Editorial: 50 years later, the Clean Water Act is under assault
A century ago, the U.S. Supreme Court held that states could regulate the discharge of pollutants and “navigable waters” to protect public health. Congress responded by passing the Clean Water Act of 1972. A century later, the Supreme Court has repeatedly struck down portions of the water law as unconstitutional.
The SupremeCourt’s decisions on the Clean Water Act are consistent with the Supreme Court’s approach to pollution for over a century. The Supreme Court has consistently taken a commonsense approach to pollution: it asks whether Congress made a valid judgment about the relevant circumstances, whether the law was necessary to achieve a sufficiently important objective and whether the regulated activity was harmful to the environment.
In 1972, the Supreme Court decided that Congress, in choosing not to pass a pollution fee, could have decided, “as a matter of sound public policy, that the public was better off without a fee.” Brown v. Legal Foundation, 403 U.S. 713, 723 (1971). In that case, the Court was deciding if Congress could require the payment of a fee to compensate owners who had been harmed by the discharge of sewage into a navigable river. The Court held that it could do so.
The Supreme Court has always applied a similar approach to the Clean Water Act, which governs the discharge of pollutants. In fact, it is easier to imagine a world in which Congress decided that the public was better off without the Clean Water Act than one in which it decided that the public was better off with the Clean Water Act. The Clean Air Act, which governs the emission of pollutants from power plants, is an example of the latter. Congress has determined that the public is better off with the Clean Air Act than without it. The Clean Water Act, on the other hand, does not have such a compelling interest because it does not directly affect every single person who uses the water.
The Supreme Court’s decisions on