Clean Water Act backlash?

April 18, 2013 | By DAMIEN SCHIFF

Professor William Andreen of the University of Alabama School of Law has posted a new article, Success and Backlash:  The Remarkable (Continuing) Story of the Clean Water Act.  His thesis is that the Act has done a remarkable job at improving point source water pollution (something he argues that the states would not have done on their own), but that it needs to be redesigned to address modern-day water pollution ills, such as non-point source pollution (e.g., stormwater).  Professor Andreen also contends that recent Supreme Court decisions have unwisely limited the Act’s scope and EPA’s enforcement powers.  In particular, he criticizes two recent PLF victories—Rapanos and Sackett—and urges Congress to undo them legislatively.

Most importantly, Congress should restore the Act’s jurisdiction to the breadth it enjoyed before the Supreme Court issued its decisions in SWANCC and Rapanos.  This would not only strengthen the section 404 dredge and fill program, but would also ensure that critical headwaters and many intermittent streams are protected from potentially unregulated industrial point source discharges. [¶]  Pre-enforcement judicial review of administrative compliance orders should be explicitly precluded, at least in urgent instances where the orders are necessary to prevent imminent environmental harm.

Professor Andreen also criticizes recent Congressional (unsuccessful) attempts to restrict the Act’s scope.  He takes these efforts, along with the Supreme Court’s recent Clean Water Act decisions, as signs of the “backlash” to the Act’s environmental successes.

One of the problems with Professor Andreen’s prescriptions is his premise that, in the absence of federal legislation, our water quality would be very poor.  But Professor Jonathan Adler has written persuasively convincingly about this very fable, i.e., the idea that states have historically ignored environmental harm and cannot be relied on to protect the environment, a false assessment used to justify federal environmental regulation.    Another problem, pertinent to his implied Sackett critique, is his assumption that judicial review of EPA enforcement decisions unduly hampers the agency.  I simply do not find that assertion convincing.  For one, so-called “pre-enforcement” review is helpful to EPA as much as to the regulated party, because it can obviate the need for further enforcement by clarifying the rights and obligations of both sides.  Further, the Clean Water Act already provides EPA the authority to seek expedited judicial relief in the case of an environmental emergency.  Consequently, in my view, Professor Andreen overstates the Clean Water Act’s impact and underestimates the effectiveness of alternatives to federal regulation.