26 Pages Posted: 2 Jul 2010
Date Written: 2007
The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. In 2007, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover "navigable waters," but its practical definition has never been clear. The result is a statutory and jurisprudential mess, with lessons that extend across issues of constitutional law, statutory construction, and, of course, federalism. This article proposes to jettison the Act’s reliance on the misguided term "navigable waters." Instead, the statute should directly regulate activities that substantially affect interstate commerce, such as fisheries, migratory birds, floods, and agriculture. An Act whose limits are tied to the law of the commerce power would be shielded from the federalist ax.
Keywords: Clean Water Act, Wetlands, Supreme Court, Navigable Waters, Fisheries, Migatory Birds, Floods, Agriculture, Commerce Power
JEL Classification: K10, K19, K32, Q22, Q25, Q28
Suggested Citation: Suggested Citation
Boudreaux, Paul, A New Clean Water Act (2007). Environmental Law Reporter, Vol. 37, p. 10171, 2007; Stetson University College of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=1633671