April 4, 2016

What if the Clean Water Act is unconstitutionally vague?

By Jonathan Wood Attorney

As regular readers know, PLF argued a case in the Supreme Court of the United States last week, U.S. Army Corps v. Hawkes Co., concerning whether property owners can have their day in court when the federal government declares their land subject to federal control. During the oral argument, Justice Kennedy — long-considered the “swing justice” on the court — asked a somewhat surprising question:

The Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice. What’s the closest analogous statute that gives the affected party so little guidance at the front end?

Justice Kennedy’s suggestion — that the Clean Water Act is unconstitutionally vague — has had the internet a flutter in the week since. For instance, Professor Dan Farber at Legal Planet bemoans this “radical suggestion” that would “leave the nation with no protection against water pollution and wetlands destruction.”

Before turning to why that’s not true, I should explain just what’s so vague about the Clean Water Act. The statute is apparently quite clear. It forbids anyone from “discharging” “pollutants” into “navigable waters.” If you asked random people on the street what that means, you’d probably get a pretty consistent answer.

The problem that Justice Kennedy was alluding to is that the Army Corps and EPA do not interpret those words and phrases in ways that correspond with what most people would understand them to mean. Congress certainly didn’t help when it defined “navigable waters” as the “waters of the United States.”

To understand this lack of clarity, consider some examples: 1) a multinational corporation dumps toxic waste into the Mississippi River; 2) a farmer plows a field that contains isolated wetlands a hundred miles from the nearest navigable water; 3) a property owner places an earthen dam into a shallow stream that crosses her property to create a pond; and, 4) a couple builds a house in a residential subdivision near a lake (but separated from it by several homes and a road). How many of these would sound–to an ordinary person–like the discharge of pollutants into navigable waters? I’d venture to guess that only the first one would.

Yet the Corps and EPA have contended that all of these examples–and many, many more–violate the Clean Water Act. [See here for the farmer, here for the pond, and here for the home builders.] In effect, anything placed in water [perhaps even water] is a “pollutant.” And, as the embattled WOTUS rule demonstrates, nearly every wet spot in the country is a “navigable water.”

Why does this lack of clarity matter? The penalties for violating the statute can be huge, including fines of nearly $40,000 per day and prison time. Generally, the Constitution forbids the government from imposing harsh penalties without giving people fair warning what’s prohibited. That’s why Kennedy questioned the Clean Water Act’s constitutionality.

What about Prof. Farber’s critique — assuming the Clean Water Act is unconstitutionally vague, would invalidating it leave the nation no protection against water pollution? The answer, obviously, is no. State and local regulations would remain in place. Other federal regulations that protect water would continue too. And, of course, Congress would be free to amend the Clean Water Act to give much needed clarity. Justice Kennedy’s rationale wouldn’t mean that Congress can’t regulate in any particular way, only that it must give people reasonably clear guidance as to what they can and can’t do.

It’s deeply ironic that Justice Kennedy raised this issue. In PLF’s Rapanos case, he filed a concurring opinion creating the far-reaching and vague “significant nexus” test. By allowing the Corps and EPA to go far beyond regulating the discharge of traditional pollutants in navigable-in-fact waters, that test has helped to create the confusion and uncertainty faced by property owners today.

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