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A Unified Theory Of Clean Water Act Jurisdiction, Robert W. Adler
A Unified Theory Of Clean Water Act Jurisdiction, Robert W. Adler
Utah Law Faculty Scholarship
As it reaches its half century mark, the modern version of the federal Clean Water Act (CWA) remains a definitional quagmire. The U.S. Supreme Court, lower courts, and the two federal agencies charged with implementing the law have struggled to interpret its scope ever since its 1972 enactment. As a result, we still lack clarity regarding the most basic questions about the law’s reach. That causes massive uncertainty for regulated businesses and landowners, the federal and state agencies that implement the law, and members of the public Congress intended to protect. A unified interpretive approach focuses on the statutory text …
Trickster Law: Promoting Resilience And Adaptive Governance By Allowing Other Perspectives On Natural Resource Management, Robin Kundis Craig
Trickster Law: Promoting Resilience And Adaptive Governance By Allowing Other Perspectives On Natural Resource Management, Robin Kundis Craig
Utah Law Faculty Scholarship
The Anthropocene requires a new approach to natural resources law and policy, an approach that this short article terms "trickster law." Trickster law incorporates insights from resilience theory, adaptive governance scholarship, and cultural/anthropological studies of trickster tales to create a legal approach to natural resource management that is precautionary, engaged in proactive planning, based in principled flexibility, and pluralistic. This article focuses on the "pluralism" component, presenting three examples of how law modified to be more inclusive and respect different value systems has generated new approaches to natural resources management that better promote social-ecological resilience to climate change and other …
Atomizing The Clean Water Act: Ignoring The Whole Statute And Asking The Wrong Questions, Robert W. Adler, Brian House
Atomizing The Clean Water Act: Ignoring The Whole Statute And Asking The Wrong Questions, Robert W. Adler, Brian House
Utah Law Faculty Scholarship
When attempting to resolve difficult issues of statutory construction involving complex statutes, courts sometimes focus on individual words and phrases without evaluating how they fit within the text and structure of the whole statute. We call this “atomization” of the statutory text. Judges have fallen into this trap in construing the Clean Water Act (CWA) and other lengthy, complex federal environmental statutes. That tendency contributes to ongoing confusion about the scope and coverage of the CWA. During the 2019-2020 Term, the U.S. Supreme Court will resolve a circuit split in the most recent line of cases exhibiting this tendency. Courts …