Treading Water While Congress Ignores the Nation's Environment

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INTRODUCTION

During the late 1960s, the nation's attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls, (1) as well as Rachel Carson's haunting prose about the "strange blight" (2) of chemical pesticides afflicting land, water, and wildlife. Policymakers recognized the need for strong legal protections for public health and the environment, and Congress responded with sweeping legislation governing the pollution of water, air, and soil, and the demise of threatened and endangered species. (3)

The Clean Water Act of 1972 (CWA), which regulates discharges of pollutants into waters of the United States, is one of the most significant statutes among this body of legislation. (4) Under the CWA and related federal environmental legislation, the nation has made tremendous strides in improving our water quality along with the waste management practices that affect water, air, and soil. (5) However, since the basic statutory framework Was adopted in the 1970s, there have been many ecological, technological, social, and political changes in the United States, but Congress has adopted very few significant amendments, causing some to question whether federal environmental laws have passed their prime. (6)

In fact, since 1990, Congress has failed to take any meaningful action to reform our nation's pollution control laws. One might understandably think that the policymaking vacuum in our legislative branch has rendered our bedrock environmental provisions far less effective than they could be. Even when environmental catastrophes have occurred, such as the 2010 blowout of BP's Deepwater Horizon in the Gulf of Mexico, Congress has failed to respond. The federal agencies have frequently stepped in to fill the regulatory gaps. In reviewing the agencies' decisions, the federal courts have issued a variety of proclamations that shape the statutory playing field, sometimes in ways that Congress may have never anticipated when it adopted the lofty, environmentally protective statutory goals.

The CWA, in particular, has been a favorite environmental subject of the Supreme Court. Since the CWA's enactment, the Court has issued thirty-four CWA decisions, which constitutes thirty-four percent of the one hundred environmental opinions issued from 1972-2012. (7) The Clean Air Act is a distant second, with only twenty-two opinions issued during the same period. (8) The Court has reviewed nearly half of the CWA disputes since 1990, including cases challenging the jurisdictional scope of the Act as well as the Environmental Protection Agency's (EPA) enforcement powers and the division of authority between the EPA and the Corps of Engineers. (9)

Congress has failed to respond in a meaningful way to any of the post-1990 CWA judicial opinions. In contrast, throughout the 1970s and 1980s, a syncopated yet rhythmic dance took place between the agencies, the federal courts, and Congress. Federal agencies, including EPA, would issue regulations to implement the CWA and other keystone environmental statutes, the courts would resolve challenges to those regulations, in many cases based on ambiguous statutory language, (10) and Congress would subsequently either validate or repudiate the results. Examples include point source pollution exemptions, variances for discharges of toxic pollutants, and discharges from dredge and fill activities. (11)

Much has changed since the 1970s, and even since 1990. The bitterly partisan nature of environmental issues in Congress today suggests that comprehensive, thoughtful reforms tailored to the problems faced by modern society are unlikely. It is not clear, however, that congressional reticence or even gridlock is necessarily a bad thing when it comes to environmental law. Certainly, the physical environment and the tools available for addressing environmental problems have changed since most of our key statutes, including the CWA, were passed, making some existing provisions seem outdated and inadequate. …