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In 1972, a bi-partisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Almost fifty years have passed since Congress enacted the law and, during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970's, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. This article reviews the shift in the Court's interpretation of the Act ver time. A review of the thirty cases that the Court has heard that involve statutory interpretation of the Clean Water Act show that the Court, during the early years of the law, focused heavily on legislative history and the purpose of the law in Section 101(a) and interpreted the law to carry out that purpose. Over time, though, the Court adopted a more textualist approach to interpreting the Clean Water Act and, beginning with the Rehnquist Court, the Court began to focus on protecting States' rights. In contrast to the Court's early opinions, opinions from the past few decades do not generally discuss the water quality protection purposes of Section 101(a) of the Clean Water Act. Instead, to the limited extent that the Court focuses on purposes of the law, it cites language in Section 101(b) of the law that discusses a Congressional policy to preserve and protect States' rights. A review of the Court's Clean Water Act cases also shows that, as the Court has moved to a more textualist approach to statutory interpretation, it has become more ideologically divided and the outcomes of the cases are more frequently those that could be characterized as anti-environmental. In addition, while early Supreme Court Clean Water Act decisions often adopted a rhetorical tone sympathizing with the government's efforts to advance public rights with limited resources, more recent decisions tend to adopt a tone of skepticism or even hostility toward government regulation.The shift in the Supreme Court's interpretation of the Clean Water Act is troubling because it coincides with Congressional disengagement in oversight of the law. In the first few decades after the Clean Water Act was enacted, Congress was vigilant in responding to Supreme Court and lower court interpretations of the law, and frequently legislated to affirm or overturn those interpretations. That is no longer the case, either for the Clean Water Act or most other environmental laws. If the Supreme Court adopts an interpretation of the law that conflicts with the water quality protection goals and purposes of the law, Congress is no longer likely to step in to correct the Court's mistake. The lack of concern demonstrated by the Supreme Court and Congress toward interpreting and applying the Clean Water Act to meet the Section 101(a) goals to protect water quality could be counterbalanced to some degree by aggressive implementation of the law by EPA and the U.S. Army Corps of Engineers to carry out those goals. Chevron deference to the agencies' interpretations of the law could provide a minor bulwark against the erosion of the law. However, courts are increasingly finding ways to avoid applying Chevron to agency decisions. Even if courts continued to aggressively apply Chevron to agency actions, though, deferring to the actions that the EPA and the Corps have taken over the past few years would not advance the water quality protection goals of the Clean Water Act because the agencies have increasingly emphasized the protection of States' rights policy of the law in Section 101(b) in their decision-making at the expense of the water quality protection goals of Section 101(a). The agencies' recent navigable waters protection rule and EPA's policy reversal regarding discharges to groundwater in the County of Maui, Hawaii v. Hawaii Wildlife Fund case are just a few examples of the agencies' policy shift.
Because water in the United State has not been traded in markets, there is no meaningful estimate of what it would cost if it were traded. But failing to establish ground water's valueâ€"for in situ uses such as sustaining wetlands as well as for extractive uses such as agricultureâ€"will lead to continued overuse and degradation of the nation's aquifers. In Valuing Ground Water an interdisciplinary committee integrates the latest economic, legal, and physical knowledge about ground water and methods for valuing this resource, making it comprehensible to decision-makers involved in Superfund cleanup efforts, local wellhead protection programs, water allocation, and other water-related management issues. Using the concept of total economic value, this volume provides a framework for calculating the economic value of ground water and evaluating tradeoffs between competing uses of it. Included are seven case studies where ground-water valuation has been or could be used in decisionmaking. The committee examines trends in ground-water management, factors that contribute to its value, and issues surrounding ground-water allocation and legal rights to its use. The book discusses economic valuation of natural resources and reviews several valuation methods. Presenting conclusions, recommendations, and research priorities, Valuing Ground Water will be of interest to those concerned about ground-water issues: policymakers, regulators, economists, attorneys, researchers, resource managers, and environmental advocates.
2017 INDIE BOOK OF THE YEAR AWARD FINALIST "A rallying cry . . . Everyone who is concerned about the welfare of all species, including human beings. Please read this important book." --Richard Louv, chairman emeritus of the Children & Nature Network and author of LAST CHILD IN THE WOODS and THE NATURE PRINCIPLE The Constitutional Change We Need to Protect Our Priceless Natural Resources For decades, activists have relied on federal and state legislation to fight for a cleaner environment. And for decades, they've been fighting a losing battle. The sad truth is, our laws are designed to accommodate pollution rather than prevent it. It's no wonder people feel powerless when it comes to preserving the quality of their water, air, public parks, and special natural spaces. But there is a solution, argues veteran environmentalist Maya K. van Rossum: bypass the laws and turn to the ultimate authority--our state and federal constitutions. In 2013, van Rossum and her team won a watershed legal victory that not only protected Pennsylvania communities from ruthless frackers but affirmed the constitutional right of people in the state to a clean and healthy environment. Following this victory, van Rossum inaugurated the Green Amendment movement, dedicated to empowering every American community to mobilize for constitutional change. Now, with The Green Amendment, van Rossum lays out an inspiring new agenda for environmental advocacy, one that will finally empower people, level the playing field, and provide real hope for communities everywhere. Readers will discover how legislative environmentalism has failed communities across America, the transformational difference environmental constitutionalism can make, the economic imperative of environmental constitutionalism, and how to take action in their communities. We all have the right to pure water, clean air, and a healthy environment. It's time to claim that right--for our own sake and that of future generations.