Clean Water Act
For two weeks, we tackled the Clean Water Act. As has become the norm, we started with the history of the law, the wild wild west of water pollution that resulted in rivers and lakes catching fire. The Cuyahoga River in Ohio caught fire thirteen times—a baker's dozen. We demonstrated the effects of the CWA and the notably improved water quality in many waters in our nation.
After a brief history lesson, we dove into the basic prohibition of the CWA: any discharge of a pollutant into jurisdictional waters is unlawful. We began asking, what is a pollutant? The students read Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources, Inc. to discover how courts qualify a “pollutant” and maybe some crucial ambiguity within the statute that leaves an open question for interpretation.
To illustrate the differences in judicial interpretation, we played a jeopardy-style game titled “What is a Pollutant.” The game is basically a twenty-four block grid featuring a different substance in each block that a court weighed against the statutory definition of a pollutant. I acquired the different substances and judicial determinations from the wonderfully examined article: Plain Meaning, Precedent, and Metaphysics: Interpreting the “Pollutant” Element of the Federal Water Pollution Offense by Jeffrey Miller.
The students were split into three teams. Each team took turns picking a category, and they had about ten seconds to determine whether the substance was a pollutant, was not a pollutant, or sometimes was/sometimes was not a pollutant. When I said “Go!” each group shot their hands up, and I called on the group that moved the fastest. If they answered correctly, they scored a point; if they were wrong, they lost a point. By the end of the game, every group found themselves in the negatives. Frustration simmered over the inconsistencies, but ultimately, they had a blast! It was a fun way to shake things up after Spring Break and imparted a crucial lesson about statutory interpretation and the significance of words in drafting legislation and litigating the intricacies of law.
In the next class, we took our initial Clean Water Act (CWA) mandate and adjusted it to prohibit the discharge of a pollutant into jurisdictional waters unless a permit was obtained. A significant portion of the CWA revolves around the 402 National Pollution Discharge Elimination System (NPDES) permit and the 404 dredge and fill permit. The students delved into the differences between these two permitting systems through a brief lecture, followed by a spirited discussion of the Coeur Alaska, Inc. v. Southeast Alaska Conservation Council case. While the Couer Alaska case presented some complexity, we simplified it down to the essential point: 402 applies unless 404 does, and new source performance regulations don't apply to 404. Once the students grasped the baseline permitting requirements, we eagerly segued into the realm of jurisdictional waters.
Jurisdictional waters have certainly had their share of ups and downs, necessitating a rewind to the very beginning. This time, our students didn't dive into a case; instead, they waded through an article about the infamous Sackett decision. After a quick trip through around five cases, we finally landed at 2023: the new definition of “waters of the United States” – or, WOTUS (because who doesn’t love an acronym?).
To really grasp the intricacies behind a strict interpretation of those water systems that don’t quite stick to the script, we planned a fun (and highly educational) in-class activity! Imagine a unique water system from a branch of the Tennessee River that sometimes flows underground. This fascinating feature is central to our learning, providing a captivating case study for students to examine hydrology and ecosystem interactions. These engaging examples spark discussions and enhance our understanding of how crucial waterways are for environmental health and sustainability.
We split our class into four lively teams of three. With two plaintiff groups and two defendant groups, the students split up to make their arguments. We conducted two intense oral arguments, allowing each pair ten minutes to make their point. The Plaintiffs argued passionately that the water system absolutely falls under WOTUS, while the Defendants countered with the claim of non-inclusion, insisting that a permit was simply not needed. Alternatively, if the water system isn't WOTUS, the Plaintiffs argued that the Defendants' discharge was the “functional equivalent” of a direct discharge, according to the County of Maui case.
The students truly rose to the occasion, especially considering they only had fifteen minutes to whip up their arguments. Jared and I couldn’t be prouder! We plan to adapt this same set-up into a final exercise, armed with more preparation time. We can’t wait to see how their oral argument skills evolve.
