The Hill’s Morning Report — Will justices redefine EPA’s power over clean water?

by Alexis Simendinger and Kristina Karisch - 10/04/22 6:50 AM ET

The Supreme Court on Monday began its new term with arguments about wetlands and the regulatory reach of the Environmental Protection Agency as newcomer Justice Ketanji Brown Jackson dove in with questions.

The case stemmed from a 2007 property dispute in which Idaho landowners Michael and Chantell Sackett were told they needed a federal permit to build a home on land they owned because it supposedly contained regulated wetlands under the Clean Water Act. The Sacketts believe the government’s power over their plans to build is too broad. The Hill’s Rachel Frazin and John Kruzel report that the stakes are significant as justices on the conservative majority court weigh when and how wetlands can be regulated under the federal statute.

Jackson, who is expected to round out the court’s liberal wing, explored Congress’s intentions, the meaning of “adjacent” and the purpose of the nearly 50-year-old Clean Water Act.

Vigorously questioning a lawyer for the property owners, Jackson asked, “I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”

The court on Monday agreed to take up a significant case about whether tech companies should have immunity over problematic social media content posted by users (NBC News).

Justices declined to consider an appeal in a defamation suit involving MyPillow CEO Mike Lindell, an outspoken ally of former President Trump (USA Today). The court also declined to consider the latest challenge to a federal ban on bump stocks, keeping in place the prohibition on devices that essentially allow shooters to fire semiautomatic rifles continuously with one pull of a trigger (CNN).

The Hill: Justices also turned aside a case about whether the Justice Department can use “filter teams,” for example personnel used by the department for a review of documents seized from Mar-a-Lago during the summer.

Consequential cases to be argued beginning today and throughout the term include whether Alabama must draw an additional Black majority congressional district and a controversial Republican-led appeal that could dramatically change the way congressional and presidential elections are conducted by handing more power to state legislatures (NBC News and news wires).

Justices this term will also weigh whether a Colorado website designer can refuse to work with clients who are same-sex couples based on her personal religious objections. Next month, the justices will hear a challenge to the consideration of race in college admissions.

Related Articles

▪ The New York Times, Adam Liptak: On term’s first day, justices hear a case on EPA’s power over wetlands.

▪ The Hill: Assistant U.S. Attorney Jeffrey Nestler on Monday outlined a sprawling sedition case against Oath Keepers leader Stewart Rhodes and four others.

LEADING THE DAY

➤ STATE & TERRITORY WATCH

President Biden on Monday flew to Puerto Rico to survey the federal response to last month’s Hurricane Fiona and announced $60 million in additional funding through the newly enacted infrastructure law to help repair levees, fortify the island’s floodwalls and create a new flood warning system for the U.S. territory’s 2.6 million residents.

“I’m committed to this island,” Biden said in Puerto Rico during remarks on a sweltering hot day. “You deserve every bit of help this country can give you” (Yahoo News).

Before leaving Washington, the president told reporters, “They haven’t been taken very good care of. They’ve been trying like hell to catch up from the last hurricane. I want to see the state of affairs today and make sure we push everything we can.“

The Hill: In Puerto Rico, Biden drew a contrast with the Trump administration.

Fiona struck the island as a Category 1 storm on Sept. 18, dumping nearly 30 inches of rain, triggering floods and mudslides, washing away bridges and causing widespread and lingering power outages. More than 120,000 homes and businesses are still without power. At least 16 deaths have been connected to the storm as parts of the island are still recovering from the damage caused by Hurricane Maria, which hit Puerto Rico as a Category 4 hurricane in 2017, killing nearly 3,000 people.

Biden will arrive in Florida on Wednesday to lend the same attentive empathy following the wrath of Hurricane Ian, vowing that the federal government will help the Sunshine State rebuild after a Category 4 storm last week led to the deaths of at least 101 people in the United States (CNN).

Most of the fatalities reported in Florida and North Carolina resulted from drowning but some were blamed on harsh consequences in the aftermath of the storm, such as an elderly couple who died after power to their oxygen machines shut off (AccuWeather).

Flooding continues in multiple counties and some residents and businesses in storm-damaged areas may not have power for “weeks or months” because of structural damage caused by the hurricane, Eric Silagy, president and CEO of Florida Power and Light Company, told CNN. Electricity may not be restored on Fort Myers Beach, Fla., for 30 days because of the destruction, Lee County Manager Roger Desjarlais added.

More than 440,500 Florida homes, businesses and other customers were without power as of this morning, according to PowerOutage.us. The National Guard will transport power crews by air to Sanibel and Pine islands to assess damage and start working on restoring power, Florida Republican Gov. Ron DeSantis told reporters.

Many residents remain without potable tap water, according to the Florida Health Department, which issued advisories to boil water for drinking.

More state headlines:

▪ WMUR: New Hampshire Republican Gov. Chris Sununu announced Monday he deployed National Guard units to the U.S. southern border with Mexico.

▪ The Hill: What happens if Lake Powell, a reservoir on the Colorado River in Utah and Arizona, runs out of water?

▪ The Hill: Tennessee Republican state lawmakers wrote to Vanderbilt University Medical Center last week seeking to halt gender-affirming surgeries performed on patients younger than 18.

IN FOCUS/SHARP TAKES

➤ POLITICS

Call it an October surprise. The all-important Georgia Senate race took new turns on Monday, five weeks before Election Day.

Herschel Walker, the Republican candidate and former football celebrity who describes his views as staunchly anti-abortion, allegedly paid for his then-girlfriend’s abortion in 2009, according to an investigation published by The Daily Beast. “She supported these claims with a $575 receipt from the abortion clinic, a ‘get well’ card from Walker, and a bank deposit receipt that included an image of a signed $700 personal check from Walker,” the outlet reported.

Walker staunchly denied the allegations on Monday night, calling the story a “flat-out lie” and a “repugnant hatchet job” (CNN).

Following the article’s publication, Christian Walker, the candidate’s 23-year-old son, published a series of tweets criticizing his father for “making a mockery” of the family.

“You’re not a ‘family man’ when you left us to bang a bunch of women, threatened to kill us, and had us move over 6 times in 6 months running from your violence,” he wrote. Walker’s son has not endorsed his father’s bid for office nor appeared publicly at his father’s events. The Atlanta Journal-Constitution described the Walker campaign as in “turmoil.”

Meanwhile, in Florida, lawsuits filed against the governor are moving ahead after DeSantis chartered planes to carry 50 migrants to Martha’s Vineyard, Mass., last month. Advocacy organizations alleged the migrants were deceived, removed from the locales of court-ordered appearances as asylum seekers and coerced to sign documents they could not read in English. DeSantis says his decision to use Florida public funds to transport migrants out of Texas helped underscore what he and other Republicans describe as a Biden administration immigration crisis at the U.S. southern border.

The migrants, who came from Venezuela, were flown from San Antonio to Florida and then to Massachusetts and were allegedly given false information about their destination and support they’d receive upon arrival.

Since then, a Texas sheriff, a Boston-based civil rights group called Lawyers for Civil Rights and a Florida state senator have filed lawsuits against DeSantis (NPR).

Florida state Sen. Jason Pizzo (D-North Miami Beach) in late September filed a lawsuit asking a judge to block the Republican governor from spending state money on the transports. The flights were paid for by the state of Florida using a $12 million fund created by the legislature earlier this year (Politico and NPR).

As The Hill’s Cheyanne Daniels writes, some advocates and lawmakers of color argue DeSantis’ relocations are reminiscent of a sinister chapter in U.S. history — when white supremacist groups bused Black families out of Southern states under false pretenses. Democratic lawmakers, led by Rep. Ayanna Pressley (Mass.) wrote to the Department of Homeland Security stating DeSantis’ actions were “rooted in racism and xenophobia.”

“In 1962, southern White Citizen Councils started ‘Reverse Freedom Rides’ to remove Black people from their states based on false promises,” the letter said, adding that the actions of DeSantis, along with fellow Republican governors Greg Abbott of Texas and Doug Ducey (Ariz.), are no different.

▪ The Hill: DeSantis takes over the national conversation.

▪ The New York Times: The story behind DeSantis’ migrant flights to Martha’s Vineyard.

▪ MSNBC: DeSantis’ Martha’s Vineyard stunt comes into sharper focus.

Rep. Adam Schiff (D-Calif.) has his eyes on Speaker Nancy Pelosi’s (D-Calif.) job, sources told Politico. Schiff on Friday met with other Democrats in the Capitol to discuss planning for a possible leadership bid this fall. He’s not the only one thinking about the Speaker role: At least three other Democrats are reported to be similarly interested, and that’s assuming Pelosi will retire, which she hasn’t indicated she plans to do.

If Republicans win the House in November, House Minority Leader Kevin McCarthy (R-Calif.) has vowed to remove Schiff from committees, including the House Intelligence panel (Business Insider).

The simmering relationship between McCarthy and the House Freedom Caucus is set to get hotter if Republicans gain the majority, writes The Hill’s Emily Brooks. McCarthy has given the group a seat at the table, in part to win its support to cinch the Speakership in the event of a GOP win in November. Party leadership has met many of the group’s demands but experts say a battle over rules that would empower individual House members is turning up the heat.

Rep. Liz Cheney (R-Wyo.), vice chairwoman of the Jan. 6 panel investigating Trump’s efforts to overturn the results of the 2020 election, on Monday accused the former president of “racist” remarks that could incite violence. Cheney was reacting to Trump’s recent criticism that Senate Minority Leader Mitch McConnell (R-Ky.) must have a “DEATH WISH” for backing bipartisan legislation while also describing the senator’s Taiwan-born wife Elaine Chao, who served as Trump’s secretary of Transportation, as “China loving … Coco Chow” (The Hill). Rep. Bennie Thompson (D-Miss.), who chairs the Jan. 6 panel, joined in condemning Trump’s rhetoric (The Hill).

▪ Bloomberg News: Trump sues CNN for defamation, saying network fears he’ll run in 2024.

▪ The Washington Post: Trump lawyer refused his request in February to say all documents returned.

▪ The New York Times: These 193 Republican members of Congress legitimized the myth of a stolen election — and reaped the rewards.

➤ ADMINISTRATION

The Department of Veterans Affairs is wading into tense territory as it gears up to provide abortion access for the first time in its history, writes The Hill’s Jordan Williams. The agency’s decision to provide pregnant veterans and beneficiaries with abortion counseling and access quickly raised questions about whether the department has the necessary infrastructure to handle the demand — as well as the legality of performing abortion services in states with sharp restrictions.

Meanwhile, Republicans have already promised the department a tough time if they regain control of Congress in November, arguing that the agency is going against existing law banning the agency from performing abortions.

▪ The Washington Post: The Justice Department says it would defend Veterans’ Affairs medical workers in abortion cases.

▪ NBC News: Veterans agency performs its first abortion weeks after saying it would in certain cases.

▪ Bloomberg Law: Biden’s abortion offer for vets spotlights the limits of his power.

The Interior Department said on Monday it will require that body cameras be worn by U.S. Park Police and other department law enforcement personnel under a new policy (The Hill).

OPINION

■ Putin threatens nuclear war. The West must deter disaster, by The Washington Post editorial board. https://wapo.st/3SX3ulX

■ Home ownership is way too hard for Millennials and Gen Z, by Jessica Karl, social media editor, Bloomberg Opinion. https://bloom.bg/3EhU9AS

WHERE AND WHEN

The House meets at noon for a pro forma session. Members are scheduled to return to the Capitol on Nov. 14.

The Senate convenes at 10 a.m. for a pro forma session. Senators also are scheduled to return for work on Nov. 14.

The president and Vice President Harris will receive the President’s Daily Brief at 10:30 a.m. Harris will separately deliver remarks at the Freedman’s Bank Forum at 11:25 a.m. at the Treasury Department. She and the president will have lunch together at noon. Biden and the vice president at 3:30 p.m. will speak during a State Dining Room meeting of the federal Task Force on Reproductive Healthcare Access.

Secretary of State Antony Blinken is in Bogota, Colombia, where he speaks today at a Migration Integration Center.

Treasury Secretary Janet Yellen hosts the annual Freedman’s Bank Forum beginning at 10 a.m. at the department. She will speak, along with Council of Economic Advisers Chair Cecilia Rouse, Department of Housing and Urban Development Secretary Marcia Fudge and Treasury Deputy Secretary Wally Adeyemo.

Second gentleman Doug Emhoff will mark the 45th anniversary of the Department of Energy with a speech at 11 a.m.

The White House daily press briefing is scheduled at 1 p.m.

🖥 Hill.TV’s “Rising” program features news and interviews at http://digital-stage.thehill.com/hilltv, on YouTube and on Facebook at 10:30 a.m. ET. Also, check out the “Rising” podcast here.

ELSEWHERE

➤ INTERNATIONAL

As concerns grow that Russian President Vladimir Putin may escalate the war in Ukraine, U.S. officials are considering how to respond to a range of scenarios, including the possibility that Russia could use tactical nuclear weapons (CNN). While the U.S. has not detected preparations for nuclear strikes, experts are assessing Russia’s potential moves, The New York Times reports.

Ukrainian President Volodymyr Zelensky said small settlements located near the border of Kherson Oblast, which Russia attempted to annex in the south, have been liberated. Ukrainian successes in the east and the south occur even as Russia today moves to absorb four Ukrainian regions. The upper house of Russian parliament, the Federation Council, voted to ratify treaties to make the eastern Donetsk and Luhansk and the southern Kherson and Zaporizhzhia regions part of Russia.

▪ Politico: “Lots of heavy fighting ahead”: U.S. officials urge caution after Ukrainian gains.

▪ Reuters: Kremlin prefers “balance” after Putin ally suggests using nuclear bomb in Ukraine.

▪ Politico: It’s not impossible that Putin could use nuclear weapons, Defense Secretary Lloyd Austin said.

▪ The Hill: CIA director says it’s “hard to say” if Putin is “bluffing” on nuclear weapons.

North Korea fired a ballistic missile over Japan on Tuesday for the first time in five years, the South Korean military reported. The launch, which prompted warnings to seek shelter in two northern Japanese prefectures, represents a major escalation by North Korea. The U.S. and its allies are holding military drills in the region, prompting a series of missile tests (The New York Times). In a statement on Monday, the United States condemned the launch over Japan while National Security Adviser Jake Sullivan spoke with Japanese and South Korean counterparts to reinforce U.S. “ironclad” defense commitments and to discuss “appropriate and robust joint and international responses” to North Korea’s “dangerous and reckless” action.

▪ Reuters: North Korea conducts longest-range missile test yet over Japan.

▪ The Hill: U.S. condemns North Korea ballistic missile launch.

The Organization of the Petroleum Exporting Countries will meet Wednesday in Vienna, Austria, where the group of leading petroleum-producing countries will decide whether to cut global crude supplies and drive up the price of oil, The Hill’s Tobias Burns and Zack Budryk report. Industry analysts say they could cut up to 2 million barrels a day, pitting the Saudi-led group against the Biden administration and the Federal Reserve as they try to quell raging inflation rates ahead of the midterms.

The cut would also likely boost Russia’s oil and gas revenues, which the U.S. has been seeking to deplete as Russia’s invasion and annexation of Ukraine continues.

▪ Reuters: Oil jumps nearly $4 a barrel as OPEC weighs biggest output cut since 2020.

▪ CNBC: Oil prices could soon return to $100 a barrel as OPEC considers a “historic” cut.

▪ Bloomberg News: OPEC production cut poses new threat to Biden as election nears.

In Somalia, a U.S. airstrike on Saturday killed wanted al-Shabaab leader Abdullahi Nadir, who had a $3 million U.S. bounty on his head, the Pentagon announced on Monday (The Hill).

➤ HEALTH, SCIENCE & MEDICINE

Swedish geneticist Svante Pääbo won the Nobel Prize in Physiology or Medicine Monday for sequencing the genome of the Neanderthal. His research helped establish that Neanderthals and modern humans share a common ancestor — one that lived around 600,000 years ago. Pääbo and his team also found evidence that Neanderthals and humans had children together (The New York Times).

New research published in Science Translational Medicine suggests a COVID-19 vaccine that simultaneously targets two proteins — the SARS-CoV-2 spike protein and the nucleocapsid protein — may offer stronger and broader protection than current shots. The research opens up possibilities that a single vaccine could protect against current and future variants at the same time (Forbes).

Information about COVID-19 vaccine and booster availability can be found HERE.

Doctors are encouraging everyone to get their flu shots this fall, and seniors are being advised to ask for an extra-strength variety of the vaccines. As people get older, their immune system doesn’t respond as strongly to standard flu vaccination, U.S. News reports.

Seniors have three choices for the extra-strength shot: Fluzone High-Dose and Flublok, which contain higher doses of the vaccine’s active ingredient, as well as Fluad Adjuvanted, which has a regular dosage but contains an extra ingredient to help boost an immune response. Experts say seniors can either ask what kind their doctor carries, or if they’re getting vaccinated at a drugstore or pharmacy, follow the online prompts to find locations that have the new vaccines.

“Last year we were going into flu season not knowing if flu was around or not,” said influenza specialist Richard Webby of St. Jude Children’s Research Hospital in Memphis. “This year we know flu is back.”

Total U.S. coronavirus deaths reported as of this morning, according to Johns Hopkins University (trackers all vary slightly): 1,059,866. Current average U.S. COVID-19 daily deaths are 316, according to the Centers for Disease Control and Prevention.

THE CLOSER

And finally … 🍽 Foodies, rejoice. Washington, D.C. ranks among the nation’s top food cities, according to a new WalletHub survey. Coming in at number 13, the capital is joined on the list by cities from every corner of the country. The top food city is Portland, Ore., followed by Orlando, Fla., and Miami. Rounding out the top five are San Francisco and Austin.

WalletHub looked at 182 places for its ranking, including the 150 most populous cities in the country. They were scored based on the affordability of dining out as well as the cost of buying groceries. The survey also examined the diversity, accessibility and quality of access to restaurants, especially those with high ratings.

D.C. ranked first for “affordability and accessibility of highly rated restaurants” and was No. 15 for restaurants per capita (WTOP).

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