Federalism in the US Clean Water Act

Oliver Houck recently published "Cooperative Federalism, Nutrients, and the Clean Water Act: Three Cases Revisited" in the Environmental Law Reporter. The article has a substantial amount of historical discussion, both of the origins of the federal-state relationship outlined in the Clean Water Act, and of the three cases Houck discusses: the Gulf of Mexico, Florida, and the Cheasapeake.

Houck writes of the Act's section 1251(b) ("It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution"), "No phrase in the CWA is so beguiling, and misleading." He explains (citations omitted) that its language:

dates back to 1948 and the first U.S. law to address water pollution, declaring “the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution.” Which was what the law in fact did. The 1948 statute offered funding for sewage treatment plants, assistance from the U.S. Surgeon General on pollution issues, and a process for referral of serious matters to the U.S. Attorney General, who could then sue to abate a discharge based on concepts of common law. State primacy was genuine.

Cuyahoga River on fire

The 1948 language was retained like a catechism in federal amendments of 1956 and 1961, which made federal enforcement yet more difficult, and those of 1965, which encouraged states to adopt water quality standards, based on their own criteria and uses, and then move to abate discharges that violated them. State primacy remained. Even a national goal of “clean water” was rejected in favor of state management. The federal role was again to fund, to advise, and, where pollution affected interstate waters, to call an “abatement conference” to jawbone a solution, and then only when all else failed.

All else failed. From the 1948 Act to 1970, the United States had managed to bring just a single enforcement case against a single discharger. Federal-state abatement conferences on the Potomac River and the Puget Sound were limping into their second decade. Rivers were catching fire, a funeral was held for the death of Lake Erie, drinking water intakes along the Mississippi were choking on dead fish.

By 1972, when Congress was moved to act again, one-half of the states had no water quality standards, fewer still had set numerical limits in them, and fewer still had permit systems applying them to polluters. One of the most remarkable facts of the 1972 Act is the degree to which Congress appreciated the failures here, and their causes. Chief among their observations was that state-based programs led to a race-to-the-bottom (“industries moving from State to State in search of less strict pollution standards,” Rep. Michael Harrington, D-Mass.), and were highly susceptible to local industries (“due to the pressures of powerful economic interests, the States do not establish meaningful water quality levels,” Rep. Charles Vanik, D-Ohio). In a moment of candor rare for this body, the Chair of the U.S. House of Representatives Public Works Committee observed:

These are all men of good intentions, but they get beat over the head by powerful interests back home . . . say somebody is from South Carolina or Georgia, and the Georgia Power Co. gets after them. You can’t find finer men, or men of more integrity. But you can only go so far.

How contemporary the comment seems.