Waters of the United States: Theory, Practice and Integrity at the Supreme Court

Jamison E. Colburn, Western New England College, School of Law

Abstract

In the Supreme Court's two wetlands cases this Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronted (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA's enormous project of restoring the chemical, physical, and biological integrity of the Nation's waters. In this essay, I argue that the way the Court went about resolving its differences is, unfortunately, instructive not just to environmental lawyers. It is illustrative of the Court's failed minimalism, disregard for its own precedents, and tired uses of semantics where truly substantive problems are confronting our society.