Paul F. Foley

Document Type



As environmental law continues to mature in the second-generation since the enactment of several major federal environmental statutes in the 1970s, two important implications from its current stage of development must be derived. First, second-generation judicial interpretation of these statutes no longer occurs in a vacuum: the applicability of the statute's internal provisions to a particular subset of factual circumstances has, in all likelihood, already been litigated. Second, and corollary to the first implication, the first-generation's establishment of precedent for interpreting each of a respective statute's provisions was a necessary prerequisite for what should now be the overriding purpose of the statute's second- generation maturation: the articulation of jurisdictional relationships amongst federal environmental statutes. Unless this second-generation maturation occurs, environmental law will not evolve into a comprehensive legal regime but will remain the same confusing morass of isolated and contradictory statutes that the first-generation of statutory interpretation necessarily laid the foundation to overcome. Recent judicial interpretation of the Clean Water Act (CWA) threatens to revert environmental law to its first-generation of development. This interpretation completely fails to address the CWA's jurisdictional relationship with other federal environmental statutes; it correspondingly also fails to address whether almost identical factual circumstances have already been fully litigated under federal environmental law. Regrettably, this recent litigation has granted legitimacy to a completely novel interpretation of the CWA. Thus, an area of environmental law that has been well settled for decades has been shattered: the first-generation of environmental law has begun again, threatening to stunt the development of the field in an endless feedback loop involving the interpretation of fragmented provisions of discrete environmental statutes as if each occupied completely independent fiefdoms. To understand how the CWA has recently been distorted, and to map the proper road for the second-generation of environmental law's development, it is first necessary to look through the near-distant mirror of the statute's infancy period.



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