![handle is hein.journals/gwjeel4 and id is 1 raw text is: Copyright @ 2013 Environmental Law Instituteg) and The George Washington University Law School, Washington, DC. Reprinted with permission.
ARTICLES
Improving Water Quality
Antidegradation Policies
Sandra Zellmer and Robert L. Glicksman*
The visual images that helped spur the enactment of
the nation's foundational environmental laws during
the 1970s, including the Clean Water Act (CWA),
were largely of contaminated resources, such as burning riv-
ers and oil-soaked seagulls.2 Similarly, evocative prose, such
as Rachel Carson's description of the strange blight3 afflict-
ing America in the 1960s as a result of the use of chemi-
cal pesticides, played a critical role in alerting policymakers
and the public to the need for new legal protections for
public health and the environment. Over the years, similar
depictions of the environmental devastation resulting from
unconstrained economic activity have continued to play an
important role in creating the momentum for the adoption
of new or strengthened environmental laws.'
* Sandra Zellmer is the Robert B. Daugherty Professor at the
University of Nebraska College of Law. Robert L. Glicksman is the
JB. & Maurice C Shapiro Professor of Environmental Law, at The
George Washington University Law School.
Authors' note: Professor Zellmer thanks research assistants Emily
Rose and Samantha Staley, as well as Erik Schlenker-Goodrich of
the Western Environmental Law Center for his insights on protected
areas. Professor Glicksman thanks research assistants Melissa Dolin
and Erin Dykstra.
1. Clean WaterAct ofl972 (CWA), Pub. L. No. 92-500,86 Stat. 816 (codified
as amended at 33 U.S.C. §§ 1251-1376 (2006)).
2. See RIcHARD J. LAZARUS, THE MAKING OF ENvIRONMENTAL LAW 59 (2004)
(describing visually unsettling events such as the smoldering Cuyahoga River
and seagulls suffocated in oil as a result of the Santa Barbara oil spill).
3. RACHEL CARSON, SuLENT SPRING (Houghton Mifflin 1994), quotedin ROBERT
L. GucIsSMAN ET AL., ENviRONMENTAL PROTECTION: LAW AND POLICY 18 (6th
ed. 2011).
4. See, e.g., Martha L. Judy & Katherine N. Probst, Superjnd at 30, 11 VT.
J. ENvrL. L. 191, 192-93 (2009) (describing sites regularly featured on the
television news and in news magazines in the late 1970s and early 1980s [that]
set the stage for passage of Superfund, including the 'Valley of the Drums,'
[which] imprinted on the screen and in the minds of the American public
colorful images of erupting, smoking, seeping, and corroding drums); Tina
M. Smith, Widilfe Protection and Offihore Drilling: Can There Be a Balance
Between the Two?, 6 FLA. AaM U. L. REv. 349, 366 (2011) (quoting, Prince
Willian's Oily Mess: A Tale of Recovery, NOAA OCEAN SERv. EDUC., http://
oceanservice.noaa.gov/education/stories/oilymess/oily0 linfamous.html) (last
updated Mar. 25, 2008)) (The images Americans saw on television and the
descriptions they heard over the radio [after the Exxon Valdez oil spill] were
Environmental law, however, has always been about more
than just repairing the damage wrought by past environmen-
tal disasters or mismanagement. Senator Edmund Muskie,
the principal sponsor of the CWA, for example, was moved
to action not only by the environmental despoliation he wit-
nessed, but also by [t]he beauties of nature . . . in almost
pristine form at which he marveled while growing up.' The
nation's environmental laws were adopted as much to pre-
serve superior environmental quality as to restore damaged
or degraded resources.'
The CWA reflects this dual conception of the function
of environmental law. Its principal goals are to restore and
maintain the chemical, physical, and biological integrity of
the nation's surface water bodies.7 The Act's adoption was
spurred largely by the realization that unchecked pollution
had caused the degradation of those waters, making them
unsuitable for uses such as fishing and swimming.' At the
time Congress passed the statute, however, some lakes, rivers,
and streams had water quality that was better than what was
needed to support these uses.' An important question was
whether the statute would limit discharges with the potential
to impair these high-quality waters. The U.S. Environmen-
tal Protection Agency's (EPA) antidegradation policy pro-
vided an affirmative answer.o Yet, the CWAs maintenance
goal has taken a decided backseat to its restoration goal, as
of heavily oiled shorelines, dead and dying wildlife and thousands of workers
mobilized to clean beaches.).
5. Robert E Blomquist, To Stir Up Public Interest' Edmund S Muskie and the
US. Senate Special Subcommittees Water Pollution Investigations and Legisla-
tive Activities, 1963-66-A Case Study in Early Congressional Environmental
Policy Development, 22 COLUM. J. ENvrx. L. 1, 6 (1997) (quoting EDMUND S.
MUSKIE, JOURNEYs 79-80 (1972)).
6. See, e.g., The Wilderness Act of 1964, 16 U.S.C. § 1131(a) (2006) (enunciat-
ing Congress's goal of administering wilderness areas in such manner as will
leave them unimpaired for the future use and preservation as wilderness, so
as to provide for the protection of these areas [and] the preservation of their
wilderness character).
7. CWA 5 101(a), 33 U.S.C. § 1251(a) (2006) (emphasis added).
8. N. William Hines, A Decade of Nondegradation Policy in Congress and the
Courts: The Erratic Pursuit of Clean Air and Clean Water, 62 IOwA L. REv. 643,
658 (1977).
9. See id. (showing that state standards previously permitted degradation of high-
quality waters).
10. Id. at 662.
JOURNAL OF ENERGY & ENVIRONMENTAL LAW
Winter 2013](ViewImageLocal?handle=hein.journals/gwjeel4&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most