This Note argues that the Clean Water Act (CWA) authorizes EPA to prohibit the Corps from approving general dredge and fill activity. Part I describes the statutory and regulatory background for dredge and fill permits and EPA’s veto. Part II establishes the statutory authority, legislative history, and practical reasons that justify EPA’s veto as applied to general dredge and fill activities. This Note also proposes a new, proactive process where EPA can identify wetlands subject to the veto’s protection prior to proposal of dredge and fill activities.
The ruling in Chernaik illustrates how the public trust doctrine’s theoretical foundation is rooted in a flawed analogy, rendering it ineffective for compelling government action to address climate change. A new or adapted doctrine is needed to convince the judiciary to push for government action on climate change.
