Until the 1970s, federal and state laws did little to control the harmful water quality impacts of mining exploration, and mine wastes were regularly deposited wherever was convenient, including directly into streams. As a result, one enduring legacy of the boom and bust mining cycles in the United States from the mid-1800s to 1970 is widespread and unmitigated water pollution from inactive or abandoned mines.

Editors' Summary

I. Introduction and Overview

Editors' Summary: Since the Supreme Court's decision in Rapanos v. United States, courts, practitioners, and scholars have continued to discuss Justice Anthony M. Kennedy's significant nexus test. Under this test, to protect a wetland one must establish that there is a significant nexus between the wetland and a traditional navigable water. In this Article, authors William W. Sapp, Rebekah Robinson, and M. Allison Burdette suggest that the nearer a traditional navigable water is to the wetland, the better the chance of establishing that there is a significant nexus between the two.

Perhaps Congress should throw up its hands and move on to something more manageable than global climate change. Richard Lazarus asserts that the challenges of enacting effective national strategies for mitigating and adapting to changes in the Earth's climate are not just "wicked," but "super wicked," meaning they defy resolution.

The last 18 months have produced particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act (CWA or Act) jurisdiction, permits, standards, citizen suits, and other enforcement. On the jurisdictional front, we learned that "deep ripping" constitutes an "addition" of a pollutant by a "point source." We also learned that 25-year-old cases from the U.S. Court of Appeals for the D.C.

Since the enactment of the Clean Water Act (CWA or Act) 28 years ago, the federal courts have been called upon to sort out the respective roles of the federal and state governments in connection with numerous aspects of the statute's implementation and enforcement. Congress has superimposed an additional layer of complexity on the CWA experiment in creative federalism—the citizen suit provision.

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. may prove to be the most important environmental decision since Chevron, U.S.A., Inc. v. Natural Resources Defense Council. Laidlaw's primary significance lies in its discussion of the injury component of the U.S. Supreme Court's now familiar three-part standing test.

In its first week of business during the new millennium, the U.S. Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., and provided important clarifications about the law of standing in environmental citizen suits. Specifically, the Court rejected the narrow view of environmental injury-in-fact advocated by Justice Scalia and instead adhered to the broader view of injury-in-fact established in a nonenvironmental context by the Court's decision in Federal Elections Commission v. Akins.

As law students frequently discover during exams, the law of standing is easy to state but hard to apply. The basic rules are simple and well-settled. Under Article III of the U.S. Constitution, in order to invoke federal jurisdiction, the plaintiff must demonstrate the existence of an "injury-in-fact" that is "legally cognizable," "fairly traceable" to the defendant, and capable of being "redressed" by the court. Each of the terms in quotation marks seems clear enough on the surface but has proved remarkably tricky in practice.