All it takes is a nudge: pushing environmental federalism to tackle the massive non-point source pollution problem

Controlling the massive problem of excess nutrient pollution in America's most prominent waters through the Clean Water Act continues to challenge administrators both on the ground and in the courts. Widespread hypoxia in the Gulf of Mexico, impaired waterways in Florida, and a declining fishing industry in the Chesapeake Bay illustrate continuing failures to remedy existing degradation and prevent future harm. The Act's structure of cooperative federalism places primacy with the states to handle the runoff, yet inaction by the states and the absence of a clear solution has prompted lawsuits by environmental groups seeking stringent intervention and lobbying groups vowing to protect their agricultural industry from increased regulation. Traditional courses of action within the cooperative federalism framework need to expand and accommodate the massive problem instead of remaining legally and scientifically static. Nudging, made popular in recent literature, could be the key policy tool to drive this expansion because it induces improvement through systems that preserve a person's liberty, alleviating constitutional concerns over land use. The water quality standard setting process provides new mediums in which to nudge, but when programs and policies intended to nudge turn into a shove, the judiciary plays an important role in preserving the balance. Contrasting approaches in each watershed provide insight to crafting policies that shift towards balanced and effective nutrient pollution controls before additional legislation is imposed