Presented By: Michigan Law Environmental and Energy Law Program
The Regulatory, Property, and Human Rights-Based Strategies for Protecting American Waterways
Part of the Environmental and Energy Law Program Lecture Series
Erin Ryan, Associate Dean for Environmental Programs and Elizabeth C. & Clyde W. Atkinson Professor, Florida State University College of Law
This analysis introduces a framework of three different strategies for protecting American waterways—the conventional regulatory approach, an alternative property-based approach, and a newer human rights-based approach—and reviews how the dynamic among them will be impacted by recent Supreme Court decisions impacting environmental law. The rights of nature movement has emerged as a human rights-based approach to environmental protection, the public trust doctrine offers a public property-based approach, and the Clean Water Act epitomizes the more traditional regulatory approach.
In recent years, however, the Court issued a series of decisions that have unwound nearly a half-century of accepted regulatory practice, limiting the reach of the Clean Water Act as a tool for protecting waterways in Sackett v. EPA, weakening the reach of the Clean Air Act in West Virginia v. EPA, and weakening environmental agencies more generally in Loper Bright Enterprises v. Raimondo. These cases will exact a cost for wise environmental governance under all three models reviewed here.
This analysis introduces a framework of three different strategies for protecting American waterways—the conventional regulatory approach, an alternative property-based approach, and a newer human rights-based approach—and reviews how the dynamic among them will be impacted by recent Supreme Court decisions impacting environmental law. The rights of nature movement has emerged as a human rights-based approach to environmental protection, the public trust doctrine offers a public property-based approach, and the Clean Water Act epitomizes the more traditional regulatory approach.
In recent years, however, the Court issued a series of decisions that have unwound nearly a half-century of accepted regulatory practice, limiting the reach of the Clean Water Act as a tool for protecting waterways in Sackett v. EPA, weakening the reach of the Clean Air Act in West Virginia v. EPA, and weakening environmental agencies more generally in Loper Bright Enterprises v. Raimondo. These cases will exact a cost for wise environmental governance under all three models reviewed here.
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