Fact checkers should steer clear of difficult legal questions

[Update: The Washington Post’s Fact Checker has updated the article to acknowledge this response.]

Last week, President Trump issued an executive order directing government agencies to reconsider the much maligned Waters of the United States (or WOTUS) rule. In the press conference for the order, Trump referenced a case that I litigated at PLF last year on behalf of Andy Johnson, a Wyoming property owner who was threatened with up to $20 million in fines for building a pond on his private property. The President explained that

[t]hese abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states. It’s a horrible, horrible rule.

Although I don’t agree with the President on much, he was exactly right on this point. Imagine my surprise when the Washington Post’s “Fact Checker” gave the President four Pinocchios for his remarks.

Most of the Fact Checker’s criticism was that the President claimed WOTUS had already destroyed jobs when, in fact, the courts have blocked the rule from going into effect after deciding that it is likely illegal.

Fair enough. The President probably should have said that WOTUS would make Clean Water Act abuses worse and, if it somehow survived the myriad legal challenges to it, destroy jobs. Reasonable minds can differ over whether this misstatement is deserving of the Fact Checker’s highest (or perhaps lowest) award for dishonesty—four Pinocchios.

So far, so good. But, perhaps feeling confident from catching the President in an overstatement, the “Fact” Checker decided to engage in some armchair legal analysis to criticize the President’s reference to the Johnson case.

But the case of the rancher, Andy Johnson, is more complex than Trump makes it seem. Our friends at FactCheck.org looked into the case in detail, and found that the Army Corps and the EPA found that the rancher actually constructed a dam on a waterway that was a tributary of the Green River, which is deemed by the EPA as a “navigable, interstate water of the United States.”

According to FactCheck.org:

“Building the dam constituted a “discharge of pollutants” into “waters of the United States,” according to the EPA and the Army Corps of Engineers, and thus required a permit that Johnson did not have, or seek. . . . EPA officials say that Johnson received multiple warnings before any enforcement actions were taken.

The EPA rules regarding discharging pollutants into waterways are based on a substantial body of evidence showing that water quality and flow in tributaries and wetlands can affect the water found downstream.”

If you read that closely, you’ll notice that it doesn’t purport to check or disprove any fact. Instead of evidence or analysis, it offers only “he said, the government said . . . so the government is right.” Readers are left to guess how that conclusion was reached. This approach to “fact checking” certainly makes things easier—the government’s always right. But, as the true facts of the Johnson family’s plight shows, that’s not always so.

Here are the facts of the Johnson case: (1) The Clean Water Act expressly exempts the “construction or maintenance of . . . stock ponds” from its reach; (2) Pursuant to a state stock-pond permit, Andy Johnson built a dam in a small stream that crosses his property to create a pond; (3) Despite this exemption, EPA and the Army Corps accused Johnson of violating the Clean Water Act because he did not get a permit to put the dirt (what EPA means by “discharge of pollutants”) into the stream to construct the pond; (4) Johnson hired a former Corps enforcement officer to inspect the pond and tell him if he’d done anything wrong; (5) The expert concluded he hadn’t and in fact the pond is an environmental boon—creating wetlands, fish habitat, and cleaning the water that passes through it; (6) The expert also followed the stream and learned that it leads to an irrigation canal, not a tributary of the Green River; (7) After nearly 2 years trying to explain EPA’s error to the agency, the potential fines grew to $20 million; (8) Pacific Legal Foundation challenged the threatened fines on Johnson’s behalf and the agency promptly backed down, agreeing to let him keep the pond and pay no fine.

Did the “Fact” Checker disprove any of those facts or cast them into doubt? No. It just regurgitated the government’s legal assertions as if they were facts.

Perhaps the government would contest some of the facts above. For instance, maybe it would disagree with the expert’s conclusions about the pond’s environmental benefits. But, notably, it never did nor has it offered any rebuttal evidence.

Or perhaps the government would quibble with whether the stream ends in an irrigation canal, not the Snake River. Tellingly, when the agency filed its administrative record in the case, the record showed that it had never bothered to go out and see where the water went. Instead, a bureaucrat made an assessment from Google maps after observing that you could draw a (several hundred mile long) line from the pond to the river. That’s true, but what you miss by not leaving the office is that part of the line was running upstream, which water isn’t known to do. It turned out that some water from the Snake River tributary flows into the same irrigation canal, but the water in the pond doesn’t reach the tributary.

It’s understandable that the reporter who wrote the “Fact Checker” column would find the question difficult. Clean Water Act jurisdiction is notoriously unclear, leading to unfair treatment of property owners for decades. But articles like this do a disservice to everyone. Facts can be checked, but it’s no response to contested legal questions to say you’re wrong just because someone disagrees—particularly when that someone is the government, which stands to gain significant power from the question.

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