How the Successes and Failures of the Clean Water Act Fueled the Rise of the Public Trust Doctrine and the Rights of Nature Movement.

• Author: Ryan, Erin

ABSTRACT

Last year marked the fiftieth anniversary of the Clean Water Act, the landmark federal legislation of the last century that seeks to improve human health and the environment by protecting the health of the nation's waterways. The CWA has put us squarely on the path toward cleaning up our troubled waterways, and through its early successes it created high expectations among the public that our waterways should be drinkable, fishable, and swimmable. Even so, its laudable goals and the legitimate expectations they have created are routinely frustrated by built-in limitations that lead it to focus exclusively on issues of water quality, with few tools to remedy the issues of water quantity that are also threatening the health of the nation's waters.

The CWA protects water quality by limiting the discharge of water pollution to waterways, but it lacks legal mechanisms to ensure that sufficient quantities of water actually remain instream to enable those cherished public uses of drinking, fishing, and swimming. While the CWA was a pioneering innovation in environmental law, water pollution control becomes meaningless if there is no longer a waterway to protect from pollution. This critical oversight has led some advocates to search out other means to legally protect vulnerable waterways, including the public trust doctrine and, more recently, the rights of nature movement. Advocates are turning to these less established legal theories of environmental protection to save waterways threatened by excessive withdrawals under state water allocation laws that operate independently of the federal CWA.

This Essay distills earlier work assessing the multi-jurisdictional development of public trust and rights of nature principles to illustrate how these approaches have responded to the inherent failures within the CWA, and perhaps more importantly, the central failure of American water governance more generally, in the disconnect between our legal treatment of water quality and quantity. It begins with a brief review of the goals and mechanics of the CWA before exploring these alternative approaches to environmental protection. It introduces the public trust doctrine, which confers certain rights in waterways and other resources to the public, and then the rights of nature movement, which assigns legal rights directly to features of the environment--especially waterways.

There are stark differences between the two, especially the contrasting anthropocentric and ecocentric environmental ethics that undergird them. Yet they showcase surprising commonalities on a pragmatic level, following similar paths of development and differentiation among the domestic and international jurisdictions that have adopted them, including the legal mechanisms by which they operate, the resources protected, and the values they serve. Also, both match occasionally disappointing results in court with more potent results through the political process, suggesting something intuitive about these principles that moves the levers of conventional politics more successfully than the tools of more established environmental law. The CWA must continue its crusade against pollution, but these alternatives highlight its inadequacy to protect waterways against threats to their very existence, especially as climate change further stresses water resources.

CONTENTS INTRODUCTION I. THE CLEAN WATER ACT II. THE PUBLIC TRUST DOCTRINE III. THE RIGHTS OF NATURE MOVEMENT CONCLUSION INTRODUCTION

2022 marked the fiftieth anniversary of the Clean Water Act (CWA or the Act), (1) the landmark federal legislation of the last century that seeks to improve human health and the environment by protecting the health of the nation's waterways. (2) It is an anniversary well worth celebrating, because the CWA has proved a powerful tool for protecting water resources over time, especially in comparison to earlier and weaker legal efforts. (3) The CWA has put us squarely on the path toward cleaning up our troubled waterways, (4) and through its early successes, it created high expectations among the public that our waterways should be drinkable, fishable, and swimmable. (5)

Even so, the CWA's laudable statutory goals and the legitimate expectations they have created are routinely frustrated by built-in limitations that lead it to focus exclusively on issues of water quality, with few tools to remedy the issues of water quantity that are also threatening the health of the nation's waters. (6) The CWA protects water quality by limiting the discharge of water pollution to waterways, but it lacks legal mechanisms to ensure that sufficient quantities of water actually remain instream to enable those cherished public uses of drinking, fishing, and swimming. As the advocates for stressed waterways increasingly remind us, water pollution control becomes meaningless if there is no longer a waterway to protect from pollution.

The CWA was a pioneering innovation in environmental law, but this critical oversight has led some environmentalists to search out other means to legally protect vulnerable waterways, including the public trust doctrine and, more recently, the rights of nature movement. Advocates are turning to these less established legal theories of environmental protection to save waterways threatened by excessive withdrawals under state water allocation laws that operate independently of the federal CWA. This Essay distills earlier work assessing the multi-jurisdictional development of public trust and rights of nature principles to illustrate how these approaches have responded to the inherent failures within the CWA, and perhaps more importantly, how the overall trend demonstrates the central failure of American water governance more generally. That failure is the artificial disconnect that has developed between our legal treatment of water quality and water quantity, when every expert understands that they are, in fact, inextricably intertwined.

The Essay begins with a brief review of the goals and mechanics of the CWA before exploring these alternative approaches to environmental protection. It introduces the public trust doctrine, which confers certain rights in navigable waterways and related resources to the public, and then the rights of nature doctrine, which assigns legal rights to features of the natural environment directly--chief among them waterways. There are stark differences between the two, especially the contrasting environmental ethics that undergird them. (7) Like the CWA, the public trust doctrine takes a utilitarian, anthropocentric approach, focusing on the benefits waterways and other trust resources confer on the people designated as holding legally protected rights. (8) By contrast, the rights of nature movement adopts an unapologetically biocentric or ecocentric perspective, considering waterways and other natural features worthy of protection in and of themselves, without reference to human needs. (9)

Yet despite seemingly stark differences on that theoretical plane, the two approaches showcase a surprising amount in common on the pragmatic level. The public trust doctrine has been deployed as a tool of modern environmental advocacy longer than the rights of nature, but over their respective periods of evolution, they have taken interestingly similar paths of development and differentiation among the different jurisdictions that have adopted them, both domestically and internationally. These analogous pathways of differentiation include the different legal mechanisms by which they operate, the different resources they have been held to protect, the different values that they serve, and the different underlying legal theories that give them meaning. (10)

The growing popularity of the public trust and rights of nature alternatives reflects the desperation of advocates left stranded by the CWA in their efforts to protect waterways that will cease to function ecologically if sufficient water is not left instream. Neither doctrine would supplant the CWA; environmentalists relying on public trust and rights of nature principles still need the CWA to continue its crusade against water pollution, and the statute should be updated as needed to continue this important work successfully. (11) Nevertheless, both doctrines highlight the inadequacies of conventional environmental laws, including the CWA, to protect waterways against allocationbased threats to their very existence, especially as climate change further stresses available water resources.

The Essay concludes with the observation that both the public trust doctrine and rights of nature movement have matched occasionally lackluster results in court with more potent results through the political process, (12 suggesting something intuitive about these principles that) moves the levers of conventional politics more successfully than the contrasting tools of established environmental law, notwithstanding the proven track record of the CWA in litigation. Perhaps the public trust doctrine's admonition that "the river belongs to all of us," or the rights of nature movement's recognition that "the river is valuable in and of itself," speaks more powerfully to the average decision maker, and on a more emotional level, than the CWA's regulation of "total maximum daily load." (13) The architects of the next iteration of the CWA might do well to heed this lesson.

1. THE CLEAN WATER ACT

   From the outset, Congress made clear that the CWA was designed to restore the nation's waters for drinking, fishing, and swimming by regulating water pollution, or limiting the introduction of previously unregulated pollutant discharges that were threatening water quality. (14) As stated in its declaration of policy, "[t]he objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by regulating pollutant discharges in pursuit of the following interim...