Congress Could Fix Bush-Era Court Attack on the Clean Water Act
2/17/2009--The Clean Water Act, despite being one of our nation's most potent environmental protection laws for three decades, has an Achilles' heel -- a one-word weakness that the U.S. Supreme Court has expanded into an enormous loophole.
In decisions handed down in 2001 and 2006, the Supreme Court seized on that word -- "navigable" -- to make rulings that neither friend nor foe of the Act could predict, and none of us can live with. Effectively, the Supreme Court broke the Clean Water Act by saying Congress meant that the Act's protections apply only to "navigable" waters when it passed the Act to eliminate water pollution back in 1972. Therefore, only an act of Congress can mend this potentially fatal injury.
Fortunately, just such a bill is before Congress, called the "Clean Water Restoration Act." Introduced under an unfriendly administration, this proposed law is much more likely to be passed now. It will eliminate the word "navigable" from the Clean Water Act and replace it with the more familiar legal phrase, "waters of the United States," so that all waters -- not just those that are navigable -- are protected...