“Interpreting the Clean Water Act: the uncertain relationship between environmental law and science”
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Robert Adler, Distinguished Professor, S.J. Quinney College of Law
Professor Adler’s expertise is in restoration and protection of water systems and management of water resources.
As the federal Clean Water Act (CWA) approaches its 50th anniversary in October 2022, federal courts and agencies still have not resolved the most longstanding dispute about the scope of the Act: how we define “waters of the United States” for regulatory purposes. In recent decades, the Obama, Trump, and now Biden Administrations have proposed dueling interpretations, all in response to the latest in a series of U.S. Supreme Court opinions on the issue. This issue highlights the uncertain relationship between environmental law and science. To judicial conservatives who believe in plain meaning and strict construction, the issue is not interdisciplinary at all because they assert that one need only read the dictionary to know what the statutory words mean. To judges who interpret statutes by trying to ascertain legislative intent and purpose, it should be highly interdisciplinary because agency scientists can interpret the issue considering scientific understanding of the degree to which water systems are interconnected hydrologically and ecologically. In between are judges (like Justice Kennedy) who decided they could solve the problem by creating their own “tests” for what constitutes a jurisdictional water, even if it that test isn’t rooted in the applicable scientific literature. These competing approaches could be reconciled if jurists analyzed the CWA’s multiple definitions of water bodies more holistically rather than dissecting their analysis into discrete parts.
Robert W. Adler is a Distinguished Professor of Law at the University of Utah, S.J. Quinney College of Law. He recently stepped down after a six-year term as the Jefferson B. and Rita E. Fordham Dean. He teaches and writes in the areas of environmental law and water law.