Buzbee Testifies Before Senate Subcommittee on Implications of Supreme Court Clean Water Act Ruling
Professor of Law William Buzbee, who directs Emory’s Environmental and Natural Resources Law Program, recently testified before the United States Senate’s Environment and Public Works Subcommittee on Fisheries, Wildlife and Water. He appeared in response to a bipartisan invitation from Senators Chafee and Clinton to offer his expert legal opinion on the implications of a recent Supreme Court Clean Water Act ruling. In July, the U.S. Supreme Court rendered a fractured decision over the scope of the federal government’s power to protect America’s “waters.” (Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers). Buzbee had earlier co-authored a bipartisan amicus friend of Court brief of behalf of four former United States Environmental Protection Administration administrators. The Supreme Court issued five lengthy opinions, but produced little clear consensus regarding the central question: whether the Clean Water Act protects sporadically flowing tributaries and wetlands adjacent to small tributaries that flow into larger water bodies. By some estimates, between fifty and ninety percent of America’s waters fall within categories implicated by the case.
Buzbee, whose expertise is in environmental law, administrative law, federalism, statutory interpretation and land use law, was honored and pleased to accept the invitation to analyze this important case. According to Buzbee, the Supreme Court’s ruling created confusion where there once was clarity, leading to conflicting arguments in courts, agencies and the press over the decision’s implications. Some analysts “have claimed that the decision rolls back environmental protections, others see it as leaving the law largely intact, but all agree it created confusion and the near promise of new litigation.” During the packed televised hearing, senior government officials and other witnesses offered divergent reads of the case, with some advocating no action, others suggesting new regulatory changes, and others considering a new statute that would make statutory the regulatory protections in place for about three decades. After extended discussion and numerous questions to Buzbee about just what the Court’s decision added up to, the Senators focused on what should now be done. “My position to the subcommittee was that the thirty years of consistent regulatory approaches protecting America’s waters constituted sound and consistent policy for very good reason. There is stability in the law, plus scientific studies keep confirming the importance of smaller tributaries and wetlands. Keeping what has long worked as federal policy is of great value,” he says. “My hope is that the committee will diligently police administrative agencies to make sure they don’t weaken environmental protection, and that they should also consider making statutory what has long been protected by well established regulations.”