The Next Justice and the Fate of the Clean Water Act

by Daniel Farber

April 05, 2016

Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on the books for over forty years and leave the nation with no protection against water pollution and wetlands destruction. And remember, this is the supposedly most "moderate" conservative Justice on the Court.

This is a truly radical suggestion. Every now and then, a defendant in an enforcement case will argue that the law was unconstitutionally vague under the circumstances of the case. A quick computer search reveals that such a claim has been made by someone about every other year since the law was passed in 1972. Each time, the federal courts have rejected the claiming, finding plenty of evidence that the defendant was on notice of the possible illegality of the conduct. In other words, the vagueness argument has been something of a desperation claim that has consistently fallen on its face. Now this far-fetched legal argument is suddenly being given new life by a Supreme Court Justice. Admittedly, Kennedy was only making a suggestion. But that's often been how the conservative majority has changed the law, starting with suggestions, then concurring or dissenting opinions, and then a 5-4 decision.

With Justice Scalia off the Court, there's no immediate danger that the Court will strike down the Clean Water Act. But who knows how a Trump or Cruz appointee would rule on the issue? We could find ourselves overnight with no water pollution law at all. Keep in mind the conservative majority didn't hesitate to rip the heart out of the Voting Rights Act after it had been on the books even longer. But, more likely, we could find the vagueness argument being used to justify judicial decisions that "clarify" the statute by carving away huge chunks.

Cross-posted at LegalPlanet.

Be the first to comment on this entry.
We ask for your email address so that we may follow up with you, ask you to clarify your comment in some way, or perhaps alert you to someone else's response. Only the name you supply and your comment will be displayed on the site to the public. Our blog is a forum for the exchange of ideas, and we hope to foster intelligent, interesting and respectful discussion. We do not apply an ideological screen, however, we reserve the right to remove blog posts we deem inappropriate for any reason, but particularly for language that we deem to be in the nature of a personal attack or otherwise offensive. If we remove a comment you've posted, and you want to know why, ask us ( and we will tell you. If you see a post you regard as offensive, please let us know.

Also from Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Law, Energy and the Environment at the University of California, Berkeley.

Justice Stevens and the Rule of (Environmental) Law

Farber | Jul 18, 2019 | Environmental Policy

Where's the Beef?

Farber | Jul 15, 2019 | Climate Change

The Witching Auer

Farber | Jul 08, 2019 | Regulatory Policy

The Census Case and the Delegation Issue

Farber | Jul 01, 2019 | Regulatory Policy

Justice Gorsuch versus the Administrative State

Farber | Jun 27, 2019 | Regulatory Policy

The Center for Progressive Reform

2021 L St NW, #101-330
Washington, DC. 20036

© Center for Progressive Reform, 2015