District's appeal of 11th Circuit Court of Appeals ruling in  Miccosukee v. SFWMD (No. 00-15703).  The Miccosukee Tribe of Indians and the Friends of the Everglades  brought a citizen suit under the Clean Water Act ("CWA") against the South Florida Water Management District.  The suit alleged that the Water District was violating the Clean Water Act by discharging pollutants from the S-9 pump station into Water Management District 3A without a national pollution discharge elimination system ("NPDES") permit. 

051804 - Federal Everglades Case Heats Up

032704 - A ruling for pollution

032404 - High court ruling in Everglades case pleases both sides

032404 - US Supreme Court sidesteps issue on dirty water being pumped into Everglades

032404 - Glades pumping-station case sent back to Miami

032404 - Supreme Court Rules: S-9 Saga to Continue

032404 - US Supreme Court Rejects SFWMD Pollution Argument

032404 - Supreme Court dodges major ruling in Everglades pollution case

030404 - Supreme Court Hears Everglades Case

011504 - Court hears Glades dispute

011504 - Tribe battles water district in West Broward pollution pumped into the Everglades

011504 - Supreme Court hears Everglades pollution case

011504 - Court urged to require EPA role in Everglades shift of polluted water

011404 - Everglades cleanup at stake in court case

011404 - Water pump case tests federal law

011404 - Miccosukee Tribe Argues Clean Water Act Case Before U.S. Supreme Court In Struggle to Protect Everglades Homeland from Pollution

011304 - Miccosukees, water managers take Everglades fight to high court

011104 - Everglades water case goes before Supreme Court

010704 - Clean Water Act case to be heard by US Supreme Court on January 14th

010404 - Terrible idea to mix dirty water with clean

111403 - Press Release: Environmental Groups Join Supreme Court Battle to Uphold Clean Water Act

091503 - SFWMD Press Release  

091103 - Sierra Club Press Release - Water Management District To Blame For Cleanup Delays    

091103 - Water district gains ally in permit fight

091103 - Miccosukeee Tribe Press Release - Water Management  District Claim That Clean Water Act Permit for the S-9 Pump Will Be Bad for Everglades Restoration is Reminiscent of Chicken Little  

091003 - Federal Government Argues for Weaker Clean Water Protections

 

I.                INTRODUCTION

A.        Environmental Law in its Second-Generation

As environmental law continues to mature in the second-generation since the enactment of several major federal environmental statutes in the 1970s,[1] two important implications from its current stage of development must be derived.  First, second-generation judicial interpretation of these statutes no longer occurs in a vacuum: the applicability of the statute’s internal provisions to a particular subset of factual circumstances has, in all likelihood, already been litigated.  Second, and corollary to the first implication, the first-generation’s establishment of precedent for interpreting each of a respective statute’s provisions was a necessary prerequisite for what should now be the overriding purpose of the statute’s second-generation maturation: the articulation of jurisdictional relationships amongst federal environmental statutes.  Unless this second-generation maturation occurs, environmental law will not evolve into a comprehensive legal regime but remain the same confusing morass of isolated and contradictory statutes that the first-generation of statutory interpretation necessarily laid the foundation to overcome.

Recent judicial interpretation of the Clean Water Act[2] (CWA) threatens to revert environmental law to its first-generation of development.  This interpretation completely fails to address the CWA’s jurisdictional relationship with other federal environmental statutes; it correspondingly also fails to address whether almost identical factual circumstances have already been fully litigated under federal environmental law.  Regrettably, this recent litigation has granted legitimacy to a completely novel interpretation of the CWA.  Thus, an area of environmental law that has been well-settled for decades has been shattered: the first-generation of environmental law has begun again, threatening to stunt the development of the field in an endless feedback loop involving the interpretation of fragmented provisions of discrete environmental statutes as if each occupied completely independent fiefdoms.  To understand how the CWA has recently been distorted, and to map the proper road for the second-generation of environmental law’s development, it is first necessary to look through the near-distant mirror of the statute’s infancy period. 

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