Beyond Words of Exhortation: The Congressional Prescription for Vigorous Federal Enforcement of the Clean Water Act

Abstract

After surveying the serious decline in enforcement at the U.S. EPA that occurred during the early years of the Reagan administration, this article takes a hard look at EPA’s enforcement responsibilities under the Clean Water Act.

The primary enforcement provision of the Clean Water Act, section 309, contains a confusing mélange of mandatory and discretionary language. The resolution of the apparent ambiguities found in section 309 requires a thorough consideration of the statute’s legislative history to determine, if possible, what Congress intended to achieve through the use of this language. In order to place that legislative material in its proper context, however, it is necessary to start with an examination of the problems with federal water pollution enforcement that Congress meant to cure in 1972, as well as the specifics of that cure. The article, therefore, examines both the history of federal water pollution enforcement prior to 1972 and the contours of the enforcement scheme created in 1972. It then examines the legislative history of section 309 at length.

The legislative history demonstrates that, although Congress gave EPA complete discretion to institute civil enforcement, Congress did impose a mandatory duty upon EPA to issue administrative compliance orders for particular violations of the Clean Water Act. That duty, however, is not a rigid command. Congress intended to infuse this mandatory duty with limited discretion: first, to determine whether the Act has been violated, and second, to establish appropriate priorities for federal enforcement based on the seriousness of the violation, its relationship to national policy, and whether, in some instances, a state agency has undertaken appropriate enforcement action. While citizen suits are available to hear actions where EPA is alleged to have violated such a mandatory duty, the article suggests a form of limited judicial review that should enable the courts to fulfill Congress’s intent to ensure vigorous administrative enforcement within a framework that relies heavily upon the expert judgment and experience of EPA.

Keywords: environmental law, environmental enforcement, enforcement, clean water act, EPA enforcement, pollution control, water pollution, environmental history, statutory interpretation