Author: Damien M. Schiff
In a brief online article published Monday, The Economist reviewed a New York Times article (about which I blogged here) that purports to explain how recent Supreme Court decisions interpreting the Clean Water Act have seriously constrained the power of the federal government to regulate water quality. Well, sorry to say that The Economist has no better grasp on the legal and regulatory realities than the Times. Two clear examples.
Point: "William Rehnquist's majority opinion in [Solid Waste Agency of Northern Cook County] gives you the gist: '[T]he term 'navigable' has…the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.' I'm not sure whether Mr Rehnquist addressed why Congress might have wanted to keep it legal to pour mercury into the water supply so long as one does so through a small enough tributary.'"
Counterpoint: The author's criticism of the Chief Justice is meritless. No court has accepted the proposition that the CWA would allow someone to escape liability simply because the immediate receptacle for the pollution is not a navigable water. In fact, if the mercury in the above hypothetical actually ended up in a jurisdictional waterbody, that would (1) likely not only establish liability for the discharge, but (2) likely help to prove that the immediate receptacle for the mercury is itself a jurisdictional waterbody (under a significant nexus theory).
Point: "Clearly, this kind of fear is what Congress was trying to avoid by inserting the word 'navigable'. Legislators should have found a better word. They might, after all, have foreseen that the argument would devolve to this level. But ultimately this kind of situation reminds me of nothing so much as the excuses my seven-year-old daughter develops to avoid having to clear her plate after dinner. If people are truly determined to abuse language in order to render commands and prohibitions meaningless, there's no way to stop them."
Counterpoint: The author apparently is entirely oblivious to the fact that the federal government is a government of limited powers; traditionally, its power over water has been cabined by navigability on the grounds that a navigable water can serve as a highway of commerce. In my view, preserving the federal-state balance is a darned good reason for limiting CWA coverage to "navigable waters," whatever interpretive difficulties might be attendant.