The Toxic Substances Control Act Amendments May Do Little to Relieve California Headaches for Businesses

Posted on July 15, 2016 by Robert Falk

Business groups largely supported the Toxic Substances Control Act (TSCA) Amendments recently signed into law by President Obama to address concerns about the emergence of varying state-by-state requirements regulating the chemicals used in consumer products.  But for those wishing to avail themselves of California’s vast and lucrative marketplace, the TSCA Amendments and EPA’s June 29, 2016 plan to begin implementing them may prove to do little to alleviate business’s headaches.  While the TSCA Amendments include a number of permanent and temporary federal preemption provisions, they are riddled with holes that may allow California’s activist requirements and plaintiffs’ lawyers to proceed largely unimpeded.

Potential Impact of the TSCA Amendments on California’s Safer Consumer Products (“Green Chemistry”) Program

The Amendment’s preemption provisions could halt or constrain the implementation of the California Safer Consumer Products (SCP) program.  The statutory basis for California’s so-called “Green Chemistry Initiative” was enacted just after August 31, 2003 and its initial requirements for Priority Product-chemical pairings were not finalized prior to April 22, 2016 so at least certain types of requirements arising from the SCP program may be subject to TSCA preemption. 

But whether these preemption provisions will have a meaningful effect on the future of the SCP program remains to be seen.  For example, as long as EPA has not taken any regulatory action on a chemical, California will retain full authority to regulate a product that contains it.  Moreover, if the use of the chemical does not fall under EPA’s TSCA jurisdiction, the SCP program’s actions concerning it will never be preempted.  (For instance, TSCA does not cover personal care products or beauty products.)

Indeed, California’s requirement that manufacturers of products designated as Priority Products provide the state with data and conduct an Alternatives Analysis pursuant to the SCP program appears to be left unaltered by the new TSCA preemption provisions.  Likewise certain forms of regulatory responses to an Alternatives Analysis on a Priority Product, such as mandating certain warnings or other information disclosure requirements, may well be found to survive TSCA preemption. 

Potential Impact of the TSCA Amendments on California’s Proposition 65

Proposition 65 requires businesses to provide a “clear and reasonable” warning before knowingly and intentionally exposing a Californian to any detectable amount of a listed chemical unless the business can prove that the exposure level does not pose a significant risk of cancer or is at least 1,000 times below the level which causes no observable reproductive effect.  Public prosecutors are meant to be the primary enforcers of Proposition 65, but the statute is most loathed because any individual claiming to act in the public interest also has the ability to enforce it by filing “bounty hunter” lawsuits against manufacturers, distributors, and retailers of consumer products. 

California’s federal legislators, including retiring U.S. Senator Barbara Boxer, took pains to ensure that Proposition 65, which was enacted in 1986, remained fully shielded from TSCA preemption.  Thus, California can continue to update its list of Proposition 65 chemicals “known” to that State to cause cancer and reproductive harm regardless of the outcome of EPA’s TSCA evaluation on the same chemical.  Proposition 65 bounty-hunter lawsuits can also continue to be filed concerning even the most de minimis exposures to chemicals that EPA determines are safe. 

That said, it still remains for the courts presiding over Proposition 65 cases to determine if EPA’s risk and safety determinations made pursuant to TSCA will have a significant evidentiary role in a business’s defense of a Proposition 65 claim on grounds other than preemption.  California judges may also take EPA’s TSCA determinations about a chemical into account when it comes to assessing (or reducing) Proposition 65 penalties.  And, perhaps at best, TSCA’s preemption provisions may also help convince courts that it is inappropriate to allow plaintiffs to continue to use Proposition 65 to obtain chemical “reformulation” of products made for a national or international market instead of just requiring Proposition 65 warnings for them when offered for sale in California.

Wyoming Prohibits Trespassing For Resource Data Collection: Might Massachusetts Follow?

Posted on July 14, 2016 by Seth Jaffe

In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) last week dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the purpose of “collecting resource data”.

An image of a "No Trespassing" sign on a tree.

In addition to subjecting violators to civil and criminal enforcement, the law also prohibits use of any data collected as a result of the trespass for any purpose other than enforcement of the statute.

The plaintiffs alleged that the statutes violated the free speech of “whistleblowers” and “citizen scientists”.  Judge Skavdahl wasn’t having any of it.

"Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others.  Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy."

Plaintiffs argued that, in Wyoming, it is often difficult to determine where public lands end and private lands begin.  The Judge was not sympathetic here, either.

"The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs’ mission and goals. Coincidentally, the same information would be essential to a successful prosecution or civil action brought under these statutes."

The Court also rejected the equal protection claim.  Since Judge Skavdahl had concluded that there was no First Amendment violation, the equal protection claim was not subject to strict scrutiny.  The Court found a rational basis in discouraging trespassing.

Finally, the Judge addressed the issue most significant from my point of view:  May information gathered as a result of a trespass be used in enforcement proceedings?  The statute requires “expungement” of such data.  The Court held that the Supreme Court has largely rejected facial challenges to such provisions.  Since there was no as-applied challenge here, the Court declined to consider the expungement provisions.

Why does this matter?  Because, even in the liberal Commonwealth of Massachusetts, property owners have been concerned that “citizen scientists” may trespass in order to gather endangered species data from private property.  Indeed, there have been occasions where such citizen scientists have found endangered species on private property where the species had not previously been mapped.  Cynical observers have often wondered whether the citizen scientists might have had something to do with the presence of the endangered species on the property!

I don’t really expect Massachusetts to follow Wyoming’s lead – but this is an issue that is much broader than some wild-eyed property rights activists in Wyoming.

Cape Wind Project Suffers Another Blow: Is This The Knock-Out?

Posted on July 13, 2016 by Jeff Thaler

The U.S. Court of Appeals for the District of Columbia Circuit on July 5 issued a ruling that the federal government violated the Endangered Species Act and the Administrative Procedure Act in approving the long-running, oft-litigated Cape Wind offshore wind project proposed to be built off the Massachusetts coast.  Senior Judge Randolph, writing for an unanimous panel, confirmed the District Court’s rejections of a number of the claims advanced by Plaintiffs (who included the Public Employees for Environmental Responsibility, the Town of Barnstable, and the Alliance to Protect Nantucket Sound), but reversed the District Court on two key points.

The proposed Cape Wind project, which has been the subject of voluminous news coverage and many court cases for well over a decade, sought to construct 130 3.6 MW turbines in shallow waters near Nantucket.  Challenges have included scenic impacts; Native American concerns that the project would will block their sunrise views across the sound, disturb ancestral burial grounds, and perhaps disturb cultural relics; and issuance of submerged land leases required by the project. Financial hurdles seemed to put the project into a death spiral two years ago, but quietly the project developers have continued legal fights to defend the permits and approvals previously issued. They have largely been successful—until this month.

Early on, biologists with the U.S. Fish and Wildlife Service (“FWS”) had recommended that the wind turbines be shut off during limited periods of highest risk to two birds listed under the Endangered Species Act-- the piping plover and roseate tern.  However, the FWS ultimately rejected that conservation measure on the grounds that it would impair the financial feasibility of the project. The Court of Appeals held that the FWS’s action was arbitrary and capricious.  The Court further held that the project cannot proceed without compliance with the Migratory Bird Treaty Act and without further analysis of environmental impacts pursuant to the National Environmental Policy Act. 

In conclusion, the Court stated:   “We reverse the district court’s judgment that the Bureau’s environmental impact statement complied with NEPA and that the Service’s incidental take statement complied with the Endangered Species Act, and we vacate both statements.” A copy of the ruling is here.

What is in a reputation?

Posted on July 12, 2016 by Lee DeHihns

Events this year have made me wonder how important a corporation’s reputation is to its officers, customers and shareholders.  One example is Exxon’s climate travails with the New York Attorney General and other state AGs along with their much publicized climate laced 2016 annual shareholder meeting in May.

In the Harvard Business Review on April 3, 2015, Allen Freed and Dave Ulrich stated “in recent years, investors have learned that defining the market value of a firm cannot just be based on finances. GAAP and FASB standards require financial reporting of earnings, cash flow, and profitability – all measures that investors have traditionally examined. But recently, these financial outcomes have been found to predict only about 50% of a firm’s market value.”

Their conclusion is bolstered by another Harvard Business Review article on April 28, 2010 when Ron Ashkenas said “nobody knows how much a reputation is really worth, although many would say that it’s priceless. The one thing we do know, however, is that once a reputation is tarnished, it takes a lot of hard work, and a long period of time, to regain its luster.”

The Telegraph in January, 2016 said that “the total value of corporate reputation for all UK-listed companies topped £1.7 trillion at the close of last year. The recent emissions scandal wiped some €20bn (£15bn) off the value of Volkswagen in the weeks following the revelations.”  How much more loss will come from the June 28, 2016 Volkswagen AG’s $14.7 billion settlement with the U.S. government and consumers.  Deputy Attorney General Sally Yates said the settlement is only a “significant first step” toward holding Volkswagen accountable for its actions.  “Let me be clear: It is by no means the last step.”  Civil lawsuits and criminal investigations are still pending.

Fortune Magazine March 1, 2016 in a story headlined “Bitter Sweets” said that “for a decade and a half, the big chocolate makers have promised to end child labor in their industry—and have spent tens of millions of dollars in the effort. But as of the latest estimate, 2.1 million West African children still do the dangerous and physically taxing work of harvesting cocoa. What will it take to fix the problem?”

The main company engaged in the cocoa industry is Nestlé. Fortune went on to state “the multinational chocolate makers are heavily dependent on West Africa. More than 70% of the world’s cocoa is grown in the region, and the vast majority of that supply comes from two countries: Ivory Coast and Ghana, which together produce 60% of the global total. The two nations have a combined GDP of around $73 billion, according to the World Bank—or significantly less than Nestlé’s $100 billion in sales last year. The price of cocoa surged 13% in 2015 even as prices for most raw materials were dropping. Meanwhile the average farmer in each country still lives well below the international poverty line.”

In its defense Nestlé’s website states “Nestlé opposes all forms of child exploitation. We are committed to preventing and eliminating child labour in our supply chain, working with stakeholders to develop and implement meaningful solutions. We conduct comprehensive monitoring, implement remediation activities and provide targeted support to local communities.”

How one gauges and/or measures reputation is uncertain, but eating prunes and driving an electric vehicle would seem like a good first step.

LNG Global Impacts Not FERC’s Problem

Posted on July 11, 2016 by Rick Glick

In companion cases, on June 28 the DC Circuit Court of Appeals held that the Federal Energy Regulatory Commission, in its environmental impacts analysis of two Gulf Coast LNG terminals, need not assess the potential for increased natural gas extraction and use, or market effects.  The first case deals with the Freeport project in Texas, and the second the Sabine Pass project in Louisiana; the court considered these cases in parallel with each other, and the Sabine Pass case follows the reasoning in the Freeport case.

 The Sierra Club and other national NGOs have attacked LNG facilities (1) for their potential to cause an increase in fracking to extract natural gas and the attendant emission of greenhouse gases, and (2) for increasing the use of U.S.- produced natural gas in world markets, which they assert will drive up the price of natural gas domestically, thus making coal more competitive and its use more prevalent in the U.S.  On this basis the Freeport and Sabine Pass plaintiffs argued that FERC’s failure to consider these potential effects violates the National Environmental Policy Act.  The court disagreed, finding that these effects are too attenuated for FERC to have to evaluate. 

Central to the cases is the fact that the Natural Gas Act confers exclusive authority over the export of natural gas on the Department of Energy, whereas FERC is only responsible for the siting of LNG facilities.  The court reasoned that FERC’s approval of LNG facilities are not the proximate cause of gas exports, which only DOE can approve.  Therefore, FERC need not consider environmental impacts related to market forces that could increase domestic production of gas and the use of gas outside of the United States.

 These same projects face challenges brought by the same NGOs against DOE in which the issue is whether DOE complied with NEPA in authorizing exports of LNG.  The Freeport and Sabine Pass courts “express no opinion” on the merits of the DOE cases.  Still, it seems that the relationship between export approvals and operation of global gas markets is at least as attenuated as FERC’s authorization to construct facilities.  My sense is that DOE will likely prevail there as well.

LEAKS And PUMPS And TANKS, Oh My!!!

Posted on July 8, 2016 by Karen Crawford

In May 2016, EPA finalized updates to its New Source Performance Standards (NSPS) for the oil and gas industry which amended 40 CFR Part 60, Subpart OOOO and added new requirements (Subpart OOOOa) to those established for Volatile Organic Compounds (VOCs) and sulfur dioxide (SO2) established for this industry sector in 2012.  Importantly, the new requirements address reductions of greenhouse gas (GHGs) emissions, specifically methane.  In its Executive Summary, EPA discussed the efforts by the agency to “complement” and “improve” the existing rules issued in 2012, stressing the agency’s efforts to engage states and stakeholders and solicit comments prior to its 2015 proposal or the rule.  EPA also stressed it worked closely with the Bureau of Land Management to avoid conflicts and evaluated existing state and local programs to attempt to limit conflicts, where possible.

After promulgation of both the 2012 rule and 2013 amendments, the agency received petitions for reconsideration raising numerous issues, including the regulation of GHGs.  EPA has addressed some of petitioners’ issues in 2015 amendments addressing storage vessels as well as in this rule, adding standards for methane and addressing storage vessel control device monitoring and testing; initial compliance requirements for bypass devices that divert emissions from control devices; recordkeeping requirements for repair logs for control devices which fail a visible emissions test, clarification of the due date for the initial annual report; emergency flare exemptions from routine compliance tests; leak detection and reporting for open-ended valves or lines; compliance period for leak detection and repair (LDAR) for newly affected process units; exemption to notification requirement for reconstruction of most types of facilities; and disposal of carbon from control devices.   However, in a footnote, EPA makes clear it intends to complete its reconsideration process in a subsequent notice.

One interesting aspect of the 2016 rule publication is the extensive discussion of how the 1979 source category listing, “crude oil and natural gas production” is defined.  The agency takes great pains to justify its broad authority over the industry to include not only production, but also processing, transmission and storage equipment.  The EPA concludes that its category listing need not be revised to support the additions and amendments of this rule (even though it does clarify some wording), and sets out its justification for including the entire sector in its 2009 endangerment finding relating to GHGs.

EPA concluded that the Best System for Emissions Reduction (BSER) is the same for GHGs as it is for VOCs, so there are no changes required for equipment that was covered by the 2012 rule.  Newly regulated sources covered by the 2016 rule include: heretofore unregulated hydraulically fractured oil well completions, pneumatic pumps, fugitive emissions from well sites and compressor stations; sources regulated under the 2012 regulation for VOCs for which GHGs are now also regulated (hydraulically fractured gas well completions and equipment leaks at natural gas processing plants); and certain equipment that is used across the source category for which subpart OOOO regulates emissions of VOCs from only a subset (pneumatic controllers, centrifugal compressors and reciprocating compressors), with the exception of compressors located at well sites.

In addition to emission reductions, LDAR utilizing optical gas imaging semi-annually is required for well sites and compressor stations. (Method 21 at a repair threshold of 500 ppm may be used.)  Initial monitoring surveys must take place by June 3, 2017 or within 60 days of the startup of production, whichever is later.  Repairs must be made within 30 days and a resurvey is required within 30 days of repair. Also, a monitoring plan that covers collection of fugitive emissions components is required to be developed and implemented for well sites and compressor stations. At natural gas processing plants, equipment leaks of methane (GHGs) are subject to the same requirements as those for VOCs.  The compliance period begins on November 30, 2016.

And, the rule embraces “next generation” electronic reporting via EPA’s CDX, for enhanced accessibility and transparency to the public, as soon as the forms and systems are available.  Professional engineers are required to provide certifications of technical infeasibility of connecting a pneumatic pump to an existing control device and to design closed vent systems.

Finally, there is a complicated discussion of EPA’s interpretation of UARG v. EPA, which merely results in EPA concluding that the rule should not affect applicability of Title V permit or PSD/NSR applicability determinations for “anyway” sources, even though, if not otherwise required to obtain and comply with a Title V permit, emissions of GHGs (methane) alone will not subject a source to Title V permit requirements.

Haiti on the Frontiers of Environmental Law

Posted on July 7, 2016 by Tracy Hester

Jeff Thaler’s and Jim May’s blog posts about our recent ACOEL delegation visit to Haiti captured the vibrant spirit of Haiti’s legal community and its enthusiasm to build new programs in environmental law. Haiti offered a different insight as well:  dire environmental conditions have spurred strikingly innovative and creative legal thinking.  In one sense, Haiti’s challenges are a frontier that can test and forge new environmental laws and concepts.

*****

After our delegation visit finished, my wife and I visited an abandoned United Nations outpost on a dirt road over an hour north from Port-Au-Prince.  Hidden behind encroaching trees and weeds, a blue-trimmed UN guard tower watched over empty concrete foundations and open gates behind a decaying chain-link fence and tangled razor wire.

This fading post is a flashpoint in history.  In 2013, sewage from the UN outpost’s battalion of Nepalese peacekeepers contaminated a nearby tributary and led to an outbreak of cholera that has killed over 9,000 people and sickened over 800,000 so far.  The United Nations has rejected petitions that it should fund and establish a comprehensive sanitation, medical treatment and potable water program to halt the epidemic.  In response, a group of Haitians and Haitian-Americans filed a class action lawsuit in the federal Southern District of New York court for damages and injunctive relief.

The United Nations stoutly rejected any argument that the U.S. court has jurisdiction over its operations.  The United States vigorously urged the trial court to dismiss the lawsuit, and the court agreed on January 9, 2015 by denying jurisdiction.  The district court found that the UN had not expressly waived its immunity under the Convention on Privileges and Immunities of the United Nations of 1946 (despite the UN’s failure to satisfy other important obligations under the Convention).

The case took a dramatic turn when the Second Circuit decided to hold oral argument on the Haitians’ appeal of the trial court’s dismissal.  In a packed courthouse in Manhattan on March 1, 2016, the three-judge panel seemed sympathetic to the claims of Haitians who will likely have no possible relief or compensation if the court upholds the United States’ assertions of strong immunity on behalf of the UN.  The court will probably issue its decision in the next few months.

If the court finds that the UN lacks absolute immunity for environmental or health damages caused by its actions, the decision could have a sweeping impact on the UN’s liability for other humanitarian actions that cause environmental harm.  The UN plays a central role in multinational efforts to fight climate change, protect oceanic resources, and preserve endangered species and ecosystems, and the spectre of liability could hamper its activities.  Depending on the scope of the court’s ruling, this case might also affect the liability of other multinational organizations whose actions to protect the environment unexpectedly injure human health or natural resources.

 

Haiti’s enormous environmental and public health challenges sparked this important case, and the legal creativity guiding the lawsuit arose there as well.  Our delegation had the opportunity to meet Me. Mario Joseph, who directs the L'Association Haïtienne de Droit de l'Environnement which filed the lawsuit (along with several other groups).  As lead counsel he guides the team of attorneys handling the case, and he strongly believes that legal creativity and ingenuity can overcome the procedural and jurisdictional barriers to reach a just environmental outcome.

If it desires, ACOEL can help monitor and, where appropriate, contribute to the development of these types of innovative environmental legal approaches in Haiti.  The Second Circuit’s ultimate decision may offer an opportunity to discuss these issues with the Haitian environmental bar and with other lawyers who want to help build Haiti’s environmental laws and enforcement options. 

In the meantime, change still comes slowly.  When we visited the abandoned outpost, families had moved into the vacant buildings and children were bathing in a nearby stream – directly by the unused outfall pipe where the UN peacekeepers had previously discharged their sewage wastes.  Whatever decisions come from U.S. courts, Haiti will have a pressing need for innovative and effective environmental laws for many years ahead.

A Reformed TSCA: Let the Questions Begin

Posted on July 7, 2016 by Lynn L. Bergeson

Toxic Substances Control Act (TSCA) legal practitioners and every American interested in chemical safety celebrated President Obama’s signature Wednesday, June 22, 2016, of H.R. 2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  The bill extensively amends TSCA, the federal chemical management law, and President Obama’s signature made the Act immediately effective.  The amendments go a long and comforting way in fixing what was wrong with TSCA, and empower the U.S. Environmental Protection Agency (EPA) to identify and manage chemical risks more efficiently and effectively.

EPA wasted no time in beginning the challenging task of implementing the new law, and on June 22, rolled out a web page on the new law.  EPA’s web page includes links for users to access:  the text of the new law; answers to frequently asked questions (FAQ) on the new law; a brief summary of the provisions found in the new law; and Administrator McCarthy’s blog post -- TSCA Reform:  A Bipartisan Milestone to Protect Our Health from Dangerous Chemicals. 

On the whole, the new TSCA is vastly improved and, if implemented smartly, will make good on fulfilling the promise to make TSCA a truly muscular law that ensures chemical safety and public health.  While there are many, many implications of the law’s enactment, its most immediate effect will be on the new chemicals review process.  Under old TSCA, entities wishing to bring a new chemical or significant new use of an existing chemical (new chemical) to market submitted a notification and, if the 90-day review period lapsed without notice from EPA, commercialization could occur as permitted under the conditions of the notification.  Speed to market and predictability are critical to innovation and business equilibrium.  Under new TSCA, EPA must make one of three affirmative determinations:  (1) that the new chemical presents an unreasonable risk; (2) that there is insufficient information on the new chemical to decide, or, in the absence of sufficient information, that it may present unreasonable risk, or that the substance is produced in substantial qualities and can be expected to enter the environment or pose substantial exposure risks; or (3) that the new chemical is not likely to present an unreasonable risk.

For new chemicals in the review process on June 22, TSCA Section 26 gives EPA discretion to apply old TSCA to pending notifications not yet “dropped” from EPA review.  Importantly, EPA has interpreted this provision and notes on its new webpage “[f]or companies that submitted premanufacture notices (PMNs) prior to enactment and which are currently undergoing review, the new law effectively resets the 90-day review period.  The agency will make every effort to complete its review and make a determination within the remaining time under the original deadline.  EPA will be making additional information available on new chemical reviews in the very near future.”

EPA has the discretion to proceed in this way, but a preferred interpretation would have been to continue to apply the old TSCA provisions to pending cases for some time period into the future.  While clarity is welcomed, the more flexible alternative reading would have allowed for a smoother and more measured transition.  The take away here is that pending notifications will have their 90-day clocks reset (it is not entirely clear from what date the clock restarts), and submitters will need to recalibrate their delayed commercialization trajectory accordingly.  More information is available in the Bergeson & Campbell, P.C. (B&C®) memorandum TSCA Reform: An Analysis of Key Provisions and Fundamental Shifts in the Amended TSCA and in the new B&C blog TSCAblog.com.

HEY, JUDGE SKAVDAHL - DON’T THE INTERESTS OF THE UNITED STATES INCLUDE PROTECTING GROUNDWATER ON ITS OWN LAND?

Posted on July 6, 2016 by Karl Coplan

The Mined Lands Act directs the Bureau of Land Management to issue regulations governing mining on public lands for, inter alia, “the protection of the interests of the United States, . . . and for the safeguarding of the public welfare.” More recently, the Federal Lands Policy Management Act specifically directs the BLM to take environmental issues into account in promulgating regulations governing the use of federal lands, that is, to manage federal lands in a way,

That will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values,

Last year, acting under these statutory authorities, the BLM issued regulations governing fracking on federal lands, which required federal lessees to disclose chemicals in their fracking fluids and to take measures to prevent well leakage.  This week, the Federal District Court for the District of Wyoming struck down these regulations as exceeding BLM’s authority to regulate mining on public lands. The Court purported to find this result under the Chevron step I analysis, i.e., finding specific congressional intent that the Bureau of Land Management does not have authority to protect groundwater on public lands.  Despite the broad statutory authorities cited above, the Court found that the Energy Policy Act of 2005, which specifically exempted fracking from EPA regulation under the Safe Drinking Water Act, evidenced Congressional intent that no federal agency has jurisdiction to regulate fracking activities, even on federal lands.

This ruling ignores the obvious difference between EPA regulation to protect groundwater generally under the Safe Drinking Water Act and actions by the BLM to protect the United States’ own properties that are subject to federal leases.  FLPMA specifically directs BLM to take measures to protect ecological interests in managing federal lands, and it seems inappropriate for a federal court to second guess BLM’s balance between resource extraction and groundwater protection.  The United States in general has very broad authority to regulate activities on its own land, and Congress’ decision to exempt fracking on private lands from EPA regulation can’t possibly be read as specific Congressional intent to preclude BLM from protecting groundwater on lands owned by the United States. On another level, this decision reflects a concerning trend towards judicial activism tearing down the Obama administration’s invocation of statutory authorities to advance environmental protection in the face of a hostile Congress – witness the Supreme Court’s stay of EPA’s Clean Power Plan, and the Sixth Circuit’s stay of the Clean Water Rule.              

Environmental law got its start when courts, like the Second Circuit in Scenic Hudson Preservation Conference v. Federal Power Commission, read broad statutory grants of regulatory authority to include environmental protection.  This decision by the District of Wyoming departs from that tradition.  The BLM plans to appeal.

Viva La Deference—Chevron deference that is

Posted on July 5, 2016 by Jeff Civins

Administrative lawyers, especially environmental lawyers, are well familiar with the doctrine of Chevron deference as applied to agency interpretations of statutes.  In the 1984 Clean Air Act case of Chevron U.S.A. Inc. v. Natural Resources Defense Council, the U.S. Supreme Court announced a 2-step approach: (1) the court must determine whether Congress has directly spoken to the precise question at issue and, if so, that ends the matter—the Court, as well the agency, must give effect to that intent; and (2) if not, the court must defer to the agency’s interpretation if it is “reasonable,” the  presumption being that Congress intended to leave its resolution to the agency.  In a more recent Clean Air Act case, Michigan v. EPA, the Court, although determining EPA acted unreasonably in failing to consider costs in its regulation of hazardous air pollutants from power plants,  applied the Chevron doctrine, but Justice Thomas, in his concurring opinion, challenged the doctrine’s legal underpinnings, causing some to question the continued vitality of the doctrine.  In Encino Motorcars v, Navarro, decided on June 20, 2016, the Supreme Court, although deciding that the agency’s interpretation was not entitled to deference, provided assurance that the Chevron doctrine is alive and well.

The case involved the issue of whether service advisors at car dealerships were exempt from overtime pay under the Fair Labor Standards Act.  In 2008, the Department of Labor had proposed a rule confirming a long-standing practice that they were exempt, but in its final rulemaking--in 2011--it reversed course, without explanation.   The Court of Appeals for the Ninth Circuit had applied Chevron deference in upholding the rule, but the Supreme Court reversed.  It held that, although the Department could change its policy, its interpretation was not entitled to Chevron deference because it did not provide a reasoned explanation for doing so.  The Court therefore remanded to the Ninth Circuit to determine the rule’s validity in the first instance.  In her concurring opinion, Justice Ginsburg, joined by Justice Sotomayor, noted: “’[U]nexplained inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.’”  In his dissent, Justice Thomas, joined by Justice Alito, agreed with the majority--that the Court “need not wade into the murky waters of Chevron deference,” but disagreed that the Court should have reversed and argued that the rule change was simply invalid.

So, Chevron deference lives, but it does not apply to unexplained rule changes. 

 

Turning the Lights Off on Environmental Justice?—Not this Administration

Posted on June 24, 2016 by Renee Cipriano

In the United States, Environmental Justice (EJ) began to take shape in the mid-1990s with the signing by President Clinton of Executive Order 12,898, “Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations.”  Over the years, the commitment to EJ has ebbed and flowed.  However, in 2011, EPA unveiled “EJ 2014,” the Obama Administration’s comprehensive plan for EJ.  The plan breathed new life into the EJ movement and focused on incorporating EJ concerns into EPA’s regulatory arenas.

EJ 2014 produced a number of very detailed implementation plans with targeted action.  For example, EPA developed its National Enforcement Initiatives for fiscal year 2011-2013 by targeting enforcement in communities considered “overburdened”.  In EPA’s permitting programs, the Agency sought to ensure that it provided EJ communities potentially impacted by the permitting decision a meaningful opportunity to participate.  Moreover, EPA asked permittees to provide “supported analysis” that no unacceptable, disproportionate impact to the community would result from the permitted activity. 

Sounds good, right?  Some would say “just ok.”  Although EPA could point to what it identified as successes of EJ 2014, criticisms of EPA’s commitment to the integration of EJ into programmatic decisions in a meaningful way remained.  EJ community activists and other interested non-governmental organizations still questioned EPA’s regulatory ability to demand that disproportionate impacts be addressed.  Could a permit be denied or conditioned solely because the regulated activity had a disproportionate impact on an overburdened community?  What is “an actionable, disproportionate impact” and what does “overburdened” mean?  Were EPA’s significant rulemakings truly addressing EJ concerns through clear mandates or restrictions?  And what about the countless complaints filed with the EPA Office of Civil Rights under Title VI of the Civil Rights Act?  A broken system, some say, claiming that over 95% of Title VI complaints are dismissed. 

Arguably, the Obama Administration has achieved the best successes in EJ to date.  Not only can EPA point to real impacts at the federal level, but there are also visible signs of EJ integration in state-administered environmental regulatory programs.  The Administration probably could have rested easily on its good work with EJ in the remaining months in office with very little push back.  Not this Administration, however, and not where environmental justice is concerned. 

Two very significant initiatives are underway right now with seemingly little consideration given to the end of the Obama Administration.  First, in January 2016, the United States Commission on Civil Rights (Commission) announced its intention to hold a briefing on EPA’s work under Title VI of the Civil Rights Act and Executive Order 12,898 with a focus on the civil rights implications of siting coal ash disposal facilities near minority and low-income communities.  With this announcement and briefing, the Commission has sought to further its 2016 statutory reporting project on EJ.  In particular, the Commission has identified its work to address and reduce the “backlog of Title VI complaints” handled by EPA’s Office of Civil Rights.  The Commission has also tasked its State Advisory Committees (SACs) to undertake a similar review.  The Commission’s activities with respect to EJ are clearly underway in earnest, as is the work of the SACs.

Second, in May 2016, EPA released the final draft of its EJ2020 Action Agenda.  According to the Agency, “EJ2020 is EPA’s EJ plan of action that will involve every EPA office and region.  EJ2020 consists of “eight priority areas and four significant national environmental justice challenges.”  The Action Agenda, currently open for public comment until July 7, 2016, builds on EJ 2014 and specifically includes addressing national challenges, including lead disparities, drinking water systems, air quality, and hazardous waste sites, as a way to measure success.   

In addition to EPA’s work on the national challenges, the Agency’s rulemaking and permitting efforts under EJ2020 should be of great interest to environmental regulatory practitioners.  EPA has released new guidance (June 2016) presenting its “analytical” approach for EJ review of significant rules.  Also, EPA plans to use permit terms and conditions to address EJ concerns and has folded into its agenda “next generation-esque” community-based monitoring approaches.

With no indication of slowing down, the Obama Administration is certainly looking to leave the lights on for environmental justice through the next administration.  The EJ2020 agenda and the results of work by the Commission may very well set a tone and approach that cannot easily be undone.  Yet significant challenges remain to incorporate EJ considerations in regulatory decision making.  Questions also exist: are the EJ policies truly advancing the interests of overburdened communities?  In May 2016, for example, the U.S. Court of Appeals for the Ninth Circuit upheld EPA’s broad discretion in settling Title VI actions, even after the Agency had excluded the overburdened community members from participating in the settlement negotiations.  Whether EPA can address this and other challenges remains to be seen.  For now, any commitment by this Administration to tackle EJ challenges is overshadowed by the presidential election and the uncertain future direction of EPA.   We can only wait and see if the lights will dim or burn brightly on this important initiative.

Doin’ The Dunes – Signing Off

Posted on June 23, 2016 by Joseph Manko

In April, I reported on Supreme Court Judge Julio Mendez’ 65-page Opinion upholding the authority of the New Jersey Department of Environmental Protection (“NJDEP”) to construct dunes along the shoreline in Margate City, New Jersey – “absent an appeal.”

Well, after three years of legal challenges, the fat lady has finally sung and Margate’s  Commissioners have unanimously thrown in the proverbial beach towel by deciding not to appeal Judge Mendez’ opinion.  The US Army Corps of Engineers has announced its plan to award a contract in July and commence construction in the fall.  Once completed, the “missing link” will complete Absecon Island’s 8.1 mile dune project and finally respond to Hurricane Sandy’s damage to New Jersey’s beachfront. 

Would You Like Some Regulatory Inaction With Your Tea?

Posted on June 22, 2016 by Linda Benfield

Wisconsin continues to be the playground of Tea-Party efforts to minimize the power of government, particularly in the environmental arena. On May 10, 2016, the Wisconsin Attorney General opined that the Department of Natural Resources (“WDNR”) does not have the authority under state law to impose monitoring wells or cumulative impact conditions on high capacity well permits. Insert A.PDF

In 2011, Governor Scott Walker and the Republican legislature passed “Act 21,” which contains a “limited government” provision prohibiting agencies from implementing or enforcing “any standard, requirement, or threshold” in a permit, unless the language “is explicitly required or explicitly permitted by statute or by a rule…”  Wis. Stat. § 227.10 (2m) Insert B.PDF

The Attorney General’s Opinion carefully argues that a contrary state Supreme Court opinion issued shortly after the passage of Act 21 is distinguishable. In Lake Beulah Management District v. State of Wisconsin, the Wisconsin Supreme Court found in 2011 that the WDNR had the statutory authority under state law and a general duty to consider the impacts of a high capacity well on the nearby Lake Beulah. The Court also held that the applicable statute constituted a broad legislative grant of the public trust duty to the agency in the context of high capacity well regulation, and upheld the WDNR’s permit.

The Attorney General’s Opinion asserts that Lake Beulah is “no longer controlling.” After the oral argument in the case but before the opinion was released, the parties brought Act 21 to the Court’s attention.  The Court noted in a footnote that Act 21 did not change the underlying environmental statute and stated that none of the parties argued that the new law impacted the WDNR’s authority in the Lake Beulah case. The Attorney General has seized on the footnote.

The Attorney General’s Opinion relies on the timing of Act 21’s passage, the footnote, and a difference of opinion. The Attorney General argues that the state Supreme Court relied on implicit statutory authority to allow the WDNR to condition high capacity well permits, and Act 21 now requires explicit authority.  Where the underlying environmental statute allows the agency to place conditions on high capacity wells, including “location, depth, pumping capacity, rate of flow, and ultimate use,” it does not state that “monitoring” is an “explicitly permitted condition.” The Attorney General further notes that the legislature has not delegated its public trust duty to the WDNR. The Opinion has been called “a huge step backward for groundwater protection” by environmentalists and “the demise of implied agency authority” by industry.

The expanding application of Act 21 provides a developing opportunity to challenge air and water permitting decisions in Wisconsin. Although the Attorney General’s Opinion is non-binding, it reflects the administration’s push toward limited environmental regulation. It is likely to become increasingly difficult for the agency to resolve complex environmental issues that previously were addressed in negotiated permit decisions, raising the issue of whether it is always in industry’s interest for an environmental agency to be prohibited from making technical and nuanced decisions.

Talking Climate Change at the Vatican: A Personal Report

Posted on June 21, 2016 by Michael Gerrard

In January my Columbia University colleague Jeffrey Sachs told me that the Pontifical Academy of Social Sciences (with which he had worked for several years) was organizing a conference at the Vatican to be comprised of judges, prosecutors and legal scholars from around the world to discuss how the law could address the scourge of human trafficking, and that Pope Francis would attend.  He asked my help in identifying some individuals who should be invited, and I was happy to help.

I was not certain that I would be able to go until I received a letter in April from the Academy’s Chancellor, Monsignor Marcelo Sanchez Sorondo, which began, “Following Pope Francis’ wish, it is my pleasure to invite you” to this meeting on June 3-4. Though the dates conflicted with another commitment, this was an invitation I could not decline, so I found a substitute for that and booked a room in the Crowne Plaza St. Peter’s, as recommended by the Vatican.  I also found a web site with the protocol for addressing certain personages, including the Pope, the Queen of England, and various heads of state.  (The Pope should be addressed as Your Holiness. Catholics should kiss his ring if it is offered; non-Catholics like me should simply shake his hand.)

On the first morning of the conference, I joined other dark-suited men and women in their 50s and older in boarding a bus at the hotel.  After we passed through a side entrance to Vatican City, we traversed narrow tree-lined streets (passing numerous priests in long robes walking to work) and parked at Casina Pio IV, which was completed in 1562 as the summer residence of Pope Pius IV.  The dome of St. Peter’s Basilica loomed behind.  Inside was a conference hall with rows of benches and desks; each desk had a plaque with the name of the person assigned to sit there, a headset for simultaneous translations in several languages, and a microphone that was remotely switched on when it was time to speak. A bust of Pope John Paul II sat above the podium.  Throughout the building were original paintings and sculptures, and many of the ceilings had frescoes from the 16th century. Our meals were served on an outdoor elliptical courtyard.  The buffet featured, along with less surprising fare, many plates of matzo.

The program was opened by Monsignor Sorondo, and then chaired by Valeria Mazza, an Argentinian supermodel from the 1990s and 2000s who did an excellent job of keeping all the speakers to 15 minutes.  The speakers were judges and prosecutors from around the world (including several U.S. federal district court and court of appeals judges) and a few academics like Jeff Sachs and myself.  Many of the judges told stories of the horrific cases of human trafficking they had handled in their courtrooms. 

When my time came to speak, I discussed how increases in trafficking and smuggling often follow large-scale natural disasters; how climate change (such as drought, desertification and sea level rise) will likely cause a massive increase in the number of people displaced from their homes in the decades to come; and that therefore considerably more trafficking and smuggling will ensue, and the nations of the world should begin considering how to cope with these conditions. I quoted several passages in Pope Francis’s landmark Encyclical on Climate Change and Human Inequality, Laudato Si’, including its declarations there “there has been a tragic rise in the number of migrants seeking to flee from the growing poverty caused by environmental degradation,” and that “the establishment of a legal framework which can set clear boundaries and ensure the protection of ecosystems has become indispensable, otherwise the new power structures based on the techno-economic paradigm may overwhelm not only our politics but also freedom and justice.”  (My paper is posted here.)

About two hours before the Pope’s scheduled arrival at the meeting, several large men appeared in and outside the room wearing wires going into their ears. About five minutes before schedule, I heard someone say “he’s here!” A door opened in front of the room, and Pope Francis walked in, wearing his white cassock and skull cap.  He took a seat at the head table. Everyone in the room stood and applauded, and many took out their phones and cameras and started taking pictures.

The Pope gave a talk in Spanish.  He thanked the participants and then discussed how important it is to halt the worldwide scourges of human trafficking and smuggling.  He urged judges “to carry out their vocation and their essential mission of establishing that justice without which there can be no order, or sustainable and integral development, or social peace.”  He spoke of a need to end “the globalization of indifference.” He also stated, “The Enlightenment slogan that the Church must not be involved in politics has no application here, for the Church must be involved in the great political issues of our day. For, as Pope Paul VI pointed out, ‘political life is one of the highest forms of charity.’”

Entering into another current debate, the Pope stated, “[t]here are those who believe that the [Pontifical] Academy would do better to be involved with pure science and theoretical considerations, which would certainly be consonant with an enlightenment vision of the nature of an academy. An academy must have roots, concrete roots; otherwise, it risks encouraging a free-flowing reflection which dissipates and amounts to nothing. The divorce between ideas and reality is clearly a bygone cultural phenomenon, an inheritance of the Enlightenment, but its effects are still felt today.”

After his talk, all were invited to join the Pope in front of the building for a joint photo. A swarm of photographers was waiting outside. After the photos, the Pope shook the hands of many of the participants, including myself, and gave each of us a friendly gaze and a warm smile.  He posed for several selfies. He was jostled around a fair amount by those seeking to say a few words with him, but he seemed to enjoy the scene; indeed his whole demeanor was one of a person who believes strongly that he is doing important work and takes joy in doing it.  Finally he climbed into a small sedan, sat in the front seat, and waved as he was driven away.

As we returned to the meeting hall, there was a collective glow for having spent time with someone who all present, regardless of faith, regard as a great man, and also a renewed commitment to use the law to address some of society’s greatest ills to the extent that our positions and abilities allow.

Accommodate Thy Neighbor

Posted on June 20, 2016 by Molly Cagle

During this long and nasty election season, I am relieved that the Texas Supreme Court is embracing a little Tim McGraw (Hold the door, say please, say thank you / Don't steal, don't cheat, and don't lie/ I know you got mountains to climb but always stay humble and kind)(“Humble and Kind”).  Yes, in what the Respondents argued would be a “momentous” change in Texas groundwater law, the Texas Supreme Court announced in Coyote Lake Ranch, LLC v City of Lubbock, No. 14-0572 (Tex. May 27, 2016) that the age-old “accommodation doctrine” which has served the State so well in resolving disputes between landowners and oil and gas lessees, would apply between a landowner and the owner of the severed interest in the groundwater. 

In addition to a great style (rest assured it will be known as the Coyote Ranch holding), the decision should remind you a little of reading Robert Fulghum’s All I Really Need to Know I Learned in Kindergarten

For those of you not steeped in Texas oil and gas law, the accommodation doctrine essentially recognizes that, absent a specific agreement to the contrary, an oil and gas lessee has an implied right to use the land as reasonably necessary to produce and remove the minerals but must exercise that right with due regard for the landowner’s right.  Professor William Huie, Sylvan Lang Professor of Law Emeritus at The University of Texas, called it the “not in my living room” rule, and explained it in pretty simple terms something like this – if the oil and gas lessee can cost-effectively drill for and produce oil or gas without putting the wellhead in the landowner’s living room, he must not insist that the drilling rig be set up in the parlor.  It’s not neighborly.  And for those not steeped in Texas groundwater law, the “rule of capture” applies, generally allowing each landowner to pump whatever he or she can without waste, knowing that liability may arise if the pumping physically causes a neighbor’s land to subside.  That’s also not neighborly.

The Coyote Ranch facts are a bit nuanced, but can be summed up as follows.  In the midst of the 1950’s drought of record in Texas, the City of Lubbock bought the Ranch’s groundwater rights.  The Ranch reserved groundwater for domestic use, ranching operations, oil and gas production and limited irrigation.  The Ranch was limited to one or two wells in each of 16 specific areas for irrigation.  During the first 60 years of the agreement, Lubbock installed a total of seven wells on the Ranch.  In 2012, Lubbock announced it intended to dramatically ramp up its water production from the Ranch.  Over the Ranch’s objection, the City mowed through vast swaths of native grass to drill sites etc., and otherwise acted in total disregard of the Ranch’s operations and habitat preservation.  It wasn’t the living room, exactly, but the City plowed across sandy portions of the Ranch contributing to extensive wind erosion.  The trial court enjoined the City with an injunction so broad that it operated as a de facto moratorium on any surface activity by the City.

On appeal, the City claimed its deed was broad enough that it could drill whenever and wherever and common law didn’t protect the landowners from the City’s boorish behavior.  The Court of Appeals adopted the City’s view of the deed and concluded that the Ranch could not prevail unless the accommodation doctrine applied.  Finding no prior authority to support application of the accommodation doctrine to a groundwater dispute, the Court of Appeals reversed the trial court and lifted the injunction. 

The Texas Supreme Court granted the Ranch’s petition, quickly concluded that the deed provisions did not adequately address the dispute, and marched right into unchartered waters—whether the accommodation doctrine should apply to a dispute between the holder of a severed groundwater estate and the surface estate owner.  The City had to know it was in trouble when the Court characterized its position as follows:

[The City claims it] has an all but absolute right to use the surface heedless of avoidable injury...[and]  that it can drill wherever it chooses, even if it could drill in places less damaging to the surface and still access all the water.

That’s just NOT neighborly. Thus, to no one’s surprise who actually graduated from kindergarten, the Supreme Court concluded that the accommodation doctrine would indeed apply to resolve conflicts between the severed groundwater estate and the surface estate when the conflict was not governed by the express terms of the parties’ agreement.  It’s a “let’s-all-just-try-to-get-along” policy that has worked successfully for nearly 50 years in oil and gas disputes, it is well-understood and, as the Supreme Court noted, it is not often disputed.  The parties will now return to the trial court to see if they actually learned what they should have in kindergarten.  It’s amazing that they had to go all the way to the Texas Supreme Court to be reminded how neighbors should act.

Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.

Posted on June 17, 2016 by Seth Jaffe

If you needed any further proof that energyelec_mag_fieldlaw is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you.  The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:

"no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions."

Why, you ask?

  • The panel opinion, by Judge Loken, stated that the Minnesota statute violates the dormant Commerce Clause, by regulating purely “extraterritorial” economic activity.
  • Judge Murphy, in the first concurrence, disagreed with Judge Loken’s conclusion that the statute violates the dormant Commerce Clause, but joined the judgment, because she concluded that the statute is preempted by the Federal Power Act.
  • Judge Colloton, in the second concurrence, agreed with Judge Murphy that the statute does not violate the dormant clause, but also concurred in the judgment. Judge Colloton concluded that, to the extent that the “statute bans wholesale sales of electric energy in interstate commerce,” it is preempted by the Federal Power Act.  However, Judge Colloton wrote separately, because he at least partially disagrees with Judge Murphy (as well as with Judge Loken) and does not believe that the Minnesota statute constitutes a complete ban on wholesale sales of energy that increase CO2 emissions.  However, Judge Colloton concluded that, to the extent that the statute is not preempted by the Federal Power Act, it is preempted by the Clean Air Act.

Is that sufficiently clear?

I do feel compelled to add two final notes.  First, I don’t understand why Judge Loken wrote the panel opinion, when his rationale did not command a majority.  Indeed, as Judge Colloton pointed out, the Court should not even have reached the constitutional issue, since a panel majority existed that was prepared to strike down the Minnesota statute on statutory grounds.  (Preemption is considered a statutory, not a constitutional, rationale.)

Second, don’t analogize the electric energy transmission to the flow of water in a pipe, at least before Judge Murphy.  Here’s your electricity and magnetism primer for the day, courtesy of the Judge.

"In the electricity transmission system, individual electrons do not actually “flow” in the same sense as water in a pipe. Rather, the electrons oscillate in place, and it is electric energy which is transmitted through the propagation of an electromagnetic wave.

Certainly brought me back to course 8.02 at MIT.  Not one of my favorites.

Perspectives of Twenty-four Pioneers on the Past and Future of Environmental Law

Posted on June 16, 2016 by Leslie Carothers

On Earth Day 2016, the Environmental Law Institute presented to the public a collection of 24 videotaped interviews conducted over the past five years to record the career experiences of many pioneers of environmental law.  The men and women profiled were active in the environmental movement in the sixties and early seventies.  They served as Democratic and Republican legislators, organizers and advocates for public interest organizations, administrators of national and state environmental agencies, academics producing new ideas and educating new lawyers, and legal counsel to business and government agencies contending with a host of new environmental laws.   ELI’s interviewers wanted to learn why these pioneers chose to enter the field of environmental law, what they see as its major successes and shortcomings, and how they view the health of environmental activism and public commitment today.

Among other things, the oral histories provide interesting insight into the roots of activism for early environmental lawyers and what different life experiences and motivations may influence today’s new environmental lawyers.  Practically every pioneer spoke of enjoyment of nature and the out of doors experienced through growing up on a farm or in rural areas or visiting campsites and parks on family vacations and scouting trips.  They witnessed both the beauty and the degradation of natural and scenic resources and were inspired to seek ways to protect them.  The other factor mentioned most often was the example and energy of other social movements in the sixties and seventies, first and foremost the civil rights struggle.  Personal experience and the climate of social activism combined to motivate many environmental pioneers to become leaders in the new environmental movement. 

Most of the pioneers express optimism that new generations of young women and men will take up activism and environmental law to attack today’s agenda of complex and serious problems.   But many worry that the communications technology building young people’s impressive expertise may also be keeping them glued to their screens and disconnected from the natural world.  Robert Stanton, former Director of the National Park Service and the first African American to hold the position, comments in his interview that we should not be unduly critical of young people who spend so much time inside.  He observes that when he was growing up, there were only a few black and white TV channels to compete with going outdoors!   Still, a lifelong activist like Gloria Steinem believes that excessive dependence on electronic connections can weaken the interpersonal qualities of empathy that depend on face-to-face communication and can dilute the emotional drivers for action in concert with others.  Activism means more than making a statement and pressing “send.”    The impact of technology is just one of many issues discussed in an engaging set of interviews available to all.  Visit ELI’s website at http://www.eli.org/celebrating-pioneers-in-environmental-law for a unique source of perspective on the evolution of environmental law and the prospects for further progress on pressing problems in today’s very different social and political setting.

Does the Clean Water Act Cover Discharges To Or Through Groundwater?

Posted on June 15, 2016 by David Buente

An issue that has recently come to the forefront of Clean Water Act (“CWA”) jurisprudence in numerous district courts across the country and which is currently before the Ninth Circuit is whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.  The CWA prohibits discharges from point sources to navigable waters, defined as “waters of the United States,” unless they are in compliance with another provision of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  Whether discharges to groundwater hydrologically connected to a surface water body fall under this prohibition is a question with far-reaching consequences for facilities as varied as coal ash basins, slurry pits, retention ponds, and hydraulic fracturing wastewater ponds, all of which could theoretically be deemed to be in violation of the CWA under this hydrological-connection theory if they leak into groundwater at all.

As a preliminary matter, there is no question that isolated groundwater itself is not a water of the United States regulated under the CWA.  First, multiple courts, including several circuit courts of appeals, have held that groundwater is not “waters of the United States.”  Second, the legislative history surrounding the CWA indicates clearly that Congress considered setting standards for groundwater or explicitly including it in the NPDES permitting program and decided against such an approach.  Finally, in the rule, now stayed by the Sixth Circuit, which EPA and the Army Corps of Engineers promulgated last year defining the term “waters of the United States,” the agencies explicitly stated that they had “never interpreted” groundwater “to be a ‘water of the United States’ under the CWA.”  80 Fed. Reg. 37073

The hydrological connection issue is not a new one; both the Seventh Circuit in 1994 and the Fifth Circuit in 2001 determined that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (“OPA”) (courts have typically interpreted the term “navigable waters” to have the same meaning under both acts).  In the past few years, however, the frequency of opinions on this topic has increased, and district courts have been very much split on this issue.  Some courts and commentators have dubbed this theory of regulation the “conduit theory,” with the idea being that the groundwater serves as a conduit between the point source and the water of the United States. 

Three district courts have recently rejected the conduit theory.  In 2014, in Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., the Eastern District of North Carolina confronted the issue of whether seepage from coal ash basins at one of the defendant’s power plants, alleged to contain contaminants and to carry those contaminants through groundwater into a lake, was a discharge prohibited by the CWA.  The court emphatically held that “Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow ‘hydrologically connected’ to navigable surface waters.”  As justifications for its holding, it cited the CWA’s dearth of language actually referring to groundwater, its legislative history, and the 2006 Supreme Court case on the meaning of waters of the United States, Rapanos v. United States, in which the plurality opinion and Justice Kennedy’s concurrence appeared to reflect a limited construction of the term.  The following year, in 2015, the District of Maryland came to a similar conclusion in Chevron U.S.A., Inc. v. Apex Oil Co., Inc.  The court held that “even if it is hydrologically connected to a body of ‘navigable water,’” groundwater is not regulated under the OPA, also citing the language of the CWA, its legislative history, and Rapanos.  Likewise, in 2013, in Tri-Realty Co. v. Ursinus College, the Eastern District of Pennsylvania concluded that “Congress did not intend either the CWA or the OPA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow ‘hydrologically connected’ to navigable surface waters.”

Other recent district court opinions, however, have come to the opposite conclusion.  In 2014, in Hawai’i Wildlife Fund v. County of Maui, the District of Hawaii confronted the issue of whether the County would need a NPDES permit to discharge waste into underground injection wells when plaintiffs contended that some of the injected wastewater eventually finds its way to the Pacific Ocean.  The district court concluded that “liability arises even if the groundwater…is not itself protected by the Clean Water Act, as long as the groundwater is a conduit through which pollutants are reaching navigable-in-fact water.”  The district court also cited Rapanos in support of its argument.  That case is now before the Ninth Circuit on appeal, and the Department of Justice recently filed an amicus brief supporting the argument that there is CWA jurisdiction where pollutants move through groundwater to jurisdictional surface waters if there is a “direct hydrological connection” between the groundwater and surface waters.  Likewise, in 2015, in Yadkin Riverkeeper v. Duke Energy Carolinas, LLC, the Middle District of North Carolina held that it had jurisdiction over claims where “pollutants travel from a point source to navigable waters through hydrologically connected groundwater serving as a conduit between the point source and the navigable waters.”  That court based its determination in part on the idea that taking an expansive view of the types of discharges which the CWA prohibits is most in line with the statute’s purpose.  A few weeks later in Sierra Club v. Virginia Electric and Power Co., the Eastern District of Virginia, citing Yadkin Riverkeeper, held that a CWA citizen suit against Dominion Virginia Power using the conduit theory should survive a motion to dismiss.

The line of cases rejecting CWA jurisdiction over discharges to groundwater which is hydrologically connected to surface waters of the United States gets it right.  As the legislative history proves, Congress considered regulating discharges to groundwater and rejected such an approach.  This decision is reflected in the language of the statute.  Moreover, in Rapanos, the Supreme Court restricted the factual scenarios under which a wetland could be considered a water of the United States, thus revealing that a majority of the justices on the Court favored a narrower jurisdictional reach under the CWA.  Finally, to accept the “conduit theory” would be to write the “point source” requirement out of the statute.  As described above, a discharge must come from a point source, which the CWA defines as a “discernible, confined and discrete conveyance.”  Groundwater seepage seems to be about as far from a “discernible, confined and discrete” source as it gets, resembling nonpoint source pollution like stormwater runoff.

ACOEL “Lawyers Without Borders” Group in Port-au-Prince Pati De (Part 2)

Posted on June 14, 2016 by Jeff Thaler

About 10 years ago, when Steve Herrmann began calling 22 other environmental lawyers around the country about starting a new College, I don’t think he or any of us envisioned the College’s reach extending overseas. Yet, thanks to the vision and efforts of Jim Bruen, Bob Percival, and now Jimmy May, in recent years the College has explored possible connections with China, Kenya, and just weeks ago—Haiti.

Six College members, dubbed by one as “Lawyers Without Borders,” spent four whirlwind days in Port-au-Prince Memorial Day and early June. Our key liaison was Widener Law Professor and former Dean Erin Daly, Jimmy’s colleague, who has spent some of her sabbatical year working at the Université de la Fondation Dr. Aristede (UNIFA) begun just a few years ago by former President Jean-Bertrand Aristede and his wife Mildred Aristede, an American-trained attorney. UNIFA was our wonderful host sponsor for the trip. Specifics on the ACOEL delegation and with whom we met can be found in the separate blog post of Jimmy May.

In brief, I arrived a day early with Erin Daly, and our guide, Junior St. Vil, took us to Sakala, a community center in one of the poorest sections of the city. It was Mother’s Day in Haiti, so there was a celebration going on that we witnessed, as well as touring a community garden used to teach children how to grow food—with recycled tires as planters.

On Memorial Day I briefly met Mme. Aristede at UNIFA, then went with Junior to “tour” the city. Port-au-Prince was hit hard by the major 2010 earthquake, and most roads are still in poor shape, clogged with motor vehicles and pedestrians. I saw very few traffic lights or cross walks; everyone shares the road. It thus takes a long time to get from one part of the city (3.5 million people) to another, so most of my morning was spent getting a feel for the street scene, and talking with Junior.

Haiti is the poorest country in the Western Hemisphere. While one College member (who will remain nameless) said that Haiti ranks higher than the U.S. in the Happiness Index, my back-home research found Haitians much less happy than Americans. However, I suspect that may be explained in part by facts such as 1) 70% of the 10 million Haitians have no electricity and are illiterate, 2) most water and sewer infrastructure is in disrepair or worse, 3) only 2% of Haiti’s forest is left, with families reluctantly forced to cut remaining trees for charcoal to cook with, and 4) there are significant “rule of law” challenges from lack of enforcement or viable legal remedies.

Haiti presents lots of opportunities as well as challenges. Our visit focused in large part on the desire of UNIFA and local lawyers to develop a 1-year environmental law LLM program. Currently, “law school” in Haiti is a prescribed, 4-year college curriculum with little focus on environmental, energy or land use issues. During our visit, we met with large groups of students and of lawyers, as well as in smaller sessions with leading environmental, energy and sustainability practitioners. For me, it was clear that everyone wanted to develop, with assistance, initiatives to improve the quality of life for Haitian people. They were well aware of the many damaging pollution and climate change forces hurting the populace and economy; but a key question is how best to create home-designed programs similar to what we began to do in the U.S. in the early 1970s. 

The challenge for us as College members, and for me personally, is how best to assist and collaborate with UNIFA and others in Haiti, to make a difference. Now that personal connections have been made, hopefully our Haitian hosts will be better able to propose to us possible measure to develop a sustained (not one-time) menu of actions that we can work on together with them. I hope to be able, someday soon, to work on environmental or renewable energy education or project-specific initiatives with the great people with whom we met.

ACOEL Delegation Visits Haiti

Posted on June 14, 2016 by James May

A delegation of ACOEL Fellows visited Haiti, May 30-June 2, to share ideas about ways to advance environmental law and justice with leading members of the bar, academia, civil society, and the business community.

This visit takes place at a transformative time for the environment in Haiti. Deforestation hovers at around 95% as people are forced to burn charcoal for fuel or income, rivers and streams are choked by trash and runoff, motor vehicles are largely unregulated, and the public health system is overwhelmed. And of course, Haiti still suffers from the introduction of cholera in October 2010, resulting in more than 9,000 deaths thus far.

The visit was at the invitation of host institution Universite de la Fondation Aristide (UNIFA)(http://unifa-edu.info/contenu/). The delegation -- Alexander Dunn, Lee DeHihns, Tracy Hester, Dennis Krumholz, Jeff Thaler, and Jimmy May – had a transformative experience. Professor Erin Daly (Vice President for Institutional Development) served as the local liaison, with ACOEL Fellow and Professor James R. May serving as coordinator on behalf of the College's Committee on International and Pro Bono Programs, which he co-chairs with Professor Robert Percival.

The delegation met with many of Haiti’s leading policymakers, thinkers and advocates, former President Jean Bertrand and Mme. Mildred Aristide, Me. Fabrice Fievre (Co-Dean of UNIFA Law School), Me. Mario Joseph (director of the nation’s leading human right law firm, Bureau des Avocats Internationaux, http://www.ijdh.org), Me. Jean Andre Victor (director of Haiti’s leading environmental rights firm, L'Association Haïtienne de Droit de l'Environnement), Me. Stanley Gaston, (President of the Port-au-Prince Bar Association), Me. Leslie Voltaire (Haitian architect and urban planner), and Me. Cedric Chauvet (a leading business-person). The delegation also enjoyed various cultural opportunities, including in Port Au Prince, Petionville, and Cite Soleil.

The delegation also visited SAKALA (a leading community center serving among Haiti’s poorest children, http://www.sakala-haiti.org), and the 'uncommon' artists’ community of Noailles, Haiti (http://www.uncommoncaribbean.com/2015/03/10/visiting-the-uncommon-artists-enclave-of-noailles-haiti/).

UNIFA is a leading private university in Haiti, and focuses on promoting dignity and social justice, including by advancing environmental sustainability. Earlier this year it hosted conferences dedicated to environmental human rights issues and their relationship to health, engineering, and law in Haiti (“Environmental Concerns: Today and Tomorrow”) (brochure available at: http://unifa-edu.info/contenu/wp-content/uploads/2016/05/programmation-semaine-scientifique-2016.pdf), as well as to the environmental and social consequences of mining in Haiti (https://www.facebook.com/Aristide-Foundation-for-Democracy-306681307454/?fref=nf)."

ACOEL looks forward to continuing conversations about ways to coordinate and collaborate going forward. 

Justice Scalia and Environmental Law, Part II: Takings and Administrative Law

Posted on June 9, 2016 by James May

Justice Scalia’s jurisprudence had a huge impact on environmental law. Part I focused on standing. This short piece addresses his impact on takings and Administrative Law.

Takings

Modern takings jurisprudence is also Justice Scalia’s handiwork. He, more than any other Justice, was inclined to find government regulation – particularly that which serves environmental ends – “goes too far” and thus constitutes a regulatory taking warranting just compensation. In Lucas v. South Carolina Coastal Council, he held for the majority that a state law designed to protect barrier islands constituted a compensable taking when it had the effect of depriving a developer of what he considered to be all economic use. And in Nollan v. California Coastal Commission, Justice Scalia—again for the majority—held that a requirement that a shorefront property owner maintain a public pathway to a public beach was “illogical” and constituted a compensable taking.

Justice Scalia’s jurisprudence makes policymakers think twice about regulating in the environmental realm.

Deference to Agency Rulemaking

Justice Scalia was consistently skeptical of environmentally-protective interpretations by federal agencies, especially those by EPA. In Rapanos v. EPA, writing for a plurality of the Supreme Court, he rejected the Army Corps of Engineers’ interpretation of the Clean Water Act’s term “navigable waters” to include temporally-saturated areas, instead insisting on a direct surface water connection to a water that is “navigable in fact.” Likewise, he joined the Court’s decision in SWANCC v. Army Corps of Engineers, holding that Congress did not intend to permit the Corps and EPA to regulate dredging and filling of isolated ponds and wetlands that are not adjacent to otherwise navigable waters, under what was known as the “migratory bird rule.” Most recently, in Michigan v. EPA, he wrote for the majority to invalidate EPA’s mercury and toxics rule, finding it unreasonable “to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.” And shortly before he died, he joined four other justices to order a stay of EPA’s Clean Power Plan.

Yet Scalia was more inclined to defer to EPA interpretations that were less environment-minded. For instance, in Entergy v. Riverkeeper, he wrote on behalf of the majority to uphold EPA’s use of cost-benefit analysis in assessing “best technology available” for minimizing the adverse environmental effects of cooling water intake structures under section 316(b) of the Clean Water Act. Likewise, he dissented in EPA’s favor in Massachusetts v. EPA, voting to uphold the agency’s decision at that point that greenhouse gases are not “air pollutants” under the Clean Air Act.

Early during his tenure on the bench, however, Justice Scalia seemed more inclined to endorse the edict from Chevron U.S.A., Inc. v. NRDC, to defer to “reasonable” statutory interpretations from mission-oriented agencies. For example, in EDF v. Chicago, Scalia on behalf of the Court upheld EPA’s interpretation under the Resource Conservation and Recovery Act that “solid waste” includes ash from municipal waste incinerators. And then in dissent he decried the result in U.S. v. Mead Corp., where the Court strayed from the Chevron standard by granting only “power to persuade” as opposed to “reasonableness” deference to agency interpretations that are not the result of a deliberative process.

Last, Whitman v. American Trucking stands as a bit of an outlier to Scalia’s seeming antipathy to EPA’s reach, in which his majority opinion upheld as an “intelligible principle” under the non-delegation doctrine Congress having EPA establish national ambient air quality standards that are “requisite” to protect human health and the environment.

Justice Scalia’s views on deference to rulemaking gave agencies – except for EPA – more leeway. For further reading on these subjects, please see Principles of Constitutional Environmental Law.

Justice Scalia and Environmental Law, Part I: Standing

Posted on June 9, 2016 by James May

Justice Scalia’s jurisprudence had a huge impact on environmental law. Part I focuses on standing. Part II (a forthcoming post) then turns to takings and Administrative Law.

Standing 

Justice Scalia’s most lasting legacy on environmental law is how his jurisprudence makes it more difficult for environmental plaintiffs to demonstrate constitutional standing under Article III of the Constitution. Since at least Sierra Club v. Morton, plaintiffs needed to show that they possessed an “injury in fact,” which could be commercial, economic, aesthetic, or environmental. Raising the bar, Scalia stated that plaintiffs must demonstrate at an “irreducible minimum”: (1) imminent and concrete “injury-in-fact” that is (2) fairly “traceable” to the defendant’s actions, and (3) “redressible” by the court. Applying this standard, Scalia found standing lacking in Lujan v. National Wildlife Federation, because using land “in the vicinity of” affected federal land wasn’t sufficient, and in Lujan v. Defenders of Wildlife, due to the absence of what has come to be known as “tickets in hand” to return to the places of alleged injury. Dissenting in Defenders of Wildlife, Justice Blackmun, bemoaned Scalia’s new requirements as “a slash-and-burn expedition through the law of environmental standing.”

Justice Scalia then dissented in Friends of the Earth v. Laidlaw Environmental Services v. EPA, when the majority held that it is injury to the person, and not the environment, that matters in standing analysis. There, he complained that the majority had proceeded “to marry private wrong with public remedy in a union that violates traditional principles of federal standing—thereby permitting law enforcement to be placed in the hands of private individuals. I dissent from all of this.”

Justice Scalia was skeptical that the effects of climate change could ever support standing, even for states. Speaking from his dissent in Massachusetts v. EPA, Scalia would have found that petitioning states lacked standing to challenge the U.S. Environmental Protection Agency’s (EPA’s) failure to institute rulemaking to regulate greenhouse gas emissions from stationary sources, thereby rejecting that states are entitled to “special solicitude” in standing analysis.

Justice Scalia was more inclined to find standing when litigants challenged environmentally-protective agency action. For example, writing for a plurality, he found that alleged injury to economic interests to water districts and to corporate ranching and agricultural interests was sufficient injury in Bennett v. Spear. Moreover, he held that homeowners possessed both standing and a cause of action to challenge an EPA-issued but not enforced administrative compliance order in Sackett v. EPA.

Concur or not, Justice Scalia’s standing test took hold and stands firm. For further reading on this subject, please see Principles of Constitutional Environmental Law.

D.C. Circuit: Save Us Sinners Who Fail to Object When There Is Nothing to Object To!

Posted on June 7, 2016 by Richard G. Stoll

Clean Power Plan (CPP) groupies are beside themselves over the D.C. Circuit’s surprise “straight-to-en banc” move for CPP judicial review.  The buzz is mostly over the survivability of the CPP’s interpretations of Clean Air Act (CAA) §111(d) in light of the nine judges’ dispositions.

I won’t weigh in on that issue here.  My target is another issue, one that has been lurking in the background and has bugged me greatly for the last couple of years.  Now that the issue is before an en banc panel, I am fervently hoping the Court will do what only en banc panels can do:  declare that a few recent D.C. Circuit rulings are wrong.

The issue involves garden variety adlaw:  should the CPP be vacated because EPA failed to propose or adequately foreshadow key elements of the final rule?  Parties attacking the CPP have advanced this argument, and EPA has defended on numerous grounds that its notice was adequate. 

I won’t opine here on whether EPA’s notice was adequate.  My beef is with EPA’s fall-back defense:  EPA’s argument that even if there were wholly insufficient notice of the CPP’s final provisions, the Court has no authority to vacate the CPP on those grounds. 

EPA’s theory is that since CAA §307(d)(7)(B) provides that only an issue raised in public comments can be raised on judicial review, a final rule that was never proposed cannot be challenged on judicial review because there were no public comments on that provision.  Yep, read on.

EPA argues that parties claiming a final rule was never proposed must instead file administrative petitions for review under CAA §307(d)(7)(B) and wait (usually for a few years, if ever) for EPA to act on those petitions.  In the meantime, under EPA’s position, regulatory provisions that were never proposed or foreshadowed must go into full force and effect.

This means that EPA can get away with murder, at least in the adlaw context.  Just forget the bedrock principle that an agency can impose and enforce only those rules that have first been proposed.  Under EPA’s position, the bedrock is blown away by a Richter 8.8 otherwise known as CAA §307(d)(7)(B). 

In the last two years, EPA has managed to convince D.C. Circuit panels to accede to this unfair and baseless approach.  See my 2015 ACOEL post discussing these opinions.  In a piece I published in Bloomberg BNA in 2014, I showed how the D.C. Circuit had never previously interpreted CAA §307(d)(7)(B) in this fashion , and had on many occasions vacated final rule provisions that had never been proposed. 

As explained in the above-cited pieces, the absurdity of EPA’s position is that final rules will go into full force and effect against parties because they failed to object to something they could not object to.  This just can’t be right.  The en banc CPP panel should do the right thing and declare the three most recent decisions to be wrong.

[Mr. Stoll is not representing any party in the pending D.C. Circuit CPP judicial review proceedings.]

Treehuggers on Senate Appropriations Committee Approve Conservation Funding

Posted on June 6, 2016 by Rick Glick

Who knew?  On May 19 those wild eyed environmentalists on the Senate Appropriations Committee unanimously (no misprint) passed a FY 2017 agriculture and rural development bill that includes significant funding for conservation work.  The bill now goes to the full Senate for a vote and, if it passes, back to the House for reconciliation. 

Of particular interest, the bill breathes new life into the moribund Watershed and Flood Prevention Operations Program.  This little known program is supposed to fund land and water conservation efforts at the watershed level, but has long gone unfunded and unloved.  The new bill would appropriate $150 million, which would be the first appropriation since 2010.  Less than the Administration proposed—and not nearly adequate, of course—but nevertheless, new money that could serve important purposes.

Oregon Sen. Jeff Merkley, a member of the Appropriations Committee, sees an opportunity for addressing habitat needs for fish and wildlife, particularly the spotted frog, as well as aiding rural communities.  The U. S. Fish and Wildlife Service listed the spotted frog and designated critical habitat in Central Oregon.  Indeed, irrigation districts in the area are making plans to compete for the funding to help with irrigation equipment upgrades and replacement of open canals with pipes.  Such efficiency and conservation efforts reduce pressure on habitat for the spotted frog and other species.

It will be interesting to see if a sister program, the Land and Water Conservation Fund, established by Congress in 1965, can find a receptive ear as well.  As described by the LWCF Coalition:

It was a simple idea: use revenues from the depletion of one natural resource - offshore oil and gas - to support the conservation of another precious resource - our land and water. Every year, $900 million in royalties paid by energy companies drilling for oil and gas on the Outer Continental Shelf (OCS) are put into this fund. The money is intended to create and protect national parks, areas around rivers and lakes, national forests, and national wildlife refuges from development, and to provide matching grants for state and local parks and recreation projects.

Unfortunately, for many years Congress has diverted the funds for other purposes, leaving a multi-billion dollar backlog in maintenance and enhancement projects.  There’s no direct connection between the LWCF and the Watershed and Flood Prevention Operations Program, and no particular reason why funding of one would lead to funding the other.  Still, Sen. Merkley, if you are reading, this one might be added to your to-do list!

Following the Yellow Brick Road…

Posted on June 2, 2016 by LeAnne Burnett

The Pacific Legal Foundation (PLF) fairly boasts that it lived up to its tag line “Rescuing Liberty from Coast to Coast” by following its 2012 Supreme Court victory in Sackett v. EPA with its May 31, 2016 victory in United States Corps of Engineers v. Hawkes Co., Inc.  In both Clean Water Act cases the PLF represented the property owners on appeal, arguing that the particular agency action was final, subject to judicial review.  The Supreme Court agreed both times.  Some boasting is due. 

The particulars of each case flow from disputes about the scope of “navigable waters” under the Clean Water Act.  Neither case resolved the merits issue.  Both cases considered only whether the dispute may be brought to court by challenging a pre-enforcement agency action. 

The Sacketts filled in a half acre of their 2/3-acre residential lot near Priest Lake, Idaho with dirt and rock in preparation for building a home.  EPA served a compliance order advising the Sacketts that they violated the Clean Water Act by filling in waters of the United States without a Section 404 dredge and fill permit.  The Order unilaterally prevented further construction and required the Sacketts to remove the fill material then restore the wetland pursuant to an EPA Restoration Work Plan. 

The Sacketts tried to challenge EPA’s order, but were told by EPA, then by the District Court, that they had no right to challenge the order until EPA attempted to enforce it.  The Ninth Circuit Court of Appeals affirmed, setting the Sacketts squarely on the horns of their dilemma.  Disregarding the unilateral compliance order subjected the Sacketts to potential fines of up to $75,000 per day.   Complying with the order meant spending hundreds of thousands of dollars to carry out the EPA’s Restoration Work Plan, and never getting to build on their property. 

The U.S. Supreme Court granted cert, and Justice Scalia, authoring the decision concluded that the compliance order met the Bennett two-prong test for reviewability:  (1) no adequate remedy other than review under the Administrative Procedures Act, and (2) no statute, in this case the Clean Water Act, precluded that review.  Justice Alito, concurring, declared:  “The position taken in this case by the Federal Government -- a position that the Court now squarely rejects -- would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.” And later:  “In a nation that values due process, not to mention private property, such treatment is unthinkable.”    

The Hawkes case, four years later, is the same song, second verse.  This time the U.S. Army Corps of Engineers (USACE) issued the offending decision -- a jurisdictional determination (JD) that waters of the United States existed on 530 acres from which Hawkes Co., Inc. (Hawkes) and its affiliated companies planned to mine for peat.  Hawkes provides peat for golf courses and sports fields, and mining peat on the 530 acres would extend the life of its peat mining business by ten to fifteen years.  The USACE concluded that the property was connected by a “relatively permanent water” (a series of culverts and unnamed streams) that flowed into the Middle River and then into the Red River of the North, a “traditional navigable waterway” about 120 miles away.  With the USACE determination, Hawkes needed a permit to harvest peat.  Moreover, USACE advised that before it issued a permit, it would require additional hydrological and functional resource assessments and an evaluation of upstream potential impacts, the cost of which would exceed $100,000.

Using an analysis, discussed in my colleague’s post Sending a Message on WOTUS, the Court concluded that a JD satisfied both prongs of Bennett, and affirmed the Eighth Circuit, remanding the Hawkes companies to District Court of Minnesota - Minneapolis with the right to litigate the jurisdictional determination, same as the Sacketts.  When the Supreme Court ruled favorably on their case the Sacketts were remanded to the Idaho District Court, where their court battle continues.  Presumably, the battle will continue with the Hawkes’ companies as well. 

At the heart of each battle is whether or not the property actually contains “Waters of the United States.”  Following the procedural “yellow brick road” won’t get anyone out of Oz -- not until a clear definition of waters of the United States emerges.