Report Shows Nation's Waters Losing Protections
April 14th, 2009Elected Officials Urged to Fix the Broken Clean Water Act
Federal documents obtained by environmental groups reveal that U.S. Supreme Court decisions (in the Bush era) eliminated or undermined federal Clean Water Act protections for streams, wetlands, lakes and rivers across the nation.
In a report released today, the groups provide 30 case studies demonstrating how the federal Clean Water Act is broken and calling on Senators and Representatives to fix it. The report, titled “Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why Congress Must Fix It,” is available from the Web site of the Alabama Rivers Alliance.
The 2nd Tuesday of April was officially designated as Rivers of Alabama Day by the Alabama state legislature in 2007. This report is a poignant reminder of how vulnerable our essential life-giving waterways have become.
“The Courts’ decisions have swept away 30 years of protection for some of our nation’s most important waters,” said Nelson Brooke, the Black Warrior Riverkeeper. “Polluters have been given a green light to ignore the Clean Water Act, even when it may affect drinking water supplies.”
“Because of the bad Supreme Court decisions, waters in Alabama are at risk,” said Cindy Lowry of the Alabama Rivers Alliance. “Congress must act quickly to pass the Clean Water Restoration Act, legislation that will restore federal Clean Water Act protections for all of the waters that were protected before the law was broken.”
One of the case studies highlighted in the report is in Birmingham, Alabama. In late October 2007 the court reversed the 2005 convictions of McWane, Inc. and three company officials on criminal charges related to the illegal discharge of pollutants including oil, lead, and zinc to Avondale Creek, which flows into Village Creek. Village Creek is a main tributary of the Black Warrior River’s Locust Fork.
The groups releasing the report emphasized that pollution of headwater streams and wetlands leads to greater pollution and flooding for downstream communities. The EPA has estimated that some 20 million acres of wetlands in the continental United States may lose federal protection. In addition, tens of thousands of miles of seasonal and headwater streams and countless numbers of small lakes, and ponds could be left without federal protection from water pollution.
“Congress must pass the Clean Water Restoration Act now,” Cindy Cindy Lowry said. “Alabama cannot afford to lose federal protections against pollution of our precious water resources.”
For more information on the Rapanos case and other similar cases, check the Black Warrior Riverkeeper Website.
Alabama Rivers Alliance is a nonprofit organization whose mission is to protect and restore state rivers through water quality and quantity policy advocacy, restoration planning, grassroots organizing, and watershed education in order to achieve clean and healthy watershed ecosystems, healthy people, strong economies, and a functioning democratic system of government in Alabama. For more information, contact Cindy Lowry at (205) 322-6395.
Black Warrior Riverkeeper is a non-profit organization whose mission is to protect and restore the Black Warrior River and its tributaries. For more information, contact Nelson Brooke at (205) 458-0095.
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April 14th, 2009 at 2:42 pm
The chief problem with environmental regulation is that in effect, the right to sue for all damages caused by pollution of a stream or the air, etc., and force the polluters to stop, is mitigated by administrative law.
Administrative law has supplanted common law across a broad spectrum of government activity over the last century.
Under common law, if I pollute a stream or the air or land, etc., and it harms your property or health in any way whatever, you can sue for all damages. That includes class action suits which would be fatal to any business to lose. And, into the bargain, the winning plantiffs can force all pollution to stop through permanent court injunctions.
Under administrative law, which is the basis of most environmental and much other federal regulation, this absolute right is compromised by giving polluters what amount to federal licenses to pollute a certain amount. As long as they stay within the permissable pollution guidelines, legally they are safe from any further legal action. (And as we have seen, the political appointers of the chief regulators have a lot to do with what is allowed and what is not, under the very same administrative laws.)
The Byzantine universe of federal regulations means that many immoral and unethical activities continue unabated for decades because (a) they are permitted under current administrative law and/or (b) the regulations in question are so contorted that only a small subset of specialist lawyers actually know what they mean, and those lawyers usually work for the polluters and/or (c) we have an administration predisposed to stack things in favor of the polluters — or all of the above.
In my opinion, the very best way to clean up the air and water is to do away with administrative law, and the easily-corrupted bureaucracies that supposedly “enforce” those laws, and return to common law, with a twist.
That twist would be hard, cold definitions of what constitutes pollution, definitions that are inclusive enough to cover any possible eventuality, and to empower judges and juries to wreak financial havoc on those who violate those laws.
This may never happen, at least under the current government structure, because both polluters and the “issue-preneurs” of environmentalism have vested interests in keeping things as they are. Ending the Star Wars bar-circus of current administrative regulation would force polluters to immediately clean up their acts under tough new common law, and as well put the environmentalist “issue-preneurs” out of business.
Meantime, we continue to be in a worsening environmental crisis. It will not get any better, in my opinion, until we have a cultural shift in favor of transparent, understandable and tough common law treatment of environmental protection.