The Clean Water Act at 50: Is the Act Obsolete?

• Author: Adler, Jonathan H.

The Clean Water Act (CWA or the Act) (1) is fifty years old. In 1972, Congress rewrote the Federal Water Pollution Control Act(2) to erect the architecture of federal water quality regulation that is still in place today. (3) While Congress initially reviewed and reauthorized the law on a regular basis, the CWA has not been meaningfully revised in thirty-five years. (4)

Over the past half-century, the CWA has helped to protect and improve surface water quality throughout much of the United States. (5) In particular, it has reduced the discharge of pollutants from point sources and funded the construction and upgrade of water quality infrastructure. (6) There has been significant progress in many places, (7) but water quality improvements have lagged behind the law's stated goals. (8) The law's stated purpose is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (9) Toward this end, Congress expressly declared the goals of making all of the nation's waters fishable and swimmable by 1983 and eliminating the discharge of pollutants into the nation's waterways by 1985. (10) These deadlines were never met, and substantial portions of the nation's waters are still considered impaired. (11)

After fifty years, it is appropriate to ask whether the statutory framework enacted a half-century ago remains up to date and whether it is capable of facilitating further water quality progress. Significant water quality challenges remain, and new challenges continue to emerge. Since the CWA was last amended, new types of pollutants have been created and discovered and once-speculative environmental concerns have become manifest.12 Climate change, in particular, has begun to affect waterways and hydrological systems, and yet little in the CWA addresses such concerns.13 In the face of such challenges, is the nation's primary water pollution control law obsolete?

Statutory obsolescence is a common problem. It is simple common sense that "laws must change to meet the needs of changing times." (14) And yet Congress often fails to revisit and revise statutes to account for legal, economic, technological, social, or other changes. (15) While legislative dysfunction may be a long-standing problem, it appears to have gotten worse in recent years. (16) The failure to revisit older statutes not only constrains the federal government's ability to address new problems; it can undermine the ability of older laws to fulfill their original purposes as well. (17) Failure to keep laws current renders some of them obsolete. (18)

There are many reasons why an old statute might not continue to be effective or continue to advance the public aims that motivated its initial passage. Times change. Broader social, economic and technological changes affect the nature of the environmental challenges we face and our ability to address them. (19) As scientific research advances and knowledge improves, we understand our environmental problems more fully, discover environmental concerns that were previously ignored, and develop the capabilities to address environmental concerns in ways that were not appreciated when older statutes were enacted. (20) The evolution of social values also affects which problems are of greatest concern. At the time the CWA was enacted, the nation's environmental imagination was transfixed by the threat of river fires. (21) Today, there is greater focus on toxic algal blooms and environmental justice. The inequities of environmental exposures and regulatory responses were largely ignored in the twentieth century but are now a substantial priority. (22)

If a given statute is not achieving its goals, obsolescence is not the only potential cause. If a statue is failing to fulfill its prescribed legislative purpose, that could be the result of poor drafting, political compromises, or a failure to implement and enforce the laws on the books. Thus not all policy failures can be attributed to obsolescence. (23)

Concerns about statutory obsolescence seem particularly salient in the early twenty-first century because Congress has become particularly reticent to revise and update regulatory statutes, particularly (though not exclusively) in the environmental arena. (24) New policy ideas and programs are initiated by the executive branch, not the legislature. Presidential administration has arguably filled the gap left by legislative inaction. (25) Yet this option may be frustrated, if not foreclosed, by more recent legal developments. Recent Supreme Court decisions, most notably West Virginia v. EPA. (26) suggest that the Supreme Court is concerned about the tendency of administrative agencies to pour new wine out of old bottles and is ready to invalidate new regulatory initiatives that lack express legislative authorization. (27)

As an introduction to "The Clean Water Act at 50" symposium, this Article explores the question of statutory obsolescence in the particular context of the CWA. Part I considers the phenomenon of statutory obsolescence and what it means to say that a given statute is "obsolete." Part II then evaluates the CWA, identifying the reasons one might conclude that the Act is (or is not) obsolete. Part III then considers what could be done about the CWA's obsolescence if, in fact, one concludes it is obsolete.

1. STATUTORY OBSOLESCENCE

   What does it mean for a law to be obsolete? Common definitions of "obsolete" include "no longer useful" and "no longer current." (28) A nineteenth-century legal dictionary instructs that the term applies to "those laws which have lost their efficacy, without being repealed." (29) By this definition, then, a statute is obsolete when, due to age or changed circumstances, it can no longer function as intended or fulfill its legislative purpose. Black's Law Dictionary has also defined "obsolete" as "[t]hat which is no longer used." (30) In this sense, a law is obsolete if it is subject to desuetude. (31)

   Obsolescence is almost always a consequence of time. As needs and circumstances change, it is perhaps inevitable that statutory frameworks will eventually fail to align with contemporary needs and circumstances. (32) Yet time is a necessary but not sufficient condition for obsolescence. All else equal, an older, unamended law is more likely to be obsolete than is a law of more recent vintage. But a law's age alone does not determine its obsolescence. Portions of the federal Judiciary Act (33) are nearly as old as the nation itself, but that does not render them obsolete. (34) Centuries-old prohibitions on murder or theft are hardly obsolete, despite their age, though contemporaneous morals legislation, based upon centuries-old conceptions of morality, could well be. The pace of change matters too, so statutes authorizing regulation of rapidly evolving industries could become obsolete rather quickly. (35) The precise causes (and consequences) of obsolescence in any given context matter, particularly if obsolete laws are to be updated and improved.

   In his 1982 book A Common Law for the Age of Statutes, Judge Guido Calabresi describes "legal obsolescence" as "[t]he combination of a lack of fit and lack of current legislative support" that results from the fact that it is difficult to revise or revisit statutes once they have been enacted. (36) This problem has become more pronounced, Calabresi suggests, because of the broader "statutorification" of American law. (37) Whatever its faults (and in the environmental context, there are many), the common law is more flexible and evolutionary than the statutory alternative. (38) And while administrative agencies, such as the EPA, typically have some authority to update regulatory requirements over time, Calabresi concludes such authority has generally been insufficient to prevent statutory obsolescence. (39) As Calabresi notes, vested interests tend to prevent "any reconsideration of how the law that created an agency and the regulations issued by the agency fit the changing times." (40) Were he to revisit the subject today, Calabresi might also add that courts are also more reluctant to allow the degree of agency renovation of congressional enactments that would be required to keep them up to date. (41)

   One reason statutes, and perhaps environmental statutes in particular, may become obsolete is because the world keeps changing, due to both human activities and natural processes. (42) The world of the twenty-first century is substantially different from that which came before. Indeed, the world today is quite different from that of just twenty-five or fifty years ago.

   America's once-industrial economy is now a service and informational economy. Much of the economy is dematerializing, but the environmental consequences of consumption remain. (43) Americans may consume less "stuff," but some of what is consumed or disposed of may be of greater environmental concern. (44) Suburbanization has proceeded apace, as have broader changes to the American landscape. (55) Some types of pollution have subsided, even as others have increased.

   Environmental laws may be particularly prone to obsolescence because ecosystems are dynamic and constantly evolving. This natural ecological dynamism has been compounded by the effects of climate change, which is contributing to substantial--and often substantially unpredictable--shifts in hydrological cycles and precipitation. (46) Even where environmental conditions may not have changed in relevant ways, our understanding of ecological processes and the consequences of various interventions has expanded and improved, as has our technological and technical capacity to monitor effects and make improvements. Some "new" environmental problems are only new insofar as we belatedly learned to recognize them as problems or understand the importance of a given ecological effect.

   A law could also become obsolete if it is a victim of its own success. Once the mischief that...