Roads Not Taken: EPA vs. Clean Water

Abstract:     
The meaning of complex statutes like the Clean Water Act is heavily influenced by interpretations of implementing agencies like the U.S. Environmental Protection Agency (EPA). This article recounts three significant cases in which EPA chose to discount the Clean Water Act's objective of preserving and restoring the integrity of the nation's waters in favor of political or administrative convenience. The result was that EPA helped to make the statute ineffective against the chief source of water pollution: runoff from nonpoint sources (polluted runoff). This article claims that all three cases involved statutory gaps or ambiguities which an EPA that took seriously the statutory objective would have interpreted differently, and that these interpretations would have been sustained by the courts. The article suggests that, pending a change of heart by the agency, there are several opportunities for litigants to challenge EPA's roads not taken.

Keywords: Environmental law, clean water

JEL Classifications: K32

Accepted Paper Series