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Bear in the Woods: Environmental Law Blog

Thursday, October 18, 2012

Clean Water Act Turns 40

Forty years ago Congress, in bipartisan fashion, overrode a veto by President Richard M. Nixon and enacted the Clean Water Act of 1972. It has made a dramatic improvement in our lives, and that of our children.

On its birthday, I found myself reflecting on two aspects of this complex law known as the Clean Water Act — its technology-forcing nature, and its desire to achieve an impossible goal.

Congress did something extraordinary lo those many years ago — it knowingly designed a system that would likely put companies out of business in favor of cleaning up our nation's waterways. Congress did that by setting cleanup standards that were driven by technology — in some cases expensive technology — that would only be able to be afforded by some of the best performing companies in a specific industry. And it put what some would think was a draconian measure in place to save a dying patient — our nations waterways.

Section 402 of the Clean Water Act required persons to obtain permits in order to discharge pollutants into waters of the United States. The U.S. EPA was required to put conditions in those permits that limited the amount of pollutants that could be discharged. Those limits were to be initially based on existing technology that considered the economic condition of companies in a particular industry. As time went by, the limits would be lowered to reflect the best technology available to remove that pollutant from the waste discharge, with less concern for a company's ability to afford that technology. Congress knew there were companies that operated so inefficiently that if they were forced to internalize the actual cost of production by not using the environment as a free trash can, those companies would eventually go out of business — a bold and courageous decision, indeed. Congress knowingly chose to put those inefficient companies on the trash heap in favor of companies that were forced to internalize the cost of adopting these new technologies in order to properly manage their pollution.

The purpose of these technology-forcing provisions was to achieve a previously unheard of goal in environmental regulation — the goal of zero discharge of pollutants to waters of the United States. While progress has at times been slow, and the provisions of the Clean Water Act itself would not conceivably meet the goal — at a time when the Cuyahoga River was burning because of pollution on its surface, the zero discharge goal made an important and forceful statement about the seriousness of the task being given to the U.S. EPA: Clean up the waters of the United States or else. Many have credited this simple yet seemingly unachievable goal with much of the success achieved under the Clean Water Act over the past 40 years. Without this wind at the back of the EPA, many of the difficult decisions that the agency has made implementing the provisions of the Clean Water Act would no doubt have been that much more difficult — particularly during difficult economic times over the past four decades.

Reflecting on the successes achieved, it should not be lost that the way in which the Clean Water Act went about achieving its goals did not just put some underperforming companies out of business, it also put people to work. It encouraged development of an entire industry that we now take for granted — an industry of scientists, engineers, inventors, mechanics, and other good-paying careers built around one goal — removing pollutants from the waters that we use to fish, swim, and drink.

The Clean Water Act turns 40, and we are that much better for it. It's difficult not to wonder whether those in Congress today would have the ability and will to construct and enact such a monumental piece of public health legislation.

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