As published in Law360 – By Chase Brockstedt and Philip Federico
(October 19, 2022, 5:38 PM EDT) — Fifty years ago this month, the U.S. formally recognized the right to clean, safe water and enacted the Clean Water Act, changing the environmental law landscape forever and opening the door for other significant environmental legislation.
On the golden anniversary of this vital law, it’s important to not only look back at how far we’ve come as a result but also at what the next 50 years of this environmental law may look like as the Clean Water Act enters a new era.
The Clean Water Act was one of the first meaningful pieces of legislation to regulate the environment, and essentially outlawed the practice of discharging pollutants — such as raw sewage or untreated industrial waste — into surface and receiving waters.
This not only led to a dramatic and immediate improvement in the health and safety of waterways across the country, but it also helped establish further case law protecting our country’s oceans, lakes and rivers.
While the progress we’ve made since that day five decades ago cannot be fully measured, it was accomplished through two important channels.
First, the Clean Water Act has been and continues to be used by enforcement agencies who act as a watchdog for environmental pollution by companies.
That usage of the law by our government is important, and has made a significant difference over the last 50 years.
However, local and federal enforcement agencies alike are often underfunded, understaffed and burdened with large jurisdictions to oversee.
Unfortunately, that can lead to a lack of meaningful action by those agencies — allowing polluters to fly under the radar to the detriment of the communities in which they do business.
When that happens, it is up to communities and their residents to take action to correct environmental injustice where it occurs.
Accordingly, another aspect of the law has developed as a result of a recent U.S. Supreme Court ruling.
In 2020, in County of Maui v. Hawaiʻi Wildlife Fund — which some have dubbed the clean water case of the century — the Supreme Court sided with clean water advocates after a decadeslong dispute over a wastewater treatment plant, its pollution discharges and a partially dead coral reef in Hawaii.
The court’s decision left in place vital protections for the nation’s oceans, lakes and rivers, and found that discharges — even those not directly into navigable waters — are regulated under the Clean Water Act if there is a hydrological connection to the receiving water.
This ruling was a pivotal point for the impact of the law, and for the environment at large, because it set in stone the intent of the law in a way that opened the door for increasing accountability on polluters.
With the law squarely on their side, more litigators have been able to come to the aid of communities being illegally contaminated.
Today, environmental litigation to bring justice against contaminating companies is at the forefront of public consciousness, whether it concerns the effects of PFAS, toxic lead exposure or other dangerous contaminants in our water systems.
The U.S. Environmental Protection Agency, local enforcement agencies, and organizations like Earthjustice and the Sierra Club are helping fight for equal access to clean water. But with their limited resources, they can only fight part of this battle.
The second frontier that the Clean Water Act opened up is the ability of everyday citizens to seek justice through our civil justice system — complementing the efforts of regulators.
When dangerous contamination occurs, and the watchdog agencies fail to stop it or hold the responsible parties accountable, a community can file a citizen suit against the contaminating company.
This additional legal path gives the little guys a voice — and the chance to have their day in court.
In this way, communities can not only obtain compensation for the harm done to them, but they can also ensure that pollution is ended.
This type of litigation is vital to the health of our environment, and will be a large piece of the puzzle of improving clean water access over the next 50 years.
While the Clean Water Act has been an indispensable tool for cleaning up our environment, we are far from where we need to be, and the next 50 years will be crucial as we fight for the future of our planet.
This will include eliminating nitrogen and mercury contamination coming from power plants and agricultural businesses.
Importantly, as with any law, the Clean Water Act is only as strong as the courts willing to uphold it, and the everyday people willing to take a stand.
Other contamination issues, such as per- and polyfluoroalkyl substances and lead contamination, will require other legal strategies in addition to the Clean Water Act.
PFAS in particular will be one of the most important environmental battles of our time. These highly toxic “forever chemicals” are detected in 97% of the general population, and can cause harm at trace levels.
Just this summer, the EPA updated its drinking water health advisories for these chemicals to reflect that negative health effects may occur with concentrations of perfluorooctanoic acid or perfluorooctane sulfonate in water that are in the parts-per-quadrillion range — making them among the most harmful pollutants found on earth.
We must take significant action at all levels to remediate this massive problem that continues to spread, before it permanently alters our health and our lives.
There is still much work to be done to ensure justice and access to clean water.
Armed with powerful laws like the Clean Water Act — and courts willing to uphold their intended use — lawyers must continue to fight to ensure that citizens across the country have access to clean, safe drinking water.
Phil Federico is a partner at Baird Mandalas Brockstedt & Federico where he helps lead the Mass Tort / Class Action and Environmental Law practices, transitioning into these areas after beginning his career as a medical malpractice litigator.
Phil has led and been involved in historic and groundbreaking litigation with verdicts and settlements exceeding one billion dollars.
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