The Clean Water Act and the Constitution

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ISBN: 9781585761388 | 1585761389
Cover: Paperback
Copyright: 5/1/2009

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"One of the most revolutionary statutes ever enacted by Congress, the Clean Water Act (CWA) has produced remarkable progress over the past 25 years. Much of that progress, however, is threatened today-and some of those threats come from a number of recent Supreme Court decisions. Professor Craig's book presents a thorough, straightforward examination of the CWA's approach to delegated federalism and the constitutional provisions that have both empowered and bedeviled the statute. Her book deserves a place on the bookshelves of all those who are seasoned CWA lawyers as well as those who are learning to navigate one of the most complex statutes ever written." Book jacket.

Acknowledgments	p. xiii
Introduction: Environmental Regulation and the Constitution	p. 1
Imposing Federal Regulation and Enforcement	p. 7
The Clean Water Act's "Cooperative Federalism" and the Federal/State Regulatory Balance	p. 9
A Short History of Pre-1972 Federal Water Quality Regulation in the United States	p. 10
The RHA (Refuse Act)	p. 10
The FWPCA of 1948	p. 12
The Water Pollution Control Act Extension of 1952	p. 13
Water Pollution Control Act Amendments of 1956	p. 13
The FWPCA Amendments of 1961	p. 15
Water Quality Act of 1965	p. 17
Clean Water Restoration Act of 1966	p. 19
Water and Environmental Quality Improvement Act of 1970	p. 20
The 1970 Changes to the RHA: A Federal Permit Program for Water Pollution	p. 21
The 1972 Amendments and the Creation of the Contemporary CWA	p. 22
Cooperative Federalism in the Current CWA	p. 27
Subchapter I: Research and Related Programs	p. 27
Subchapter II: Grants for Construction of Treatment Works	p. 28
Subchapter III: Standards and Enforcement	p. 29
The Elements of Federal Jurisdiction Under the Contemporary CWA	p. 29
Federal Standard Setting	p. 31
Retained State Authority Over Water Quality	p. 32
Subchapter IV: Permits and Licenses	p. 34
State Primacy Over Water Quality, Continued: Water Quality Certifications	p. 34
The CWA's Two Permit Programs	p. 34
Enforcement Under the CWA	p. 35
The Supremacy Clause and Federal Preemption of State Water Quality Law	p. 39
The Supremacy Clause and Federal Preemption of State Law	p. 40
The CWA and Preemption of State Law	p. 43
The CWA's "Saving" Clauses	p. 43
Express Preemption in the CWA: Marine Sanitation Devices and Traditional Federal Authority Over Navigation and Vessel Requirements	p. 46
Section 312's Express Preemption Provisions	p. 46
Federal Preemption of Vessel Design in General	p. 46
The Scope of §312's Preemption	p. 48
The CWA and the PWSA: An Uneasy Tension Between Vessel Design and Pollution Control	p. 49
Supremacy Clause Ambiguity: Preemption of State and Private Remedies for Oil Spills	p. 51
Implicit and Conflict Preemption in the CWA: Federal Preemption of Less Stringent State Regulation	p. 53
Conflict Preemption, Federalism, and the Ambiguous Status of State Water Quality Standards in Interstate River Systems	p. 55
The Overall Effect of the Supremacy Clause on the CWA	p. 57
Interstate Water Pollution, Federal Common Law, and the Clean Water Act	p. 59
Interstate Water Pollution in the Court Before 1972	p. 60
Missouri v. Illinois	p. 60
Interstate Pollution Disputes, 1906-1972	p. 63
The CWA's Interstate Water Pollution Provisions	p. 67
Section 401	p. 67
State-Issued CWA Permits and Interstate Water Quality	p. 69
Interstate Citizen Suits	p. 70
The CWA and the Federal Common Law of Nuisance	p. 70
Interstate Water Pollution, the CWA, and State Common-Law Nuisance: International Paper Co. v. Ouellette	p. 74
Complex Rivers: A Resurgence of Federal Authority?	p. 74
Sovereign Immunity and State Regulation of Federal Facilities and Tribes	p. 77
The CWA, Federal Facilities, and Federal Sovereign Immunity	p. 77
Introduction	p. 77
Federal Sovereign Immunity and State NPDES Permitting	p. 81
The Scope of the Waiver of Sovereign Immunity From State Permitting Requirements	p. 84
Federal Facility Liability for Civil Penalties Under State Programs	p. 85
Civil Penalties, Government Enforcement, and Federal Facility Compliance With the CWA	p. 89
Federal Facilities and State Water Quality Standards Outside the Point Source and Permitting Contexts	p. 92
Tribal Sovereign Immunity and State Regulation of Tribes	p. 100
Tribal Sovereign Immunity, Congress, and the CWA	p. 100
Tribal Sovereign Immunity, the States, and the CWA	p. 100
Congress' Emphasis on Tribal Sovereign Immunity: Treatment-as-a-State (TAS) Status	p. 105
Limits on Federal Water Quality Regulation: The Tenth Amendment, the Commerce Clause, and Clean Water Act "Navigable Waters"	p. 109
The Commerce Clause and the Tenth Amendment	p. 110
The CWA's "Navigable Waters"	p. 116
CWA "Navigable Waters" and the Commerce Clause	p. 119
Early Commerce Clause Evaluations of the CWA	p. 119
United States v. Riverside Bayview Homes, Inc. and Adjacent Wetlands	p. 121
Isolated Waters and the Commerce Clause Debate	p. 122
The Court's Statutory Interpretation, Part II	p. 125
Federalism as a Mode of CWA Interpretation, 2001-2006	p. 128
Rapanos v. United States: Federalism, Wetlands, and Congress' Water Quality Goals	p. 131
CWA Jurisdiction in the Lower Courts After Rapanos: Deciding Among the Justices	p. 138
"Navigable Waters" and the Commerce Clause: What Is the Constitutional Limit of Congress' Authority to Regulate Water Quality?	p. 141
The Channels of Interstate Commerce: The Oceans, Contiguous Zones, Territorial Seas, and Traditionally Navigable Waters	p. 141
Non-Navigable Interstate Waters	p. 144
Non-Navigable Interstate Waters and the Substantial Relationship to Interstate Commerce	p. 144
Limiting Federal and State Enforcement of the Clean Water Act: Fifth and Fourteenth Amendment "Takings" of Private Property	p. 149
The History of the Regulatory Takings Doctrine	p. 149
Distinguishing Physical and Regulatory Takings	p. 157
Regulatory "Takings" and the CWA	p. 159
Is the "Taking" Claim Ripe?	p. 160
Is There a Lucas-Type Categorical "Taking"?	p. 161
Is There a "Taking" Under the Penn Central Balancing Test?	p. 162
The Character of the Government Action	p. 163
Interference With the Claimant's Reasonable, Investment-Backed Expectations for the Property	p. 163
Economic Impact of the Permit Denial	p. 164
Can There Be a Temporary "Taking"?	p. 165
The Overall Effect of Fifth Amendment "Takings" on the CWA's Regulatory Regime	p. 166
Imposition of Citizen Participation and Enforcements	p. 169
The Second Theme in Congress' Restructuring of the Federal Water Pollution Control Act: The Addition of Citizen Participation and Citizen Suits	p. 171
Citizen Participation in the Clean Water Act (CWA) and the Creation of the CWA's Citizen Suit Provision	p. 171
Later Amendments to the CWA's Citizen Suit Provision	p. 176
Bringing a CWA Citizen Suit: The Statutory Requirements	p. 177
Causes of Action	p. 177
Jurisdiction and Venue	p. 181
The Notice Requirement	p. 181
The Gwaltney Requirement	p. 184
Preclusion by State and Federal Enforcement	p. 186
Citizen Suit Enforcement and the CWA	p. 190
Article III Separation of Powers, Standing, and the Rejection of a "Public Rights" Model of Environmental Citizen Suits	p. 193
Article III and Federal Courts' "Case or Controversy" Requirement	p. 193
Environmental Standing and Citizen Suits	p. 199
Early Environmental Standing Cases	p. 199
Sierra Club v. Morton and the Elimination of Privately Enforceable Public Environmental Rights	p. 199
Further Refinement of Environmental Standing Requirement in the 1990s	p. 204
Relaxing Injury-in-Fact Since 2000? Resonable Fears, Climate Change, and Increased Risk in the Standing Analysis	p. 208
The 2000 Decision in Laidlaw	p. 208
The Court's 2007 Standing Analysis in Massachusetts v. EPA: Liberalization of Defenders of Wildlife or Special Standing for States?	p. 209
The Increased Risk Standing Trend	p. 213
Standing and CWA Litigation	p. 214
Citizen Suits Against the Federal Government and Tribes	p. 219
The CWA's Waiver of Sovereign Immunity for Subsection (a)(1) Citizen Suits Against Federal Facilities That Are Violating the Act	p. 219
Section 505's Procedurally Limited Waiver of Sovereign Immunity	p. 219
Attempts to Evade §505's Limitations	p. 221
Civil Penalties in Citizen Suits Against the Federal Government	p. 222
Section 505's Waiver of Sovereign Immunity for Subsection (a)(1) Citizen Suits Against Tribes That Are Violating the CWA	p. 226
The CWA's Waiver of Sovereign Immunity for Subsection (a)(2) Citizen Suits Against the EPA Administrator for Failure to Perform Nondiscretionary Duties	p. 228
Suits Against the Administrator of EPA	p. 228
Suits Against the Corps	p. 229
Citizen Suits Against States and Territories and the Eleventh Amendment	p. 233
Congress' Attempt to Abrogate State Sovereign Immunity in the CWA and the U.S. Supreme Court's Eleventh Amendment Jurisprudence	p. 233
CWA Citizen Suits Against States After Seminole Tribe	p. 239
Citizen Suits Against States and State Agencies	p. 239
CWA Citizen Suits Against State Officials: The Ex Parte Young Doctrine	p. 241
Cooperative Federalism as a Waiver of Eleventh Amendment Sovereign Immunity?	p. 245
CWA Citizen Suits Against Territories and the District of Columbia After Seminole Tribe	p. 247
Citizen Suits Against Territories	p. 247
Commonwealth of Puerto Rico	p. 248
Virgin Islands	p. 249
Trust Territory of the Pacific Islands	p. 250
The CNMI	p. 251
Guam	p. 252
American Samoa	p. 254
CWA Citizen Suits Against the District of Columbia	p. 254
The Effects of Seminole Tribe on Citizen Suits Against States	p. 255
Article II Separation of Powers and the President's Enforcement Right	p. 257
Article II Separation-of-Powers Principles	p. 257
Article II Separation of Powers and the "Take Care" Clause	p. 258
Separation of Powers and the Appointments Clause	p. 261
Article II Separation-of-Powers Issues and Environmental Citizen Suits: Decisions to Date	p. 264
The "Take Care" Clause and Environmental Citizen Suits	p. 266
The Appointments Clause and Environmental Citizen Suits	p. 269
Do Citizen Suits Allow the Federal Courts and Congress to Usurp the Executive?	p. 270
Resolving Article II Separation-of-Powers Challenges to Environmental Citizen Suit Provisions	p. 271
The Qui Tam Comparison	p. 272
Environmental Citizen Suits and Standing	p. 276
Would Public Interest Citizen Suits Violate Article II Separation of Powers?	p. 277
Conclusion: Should There Be a Constitutional Right to a Clean/Healthy Environment?	p. 281
The Importance of Citizen Suits to Environmental Enforcement	p. 284
Constitutional Jurisprudence and Environmental Citizen Suit Litigation	p. 291
Restoring Citizen Enforcement of Federal Environmental Law: Two Possible Solutions	p. 292
Adopt a Public Rights/Public Interest Approach to Citizen Litigation	p. 292
Amend the Constitution	p. 293
The Purely Structural Amendment	p. 293
Standing	p. 295
Eleventh Amendment	p. 295
Federal Sovereign Immunity	p. 296
Article II Separation-of-Powers Concerns	p. 297
Elimination of Commerce Clause Concerns	p. 297
Balancing of Fifth and Fourteenth Amendment "Takings"	p. 297
A Proposed Structural Amendment to the Constitution	p. 297
The Amendment Adding a Substantive Constitutional Right to a Clean and Healthy Environment	p. 298
Prior Litigation Indicates That Spontaneous Recognition of Environmental Rights in the Constitution Are Unlikely	p. 299
Normative Arguments Favor a Constitutional Amendment Guaranteeing a Right to Sue, But Not Necessarily a Substantive Environmental Right	p. 300
The Law Generally Recognizes That Beneficiaries Should Have the Right to Sue	p. 300
Constitutional Environmental Protections Are Becoming More Prevalent Among the Nations of the World, Indicating That the Environment Is Worthy of Constitution-Level Concern	p. 302
Individual States Within the United States-the Vanguard of American Law-Are Also Increasingly Recognizing That the Environment Should Be a Constitutional Concern	p. 304
Conclusion	p. 306
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The Clean Water Act and the Constitution

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