The Clean Water Act and the Constitution : legal structure and the public's right to a clean and healthy environment /
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| Author / Creator: | Craig, Robin Kundis. |
|---|---|
| Edition: | 2nd ed. |
| Imprint: | Washington, D.C. : ELI Press, Environmental Law Institute, c2009. |
| Description: | xiv, 308 p. ; 23 cm. |
| Language: | English |
| Subject: | |
| Format: | Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/7528684 |
Table of Contents:
- Acknowledgments
- Introduction: Environmental Regulation and the Constitution
- Part I. Imposing Federal Regulation and Enforcement
- Chapter 1. The Clean Water Act's "Cooperative Federalism" and the Federal/State Regulatory Balance
- I. A Short History of Pre-1972 Federal Water Quality Regulation in the United States
- A. The RHA (Refuse Act)
- B. The FWPCA of 1948
- C. The Water Pollution Control Act Extension of 1952
- D. Water Pollution Control Act Amendments of 1956
- E. The FWPCA Amendments of 1961
- F. Water Quality Act of 1965
- G. Clean Water Restoration Act of 1966
- H. Water and Environmental Quality Improvement Act of 1970
- I. The 1970 Changes to the RHA: A Federal Permit Program for Water Pollution
- II. The 1972 Amendments and the Creation of the Contemporary CWA
- III. Cooperative Federalism in the Current CWA
- A. Subchapter I: Research and Related Programs
- B. Subchapter II: Grants for Construction of Treatment Works
- C. Subchapter III: Standards and Enforcement
- 1. The Elements of Federal Jurisdiction Under the Contemporary CWA
- 2. Federal Standard Setting
- 3. Retained State Authority Over Water Quality
- D. Subchapter IV: Permits and Licenses
- 1. State Primacy Over Water Quality, Continued: Water Quality Certifications
- 2. The CWA's Two Permit Programs
- E. Enforcement Under the CWA
- Chapter 2. The Supremacy Clause and Federal Preemption of State Water Quality Law
- I. The Supremacy Clause and Federal Preemption of State Law
- II. The CWA and Preemption of State Law
- A. The CWA's "Saving" Clauses
- B. Express Preemption in the CWA: Marine Sanitation Devices and Traditional Federal Authority Over Navigation and Vessel Requirements
- 1. Section 312's Express Preemption Provisions
- 2. Federal Preemption of Vessel Design in General
- 3. The Scope of §312's Preemption
- 4. The CWA and the PWSA: An Uneasy Tension Between Vessel Design and Pollution Control
- C. Supremacy Clause Ambiguity: Preemption of State and Private Remedies for Oil Spills
- D. Implicit and Conflict Preemption in the CWA: Federal Preemption of Less Stringent State Regulation
- E. Conflict Preemption, Federalism, and the Ambiguous Status of State Water Quality Standards in Interstate River Systems
- III. The Overall Effect of the Supremacy Clause on the CWA
- Chapter 3. Interstate Water Pollution, Federal Common Law, and the Clean Water Act
- I. Interstate Water Pollution in the Court Before 1972
- A. Missouri v. Illinois
- B. Interstate Pollution Disputes, 1906-1972
- II. The CWA's Interstate Water Pollution Provisions
- A. Section 401
- B. State-Issued CWA Permits and Interstate Water Quality
- C. Interstate Citizen Suits
- III. The CWA and the Federal Common Law of Nuisance
- IV. Interstate Water Pollution, the CWA, and State Common-Law Nuisance: International Paper Co. v. Ouellette
- V. Complex Rivers: A Resurgence of Federal Authority?
- Chapter 4. Sovereign Immunity and State Regulation of Federal Facilities and Tribes
- I. The CWA, Federal Facilities, and Federal Sovereign Immunity
- A. Introduction
- B. Federal Sovereign Immunity and State NPDES Permitting
- C. The Scope of the Waiver of Sovereign Immunity From State Permitting Requirements
- D. Federal Facility Liability for Civil Penalties Under State Programs
- E. Civil Penalties, Government Enforcement, and Federal Facility Compliance With the CWA
- F. Federal Facilities and State Water Quality Standards Outside the Point Source and Permitting Contexts
- II. Tribal Sovereign Immunity and State Regulation of Tribes
- A. Tribal Sovereign Immunity, Congress, and the CWA
- B. Tribal Sovereign Immunity, the States, and the CWA
- C. Congress' Emphasis on Tribal Sovereign Immunity: Treatment-as-a-State (TAS) Status
- Chapter 5. Limits on Federal Water Quality Regulation: The Tenth Amendment, the Commerce Clause, and Clean Water Act "Navigable Waters"
- I. The Commerce Clause and the Tenth Amendment
- II. The CWA's "Navigable Waters"
- III. CWA "Navigable Waters" and the Commerce Clause
- A. Early Commerce Clause Evaluations of the CWA
- B. United States v. Riverside Bayview Homes, Inc. and Adjacent Wetlands
- C. Isolated Waters and the Commerce Clause Debate
- D. The Court's Statutory Interpretation, Part II
- E. Federalism as a Mode of CWA Interpretation, 2001-2006
- F. Rapanos v. United States: Federalism, Wetlands, and Congress' Water Quality Goals
- G. CWA Jurisdiction in the Lower Courts After Rapanos: Deciding Among the Justices
- IV. "Navigable Waters" and the Commerce Clause: What Is the Constitutional Limit of Congress' Authority to Regulate Water Quality?
- A. The Channels of Interstate Commerce: The Oceans, Contiguous Zones, Territorial Seas, and Traditionally Navigable Waters
- B. Non-Navigable Interstate Waters
- C. Non-Navigable Interstate Waters and the Substantial Relationship to Interstate Commerce
- Chapter 6. Limiting Federal and State Enforcement of the Clean Water Act: Fifth and Fourteenth Amendment "Takings" of Private Property
- I. The History of the Regulatory Takings Doctrine
- II. Distinguishing Physical and Regulatory Takings
- III. Regulatory "Takings" and the CWA
- A. Is the "Taking" Claim Ripe?
- B. Is There a Lucas-Type Categorical "Taking"?
- C. Is There a "Taking" Under the Penn Central Balancing Test?
- 1. The Character of the Government Action
- 2. Interference With the Claimant's Reasonable, Investment-Backed Expectations for the Property
- 3. Economic Impact of the Permit Denial
- D. Can There Be a Temporary "Taking"?
- IV. The Overall Effect of Fifth Amendment "Takings" on the CWA's Regulatory Regime
- Part II. Imposition of Citizen Participation and Enforcements
- Chapter 7. The Second Theme in Congress' Restructuring of the Federal Water Pollution Control Act: The Addition of Citizen Participation and Citizen Suits
- I. Citizen Participation in the Clean Water Act (CWA) and the Creation of the CWA's Citizen Suit Provision
- II. Later Amendments to the CWA's Citizen Suit Provision
- III. Bringing a CWA Citizen Suit: The Statutory Requirements
- A. Causes of Action
- B. Jurisdiction and Venue
- C. The Notice Requirement
- D. The Gwaltney Requirement
- E. Preclusion by State and Federal Enforcement
- IV. Citizen Suit Enforcement and the CWA
- Chapter 8. Article III Separation of Powers, Standing, and the Rejection of a "Public Rights" Model of Environmental Citizen Suits
- I. Article III and Federal Courts' "Case or Controversy" Requirement
- II. Environmental Standing and Citizen Suits
- A. Early Environmental Standing Cases
- B. Sierra Club v. Morton and the Elimination of Privately Enforceable Public Environmental Rights
- C. Further Refinement of Environmental Standing Requirement in the 1990s
- D. Relaxing Injury-in-Fact Since 2000? Resonable Fears, Climate Change, and Increased Risk in the Standing Analysis
- 1. The 2000 Decision in Laidlaw
- 2. The Court's 2007 Standing Analysis in Massachusetts v. EPA: Liberalization of Defenders of Wildlife or Special Standing for States?
- 3. The Increased Risk Standing Trend
- III. Standing and CWA Litigation
- Chapter 9. Citizen Suits Against the Federal Government and Tribes
- I. The CWA's Waiver of Sovereign Immunity for Subsection (a)(1) Citizen Suits Against Federal Facilities That Are Violating the Act
- A. Section 505's Procedurally Limited Waiver of Sovereign Immunity
- B. Attempts to Evade §505's Limitations
- C. Civil Penalties in Citizen Suits Against the Federal Government
- II. Section 505's Waiver of Sovereign Immunity for Subsection (a)(1) Citizen Suits Against Tribes That Are Violating the CWA
- III. The CWA's Waiver of Sovereign Immunity for Subsection (a)(2) Citizen Suits Against the EPA Administrator for Failure to Perform Nondiscretionary Duties
- A. Suits Against the Administrator of EPA
- B. Suits Against the Corps
- Chapter 10. Citizen Suits Against States and Territories and the Eleventh Amendment
- I. Congress' Attempt to Abrogate State Sovereign Immunity in the CWA and the U.S. Supreme Court's Eleventh Amendment Jurisprudence
- II. CWA Citizen Suits Against States After Seminole Tribe
- A. Citizen Suits Against States and State Agencies
- B. CWA Citizen Suits Against State Officials: The Ex Parte Young Doctrine
- C. Cooperative Federalism as a Waiver of Eleventh Amendment Sovereign Immunity?
- III. CWA Citizen Suits Against Territories and the District of Columbia After Seminole Tribe
- A. Citizen Suits Against Territories
- 1. Commonwealth of Puerto Rico
- 2. Virgin Islands
- 3. Trust Territory of the Pacific Islands
- 4. The CNMI
- 5. Guam
- 6. American Samoa
- B. CWA Citizen Suits Against the District of Columbia
- IV. The Effects of Seminole Tribe on Citizen Suits Against States
- Chapter 11. Article II Separation of Powers and the President's Enforcement Right
- I. Article II Separation-of-Powers Principles
- A. Article II Separation of Powers and the "Take Care" Clause
- B. Separation of Powers and the Appointments Clause
- II. Article II Separation-of-Powers Issues and Environmental Citizen Suits: Decisions to Date
- A. The "Take Care" Clause and Environmental Citizen Suits
- B. The Appointments Clause and Environmental Citizen Suits
- C. Do Citizen Suits Allow the Federal Courts and Congress to Usurp the Executive?
- III. Resolving Article II Separation-of-Powers Challenges to Environmental Citizen Suit Provisions
- A. The Qui Tam Comparison
- B. Environmental Citizen Suits and Standing
- C. Would Public Interest Citizen Suits Violate Article II Separation of Powers?
- Conclusion: Should There Be a Constitutional Right to a Clean/Healthy Environment?
- I. The Importance of Citizen Suits to Environmental Enforcement
- II. Constitutional Jurisprudence and Environmental Citizen Suit Litigation
- III. Restoring Citizen Enforcement of Federal Environmental Law: Two Possible Solutions
- A. Adopt a Public Rights/Public Interest Approach to Citizen Litigation
- B. Amend the Constitution
- IV. The Purely Structural Amendment
- A. Standing
- B. Eleventh Amendment
- C. Federal Sovereign Immunity
- D. Article II Separation-of-Powers Concerns
- E. Elimination of Commerce Clause Concerns
- F. Balancing of Fifth and Fourteenth Amendment "Takings"
- G. A Proposed Structural Amendment to the Constitution
- V. The Amendment Adding a Substantive Constitutional Right to a Clean and Healthy Environment
- A. Prior Litigation Indicates That Spontaneous Recognition of Environmental Rights in the Constitution Are Unlikely
- B. Normative Arguments Favor a Constitutional Amendment Guaranteeing a Right to Sue, But Not Necessarily a Substantive Environmental Right
- 1. The Law Generally Recognizes That Beneficiaries Should Have the Right to Sue
- 2. Constitutional Environmental Protections Are Becoming More Prevalent Among the Nations of the World, Indicating That the Environment Is Worthy of Constitution-Level Concern
- 3. Individual States Within the United States-the Vanguard of American Law-Are Also Increasingly Recognizing That the Environment Should Be a Constitutional Concern
- VI. Conclusion