DOCSLIB.ORG

Troubled Waters

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Troubled Waters Troubled Waters Industrial Pollution Still Threatens American Waterways Troubled Waters Industrial Pollution Still Threatens American Waterways Elizabeth Berg and Hye-Jin Kim, Frontier Group John Rumpler, Environment America Research and Policy Center Spring 2018 Acknowledgments Environment Minnesota Research & Policy Center thanks Kenneth Kopocis, former Deputy Assistant Administrator in the Office of Water, U.S. Environmental Protection Agency; Josh Galperin, Director of the Yale Law School Environment Protection Clinic; Susan Kraham, Senior Staff Attorney at the Columbia Law School Environmental Law Clinic; and Josh Kratka, Senior Attorney at the National Environmental Law Center for their review of drafts of this document, as well as their insights and suggestions. Thanks also to Tony Dutzik and Elizabeth Ridlington of Frontier Group for editorial support. Additional thanks to the numerous staff at state environmental protection agencies across the country for reviewing the data for accuracy. Environment Minnesota Research & Policy Center thanks the Park Foundation and the Water Founda- tion for helping to make this report possible. The authors bear responsibility for any factual errors. The recommendations are those of Environment Minnesota Research & Policy Center. The views expressed in this report are those of the authors and do not necessarily reflect the views of our funders or those who provided review. 2018 Environment Minnesota Research & Policy Center. Some Rights Reserved. This work is licensed under a Creative Commons Attribution Non-Commercial No Derivatives 3.0 Unported License. To view the terms of this license, visit creativecommons.org/licenses/by-nc-nd/3.0. The Environment Minnesota Research & Policy Center is a 501(c)(3) organization. We are dedicated to protecting Minnesota’s air, water and open spaces. We investigate problems, craft solutions, educate the public and decision-makers, and help Minne- sotans make their voices heard in local, state and national debates over the quality of our environment and our lives. For more information about Environment Minnesota Research & Policy Center or for additional copies of this report, please visit www.environmentminnesotacenter.org. Frontier Group provides information and ideas to help citizens build a cleaner, healthier and more demo- cratic America. Our experts and writers deliver timely research and analysis that is accessible to the public, applying insights gleaned from a variety of disciplines to arrive at new ideas for solving pressing prob- lems. For more information about Frontier Group, please visit www.frontiergroup.org. Layout: To The Point Collaborative, tothepointcollaborative.com Cover photo: NOAA via Flickr, CC BY-SA 2.0 Table of Contents Executive Summary . 4 Introduction ...........................................................7 The Clean Water Act Limits Pollution of Our Waterways . 9 Direct Pollution of Waterways Is Illegal Without a Permit . .9 Both State and Federal Authorities Must Enforce the Clean Water Act.........10 Clean Water Permits Are Intended to Restore Waterways to Health . 11 Compliance with the Clean Water Act Is Reported in Publicly Available Databases ..........................................12 Publicly Accessible Reporting Is an Essential Tool for Enforcement . .13 Not All States Fully or Accurately Report Enforcement Data to the EPA . 13 Industrial Facilities Exceeded Pollution Limits 8,100 Times from January 2016 through September 2017 . 15 Discharge Exceedances by State . .15 Exceedances per Major Industrial Facility . 15 Exceedances in Impaired Waters . 17 Percentage of Major Industrial Facilities with Exceedances . .17 Major Industrial Facilities with Repeated Exceedances . .18 Severity of Exceedances . 19 Clean Water Act Enforcement Is Often Weak...............................20 America’s Poor Track Record of Clean Water Compliance and Enforcement . 21 Clean Water Enforcement Is Declining under the Trump Administration . 21 The Trump Administration Is Proposing to Further Erode Clean Water Protections . 24 Trump Administration Undermines the Clean Water Act Itself . 25 Policy Recommendations................................................27 Methodology ..........................................................28 Compliance Analysis . .28 Enforcement and Inspection Analysis . .29 Appendix . 30 Notes .................................................................64 Executive Summary merica’s waterways provide us with drink- Over a 21-month period from January 2016 to ing water, places to fish and swim, and September 2017, major industrial facilities re- critical habitat for wildlife – when they are leased pollution that exceeded the levels allowed Aclean and protected. under their Clean Water Act permits more than 8,100 times. Often, these polluters faced no fines The passage of the Clean Water Act in 1972 was a or penalties. turning point in America’s efforts to protect and re- store its rivers, lakes and coastal waters. Though the To protect and restore our waters, state and federal Clean Water Act has made some progress bringing officials must tighten enforcement of the Clean our waters back to health, a closer look at compli- Water Act. ance with and enforcement of the law reveals an National data on Clean Water Act compliance overly lenient system that too often allows pollution shows that during the 21-month span from Janu- without accountability. ary 2016 through September 2017:1 Table ES-1. The 10 States with the Most • The nation’s major industrial facilities discharged Exceedances Reported by Major Industrial Facilities pollution in excess of their permits at least 8,148 times. Rank State Total Exceedances • During roughly one-third of exceedances – more 1 Texas 938 than 2,600 times in total – pollutants were being 2 Pennsylvania 633 added to waters that were already too polluted for 3 Arkansas 567 uses such as recreation, fishing or drinking water, 4 Louisiana 535 hindering efforts to restore them. 5 Ohio 491 6 New York 473 • Approximately 40 percent of all major industrial facilities – more than 1,100 in total – reported 7 West Virginia 407 exceeding their pollution limits at least once. 8 California 360 9 Missouri 348 • Three-quarters of facilities that exceeded their 10 Florida 270 discharge permit limits did so more than once. 4 Troubled Waters Not only did many major industrial facilities exceed • Many violations go unpunished. Each year from their permit limits – sometimes frequently – but some 2011 to 2017, an average of 27,849 facilities were of those exceedances were particularly severe, non-compliant across the U.S., while an average with facilities releasing multiple times the amount of 13,076 – less than half – faced any EPA or state of pollution permitted under their Clean Water Act enforcement action.2 permits. • Even when fines are issued, they are often too State and federal agencies are failing to take strong low to deter polluters. In 2017, the median fine enforcement action to stop these rampant excess issued by the EPA was lower than it had been in 3 discharges of pollution into America’s waters. any year since 2011. • Numerous studies by the EPA Inspector General The Trump administration’s proposed cuts to the and others highlight a history of lackluster Environmental Protection Agency’s budget and re- enforcement of the Clean Water Act by state duced emphasis on enforcement threaten to open environmental agencies. the door for more illegal pollution of our water- ways. For fiscal year 2019, the current administration • The number of inspections of major industrial plans to cut the EPA’s budget for civil enforcement facilities was on pace to be lower in 2017 than of environmental protection programs, including in any of the previous five years, according to the Clean Water Act, by $30.4 million.4 Funding for Integrated Compliance Information System (ICIS) state grants to improve the permitting process and records (Figure ES-1). enforcement of the Clean Water Act is slated for Figure ES-1. Federal and State Inspections of Industrial Facilities by Year 2,500 2,000 2,127 1,849 1,907 1,722 1,500 1,660 1,431 1,000 Number of Number of inspections 500 0 2012 2013 2014 2015 2016 2017 (projected) Executive Summary 5 cuts as well; this program’s proposed budget is lower • Issue timely penalties that are sufficiently high to than the amount allotted in total grants for at least the deter companies from polluting our waters. previous seven years.5 • Boost compliance and enforcement by increasing To protect the rivers, streams and lakes that are criti- the number of on-site inspections at major facili- cal for the health of our wildlife and our communities, ties. states and the federal government need to take • Guard against any weakening of citizens’ ability to strong action to enforce our core environmental enforce pollution limits in court when state and laws. To strengthen compliance with clean water regu- federal authorities fail to halt illegal dumping. lations, policymakers should: In addition: • Ensure that the Clean Water Act applies to all our waterways, so that there is nowhere polluters can • States that repeatedly fail to enforce the Clean dump with impunity. Water Act should face consequences for their inaction – including loss of federal funding and/or • Strengthen permits with enforceable, numeric limits primary enforcement authority. on pollution that are ratcheted down over time as technology allows or water quality demands. • Companies should reduce their use of toxic
Load more

Recommended publications
  • Clean Water Act Jurisdiction Over Groundwater Discharges After County of Maui V
    CLEAN WATER ACT JURISDICTION OVER GROUNDWATER DISCHARGES AFTER COUNTY OF MAUI V. HAWAII WILDLIFE FUND Jocelyn Lee* The Clean Water Act is the principal federal law aimed at controlling pollution of the nation’s water resources, yet it does not provide comprehensive oversight of pollutants entering groundwater, the subsurface water that often feeds into rivers, lakes, and oceans. This Note examines a recent Supreme Court decision, County of Maui v. Hawaii Wildlife Fund, which appeared to endorse a theory of federal regulation of groundwater discharges under the Clean Water Act. County of Maui established a “functional equivalent” standard, under which a discharge through groundwater is subject to the Clean Water Act’s permitting requirements if it is the functional equivalent of a direct discharge into jurisdictional surface waters. While the Court outlined several factors for courts to consider in making a functional equivalent determination, the decision offers limited guidance for lower courts applying the test. Moreover, it leaves an important regulatory question unanswered. This Note aims to address some of the persisting uncertainties by proposing that Justice Kennedy’s “significant nexus” standard from his Rapanos v. United States concurrence can be illuminating. This Note argues that overlaying the significant nexus standard on the functional equivalent test offers a practical strategy for lower courts applying the test in difficult cases. INTRODUCTION ................................................................................ 2774 I. THE ROAD TO FEDERAL REGULATION OF GROUNDWATER DISCHARGES UNDER THE CWA ........................................... 2777 A. The CWA ......................................................................... 2777 B. Theories of CWA Jurisdiction over Groundwater Discharges .................................................................... 2779 1. The Navigable Waters Theory ................................. 2779 * J.D. Candidate, 2022, Fordham University School of Law; B.A., 2016, Cornell University.
    [Show full text]
  • Jurisdictional Limits Locations Report Oracle D.Tech Project
    JURISDICTIONAL LIMITS LOCATIONS REPORT ORACLE D.TECH PROJECT Redwood City, San Mateo County, California Prepared for: BKF Engineers 255 Shoreline Drive, Suite 200 Redwood City, CA 94065 Prepared by: WRA, Inc. 2169-G Francisco Blvd East San Rafael, CA 94901 415-454-8868 Contact: Mike Josselyn [email protected] Sean Avent [email protected] Date: September 2015 This page intentionally left blank. TABLE OF CONTENTS 1.0 INTRODUCTION ................................................................................................................... 1 1.1 Regulatory Background ...................................................................................................... 1 1.1.1 Clean Water Act Section 404 .................................................................................... 1 1.1.2 California Fish and Game Code Section 1602 .......................................................... 2 1.1.3 Regional Water Quality Control Board Porter-Cologne Water Quality Control Act. ... 2 1.1.4 San Francisco Bay Conservation and Development Commission ............................. 2 2.0 SITE DESCRIPTION ............................................................................................................. 3 2.1 Location ............................................................................................................................. 3 2.2 Vegetation .......................................................................................................................... 3 2.3 Soils ..................................................................................................................................
    [Show full text]
  • Governing the Gradient: Clarity and Discretion at the Water's Edge
    Volume 62 Issue 1 Article 3 5-13-2017 Governing the Gradient: Clarity and Discretion at the Water's Edge Jamison E. Colburn Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Environmental Law Commons, and the Water Law Commons Recommended Citation Jamison E. Colburn, Governing the Gradient: Clarity and Discretion at the Water's Edge, 62 Vill. L. Rev. 81 (2017). Available at: https://digitalcommons.law.villanova.edu/vlr/vol62/iss1/3 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Colburn: Governing the Gradient: Clarity and Discretion at the Water's Edg 2017] GOVERNING THE GRADIENT: CLARITY AND DISCRETION AT THE WATER’S EDGE JAMISON E. COLBURN* INTRODUCTION HE Clean Water Act (CWA) aims to restore and protect the “integ- Trity” of something without clear boundaries: the Nation’s waters.1 Yet this uncertainty in the Act’s aims stems not just from the typical sources of legislative ambiguity,2 but decades of disparate interpretations, as well.3 Of the statute’s many puzzles, none has proven more vexing than its geo- graphic scope: the “waters of the United States.” As with so many other critical legal boundaries like sexuality,4 privacy,5 disability,6 or maturity,7 it turns out that “waters” comprises a gradient.8 Congress, however, has re- fused to account for this brute fact.
    [Show full text]
  • A Revival of the Nondelegation Doctrine and an Embrace of Cost-Benefit Analysis in Environmental Rulemaking
    Gundy v. United States: A Revival of the Nondelegation Doctrine and an Embrace of Cost-Benefit Analysis in Environmental Rulemaking Kerensa Gimre After Gundy v. United States, the Supreme Court is poised to dramatically roll back the power of administrative agencies through a reinvigoration of the nondelegation doctrine. This will substantially restrict the ability of agencies, particularly the Environmental Protection Agency, to promulgate environmental regulations and will render large swaths of the Clean Air Act and Clean Water Act unconstitutional. Cost-benefit analysis may be a useful tool for the Environmental Protection Agency to justify its environmental regulations under a revived nondelegation doctrine, yet increased use of cost-benefit analysis creates new concerns over policing its biases and the separation of power. Despite these concerns, cost-benefit analysis may be the best tool to meet the standards of a more discerning Court under a reinvigorated nondelegation doctrine. Introduction ................................................................................................ 340 I. The Nondelegation Doctrine .................................................................... 342 A. The Role of Administrative Agencies ........................................ 342 B. The Development of Nondelegation Doctrine Jurisprudence and the Intelligible Principle Test............................................... 343 II. Gundy v. United States Signals the Court’s Shift toward a Reinvigorated Nondelegation Doctrine ...................................................................
    [Show full text]
  • Waters of the United States': Nearly 50 Years of Jurisdictional Uncertainty
    GLICK, JAMIN : ‘WATERS OF THE UNITED STATES’: NEARLY 50 YEARS OF JURISDICTIONAL UNCERTAINTY : 26 WATER LAW 147 ‘WATERS OF THE UNITED STATES’: NEARLY 50 YEARS OF JURISDICTIONAL UNCERTAINTY, AND MORE TO COME RICHARD M. GLICK Davis Wright Tremaine LLP OLIVIER F. JAMIN Davis Wright Tremaine LLP 1 INTRODUCTION discharges into the ‘waters of the United States’. Among its key provisions, the CWA allows the states, under EPA With the enactment in 1972 of the Clean Water Act supervision, to adopt water quality standards for all (‘the CWA’), the United States embarked on a mission contaminants in surface waters, and made it unlawful to to ‘restore and maintain the chemical, physical, and 1 discharge pollutants from a point source into navigable biological integrity of the Nation’s waters’. The Act was a waters without a permit.7 reaction to spectacular reports of highly contaminated waterways. It established a regulatory programme over Nearly 50 years after its enactment, the CWA has enjoyed ‘waters of the United States’, an undefined term. Over the a fair amount of success in addressing water pollution in following decades, the reach of federal jurisdiction has the United States. Most water bodies have seen significant been the subject of ongoing debate and controversy. In improvements in water quality, and the health of aquatic this article, we attempt to provide a measure of clarity to ecosystems has steadily increased.8 But the CWA still this confusing regulatory programme. faces many challenges.9 One of these challenges concerns In 1969, the Cuyahoga River, one of the most polluted the law’s jurisdictional trigger.
    [Show full text]
  • EPA and Army Corps Issue Final Rule to Govern Federal Clean Water Act Jurisdiction
    Latham & Watkins Environment, Land & Resources Department June 9, 2015 | Number 1842 EPA and Army Corps Issue Final Rule to Govern Federal Clean Water Act Jurisdiction Those currently or potentially subject to Clean Water Act regulation should plan for expanded federal jurisdiction upon implementation of the Clean Water Rule’s broad new definition of “waters of the United States.” Introduction On May 27, 2015, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) jointly issued a “Clean Water Rule” (the Final Rule) that defines “waters of the United States” (WOTUS), a threshold term that determines the Clean Water Act’s (CWA) scope and application.1 EPA and the Corps received over one million comments2 on the Proposed Rule, which was released on March 25, 2014.3 A number of affected entities — including landowners and representatives from a variety of industries and business groups — criticized the agencies for overreaching and expanding CWA jurisdiction beyond historical coverage and Supreme Court precedent. In response to those comments, EPA and the Corps revised the Proposed Rule to address some, but not all, of the opponents’ concerns, resulting in significant continued controversy. The Final Rule has broad application — it defines jurisdictional waters not only for Section 404 of the CWA (permitting for dredge and fill operations) but also under: Section 303, addressing water quality standards and maximum daily loads; Section 311, relating to oil spill prevention and response; Section 401, concerning state water quality certifications; and Section 402, establishing the National Pollutant Discharge Elimination System (NPDES) permit program. Given the Act’s broad and varied applications, many different stakeholders have an interest in understanding the Final Rule, which will become effective 60 days following its publication in the Federal Register.
    [Show full text]
  • WOTUS Rule Complaint Filed 05012020
    Case 3:20-cv-03005 Document 1 Filed 05/01/20 Page 1 of 29 1 XAVIER BECERRA LETITIA JAMES Attorney General of California Attorney General of the State of New York 2 SARAH E. MORRISON PHILIP BEIN ERIC KATZ Senior Counsel 3 Supervising Deputy Attorneys General TIMOTHY HOFFMAN* CATHERINE M. WIEMAN, SBN 222384 Senior Counsel 4 TATIANA K. GAUR, SBN 246227 Office of the Attorney General ROXANNE J. CARTER, SBN 259441 Environmental Protection Bureau 5 JESSICA BARCLAY-STROBEL, SBN 280361 28 Liberty Street BRYANT B. CANNON, SBN 284496 New York, NY 10005 6 Deputy Attorneys General Telephone: (716) 853-8465 300 South Spring Street, Suite 1702 Fax: (716) 853-8579 7 Los Angeles, CA 90013 Email: [email protected] Telephone: (213) 269-6329 Attorneys for Plaintiff State of New York 8 Fax: (916) 731-2128 E-mail: [email protected] 9 Attorneys for Plaintiff State of California, by and through Attorney General Xavier Becerra and 10 California State Water Resources Control Board [Additional Parties and Counsel Listed on 11 Signature Page] 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE NORTHERN DISTRICT OF CALIFORNIA 14 STATE OF CALIFORNIA BY AND THROUGH Case No. ATTORNEY GENERAL XAVIER BECERRA AND 15 CALIFORNIA STATE WATER RESOURCES COMPLAINT FOR DECLARATORY CONTROL BOARD, STATE OF NEW YORK, AND INJUNCTIVE RELIEF 16 STATE OF CONNECTICUT, STATE OF ILLINOIS, STATE OF MAINE, STATE OF MARYLAND, STATE 17 OF MICHIGAN, STATE OF NEW JERSEY, STATE (Administrative Procedure Act, 5 U.S.C. § OF NEW MEXICO, STATE OF NORTH CAROLINA 551 et seq.) 18 EX REL.
    [Show full text]
  • 2015-16 Section Report
    ANNUAL REPORT OF THE SOUTH CAROLINA BAR ENVIRONMENT AND NATURAL RESOURCES SECTION The following selection of cases and legislative enactments may be of interest to the environmental practitioner and were selected from the 2015 calendar year.1 CASE LAW UPDATE SOUTH CAROLINA STATE CASES: Town of Arcadia Lakes et al. v. S.C. Dep’t of Envtl. Control et al., 404 S.C. 515745 S.E.2d 385 (Ct. App. 2013). After DHEC granted coverage under the State General Permit for Storm Water Discharges from Large and Small Construction Activities to a new subdivision, nearby property owners and a nearby municipality, Arcadia Lakes, appealed. Arcadia Lakes argued the permit would cause harm to the nearby Cary Lake, which was within Arcadia Lakes but the town had no responsibility for the lake as it was private. The Administrative Law Judge, Judge McLeod, denied Arcadia Lake’s motion for reconsideration and for stay of it Final Order and Decision issued on January 21, 2010, finding that Arcadia Lakes and the other petitioners lacked standing. The ALC’s decision was based on its finding that the petitioners lacked a personal stake in the litigation. The ALC specifically found that any injury, if it occurred, would be caused by a permit violation, not by the issuance of the permit itself. Thus, the ALC distinguished the issue of alleged “harms” occurring as a result of a permit violation from allegations of harm from the issuance of the permit itself, the former not composing a basis for standing. On appeal, the Court of Appeals affirmed the ALC’s holding that the petitioners did not have standing because they did not have a property interest affected by the development.
    [Show full text]
  • Redwook City Salt Ponds Complaint
    1 XAVIER BECERRA Attorney General of California 2 SARAH E. MORRISON Supervising Deputy Attorney General 3 GEORGE TORGUN, State Bar No. 222085 TATIANA K. GAUR, State Bar No. 246227 4 Deputy Attorneys General 300 South Spring Street, Suite 1702 5 Los Angeles, CA 90013 Telephone: (213) 269-6329 6 Fax: (213) 897-2802 E-mail: [email protected] 7 Attorneys for Plaintiff State of California 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 13 STATE OF CALIFORNIA, by and through Case No: 14 XAVIER BECERRA, ATTORNEY GENERAL, COMPLAINT FOR DECLARATORY 15 AND INJUNCTIVE RELIEF Plaintiff, 16 (Administrative Procedure Act, 5 U.S.C. § v. 551 et seq.) 17 18 ANDREW R. WHEELER, as Administrator of the United States Environmental Protection 19 Agency, UNITED STATES ENVIRONMENTAL PROTECTION 20 AGENCY, 21 Defendants. 22 23 INTRODUCTION 24 1. Plaintiff State of California, by and through Xavier Becerra, Attorney General 25 (“Plaintiff”) brings this action to seek review pursuant to the Administrative Procedure Act, 5 26 U.S.C. § 551 et seq. (“APA”) of the United States Environmental Protection Agency’s (“EPA”) 27 March 1, 2019 determination finding that the Redwood City Salt Ponds site, a 1,365-acre area 28 adjacent to San Francisco Bay and consisting of tidal channels and impoundments of bay waters 1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 (hereinafter, “Salt Ponds Site” or “the Site”), does not include “waters of the United States” under 2 the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA” or “Act”).
    [Show full text]
  • Water Quality Issues in the 114Th Congress: an Overview
    Water Quality Issues in the 114th Congress: An Overview Claudia Copeland Specialist in Resources and Environmental Policy February 5, 2016 Congressional Research Service 7-5700 www.crs.gov R43867 Water Quality Issues in the 114th Congress: An Overview Summary Much progress has been made in achieving the ambitious goals that Congress established in 1972 in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants. There is little agreement among stakeholders about what solutions are needed, whether legislation is required to address the nation’s remaining water pollution problems, or whether regulatory authorities should be reduced. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not comprehensive proposals. Programs that regulate activities in wetlands have been of particular interest recently, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that have narrowed regulatory protection of wetlands. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate.
    [Show full text]
  • Environmental Policy and the Election: Part 3 by James Tucker, Stacey Mitchell and Bryan Williamson
    Environmental Policy And The Election: Part 3 By James Tucker, Stacey Mitchell and Bryan Williamson Democratic presidential candidate Joe Biden's "clean energy revolution" and climate goals stand in stark contrast with the policies President Donald Trump has pursued during his first term, underscoring the significant impact the presidential election will have on U.S. environmental and energy policy. The congressional elections also will significantly affect the country's environmental and energy policy, as the next Congress can shape policy not just through its constitutional powers, but also through the reversal of many of the Trump administration's late-term rules via the Congressional Review Act. In this three-part article, we outline both candidates' key James Tucker environmental and energy policies, including how the candidates might — or might not — achieve their policy goals. The first installment identified the Trump administration's significant late-term rules that a unified Democratic Congress may seek to invalidate to minimize Trump's legacy. The second installment analyzed the policy differences between Trump and Biden on environmental issues including domestic energy, air quality and international climate diplomacy, and considered some likely consequences of those differences. This final installment covers the candidates' positions on water quality, biodiversity and federal lands, and environmental justice. Stacey Mitchell Water Quality Trump Among the Trump administration's signature regulatory rollbacks, the replacement
    [Show full text]
  • In the Clean Water Act
    Evolution of the Meaning of “Waters of the United States” in the Clean Water Act Updated March 5, 2019 Congressional Research Service https://crsreports.congress.gov R44585 Evolution of the Meaning of “Waters of the United States” in the Clean Water Act Summary For more than forty-five years, all three branches of government have struggled with how to interpret the meaning of “waters of the United States” in the Clean Water Act. In a shift from early water pollution legislation, the 1972 amendments to the Federal Water Pollution Control Act, which came to be known as the Clean Water Act, eliminated the requirement that federally regulated waters must be capable of being used by vessels in interstate commerce. Rather than use traditional navigability tests, the 1972 amendments redefined “navigable waters” for purposes of the Clean Water Act’s jurisdiction to include “the waters of the United States, including the territorial seas.” Disputes over the proper meaning of that phrase have been ongoing since that change. Federal authority to regulate waters within the United States primarily derives from the Commerce Clause, and accordingly, federal laws and regulations concerning waters of the United States cannot cover matters which exceed that constitutional source of authority. During the first two decades after the passage of the Clean Water Act, courts generally interpreted the act as having a wide jurisdictional reach. In recent decades, however, the Supreme Court has emphasized that “the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.” This modern Commerce Clause jurisprudence has informed federal courts’ approach to interpreting which “waters” are subject to the Clean Water Act.
    [Show full text]