CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 15, 2022

Larkin on Vagueness and the Clean Water Act

Paul J. Larkin (The Heritage Foundation) has posted The Clean Water Act and the Void-for-Vagueness Doctrine (20 Geo. J.L. & Pub. Pol'y (2022 Forthcoming)) on SSRN. Here is the abstract:
Congress passed the Clean Water Act (CWA) to “restore and maintain the physical, biological, and chemical integrity of the nation’s waters.” To do so, the act requires parties to obtain a permit before discharging a pollutant into “the waters of the United States. Violations are subject to civil (including administrative) penalties and criminal punishments. That last fact gives rise to a problem. The term “waters of the United States” is hopelessly vague, as several justices of the Supreme Court of the United States have noted. To clarify that term, in 2015 the Environmental Protection Agency and U.S. Army Corps of Engineers adopted a rule, known as the “Waters of the United States” Rule. Yet, it is uncertain whether an agency can remedy an unintelligible statutory term. In any event, the 2015 rule fails to give the CWA an understandable content. The result is that the act is unconstitutionally vague under the Void-for-Vagueness Doctrine.

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