The Road Taken: a Reflection on Michael C. Blumm & William Warnock's Roads Not Taken: EPA vs. Clean Water, by Clifford J. Villa *.

AuthorVilla, Clifford J.
PositionClear The Air

Dear Editorial Staff,

As a fan of Environmental Law and the federal Clean Water Act, (1) it was with great interest that I received the symposium issue, The Clean Water Act Turns 30: Celebrating Its Past, Predicting Its Future. (2) Unfortunately, in the articles that followed, celebrating and predicting appeared mighty scarce. (3) To be sure, there is much cause for celebrating the gains in water quality since the modern Clean Water Act was passed in 1972. (4) To be equally sure, the Clean Water Act has fallen short of the lofty goals that Congress originally set for it. (5) Seeing only the failure, (6) however, Michael C. Blumm and William Warnock set out to pin the blame on one agency with their symposium contribution Roads Not Taken: EPA vs. Clean Water. (7) This Letter is not offered as a full response to Blumm and Warnock. Backed by the editors of Environmental Law, (8) the authors may be trusted with their summaries of cases and points of fact. Rather, this Letter reflects on some of the unsupported conclusions of Blumm and Warnock that may detract, in my opinion, from what I take as the common goal of achieving clean water.

EPA vs. Clean Water presents case studies of the ostensible failure of the United States Environmental Protection Agency (EPA) to implement the Clean Water Act in three principal areas: water quality impacts from dam operations, (9) state water quality certification for nonpoint source discharges, (10) and antidegradation requirements for nonpoint sources. (11) As an EPA attorney, I have had no involvement with any of those areas of the Clean Water Act, and cannot comment usefully upon the facts or policies underlying the three case studies. (12) However, as an interested reader, I noticed that the authors admit EPA was not even involved in the state certification case. (13) In that case, environmental groups sued the United States Forest Service (Forest Service), alleging the Forest Service violated the Clean Water Act by failing to obtain water quality certification from the state of Oregon before issuing federal grazing permits. Despite these alleged failures by the Forest Service and perhaps the state of Oregon, the authors point the finger at EPA. In their own words: "We maintain that EPA, expressly entrusted by Congress with the administration of the Clean Water Act, 33 U.S.C. [section] 1251(d), bears responsibility for allowing the Forest Service's interpretation to become the government interpretation put before the courts." (14)

It is here where EPA vs. Clean Water may fall farthest from reality, failing to recognize the autonomy of federal entities and the constant struggles among them. (15) From a law student, this assertion might indicate a dire need for a federal externship. From the distinguished Professor Blumm, however, it is quite another matter. For a quarter century, Professor Blumm's students have been privileged with his lectures and office hours, (16) and his vigorous pen upon our floundering student papers. (17) Over this same time period, legions of scholars and other readers of Professor Blumm's prodigious writings have come to recognize his "truly monumental body of scholarship." (18) So how then should we account for the errant fingerpointing of EPA vs. Clean Water?

Hints appear in the introduction where Blumm and Warnock cast their article within a "project" of storytelling. (19) Given two stories involving EPA, they tuck in one other, and fashion a common antagonist to tie the three together. Unable to supply any happy endings, they strive at least to avoid despair. They therefore share their "hope ... that one day Congress" win provide some unstated legislative fix. (20) Or, better yet, one day we will find a superhero, "a 21st century Secretary Udall," (21) to lead EPA to the light and reverse three decades of Clean Water Act policy and case law.

To succeed in this mission, their superhero must wield amazing powers. In the earthly realm, however, the limitations of the U.S. Constitution, federal statutes, local rules, case law, regulations, administrative authority, political will, media scrutiny, community concerns, technical feasibility, time, resources, and other factors must be considered. As an EPA attorney, my enforcement options against private parties are typically constrained by the limits of applicable statutes, (22) in addition to the facts of the case and the concerns of my agency clients. My options concerning other federal agencies are further checked by additional constraints including sovereign immunity...

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