemptively, we note that this same rigorous analysis applies to “wastewater,” “landfill” and “stormwater.” We would observe, in passing, that “environment” is also not found in the documents — we’re just saying. Additionally, to aid businesses with long-term planning, we believe that, for the next thirty years or so, this analysis will likely prevail.

[vii] Id. at 2246.

[viii] Id. at 2253.

[ix] We recognize that the facts sound similar to those in County of Maui v. Hawaii Wildlife Fund, et.  al., 140 S.Ct. 1462 (2020). We do not believe that a case so recent constitutes valid precedent. In all events, the issues raised in this case are significantly different. At least five of us now recognize that the Maui court was not asked to consider the critical issue of whether EPA has, or should have, authority over any groundwater, even if there is some “functional equivalent of a direct discharge.” Id. at 1476. That question now needs to be addressed. We have consulted with John and Timmy (Id. at 1475) who are in agreement.

[✖] See similar clever word play at West Virginia v. EPA, 142 S.Ct. 2587, 2612 (2022).

[xi] Id. at 2605.

[xii] See similar skepticism id. at 2612 – 13.

[xiii] See conclusively id. at 2610. The Clean Air Act and the Clean Water Act are pretty analogous. A similar  question relating to the Clean Air Act was soundly rejected. See trouncing id. at 2600, 2616.

[xiv] See for the last time Chevron v. NRDC, 467 U.S. 837 (1984).

[xv] The political parties have picked a side and your information threatens that decision.  You are not going to change that with more facts.

[xvi] You need votes – ask your spouse how often yelling helped with that.

[xvii] You should recognize that your opposition is simply going to avoid facts that are inconsistent with their views.  Regrettably, repetition does not solve this problem.

[xviii] We are confident you can take a different tack.  Think less stick and more carrot.

[xix] We view these as factual facts, not just ordinary facts, as should you.

[xx] There is 97% agreement by experts that global warming is caused by humans.   There are no plausible arguments to the contrary.

[xxi] RCC, despite what you think, you are not smarter than Ikea, Johnson & Johnson, Nova Nordisk, Siemens, Philips, Nike, United Airlines, Patagonia or even Nestle. You do not have to believe in climate change, just in making money.

[xxii] Roll Call – Biden’s New Pitch: Saving the Planet Saves Families’ Money (3/3/22). We use the term “President” here somewhat loosely as we do not want to prejudge challenges to the last election currently being contemplated in some States.

[xxiii] The facility will convert captured phosphorus into pellets and sell the pellets as fertilizer.

[xxiv] While we do not know how our opinion will be received by about one-half the general public, we are not particularly concerned. See repeatedly supra note 6.  The Court cannot allow our decisions to be affected by such extraneous concerns. Dobbs, 142 S.Ct. at 2278.  Our charge is to interpret the laws. Id. at 2279. While it is possible that some of the cited decisions could have a divisive impact between the States, we consider that to be more of a linguistic problem than a legal one.  For that reason, we believe future references to, say, SCOTUS should properly be to SCOTS. We suggest POTS and FLOTS would also be appropriate.