Leftist Hyperbole

The internal agency memos recently released by Representative Waxman detailing confusion in the EPA and the Corps enforcement division over CWA jurisdiction following Rapanos have been touted by the environmental community as evidence of the Bush Administration's anti-environment policies.  See, e.g., this post from the Climate of Our Future Blog.  The problem with this critique, other than the fact that it erroneously equates a principled federalism with anti-environmentalism, is that it lays the blame with the wrong actor.   The confusion in CWA enforcement is because Rapanos itself is confusing.  If, after all, the courts cannot agree on what the controlling Rapanos standard (compare United States v. Robison (11th Cir. 2008) (Kennedy test), United States v. Johnson (1st Cir. 2007) (both Scalia and Kennedy tests), & United States v. Chevron Pipe Line Co. (N.D. Tex. 2006) (Scalia test))---and no one has been accusing the judiciary of being anti-environment---then how can the agencies fairly be subject to the same charge?