CONTENTS INTRODUCTION I. THE REGULATORY, PROPERTY, AND HUMAN RIGHTS MODELS OF ENVIRONMENTAL LAW A. The Regulatory Strategy B. The Property Strategy C. The Human Rights Strategy II. SACKETT V. EPA A. Wetlands and the Waters of the United States (WOTUS) Rule B. Rapanos: The Court's Previous Wrestling Match with WOTUS C. Sackett v. EPA III. HOW SACKETT WILL SHIFT THE BALANCE AMONG MODELS A. Disingenuous Separation of Powers Concerns B. Ramifications for Environmental Governance CONCLUSION
INTRODUCTION
This Essay introduces a framework of three different strategies for protecting American waterways--the conventional regulatory approach, an alternative property-based approach, and a new human rights-based approach--and reviews how the dynamic among them will be impacted by the Supreme Court's recent decision in Sackett v. EPA, (1) which curtailed the regulatory reach of the federal Clean Water Act ("the Act" or "CWA"). (2) The rights of nature movement has emerged as a human rights-based approach to environmental protection, the public trust doctrine offers a public property-based approach, and the CWA epitomizes the more traditional regulatory approach. Last Term, however, the Court unwound nearly a half century of accepted regulatory practice when it substantially limited the reach of the CWA as a tool for protecting waterways.
In Sackett, the majority held that CWA jurisdiction extends to only those waters with a continuous surface connection to a navigable waterway, (3) rather than covering all wetlands, headwaters, and tributaries with a significant nexus to the navigable channel at the bottom of the watershed. (4) The Court made this relatively hard break with the past interpretations of the "Waters of the United States" (WOTUS) rule (5) that clarifies CWA jurisdiction, in spite of Congress's clearly stated purpose in enacting the CWA to protect "the chemical, physical, and biological integrity of the Nation's waters," (6) and in contravention of the accepted science that had informed the agency's interpretation of this legislative policy. (7)
For nearly fifty years, the two agencies that Congress assigned to implement the CWA, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE), have interpreted their jurisdiction to match the availability of federal authority under the Commerce Clause (8)--a reasonable interpretation that reflected the scientific consensus about watershed mechanics--and one that was arguably ratified by decades of legislative acceptance. In Sackett, the majority warned that Congress would have to provide an even clearer statement in support of this assertion of jurisdiction to authorize it to the Court's satisfaction. (9) By invoking a new "clear statement" doctrine during an unusually intense period of legislative paralysis (in which Congress appears unlikely to achieve clarity on any major question), the Court has unselfconsciously substituted its own judgment for that of the political branches on a scientific matter in which judicial capacity approaches its nadir. (10) The additional suggestion that wetlands regulation is really a matter for the states (such that even a clear statement from Congress might not suffice) (11) highlights the majority's apparent inclination that the only federal actor eligible to weigh in on the proper means of protecting the nation's waterways is the Supreme Court itself.
The Court's self-aggrandizing move in Sackett will come at a cost for wise environmental governance under all three models reviewed here. In rejecting the EPA's understanding of broader CWA jurisdiction, long accepted by the legislature that authorized it, the Court has encroached on a sphere of decision-making that properly belongs to the branches of government with actual expertise in the regulatory field. (12) (Indeed, the Court may double down on self-aggrandizement this Term, in two cases that cast further doubt on ongoing judicial deference to agency expertise. (13)) Yet under long-settled principles of administrative law, EPA and ACE reasonably asserted jurisdiction over remote wetlands and tributaries because these are the scientifically established gatekeepers of the physical, chemical, and biological integrity of downstream navigable waters, such that allowing their impairment undermines the health and vitality of the nation's waters. (14)
By weakening the nation's principal regulatory strategy for protecting them, Sackett will not only harm these waterways directly; it will also frustrate all stakeholders in the debate about how best to balance the competing demands we place on them. It will almost certainly inspire greater recourse to the human rights- and property based alternatives to conventional regulation under the CWA, notwithstanding the opposition these strategies face from regulated parties who critique them as legally unsound and environmental advocates who worry about their ultimate legal trajectory.
This Essay briefly identifies the three strategies for protecting waterways before assessing the Sackett decision and how its rewrite of the WOTUS rule will likely alter the dynamic among them. While each of these models adds to the mix, only the regulatory model has the flexibility and specificity to respond in exactly the way that policymakers see fit, including incorporating elements of the other two strategies. For that reason, the Sackett decision threatens a critical loss in the arsenal of environmental law to protect waterways and the ecosystems, economies, and communities that depend on them--unless Congress acts quickly to support the overturned rule.
To remedy this loss (and to preempt the further CWA destabilization if the Court continues to erode prevailing principles of administrative deference), Congress must act quickly to clarify its original intention "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (15) It must statutorily clarify that the Act protects all the wetlands and tributary waters associated with navigable waterways, and it should restore the appropriate default presumptions that preceded recent Supreme Court cases clouding such precedent. (16) Better still, it should add protections to couple the CWA's tools for protecting water quality with the necessary tools to ensure sufficient water quantity--simultaneously minimizing pollution and guaranteeing minimum stream flows--thereby reducing the demand for alternative approaches to protecting waterways. Only then will the integrity of the nation's waters be restored and maintained, as both Congress and the American people always intended.
I. THE REGULATORY, PROPERTY, AND HUMAN RIGHTS MODELS OF ENVIRONMENTAL LAW
Last year, in celebration of the fiftieth anniversary of the CWA, the Case Western Reserve Law Review invited a group of scholars to reflect on the significance of these five groundbreaking decades in environmental law. (17) Most agreed that the CWA was a landmark piece of legislation that remains a pillar of modern environmental law, appropriately partnering the federal and state governments in an effort to protect treasured but vulnerable American waterways from pollution. Through a series of regulatory limits on polluting activities and discharges, the Act rehabilitated many of our most notoriously toxic waterways, and it helped establish the United States as a worldwide leader in environmental protection. (18)
Even so, our discussion revealed that the Act has not yet fully succeeded at its task, for varying reasons. (19) Recognizing the seriousness of threats to the waterways on which we depend for life, sustenance, transport, commerce, and beauty, Congress's clearly stated goal was to restore the integrity of the nation's waters by eliminating polluting discharges by 1985. (20) Our failure to meet that benchmark rests in part on built-in limitations in the scope of the Act, which regulates some sources of pollution but not others (for example, limiting end-of-pipe "point source" pollution but not diffuse overland pollution from roads and yards), (21) and some polluting industries but not others (for example, manufacturing and municipalities but not agriculture or silviculture). (22) Moreover, even before the Court abruptly curtailed the jurisdictional reach of the Act this summer, recent decisions had begun to chip away at it in a way Sackett will only exacerbate. (23)
In short, the Act is hardly a failure, but neither is it a complete success. And as I argued in that anniversary symposium, the great irony of the CWA is that both its successes and failures have prompted environmental advocates to seek out alternative strategies for protecting waterways. (24) Its spectacular successes in cleaning up our most polluted waterways have created strong expectations among the public that all of our waterways could and should be protected. (25) Nevertheless, its failure to protect many threatened waterways has also led to disillusionment with its limited set of regulatory tools. The Act's singular focus on pollution prevention has accomplished important successes, but in addition to problematic limits on which sources of pollution are regulated, its exclusive focus on preventing pollution has also led to many failures to protect treasured waterways that are struggling for reasons other than pollution. (26) An increasing number of waterways are in decline due to reductions in the quantity of water available to them after being overdrawn by water withdrawals and redirections that threaten their very existence. (27)
These structural limitations--which empower the CWA to protect water quality but prevent it from addressing increasingly urgent matters of water quantity--have led to substantial frustration among advocates for declining waterways. (28) After all, the Act cannot succeed in its goal of ensuring fishable, swimmable, and drinkable waterways if there is no water left in the channel. As a result...
