Clean Water Act and the Constitution: Legal Structure and the Public's Right to a Clean and Healthy Environment, The, 2nd Edition

The Clean Water Act and the Constitution
Robin Craig
Release Date

In this second edition of a landmark book, author Robin Kundis Craig explores the structural implications for water quality regulation when the primary federal statute for regulating water quality—the Clean Water Act—operates in a context complicated by a variety of constitutional requirements and dictates. After examining the Supremacy Clause, constitutional interstate common law, federal sovereign immunity, the Commerce Clause, the Fifth Amendment’s “taking” clause, the Eleventh Amendment, and the separation of powers principles, Craig concludes that constitutional law has had a more significant effect on the Act’s intent to involve citizens in public interest enforcement than on the Act’s basic structure of “cooperative federalism.”

This second edition thoroughly updates the first edition, particularly in areas where the Supreme Court has issued significant new decisions. For example, it includes discussions of the Court’s 2006 decision in Rapanos v. United States plus the important recent developments in Commerce Clause jurisprudence. Other noteworthy additions include Clean Water Act takings jurisprudence, new discussions of “increased risk” as a basis for citizen suit standing, and the issue of state citizen suit standing after Massachusetts v. EPA.

As Craig reveals, more kinds of constitutional issues have been litigated more often around the Clean Water Act than around any other federal environmental law. Craig argues that environmental constitutional jurisprudence may have progressed to the point where the structure of the Constitution impedes necessary solutions to pressing environmental issues. She concludes by proposing a structural amendment to the Constitution that would restore Congress’s vision of citizen participation in environmental law.

About the Author

Robin Kundis Craig is the Attorneys’ Title Insurance Fund Professor of Law and Co-Director of the Environmental and Land Use Law Program at the Florida State University College of Law in Tallahassee, Florida. She specializes in all things water, including the Clean Water Act, coastal water pollution, the intersection of water issues and land issues, marine biodiversity and marine protected areas, water law, and water and climate change. She is the author of The Clean Water Act and the Constitution (ELI 2004; 2d Ed. ELI 2009) and Environmental Law in Context (Thomson/West 2005; 2d Ed. 2008), plus over 40 law review articles and book chapters. In addition, she recently completed work with the National Research Council’s Committee on the Clean Water Act and the Mississippi River, which culminated in the October 2007 release of the Committee’s report, Mississippi River Water Quality and the Clean Water Act: Progress, Challenges, and Opportunities, and with the Council’s follow-up Committee, which issued its report on implementation of nutrient control measures in the Mississippi River Basin in November 2008.

Professor Craig also serves as Chair of the American Bar Association’s Constitutional Environmental Law Committee, as Vice Chair of it Marine Resources Committee, and as Supreme Court News Editor for the ABA’s Administrative & Regulatory Law News. At Florida State, she teaches Environmental Law, Water Law, Florida Water Law, International Biodiversity Law, Administrative Law, Property, Civil Procedure, and seminars on Toxic Torts, the Environmental Intersection of Land and Sea, and the Clean Water Act, plus the Environmental and Land Use Law Certificate Seminar.