This Thursday I will be participating in a panel, "Enforcement of the Clean Water Act," sponsored by the Federalist Society's Environmental Law and Property Rights Practice Group in Washington, D.C. Also appearing on the panel will be Maryland Law Professor Robert Percival, Vermont Law Professor Patrick Parenteau, and Reed Hopper of the Pacific Legal Foundation. George Mason Law Professor Steven Eagle will moderate. The panel will discuss the impact of the Supreme Court's decision in Rapanos v. United States, the subsequent Corps/EPA guidance on federal Clean Water Act jurisdiction, and proposed legislation to overturn the Supreme Court's Rapanos decision by, among other things, explicitly asserting federal jurisdiction over all waters and wetlands in the United States, irrespective of their relationship or connection to navigable waterways. Details here.
The audio of yesterday's Federalist Society program, "Enforcement of the Clean Water Act," discussing whether Congress needs to "fix" the Clean Water Act to extend federal regulatory jurisdiction after the Supreme Court's decision in Rapanos v. United States is available on-line here. I plan to post some of my thoughts about the program over the weekend.
Last week's panel on "Enforcing the Clean Water Act" in which I participated largely focused on H.R. 2421, "The Clean Water Restoration Act of 2007," a bill introduced by Representative Oberstar "to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States." This legislation is a response to the Supreme Court's decisions in SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States that limited federal regulatory jurisdiction under the Clean Water Act.
The key provisions of the bill -- indeed, the bill's only meaningful substantive provisions --eliminates all references to navigability by substituting "waters of the United States" for "navigable waters of the United States" throughout the bill, and then define "waters of the United States" as follows:
The term `waters of the United States' means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.'One of the stated purposes of this reform is to "clearly define the waters of the United States" subject to federal jurisdiction. Yet this definition will do nothing of the kind. The bill purports to assert jurisdiction to the "fullest extent of the legislative authority of Congress under the Constitution," but provides no indication of what this entails. Unless one assumes that federal regulatory jurisdiction is unlimited -- an assumption the Supreme Court rejected in both of the opinions this bill seeks to address -- the new definition of "waters" will still require courts to determine whether given waters and wetlands are within the scope of Congress' Commerce Clause authority. As a consequence, this definition will produce just as much regulatory uncertainty, and litigation, as the status quo.
This does not mean the revised definition would have no effect, however. By removing any reference to the navigability of waters, the legislation is clearly intended to expand federal regulatory authority, and could well provide the basis for asserting federal jurisdiction over some non-navigable waters. Yet without additional rule-making by the U.S. Army Corps of Engineers and Environmental Protection Agency to clarify the bases upon which jurisdiction can be asserted, the bill still amounts to the legislative equivalent of the statement 'we wish to regulate everything we can regulate." This may well eliminate navigability as a constraint, but it doesn't provide any rational basis upon which agencies or courts could determine when federal regulatory jurisdiction is, or is not, justified. Many federal criminal statutes avoid this problem with the inclusion of a jurisdictional element, explicitly limiting federal jurisdiction to those instances in which the regulated activities "substantially affect commerce" or otherwise implicate federal interests.
The proposed definition of "waters of the United States" could well be the source of some regulatory mischief, however, as it asserts regulatory authority over "all impoundments" of water that are subject to federal regulatory authority. A plain reading of this language would suggest that this would expand federal Clean Water Act jurisdiction to cover many artificial waters and structures that impound water that were previously unregulated. Whether intended or not, this could be quite significant. Consider that, as a general matter, it is easier to assert federal jurisdiction under the /Commerce Clause over human-erected structures than "natural waterbodies, as the former are (again, as a general matter) more likely to be related to economic activities than the latter. To be sure, the regulation of many "impoundments," such as those used in various manufacturing processes and closed water systems, to swimming pools and fountains, may have little to do with the Clean Water Act's stated purpose of restoring and maintaining "the chemical, physical, and biological integrity of the waters of the United States," but such statements of purpose are ultimately less important than a statute's operative provisions. While I doubt the Army Corps and EPA would seek to avail themselves of this newfound authority immediately, one can safely assume that this new authority over "all impoundments" would eventually be the source of regulatory mischief.
In my view, the ultimate purpose of the bill -- reversing the SWANCC and Rapanos -- is misguided. Reasserting federal regulatory jurisdiction to its constitutional limit (if not farther) serves neither the aim of regulatory certainty nor the cause of more effective environmental conservation. Stretching federal resources over an ever-greater environmental expanse does not improve regulatory efficacy. A wiser approach, in my view, is to target federal regulatory efforts where federal regulation can do the most good. Specifically, federal regulation of waters and wetlands should be focused on those areas in which the federal government has a particular federal interest (as is the case with navigable interstate waterways) or where federal involvement is necessary to prevent states from exporting environmental harms on their neighbors. Such an approach is not only more consonant with the underlying constitutional values that motivated the Supreme Court's decisions in SWANCC and Rapanos, it is also likely to be more effective -- and will leave ample room for non-regulatory efforts and non-federal actors to complement federal regulation. Not only will the Oberstar legislation do nothing to accomplish this goal. It would actually move federal policy in the opposite direction.