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Clean Water Act Developments: What Will the Supreme Court Do Next?

Amy J. Wildermuth, Proceedings of 56th Annual Rocky Mountain Mineral Law Institute (2010)

During the past decade, the Supreme Court has granted certiorari in a number of environmental law cases. As a result, many recent Clean Water Act developments related to the energy industry are, at least in part, the product of the Court's decisions. This chapter examines what happens when the Supreme Court tackles the Clean Water Act and why it might matter to those involved in this industry.
This chapter begins with a detailed examination of the Court's decision in Coeur Alaska. Next, the post-Coeur Alaska legal landscape is reviewed, both with respect to the Clean Water Act and administrative law generally. The chapter then discusses the decision in Rapanos and details the most recent efforts to resolve the issue of what constitutes “waters of the United States” under the Clean Water Act.
The chapter then explores the Clean Water Act issues that may appear on the Supreme Court's docket in the near future that could be important to those in the energy industry, beginning with mountaintop mining. In addition to the Administration's many efforts in this area, there are several significant mountaintop mining cases that have been brought, including one that, as of this writing, was still pending before the Supreme Court. In anticipation of litigation over the new pesticide permits, there may be a case against issuing “general permits” under the Clean Water Act. Although i