I got a kick out of Lara Beaven's report in Inside EPA on a Clean Water Act session at the ABA Spring meeting this week.
Ms. Beaven reports that Anna Wildeman, EPA Principal Deputy Assistant Administrator for Water during the Trump Administration, suggested that more Supreme Court intervention could help end the longest running controversy in the history of environmental law -- the three decades and counting back and forth over the reach of the Clean Water Act.
I have no idea how Ms. Wildeman can reach this conclusion. The Supreme Court has already tackled aspects of this controversy no fewer than four times. The last time, just 13 months ago in Maui, the Supreme Court answered a yes or no question -- whether the reach of the Clean Water Act extends to discharges to groundwater -- with a resounding maybe. It would seem that if anything is certain it is that the Justices of the Supreme Court should not be asked to write our environmental laws.
And I agree with those who say that a third consecutive unilateral Executive Branch attempt to resolve this controversy through yet another Clean Water Act regulation is unlikely to be any more successful than the attempts during the Obama and Trump Administrations. The only certain result of such an attempt is more litigation.
No, the only way out of this interminable mess is for Congress to do its job and pass comprehensive legislation bringing the 1972 Clean Water Act into the 21st century. If they do their job well, compromises will be required but we will, at long last, have the certainty regarding the reach of the Act that has eluded us in rulemakings and the courts for decades. What a great silver anniversary present for the Act and all of us that would be!
Wildeman suggested that EPA could be helped by additional Supreme Court rulings on the scope of the CWA, especially if cases are presented to the high court that ask very specific questions, such as whether the Trump WOTUS rule went too far in its limits on the scope of the act.