This morning, we present reports on a Ninth Circuit petition for the review of the EPA Clean Water Act multi-sector NPDES general permit, as an NGO concluded that the EPA should have done more in this permit to prevent the possibility of plastic pollution and protect endangered species. Of course, these two tasks are of crucial importance.

But this petition is a malicious cousin to a decision by a First Circuit panel on the same day to allow another NGO to continue its citizen action for alleged violations of an individual NPDES permit covering a facility in Massachusetts.

Underlying these two lawsuits is an inconvenient but indisputable truth: the EPA will never have the resources to issue and enforce the number of individual Clean Water Act NPDES permits that NGOs would prefer. In fact, as the Massachusetts case makes clear, the EPA does not even have the resources to maintain the individual permits it currently issues.

And that brings us to the question which is the title of my play this morning. Almost 50 years ago, Congress authorized the President of the United States to implement the Clean Water Act. The president has delegated this power to the Environmental Protection Agency. These Ninth Circuit and First Circuit cases demonstrate a strong interest in federal courts doing this work, or at least strongly influencing it.

Do we really believe that our government’s judiciary is best suited to implement the Clean Water Act? If the answer to this question is no, what would make all of us comfortable with the direction of Congress? Statutory revisions? More resources for the EPA? What about the United States? As we see a continuing upward trend in Clean Water Act litigation and the growing uncertainty caused by these cases, these questions deserve an answer.

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