By Mike Dorf
A distressing story in Monday's NY Times describes how confusion sown by two Supreme Court cases has hamstrung the ability of the EPA to enforce the Clean Water Act. In a nutshell, there is now considerable uncertainty about how far upstream federal authority runs.
The two cases the Times story references are Solid Waste Agency v. U.S. Army Corps of Engineers and Rapanos v. United States. Solid Waste Agency invalidated the "migratory bird rule," under which the federal govt treated any body of water as subject to regulation if it was used by migratory birds. The Court held that Congress did not intend to authorize federal regulation of abandoned gravel pits when it authorized regulation of "navigable waters." The plurality opinion in Rapanos attempted to do the same thing with respect to drainage ditches (and the like) which emptied into navigable waters, but the Court fractured, with the controlling opinion by Justice Kennedy establishing a "nexus" test. Although the Times story understandably does not go into doctrinal detail, one would expect that the confusion (as opposed to straightforward lack of regulatory authority) would come from Rapanos.
Confusion in the scope of regulatory authority could be cleared up by Congress, and the Times story cites efforts to do so. However, these efforts are being stymied by lobbyists for the major polluting industries, including agriculture. There is also a looming question of congressional power. The Supreme Court's holding in Solid Waste Agency was rooted partly in the Court's stated interest in avoiding what it deemed a difficult constitutional question: whether the Commerce Clause reaches regulation of small intrastate waters.
I suspect that there are five votes on the current Supreme Court to uphold the application of the Clean Water Act to circumstances like those in Rapanos. Pollutants dumped in ditches flow until they reach larger bodies of water, where they can have an enormous impact on interstate commerce (by, for example, poisoning fish and crops). So even assuming the migratory bird rule was outside the scope of congressional power, the Court need not reach the same conclusion for the rule at issue in Rapanos. But that still won't do us any good if Congress does not act.
To what extent is Congress controlled by the entities that benefit (in the short run) from the ability to dump their toxins into everyone else's water? I suppose the answer may well be "enough" to block any useful legislative change. But to the extent that there is even a bit of room for public-regarding argument to make a difference, this is an area where concerted public outrage could be mobilized. For whatever doctrinal significance may or may not attach to the difference between toxins dumped directly into a reservoir and those dumped into a ditch that flows into the reservoir (or into a pile that leeches into the groundwater), there can be no substantial policy difference between the two acts.
The tea party right is supposedly angry about the bailout of American banks. If so, that must be because the banks were given a public resource by the government without any requirement that they use it in the public interest. How about some outrage about other business interests being permitted to appropriate a public resource--our water--for private use without limitations to serve the public interest?