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Supreme Court opens starts new term by hearing case involving Clean Water Act


Today marked the formal opening of a new Supreme Court term, with the justices back on the bench hearing arguments for the first time since June. For new Justice Ketanji Brown Jackson, it was not a return, but her very first day. And our own Nina Totenberg, NPR legal affairs correspondent, was there, too. Hi, Nina.


SUMMERS: So how did things go today?

TOTENBERG: Well, let's jump right in. At issue in the first case of the day were the 1977 amendments to the Clean Water Act, which Congress passed to strengthen the ability of the EPA to protect the waters of the United States, including wetlands. The case presents an opportunity for the conservative court to dramatically narrow the reach of that law. On one side are property rights advocates, backed by business groups, oil, gas, coal and other industries often associated with pollution. And on the other side are environmental groups and government regulators.

The case was brought by a couple who bought a plot of land near Priest Lake in Idaho, planning to build a house. But the EPA told them that they had to get a permit because their land potentially spills pollutants into neighboring wetlands that feed into Priest Lake. Today, much of the argument focused on what it means to be a neighboring wetland. The property owners basically say the stream doesn't abut their property, so they don't need to get a permit.

SUMMERS: OK. So how did that argument go?

TOTENBERG: Well, you can't tell for sure in a case like this, but it looks like at least 5 of the 6 conservatives were likely to side with the property owners, though Justice Kavanaugh pointed out that the existing regulations have been applied by seven consecutive administrations.

SUMMERS: And Nina, this was the first time that the court heard from Justice Ketanji Brown Jackson. Were there any big moments for her today?

TOTENBERG: Well, I don't know about big moments, but she was a very active participant. Here, for example, is her opening question to the lawyer for the property owners.


KETANJI BROWN JACKSON: 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?

SUMMERS: And earlier today, the court also issued a lot of orders, basically dealing with cases that piled up over the summer. Anything in that pile that's of note to you?

TOTENBERG: Well, they rejected most of the cases in the pile, but the court said that among those, that Mike Lindell, the My Pillow man who is a close Trump ally, has to face a $1.3 billion lawsuit brought by Dominion Voting Systems. The company is accusing him of promoting false claims that its machines rigged the election. And in another action, the court turned away challenges to a federal ban on devices known as bump stocks that enable semi-automatic weapons to fire like a machine gun.

SUMMERS: The court did agree to hear a big social media case that could determine whether social media companies can be held financially responsible for the content that they host. Can you tell us a bit about that case?

TOTENBERG: Well, the court said it would hear an appeal that essentially challenges the broad immunity that social media and internet companies have for material posted online. This case involves the algorithms that YouTube, owned by Google, uses to refer subscribers to similar content. So for people of limited tech ability, like, say, me, let me explain this - it this way. So if you pull up Colbert's monologue on YouTube, to the right on your screen, you'll also see other similar content, probably Jimmy Kimmel and Jimmy Fallon monologues, recommended to you by an algorithm. In this case, YouTube, relying on the same kind of algorithm, referred users to jihadi videos recommended by ISIS.

The family of a California woman killed in a terrorist attack in Paris brought suit against YouTube, claiming that the algorithm violated U.S. anti-terrorism laws because ISIS claimed credit for the attack. But YouTube, just like the other content purveyors on your laptop, is protected from lawsuits under a different provision of law - of federal law, the Communications Decency Act, passed in 1996 before today's social media explosion.


TOTENBERG: And it says that the content provides that YouTube and other purveyors can't be sued as the publisher or speaker for any information provided by other users. So that's the issue.

SUMMERS: All right. NPR's Nina Totenberg, thank you as always. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.