Federalism Limits Clean Water Act Restoration

Recent U.S. Supreme Court precedent, most notably its 2006 decision in Rapanos v. United States, have placed enforcement of the Clean Water Act—and, consequently, the cleanliness of the nation’s drinking water—in jeopardy. Even worse, Rapanos had a split decision with two pluralities on the court endorsing two different standards for what ‘waters’ fall within the United States’ jurisdiction.

The results have been predictable (and many were predicted by the court’s dissenters): Polluters use new ambiguities in jurisdiction to slow the process down or make it too costly for the EPA to prosecute. Different federal district courts and circuit courts reach different results on similar jurisdictional facts. Some polluters even decide for themselves that they are no longer under the EPA’s Clean Water Act jurisdiction and stop filing the paperwork they had previously been required to file. Polluters now have an incentive to move to areas where the Clean Water Act doesn’t reach, increasing pollution levels locally and overall.

Some in congress have naturally responded to this abominable and deteriorating situation with efforts to change the Clean Water Act, to bring clarity and restore its former jurisdiction. To the extent they can clarify the Act, they should certainly be encouraged in the effort. Unfortunately, though, they may not be able to get very far in addressing the real problem here, as the limitations imposed on the Clean Water Act were imposed by the Supreme Court based on federalism concerns. The Clean Water Act itself was already presumed to cover every drop of the nation’s waters that federal power could constitutionally reach. In other words, the Act was already believed to cover and reach the outer limits of permissible federal jurisdiction. The very core of the decision in Rapanos was to try to demarcate just exactly what those jurisdictional limits on the federal regulatory power were. On the one side of the jurisdictional line was waters within the federal power to regulate under the Commerce Clause; on the other side, the waters would be within the jurisdiction of the individual states to regulate, if they so chose, but outside of federal jurisdiction.

Thus, congressional efforts to restore the Clean Water Act to its former clarity and broader jurisdiction would presumably be going further than the constitution would allow the federal government to go under the existing legal precedent established by Rapanos. So, when such a new law is challenged—as it certainly would be, assuming it ever gets passed—there would already be reason to believe that it would be struck down by the federal courts, assuming no change in the Supreme Court’s personnel or thinking on federal environmental jurisdictional questions and the reach of the Commerce Clause.

While congress may well be able to tweak around the edges of the Clean Water Act and provide some clarity, the core of the problem here is one of constitutional law, and a statute alone will not be able to untie that Gordian knot. Fixing that sort of problem requires a constitutional amendment or a change in Supreme Court precedent. Perhaps given the jurisdictional disaster left in the wake of Rapanos, the court will revisit the issue in upcoming cases—and, hopefully leave us with more clarity than before. Regardless, such jurisdictional limitations evidently cause a serious impairment to our nation’s ability to address environmental problems as holistically as possible (the best way for dealing with environmental problems)—and our environment and the health of our people will suffer for it. Thus, a constitutional amendment giving the federal government a broader, explicit environmental jurisdiction should not be out of consideration by those in congress who are serious about making sure our environment is preserved for future, healthy generations.

By Jeremey Dobbins, Legal Intern