A 2022 report titled Promises Half Kept at the Half Century Mark, by the Environmental Integrity Project, released on the Clean Water Act’s 50th anniversary said the law is “falling short of its original goals.”
Michigan, for example, has the 4th largest number of impaired lakes, reservoirs and streams assessed for water contact recreation in the U.S.
The report cited U.S. Environmental Protection Agency budget cuts, a failure to enforce permit requirements and weak management of water pollution as barriers to reaching the CWA’s goals.
In 2022, University of Detroit Mercy environmental law professor Nick Schroeck said the CWA is “stuck in neutral” and is in need of an update, Planet Detroit reported. Schroeck cited regulations that lack urgency and that it has been reactive to new chemicals of concern that enter the marketplace.
To gain a better understanding of the state of environmental law and how it has evolved, Great Lakes Now queried three environmental law attorneys about the evolution of the practice in the last 20 years.
For perspective, in 2004 George W. Bush was the president, climate change was an issue but substantive action on it was more than a decade away as were the Flint and Toledo drinking water crises.
Aged bedrock laws
Environmental law attorney Mark Templeton says his students provide ample reasons to be optimistic about the legal system’s ability to take on the challenges the future will present.
“It is an exciting time to work with students because of their interest and hopes for the future,” said Templeton, a Clinical Professor of Law and Director of the Abrams Environmental Law Clinic at the University of Chicago.
Among the issues these future attorneys will confront are climate change, environmental justice and clean water. According to Templeton, they are showing an increasing interest in energy issues including “an equitable clean energy transition.”
The emerging laws still have unresolved areas and students are interested both in addressing those areas of legal uncertainty and in applying well-established aspects of laws to the seemingly endless set of environmental and energy challenges, according to Templeton.
But in spite of the heightened interest in environmental law by today’s eager students, obstacles to align laws with twenty-first century challenges remain entrenched.
Perhaps the biggest barrier to improving the legal system is that the bedrock laws, the Clean Water and Clean Air Acts, are now over 50 years old. They are not equipped to effectively deal with issues like climate change, agricultural pollution and toxic contaminants like PFAS (forever chemicals”) that have emerged.
A striking example in the Great Lakes region is that the Clean Water Act (CWA) does not regulate the nutrient runoff from farms that flow to Lake Erie and contribute to toxic algal blooms.
In addition to Templeton, Great Lakes Now asked Traverse City attorney Jim Olson and Chicago attorney Debbie Chizewer to comment.
Olson is founder of the not-for-profit For Love of Water and is best known for his successful legal challenge to Nestle’s taking of water for bottled water. He is the author of the newly released novel, People of the Dune which contrasts legal duty with ethical responsibility.
Chizewer is the managing attorney for Earthjustice in the Midwest focused on climate, healthy communities and representing Tribal Nations on the Line 5 oil pipeline issue.
State of environmental law
On the state of environmental law in 2024, Templeton and Chizewer focused on the advances made in the last 20 years.
“There have been some important strides in environmental law during the past couple of decades,” Templeton said.
He cited the administrations of President’s Obama and Biden’s willingness to put forth rules regulating emissions from coal-fired power plants, heightened standards on tailpipe emissions and action on lead service line replacements.
For its part, Congress passed major legislation to address the environmental challenges that water systems face and that made investments in renewable energy, according to Templeton.
And Templeton “believes there are more organizations litigating than in the past,” citing Earthjustice as an example.