Hypertextualism and the Clean Water Act: Rejecting Rigid Interpretations of Environmental Statutes

By Clements, Hannah | Environmental Law, Fall 2019 | Go to article overview

Hypertextualism and the Clean Water Act: Rejecting Rigid Interpretations of Environmental Statutes


Clements, Hannah, Environmental Law


  I. INTRODUCTION                                                  1108  II. GROUNDWATER IS A KEY COMPONENT OF SURFACE WATERS,             1113      NOT SEPARATE FROM III. THE CLEAN WATER ACT DOES NOT OVERTLY ADDRESS                  1114      GROUNDWATER      A. The CWA Aims to Protect Water Bodies by Regulating         1115         Pollution, but to What Extent?         1. The CWA's Broad Purpose                                 1115         2. The National Pollutant Discharge Elimination            1116            Program         3. CWA Jurisdiction Over Pollution                         1116      B. Some Legislative History Addresses Groundwater, but it is  1118         Inconclusive      C. Theories for Regulating Groundwater Under the CWA          1119         1. The Point Source Theory                                 1119         2. The Tributary Theory                                    1120         3. The Hydrological Connection Theory                      1120  IV. STATUTORY INTERPRETATION AND THE RISE OF HYPERTEXTUALISM      1121      A. Overview of the Methods of Statutory Interpretation        1121         1. The Traditional Approaches: Intentionalism and          1121            Purposivism         2. The Modern Approach Textualism                          1122      B. The Rise of Rigid Statutory Interpretation                 1122   V. JURISDICTION OVER HYDROLOGICALLY CONNECTED                    1124      GROUNDWATER: THE CIRCUIT SPLIT      A. A Practical-Textual Approach: The Ninth and Fourth         1125         Circuits         1. County of Maui                                          1125         2. Kinder Morgan Energy Partners                           1126         3. The Ninth and Fourth Circuits' Practical Textualism     1127      B. Hypertextualist Approach: The Sixth Circuit                1128         1. TVA and Kentucky Utilities Co                           1128         2. The Sixth Circuit's Hypertextualism                     1131  VI. REJECTING RIGID INTERPRETATIONS OF ENVIRONMENTAL              1133      STATUTES: A CWA CASE STUDY      A. Erosion of the Administrative State and Enlargement of     1134         Judicial Power      B. Seeking Plain Meaning Where it Does Not Exist              1135      C. Ignoring Statutory Purpose                                 1135      D. Disregarding Practical Consequences                        1136      E. Failing to Acknowledge Known Science                       1136 VII. CONCLUSION                                                    1137 

I. INTRODUCTION

Imagine there is a waste treatment facility that injects upwards of 2.8 million gallons of wastewater into the Pacific Ocean per day by way of its wastewater injection wells. Or, imagine there is a ruptured gasoline pipeline from which gasoline toxins seep through the groundwater into nearby rivers, creeks, and wetlands. Or perhaps, there are coal ash waste ponds at a coal-fired power plant so structurally deficient that the ponds release chemicals that travel through the groundwater, eventually reaching nearby rivers. If these hypothetical discharges occurred directly into a stream or ocean, they would undoubtedly require a permit, mandated by the Federal Water Pollution Control Act, (1) more commonly known as the Clean Water Act (CWA). Yet, in the Sixth Circuit, the conveyance of the pollution through groundwater would exempt the discharges from the CWA's requirements. Although the CWA prohibits the "addition of any pollutant to navigable waters from any point source" unless it is regulated by a proper permit, (2) under the Sixth Circuit's interpretation of the CWA, a polluter can be unpermitted in any of these three hypothetical scenarios. (3) Taking this interpretation to its logical conclusion, a polluter can escape CWA liability simply by moving its drainage pipe a few feet from the riverbank, thereby circumventing the purpose of the CWA. (4)

Congress passed the CWA in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters. …

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