Against the EPA, Absurdity Is No Defense

By Rabkin, Jeremy A. | Harvard Journal of Law & Public Policy, Winter 2014 | Go to article overview

Against the EPA, Absurdity Is No Defense


Rabkin, Jeremy A., Harvard Journal of Law & Public Policy


The term "revolution" accurately describes what happened in the 1970s in the realm of environmental regulation. The way we started looking at things in the 1970s really was a dramatic change from the way we looked at them previously.

In fact, a look in the Oxford English Dictionary will reveal how much has changed even in our use of the word "environment." (1) Its first uses came in the nineteenth century, as people began discussing Darwinian theory about how environment affects evolution. There the word meant "habitat"--something relatively local in which particular species live, and which they must either adapt to or migrate from to survive. (2)

It was not until well into the twentieth century that broader meanings developed. Under the label of "environmental psychology," (3) people began talking about influences on human beings, but that sense was still somewhat focused. They meant the family, the home, the neighborhood in which people grow up. I think the earliest references to "environment" on a very large scale came in discussions in or about the Soviet Union. People spoke of eliminating crime and changing human nature by controlling the "human environment." (4) But even there, they meant only the one-sixth of the earth that was the Soviet Union.

It is not until the 1970s that we find terms like "environmental advocate" and "environmental engineer," where the use of "environment" signifies the whole natural world. (5) The first conference that the United Nations sponsored on the environment was in 1972, and its title was "The Conference on the Human Environment" (6)--implying the whole world could be seen as one connected "environment." There is something inherently, let us say, Promethean about this: We need to control the whole world because everything is related to everything, and therefore everything is part of one, all-encompassing environment.

My first point is that if we think about environment this way, we are going to make ourselves and everyone else crazy, and we are going to have a very difficult time recognizing the rights of individuals to do things differently because our regulatory outlook will be totalistic. I want to talk briefly about the Clean Water Act (7) because I think it is a good illustration of this problem.

The statute is from the early 1970s. Congress did not then think it could regulate all bodies of water in the country and so enacted a statute covering only "navigable waters." (8) But the EPA has interpreted this jurisdiction in ways that have become increasingly extreme and draconian. (9) Even though the Supreme Court has repeatedly emphasized limits, (10) the EPA and the Army Corps of Engineers continue to think in this totalistic way: Everything is connected to everything. The environment is a vast encompassing network. The whole world is at stake. And so you cannot build your own house on your own land because that would be selfish. (11)

The first case to address the scope of "navigable waters" was United States v. Riverside Bayview Homes (12) in 1985. At that time, the Supreme Court was still in a somewhat accommodating mood, so it held that in the Clean Water Act, "navigable waters of the United States" (13) could be read to refer not just to navigable waters, but also to adjacent bodies, which could flow into navigable waters. (14)

Fifteen years later, there was Solid Waste Agency v. U.S. Army Corps of Engineers. (15) In that case, the Army Corps of Engineers tried to stop a group of ten Chicago suburbs from building a solid-waste disposal site. The site was about ten miles from any kind of flowing water, but it had been a quarry. So after heavy rains, water would sometimes accumulate in it, creating a small artificial pond. (16) The federal government argued that the site was subject to regulation because it supported vegetation, and migratory birds stopped there. (17) The Supreme Court rejected this argument, holding that the pond was in no sense navigable water. …

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