(Un)Restoring the Chemical, Physical, and Biological Integrity of our Nation's Waters: The Emerging Clean Water Act Jurisprudence of the Roberts Court
By Mark A. Latham
INTRODUCTION
Thirty years ago the nation's waters were in terrible shape - Lake Erie on its deathbed, Ohio's Cuyahoga River bursting into flames, lakes, streams and beaches closed to fishing and swimming. There has been great progress since then, almost entirely the result of the 1972 law.
Heralded as “one of the most revolutionary” environmental statutes enacted by Congress,2 the Clean Water Act (CWA) remains the foundation of federal - and state - regulatory efforts to protect our nation's waters from various types of pollution. Indeed, the CWA has been described by some commentators as “perhaps the most important piece of environmental legislation in American history.”
While acts of Congress have been central to the effort to federalize environmental protection through statutes such as the CWA, the Supreme Court also has played an important role. The Court has influenced the development of environmental law through the hundreds of cases it has decided under virtually every federal environmental statute administered by the United States Environmental Protection Agency (EPA). For reasons that are not clear, the environmental cases that the Supreme Court has decided over the years include more cases involving various provisions of the CWA than any other federal environmental statute administered by the EPA.
This trend has continued under the tenure of the most recent Chief Justice. Since John G. Roberts, Jr. became the 17th Chief Justice in 2005, the Court has decided twelve environmental and natural resource cases. Half of those environmental and natural resource cases decided by the Roberts Court have addressed distinct issues under the CWA.
Because of the significance that the CWA has assumed in the Supreme Court's environmental jurisprudence, this Article focuses on the CWA cases the Roberts Court has decided thus far to determine what one can learn from the Court's contemporary treatment of this important federal environmental statute. Following an overview of the CWA, this Article summarizes the CWA cases decided to date by the Roberts Court, and discusses a number of themes that emerge from an analysis of the decisions. In brief, the emerging themes from these cases are that a predictable majority of the Roberts Court: (A) ignores the primary express objective and goal of the CWA; (B) lacks appreciation of the statute's structure and language; (C) has weakened the CWA through selective application of Chevron deference; (D) has failed to provide guidance for those most affected by its decisions, including the lower courts, regulators and the regulated and their respective counsel; (E) demonstrates a lack of appreciation for the basic science underlying the CWA, and (F) has a propensity to focus on the costs associated with the CWA to the detriment of the statute's overarching objective. One additional theme not drawn from the Court's opinions, but from the decision to hear these cases at all is that the Court in some cases has granted certiorari for inexplicable reasons. Simply put, the CWA has not fared well in the Roberts Court. The Article concludes by discussing whether pending legislation in Congress can repair some of the harm that the Court has wrought to the CWA.
Thirty years ago the nation's waters were in terrible shape - Lake Erie on its deathbed, Ohio's Cuyahoga River bursting into flames, lakes, streams and beaches closed to fishing and swimming. There has been great progress since then, almost entirely the result of the 1972 law.
Heralded as “one of the most revolutionary” environmental statutes enacted by Congress,2 the Clean Water Act (CWA) remains the foundation of federal - and state - regulatory efforts to protect our nation's waters from various types of pollution. Indeed, the CWA has been described by some commentators as “perhaps the most important piece of environmental legislation in American history.”
While acts of Congress have been central to the effort to federalize environmental protection through statutes such as the CWA, the Supreme Court also has played an important role. The Court has influenced the development of environmental law through the hundreds of cases it has decided under virtually every federal environmental statute administered by the United States Environmental Protection Agency (EPA). For reasons that are not clear, the environmental cases that the Supreme Court has decided over the years include more cases involving various provisions of the CWA than any other federal environmental statute administered by the EPA.
This trend has continued under the tenure of the most recent Chief Justice. Since John G. Roberts, Jr. became the 17th Chief Justice in 2005, the Court has decided twelve environmental and natural resource cases. Half of those environmental and natural resource cases decided by the Roberts Court have addressed distinct issues under the CWA.
Because of the significance that the CWA has assumed in the Supreme Court's environmental jurisprudence, this Article focuses on the CWA cases the Roberts Court has decided thus far to determine what one can learn from the Court's contemporary treatment of this important federal environmental statute. Following an overview of the CWA, this Article summarizes the CWA cases decided to date by the Roberts Court, and discusses a number of themes that emerge from an analysis of the decisions. In brief, the emerging themes from these cases are that a predictable majority of the Roberts Court: (A) ignores the primary express objective and goal of the CWA; (B) lacks appreciation of the statute's structure and language; (C) has weakened the CWA through selective application of Chevron deference; (D) has failed to provide guidance for those most affected by its decisions, including the lower courts, regulators and the regulated and their respective counsel; (E) demonstrates a lack of appreciation for the basic science underlying the CWA, and (F) has a propensity to focus on the costs associated with the CWA to the detriment of the statute's overarching objective. One additional theme not drawn from the Court's opinions, but from the decision to hear these cases at all is that the Court in some cases has granted certiorari for inexplicable reasons. Simply put, the CWA has not fared well in the Roberts Court. The Article concludes by discussing whether pending legislation in Congress can repair some of the harm that the Court has wrought to the CWA.