The Antiregulatory Arsenal, Antidemocratic Can(n)ons, and the Waters Wars

Abstract

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array of antiregulatory skews and frames can be decisive, especially when wielded before sympathetic judges skeptical about the administrative state or environmental protection. The Article questions the legitimacy of this antiregulatory arsenal, highlights how these antiregulatory moves in the Waters setting often dodge actual statutory choices, and identifies countervailing strategies that are more respectful of democratic choices. The new antiregulatory canons are akin to weaponized cannons empowering judges. The Article calls for judges to apply more legislatively respectful frames in exploring questions of regulatory power, with greater attention to statutes’ policy priorities and obligations assigned by Congress and wielded by agencies based on scientific or factual criteria prioritized in governing statutes.

Keywords: Clean Water Act, waters of the United States, navigable waters, navigability, wetlands, Commerce Clause, statutory interpretation, major questions doctrine, clear statement, hard look review, deference, administrative state, Chevron, Rapanos, SWANCC, Sackett, West Virginia, Raich, Clean Power Plan