Environmental Groups Counter Industry Demand for Blank Check to Pollute Waters

Clean Water Act cases in Supreme Court could have far-reaching consequences


Howard Fox / Joan Mulhern, Earthjustice, (202) 667-4500

A coalition of environmental and public health groups today filed a friend-of-the-court brief in what could be the most important Clean Water Act cases ever to be heard by the Supreme Court. In the brief, the groups argue for continued federal protection of streams and wetlands from harmful pollution in the face of industry petitions asking the Court to eliminate decades of Clean Water Act safeguards for these waters.

“These cases pose the question whether the Clean Water Act regulates any discharges into the great majority of this country’s tributaries and adjacent wetlands—involving not just discharges of dredged or fill material, but also discharges of sewage, sediment and toxic chemicals such as cyanide from factories,” the groups wrote in the brief. A copy of the brief is available here.

Earthjustice, representing American Rivers, Environmental Defense, National Audubon Society, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, Tip of the Mitt Watershed Council and Waterkeeper Alliance, filed the amicus brief on the side of the U.S. government in the two consolidated Clean Water Act cases, Rapanos v. U.S. and U.S. v Carabell, that the Supreme Court is scheduled to hear February 21. Both cases involve proposed commercial developments in Michigan wetlands adjoining streams that are tributaries of the Great Lakes.

These groups join an unprecedented array of local, state, and federal government officials, hunting and fishing advocacy groups, scientists, and others from across the political and policy spectrums who are all filing friend-of-the-court briefs today urging the Court to maintain the longstanding protections offered by the Clean Water Act. This unparalleled collection of interested parties includes four former Administrators of the Environmental Protection Agency and nine members of Congress directly involved in the passage of the 1972 Act and its reaffirmation in 1977. Later today the attorneys general of 34 states plus the District of Columbia, led by the states of New York and Michigan, will also file an amicus brief in support of the Clean Water Act. All expressed strong support of the Clean Water Act’s core safeguard: the requirement to obtain a permit before discharging pollutants into waters of the United States.

In October, the Supreme Court agreed to hear these two cases challenging the definition of federally protected waters. In both cases, the developers (and industrial polluters and others supporting their position) are arguing that they can pollute—even destroy—the waters at issue without a Clean Water Act permit. Indeed, they argue that their right to pollute is protected by the U.S. Constitution.

For three decades the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have rejected such arguments, and have correctly applied the Clean Water Act’s safeguards equally not only to large waterbodies where boats can travel, but also to tributaries of such waters and to wetlands adjoining those tributaries. These streams and their adjacent wetlands that would go unprotected under the developers and industries’ view of the law are used for fishing, recreation, wildlife habitat, and drinking water supplies, as well as for filtering pollutants and helping prevent floods.

Indeed, protection of tributaries was fundamental federal law long before the 1972 Clean Water Act, dating back at least to the 1899 Refuse Act, which barred discharge “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” The environmental and public health groups noted that the developers’ arguments would “dramatically shrink federal water pollution permitting back to a narrow geographic scope not seen since the McKinley Administration.”

Additional Resources

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people's health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.