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This session, we're going to leave control of underground
sources of water, like we looked at in fracking,
and consider what the law does to protect surface
waters, waters in streams, rivers, lakes and the ocean.
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The Federal Clean Water Act was enacted in 1972, but it took
almost 20 years of regulatory failure before that statute could get passed.
In 1971 the Hudson River, the river that flows right past New York City
was found to contain dozens of times more bacteria levels than were healthy.
Even more
famously a couple of years before then a
river in Ohio near Cleveland, Ohio, the Cuyahoga
River famously itself actually caught fire, from debris
that was oil-soaked from pollution in the river.
In fact, this was one of many fires that took place on the Cuyahoga.
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In the previous 20 years, the United States
policy had been to rely on the states to
control pollution, but states had been hamstrung.
They didn't have the information and they were afraid if
they controlled pollution in their
borders, industry would simply go elsewhere.
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Amazingly the President at that time, President Richard Nixon, vetoed
this act complaining about the billions of dollars in its costs.
But what's even more amazing is the very next day, the U.S. congress overrode
with overwhelming super majorities the president's veto
and the 1972 Federal Clean Water Act
came into being.
Many people thought that was just a temporary spur of enthusiasm
by we the people, for this sort of pollution control, we're wrong.
15 years later, the Clean Water Act was amended again in 1987, and again, a
Republican president, a very popular president, Ronald
Reagan, vetoed the statute because of its cost.
And again,
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super majorities of the people's representatives in
the U.S. congress, overrode the president's veto.
There was widespread, deep, and
long-lasting public demand for clean water.
Let's look at the key regulatory features of the federal clean water act.
First of all it focuses on something known as point sources.
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Point sources
are, quintessentially, something like this outfall pipe;
a discreet man-made conveyance, through which effluent,
which is what we call pollution going in to bodies of water, effluent go.
Typically, point sources come from discrete
entities like this factory shown here.
Moreover, the federal Clean Water Act focused on technology-based regulation,
that is to say, what the act would
require, was that point sources install end of
the pipe cleanup technology to clean up its
waste water before returning it in to nature.
And another design feature of the Federal Clean Water Act is
it would no longer rely on individual states to do the regulating.
There would be one, nation-wide, technology based
standard for each industry. That raises a design question.
Well, what technology, what clean up technology?
In Weyerhauser versus Costle, the case I had us read, we can see
how EPA goes about designing which
technology should be used by which industry.
A starting point is to recognize that the federal
government makes these decisions on an industry by industry basis.
In this case, the industry is going to be papermaking.
Papermaking is of course an ancient industry and while sometimes it's done by
artists in relatively small cottage like industries, mostly
it's done by huge paper mills where vast amounts of wood,
as shown here, is turned into paper in enormous factories
like these.
To begin deciding what technology based control should be required on this
industry, EPA first asked itself what part of the effluent do we want to control?
And in the case of paper, the case indicates the EPA identified pH
meaning acidity, total suspended solids, and something known as biological
oxygen demand which is a type of organic material that once in the water
soaks up all the available oxygen around that can cause things like fish kill.
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Merely because something
costs a lot of money to implement is hardly
fatal, in fact even if there will be some jobs
lost by marginal companies, whose profit margins are so thin
they can't afford to do it clean, also doesn't matter.
One of the important features of this opinion is that the court
recognized that EPA no longer has to hear arguments that the receiving water,
like let's say if you're discharging into a bay in the ocean
is so vast and so clean that it could absorb the pollution.
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This is a technology based requirement, and no longer does EPA
have to prove that the receiving water is incapable of absorbing it.
In fact, that kind of information was so hard
to get and so indeterminate that it had hamstrung
previous efforts, making the receiving waters dirtier and dirtier and
dirtier, even to the point where they caught on fire.
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Moreover, one of the features of relying on
nationwide technology-based standards, is that they are nationwide.
States also don't have to worry that, if they
set standards, it will chase industry to surrounding states.
By having one technology based
standard for an industry no matter in what
state it's located, we would have effective pollution control
over and above the ineffective regulation that had
taken place on a more regional Balkanized level beforehand.
Not only must EPA determine that the technology for it's control
exist, and is practicable and available, it does have to consider the cause and
related benefits of various types of technologies.
But EPA is given a lot of discretion in
determining what the overall cost and benefit picture is.
And the mere fact that something costs a lot of
money, and there might be jobs lost, is not fatal.
Famously, the court summed up what
this approach, this technology-based approach, did.
No longer, the court said would the polluter have the right
to pollute until it could be proven that the pollution was harmful,
something very hard to know, as we know, because of the difficulty of getting
this type of public goods, this type of ecological information.
Instead, henceforth, the court said it will be the people and the environment
that enjoys the default protection, and the
polluter will have to comply with technology-based standards.
In fact, it soon became apparent that states could be
free to go above this minimum federal floor of regulation.
The most famous case on this is a
U.S. supreme court case, International Paper versus Ouellette.
In this case, a paper company, just like the sort of
paper mill we saw in the Weyerhauser case, was locating itself
on Lake Champlain, a beautiful lake in the American northeast that
serves as the boundary between the states of New York and Vermont.
This in fact is a picture of a current paper
mill owned in fact by International Paper also at Lake Champlain.
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This location up in the northeast is
understandable in part because the great northern woods
are there, the source of a lot of trees to use in the paper-making industry.
The interesting twist in this litigation is that International Paper had abided by
the technology-based requirements set by EPA in the federal Clean Water Act.
That is to say that International Paper,
at its mill on Lake Champlain, had a permit and was following it.
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The permit however didn't mean there was no pollution.
The permit simply said that the eight, that the company had to meet certain
technological requirements but there was still some pollution in its effluent.
And it looks something like this,
even after complying with the permit requirements.
In this picture, is some waterfront property on lake Champlain.
Let's say that some of the structures seen here belong to the plaintiff Oullette.
How do you think Ouellette felt, how would you feel?
If you invested money to build your structure right on the lake in Lake
Champlain, and then suddenly washing up against your property is this, the legal
discharge effluent from International Paper
company's paper mill across the lake.
Well, I'll tell you how Ouellette felt about it.
Ouellette versus International Paper. Ouellette brought a lawsuit
this time something in pollution caused
a substantial interference with their private property rights.
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your ability at common-law to sue us for private nuisance, that
was the issue before the supreme court in Ouellette and
International Paper.
In 1987, the court found that congress in the Federal Clean Water Act did not
preempt anybody's property rights under common law nuisance principles.
And in fact the court found that congress itself made this quite
clear, in something known as a savings clause, right in the statute.
The Federal Clean Water Act,
in which congress said, nothing that we write here is meant to take away any right
previously that existed by statute or common law
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Accordingly, it was possible for people to sue under the law of the
state in which the polluter existed for common law nuisance.
Even if that meant more pollution control over
and above that required by the technology based requirements.
All of a sudden, this statute and operating in conjunction with
private common law nuisances, nuisance actions provided a one, two
punch to start to get the country back on the track to clean water.
Donald HornsteinAubrey L. Brooks Professor of Law
