CLEAN WATER ACT Purpose To restore and maintain the chemical physical and biological integrity of the Nation s waters Goal Fishable Swimmable waters by 1983 elimination of pollutant discharges by 1985 very ambitious and nearly cost blind Prohibits the DISCHARGE of and POLLUTANT from a POINT SOURCE to NAVIGABLE WATER without a permit section 402 National Pollutant Discharge Elimination Permits based on effluent limits for pollutants Effluent limits o Nationally uniform o Technology based by industry o End of Pipe Prohibits the DISCHARGE of DREDGED OR FILL MATERIAL into NAVIGABLE WATERS without a permit section 404 wetlands Water Quality Standards State by State Designated Uses Recreation fishing Nonpoint Source Management Programs Non regulatory TMCL when effluent limitations in permits fail to allow water bodies to meet WQS Has a Citizen Suits Enforcement government can enforce the law criminal and civility Judicial Review Prohibits the DISCHARGE of and POLLUTANT from a POINT SOURCE to NAVIGABLE WATER without a permit section 402 National Pollutant Discharge Elimination o Any addition of any pollutant to navigable waters from any point source Discharge of a Pollutant Pollutant Point Source o conventional toxic o Any discernible confined and discrete conveyance including but not limited to any pipe ditch channel tunnel conduit well concentrated animal feeding operation from which pollutants are or may be discharged o US vs PLAZA HEALTH People found vials of blood containing Hepatitis Criminal Law Language source Defendant Claimed humans aren t under the definition of the point US used the but not limited to and discernible Legislative History and Context CWA was meant to control industrial point source discharges no evidence they were targeting throwing candy wrapper or Rule of Lenity Rule of criminal law that states that ambiguities in a statue must be construed in defendant s favor cannot adopt a broad interpretation if serious criminal sanctions may result Must be given fair warning of sanctions Dissenting Opinion Navigable waters o Waters of the US Global Environmental Law After Rio 20 Professor Robert Percival SUSTAINABILITY AND ENVIRONMENTAL LAW History in US 1893 Fur Seal protection o When the US purchased Russia 1990 s Pinchot and Conservation 1916 National Park Service 1970 National Environmental Policy Act NEPA No mention of the term in text of major federal statues Should sustainable development be interpreted to favor environmental protection because US is a developed country with no excuses 3 types of law o Favors environmental protection Clean air Act o Favors economic development Clean water Act o Balancing Approach NEPA ESA History in International Law 1972 Stockholm Declaration o Not defined but idea discusses 1987 Our Common Future Brundtland Report o Defined sustainable development development that meets the needs of the present without compromised the ability of future generations to meet their own needs o Poverty eradications and protect natural resources o Definition of needs RIO 1992 o Principle 1 o Principle 2 o Principle 3 o Principle 4 Human beings are at the center of concerns for sustainable development They are entitled to a healthy and productive life in harmony with nature Nations have a right to exploit their own resources as long as they do not cause damage to the environment of other states Meet developmental and environmental needs of present and future generations In order to achieve sustainable development environmental protection shall constutue an integral part of the development process and cannot be considered in isplation from it 2002 Johannesburg o 3 pillars of sustainability economic development social development environmental protection 2012 Rio 20 o Renewed commitment to sustainable development o Brazilian judge Ecosystem resilience No backtracking from Rio 1992 No sustainable development without the rule of law and an independent judiciary Need a judge that will interpret it and apply it History in Foreign Law EU o 1958 Treaty of Rome nothing environmental but created the EU o 1997 Treaty of Amsterdam amendment to Rome Balance and sustainable development No def High level of protection and improvement of the quality of the environment Precaution prevention polluter pays sustainable development o Water Framework Directive o Court of Justice of the EU Judges have interpreted the concept Greece o Diversion of the Acheloos River From poor to wealthy area to irrigate cotton o Greek law vague constitutional provisions o EU law sustainability undefined Good or bad o Goes to court Specialized environmental court Environmental groups right to sue Environmental protection overarching principle State by the EU is the basis Further review required of the project Questions o Is it appropriate for the courts to fill the gap when the words are undefined o Judicial review or judicial overreach Quotes from story pp 143 144 p 147 Is sustainability a political scientific legal economic issue Sustainability means Stanford Law Review Prevention Precaution Right to equitable development Right to use your resources without harming other states Concern for future generations Common but differentiated responsibilities Integrate environment and development Polluters pay How do you weigh them And can you produce one standard How should sustainability be used in environmental law Framework for assessment Legal rule Guiding principle Judicial application and interpretation NEPA and Sustainability NEPA s approach o Require the environment to be considered Does this approach further sustainability What is the judicial role o State department has to issue a permit because it crosses country border Since it is a federal agency it is require to do an EIS KEYSTONE PIPLINE Is an EIS required Who prepares the EIS o The state department Opinions About NEPA Viewed as a game changer at the time Launched the Environmental Decade OTHERS Costly Pointless paper shuffling requirements o Just more red tape o Don t need to chose the best option Became an international model NEPA requires EISs o It requires little else and therein lies both its singular genius and its fatal flaw General Not command and control rather a process for federal agency decisions making EIS for major federal actions significantly affecting quality of the human environment o Cool analysis o Environmental impact o Alternatives CALVERT CLIFFS Coordinating Committee vs US AEC Role of citizen s groups and