40 years of inadequate protection of property rights under the Clean Water Act

October 29, 2012 | By JONATHAN WOOD

October 18th was the 40th anniversary of the Clean Water Act.  PLF has accomplished a great deal in ensuring that the CWA is enforced in a reasonable manner, including securing judicial review of orders issued by the EPA in Sackett and invalidating the EPA’s incredibly broad interpretation of the scope of the CWA in Rapanos.  However, PLF recognizes that there is still a great deal of work to be done to ensure that the CWA is reasonably implemented.

Many observers have noted that this anniversary offers a time to consider the need to reform the CWA.  Some of these proposals are sincere efforts to improve environmental protection efficiently, while also respecting the rights of those impacted by the regulation.  For example, David Currie of the Property and Environment Research Center argues persuasively that the EPA and other environmental agencies need to expand their current efforts to incorporate market-oriented solutions to water quality problems.

Conversely, other observers do not even pay lip service to respecting this balance between environmental protection and individual rights.  Professor William Andreen argues that the CWA has been limited by the way that it has been interpreted by Supreme Court.  Rapanos receives particular criticism for creating uncertainty about the limits of the EPA’s jurisdiction under the CWA.  And on this the professor has a point.  It would be a stark improvement if the EPA or the Court defined the CWA’s jurisdictional language with greater precision and in a way that respected property rights.  But, this is not what the professor proposes.  Instead, he advocates for reversal of the work that PLF did in Rapanos and a return to the incredibly broad authority that the EPA attempted to assert prior to the decision.  It is noteworthy that in Professor Andreen’s extensive blueprint for reform of the CWA property rights do not garner a single fleeting mention.  The people whose lives are profoundly impacted by the enforcement of the CWA deserve more consideration than that.