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June 23, 2022 by James Goodwin

Member Scholar Buzbee Leads Congressional Amicus in Crucial Supreme Court Clean Water Act Case

Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary — especially a U.S. Supreme Court stocked with Trump-era judicial activists — as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act.

Center for Progressive Reform Member Scholar William Buzbee is helping lead the defense of this bedrock environmental law. Working with the Georgetown Law Center's Environmental Law and Justice Clinic, Buzbee authored an amicus brief for members of Congress who support a strong Clean Water Act. In all, 167 members of Congress signed on to the brief that Buzbee led and wrote with his co-authors, Sara Colangelo and Jack Whiteley.

The basic question at issue in the case is how far the Clean Water Act's protections should reach. This is a question that has been the subject of considerable controversy for decades. The difference now is that …

April 22, 2022 by Jake Moore
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In October 2022, the Clean Water Act will turn 50. Though heralded as a crowning environmental achievement, some argue it’s a costly and ineffective law. Half a century later, what has it achieved, and what can policymakers improve?

Since enactment, the Clean Water Act has led to cleaner waterways and healthier wildlife. Its implementation has prevented billions of pounds of pollutants from entering our water, protected public health, and slowed the decline of ecologically and economically crucial wetlands.

According to Center for Progressive Member Scholar Robin Kundis Craig, its most underappreciated achievement has been direct investment in wastewater and sewage treatment infrastructure. Often taken for granted, the social, economic, and environmental benefits of wastewater treatment facilities are massive. By some estimates, funding national water treatment needs would spur $220 billion dollars of growth. Since 1972, over $100 billion of Clean Water Act assistance funds alone have …

April 21, 2022 by Minor Sinclair
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This blog post is the third in a series outlining the Center for Progressive Reform's strategic direction. We previously published "Strengthening the 4th Branch of Government" and "A Turning Point on Climate."

I'm hopeful the recent disco revival won't last but that other resurging movements of the 1960s and '70s will. That era saw the birth and explosive growth of the modern environmental movement alongside other sweeping actions for peace and equality.

Public pressure led to critical environmental laws that continue to protect our natural resources and our health and safety. In 1970, Congress created the U.S. Environmental Protection Agency and enacted the Clean Air Act, which authorizes the federal government to limit air pollution, and the Occupational Safety and Health Act, which established the first nationwide program to protect workers from on-the-job harm. Two years later came passage of the Clean …

Jan. 6, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Biden administration announced on Monday that it would not meet a February target date to issue a revised definition of federal jurisdiction under the Clean Water Act. It still plans to issue a revised definition later in the year. That sounds like a very technical issue. But it actually determines the extent to which the federal government can prevent water pollution and protect wetlands across the nation. The Biden proposal basically calls for case-by-case decisions about federal jurisdiction. It's also the latest chapter in one of the most snarled-up regulatory issue of our times.

The story begins with the 1972 passage of the Clean Water Act. The act requires permits for dredge-and-fill operations and for pollution discharges into "navigable waters." Traditionally, navigable waters were tidal waters or waterways that could be used for commercial …

June 16, 2021 by Robin Kundis Craig
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This is the second of of a two-part post. Part I is available here.

In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.

  1. Openly Acknowledge that Section 404 of the Clean Water Has Hijacked the “Waters of the United States” Discussion and Provide a Corrective

    The Clean Water Act, for better or for worse …

June 16, 2021 by Robin Kundis Craig
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This is the first of of a two-part post. Part II is available here.

Last week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change.

The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction. In the 1980s, the EPA and Army Corps finally agreed on a regulatory definition of “waters of the United States,” a phrase that Congress had used in its 1972 overhaul of the Federal Water Pollution Control Act to define “navigable waters.” The phrase is also one of the key jurisdictional terms defining the waters to which the restructured law applies.

“Waters of …

May 3, 2021 by David Flores
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As Maryland heads into the final stretch of a collective effort to clean up the Chesapeake Bay, it has inexplicably passed over its best opportunity in years to modernize regulation of industrial stormwater — rain and snow that collects toxic pollution as it runs off factories, warehouses, scrap metal dealers, and other industrial sites.

Earlier this year, Maryland released a proposed revision of its general water pollution permit, which limits the type and amount of pollutants that facilities can discharge into public waters and sets monitoring and reporting requirements to protect public and environmental health.

Unfortunately, the state missed an important opportunity to bring stormwater regulation from the last century into the present — but it’s not too late to change course.

The Chesapeake Accountability Project (CAP) — a coalition of clean water advocacy groups including the Center for Progressive Reform — and two dozen partner organizations submitted a comment …

Jan. 12, 2021 by Victor Flatt
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One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act — and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations.

These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.

A new study on the economic analyses in the Trump rule (which I co-authored) concludes that its supporting economic analyses rely on questionable …

Sept. 24, 2020 by James Goodwin
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An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.

Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire …

July 29, 2020 by Joel Mintz
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In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reports the following today:

More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 23, 2022

Member Scholar Buzbee Leads Congressional Amicus in Crucial Supreme Court Clean Water Act Case

April 22, 2022

The Clean Water Act's Midlife Crisis

April 21, 2022

Protecting Future Generations, Just as Earlier Ones Sought to Protect Us

Jan. 6, 2022

The Quagmire of Clean Water Act Jurisdiction

June 16, 2021

Waters of the United States, 2021/2022 Edition, Part II

June 16, 2021

Waters of the United States, 2021/2022 Edition, Part I

May 3, 2021

Maryland Must Take Stronger Steps to Regulate Toxic Stormwater from Industrial Sites to Protect Marylanders and their Waterways