GCSC Seminar: The Clean Water Act and the Challenges of Environmental Law

By Maria Archibald, Sustainability Office  

The Clean Water Act is nearing its 50th anniversary, but the courts still have not agreed on how to interpret it—specifically, how to determine its scope and which bodies of water it regulates.

On Tuesday, April 5 at 4:00 p.m., Robert Adler, distinguished professor in the College of Law at the University of Utah, will give a GCSC seminar titled “Interpreting the Clean Water Act: the uncertain relationship between environmental law and science.” His talk will examine longstanding legal disputes about the Clean Water Act, and their implications for environmental health and water quality.

Professor Adler developed an interest in environmental issues as a teenager, when he joined his high school’s conservation club. He went on to study ecology at Johns Hopkins University, and intended to pursue a career in environmental science or wildlife biology. “But someone who knew me—and knew my penchant for policy, and politics, and that side of things—said, ‘Well, why don’t you look into environmental law?’” Adler says. “So, I ended up going to law school to merge my scientific background with a legal background, and I then became a practicing environmental lawyer.”

“I do a lot of work at the intersection of law and science, which explores how the law takes into account scientific principles relating to environmental issues and problems,” says Adler. “Or in some cases, how it doesn’t do so very well.”

The Clean Water Act is such a case. The act specifically names “waters of the United States,” which, as Adler points out, is not a scientific term. “That’s part of the problem,” he says. “It’s all tied into constitutional issues, about the relative power of the federal government versus the states.”

The meaning of the term “waters of the United States” has gone back and forth to the Supreme Court three times, without clear resolution. In an effort to resolve the dispute, Supreme Court Justices created their own “test”—bodies of water with “significant nexus” to a “navigable water body” would constitute jurisdictional waters.

And yet, the meaning “navigable waters” is also hotly debated and lacking in scientific clarity. “That terminology has made scientists scratch their head, and say ‘we don’t know what that means,’” Adler explains. “And so, you have this odd situation in which the courts are creating scientific tests that scientists and agencies need to apply, but they don’t really know what it means because it doesn’t have an underpinning in the scientific literature.”

In his seminar, Adler hopes to communicate the complex relationship between law and science, and challenges such a relationship creates. He advocates for a more holistic analysis of the Clean Water Act—one that takes science into consideration—as a way forward. To learn more, register and attend Adler’s GCSC Seminar on Zoom on Tuesday, April 5 at 4:00 p.m.