Posted on June 23, 2016
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.
Posted on June 22, 2016
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.
Posted on June 20, 2016
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.
Posted on June 15, 2016
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.
Posted on June 6, 2016
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!
Posted on May 20, 2016
August 25, 2016 is the 100th anniversary of the National Park Service. The many planned celebrations and observances provide an opportunity for everyone to become reacquainted with these great outdoor spaces and reflect on the world around us. As your summer plans take shape, be sure to visit FindYourPark.com and try to visit at least one national park. I invite you to share photos of your travels in the comments section of this post, and perhaps ACOEL can find a place for the collection of images of its members enjoying these national treasures.
As I reflect on the Park Service’s anniversary, I observe that it presents a chance for me – and for all environmental lawyers – to take stock of where we have been as a profession. Why – and how – we do what we do? What challenges will the next 100 years hold?
I issue this charge, in part, to carry on the conservation legacy of Henry L. Diamond. Henry was a founder of my firm, Beveridge & Diamond, and a great environmental lawyer and mentor to many (including myself). Sadly, we lost Henry earlier this year.
Henry and many others like him paved the way for our generation to be stewards of the planet and the environmental laws that govern our interactions with it. We have made progress, but new challenges have emerged. Easy answers, if they ever existed, are fewer and farther between. So what, then, does the future hold for the next generation of environmental lawyers?
Future generations of lawyers would do well to focus on the funding mechanisms that are critical but often overlooked components to achieving our most important environmental and sustainability goals. As an example, we can look to the past. Early in his career, Henry Diamond assisted the Chairman of the Outdoor Recreation Resources Review Commission, Laurance Rockefeller, in editing the Commission’s seminal report, Outdoor Recreation for America, that was delivered to President John F. Kennedy in 1962. Among the Commission’s more significant recommendations was the idea to use revenues from oil and gas leasing to pay for the acquisition and conservation of public lands. Congress took action on this recommendation, creating the Land & Water Conservation Fund in 1965 as the primary funding vehicle for acquiring land for parks and national wildlife refuges. While the fund has been by all accounts a success in achieving its goals, much work remains to be done and the fund is regularly the target of budgetary battles and attempts to reallocate its resources to other priorities. Today, the four federal land management agencies estimate the accumulated backlog of deferred federal acquisition needs is around $30 billion.
I expect climate change will dominate the agenda for the young lawyers of our current era. They will need to tackle challenges not only relating to controlling emissions of greenhouse gases, but also adaptation resulting from climate change. Sea level rise, altered agricultural growing seasons, drought and water management, and other issues will increase in prominence for this next generation.
We can expect our infrastructure needs to continue to evolve – not only replacing aging roads, bridges, tunnels, railroads, ports, and airports, but also the move to urban centers and the redevelopment of former industrial properties. Autonomous vehicles and drones also pose novel environmental and land use issues. These trends will require us to apply “old” environmental tools in new ways, and certainly to innovate. As my colleague Fred Wagner recently observed on his EnviroStructure blog, laws often lag developments, with benefits and detractions. Hopefully the environmental lawyers of the future will not see – or be seen – as a discrete area of practice so much as an integrated resource for planners and other professions. Only in this way can the environmental bar forge new solutions to emerging challenges.
The global production and movement of products creates issues throughout the supply chain, some of which are just coming to the fore. From raw material sourcing through product end-of-life considerations, environmental, natural resource, human rights, and cultural issues necessitate an environmental bar that can nimbly balance progress with protection. As sustainability continues its evolution from an abstract ideal to something that is ever more firmly imbedded in every aspect of business, products, services, construction, policymaking and more, environmental lawyers need to stay with their counterparts in other sectors that are setting new standards and definitions. This area in particular is one in which non-governmental organizations and industry leaders often “set the market,” with major consequences for individuals, businesses, and the planet.
Finally, as technology moves ever faster, so do the tools with which to observe our environment, to share information about potential environmental risks, and to mobilize in response. With limited resources, government enforcers are already taking a page from the playbooks of environmental activists, who themselves are bringing new pressures for disclosures and changes to companies worldwide. With every trend noted above, companies must not underestimate the power of individual consumers in the age of instantaneous global communication, when even one or two individuals can alter the plans and policies of government and industry.
Before Henry Diamond passed away, he penned an eloquent call to action that appeared in the March/April edition of the Environmental Law Institute’s Environmental Forum (“Lessons Learned for Today”). I commend that article to you. It shares the story of the 1965 White House Conference on Natural Beauty and how a diverse and committed group of businesspeople, policymakers, and conservationists (some of whom were all of those things) at that event influenced the evolution of environmental law and regulation for the decades to come. Laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, and others have their roots in that Conference. In recognition of his lifetime of leadership, Henry received the ELI Environmental Achievement Award in October 2015. The tribute video shown during the award ceremony underscores Henry’s vision and commitment to advancing environmental law. I hope it may inspire ACOEL members and others to follow Henry’s lead.
These are just a few things I think the future holds for environmental lawyers. What trends do you predict? How should the environmental bar and ACOEL respond?
Posted on April 20, 2016
Last month when the Ocean County, NJ challenge to the New Jersey Department of Environmental Protection’s (“NJDEP”) authority to implement dunes for shore protection was dismissed, I wrote that the decision could very well be precedential for similar challenges in other New Jersey counties.
And so it was. In a 65-page opinion, Superior Court Judge Julio Mendez also upheld the DEP’s authority to construct dunes in the City of Margate (Atlantic County) as being neither “arbitrary or capricious” nor an “abuse of power.” The opinion recognized the US Army Corps of Engineers’ (“Corps”) 6-year study and the need to be better prepared for coastal storms such as Hurricane Sandy in 2012. With this ruling – absent an appeal – the DEP will proceed to obtain the necessary easements through the eminent domain process (a prior attempt to do so via an administrative order having failed) with the appropriate compensation paid to the affected beachfront owners.
Judge Mendez acknowledged that the dunes on the oceanfront would not resolve flooding concerns to the bayfront properties nor obviate some protection afforded by seawalls and bulkheads. Interestingly, he found that the dunes in the adjacent City of Ventnor had not only protected Ventnor’s beaches but also expanded the beaches in Margate, and that the dunes in Margate would be protective of its coastal properties and was therefore not arbitrary or capricious.
Posted on April 19, 2016
Last month, while New Jersey Superior Court Judge Julio Mendez was considering Margate’s challenge to the authority of the New Jersey Department of Environmental Protection (“DEP”) to condemn City-owned lots on which to build dunes, New Jersey Superior Court Judge Marlene Lynch Ford dismissed a similar challenge by 28 oceanfront property owners in Ocean County, NJ.
In her decision, she ruled that (1) DEP’s condemnation activities were authorized to “protect the state’s fragile coastal system and [afford] public access” and (2) the taking of the requisite coastal acreage to do so was as a lawful use of that authority, provided that the eminent domain process of compensating affected property owner was followed, which she found to be the case in this instance.
Although it would appear likely that this decision should have significant precedential effect on the other pending challenges, it should be pointed out that the theory in other cases includes not only a challenge to DEP’s authority, but the reasonableness of constructing dunes on the beachfront as opposed to other “shore protection projects.” In fact, although she dismissed the challenge to DEP’s authority to condemn, Judge Ford granted a hearing to other homeowners who claim that DEP acted arbitrarily because their sea walls eliminated the need for dunes.
And so, although the authority of DEP to use eminent domain for shore protection would appear to be judicially blessed, the manner in which it is does so remains subject to challenge.
So, as always, stay tuned.
Posted on April 4, 2016
With increasing recognition of the value of water across the globe, in 2008 eight U.S. states and two Canadian provinces established the Great Lakes and St. Lawrence River Basin Sustainable Water Resources Management Agreement, and the states created a parallel compact on the U.S. side approved by the U.S. Congress. The primary purpose of the Agreement and Compact is to prohibit diversions of water outside the basin, with very limited exceptions. The first real application for an exception to the Agreement and Compact is under consideration by the Regional Body created under the Agreement and the Compact Council created under the Compact. This is receiving much attention and close scrutiny in the U.S. and Canada because many feel it will set the course for many future applications.
The city of Waukesha, Wisconsin, sits just outside the basin in Waukesha County, which straddles the basin line. Waukesha has a problem: the aquifer it uses is contaminated with naturally occurring radium, and beyond that, the city has concerns about its capacity to serve future needs. As a result, Waukesha has applied for an exception to the Agreement and Compact to withdraw up to 10.1 million gallons per day from Lake Michigan, which would be used, treated, and returned to the Lake through the Root River.
Communities, like Waukesha, that are located in counties straddling the water divide line can ask for water diversions from the Great Lakes, governed by strict rules. The key provisions of the exception standard under the Compact and Agreement that Waukesha must meet are:
- The Water shall be used solely for the Public Water Supply Purposes of the Community within a Straddling County that is without adequate supplies of potable water;
- There is no reasonable water supply alternative within the basin in which the community is located, including conservation of existing water supplies;
- Caution shall be used in determining whether or not the Proposal meets the conditions for this Exception. This Exception should not be authorized unless it can be shown that it will not endanger the integrity of the Basin Ecosystem;
There is little dispute that the amount of water taken by Waukesha from Lake Michigan will have any impact on the Lake, especially since all of the water not consumed in Waukesha will be returned, with a small supplement of water from outside the basin to replace the consumed water. The concern is over the precedent it would set for straddling communities and counties all around the basin in Canada and the U.S. and the potential cumulative effect. The real question is whether these three portions of the exception standard are met.
The key word in the first standard noted above for review of the application is “Community,” which is defined in the Compact as “any incorporated city, town or the equivalent thereof, that is located outside the Basin but wholly within a County that lies partly within the Basin and that is not a Straddling Community.” Waukesha’s application indicates that the water will go to a “service area” that goes beyond the boundaries of the City to several towns and unincorporated areas in Waukesha County. They add that they are required by State law to provide water to the service area. Opponents of the application assert that a “service area” is not a “community” within the meaning of the Compact and on those grounds alone, should be denied. Waukesha asserts that the Compact contemplated the “service area” as a “community.” A definition this broad would open the door to areas well beyond the intent of the Compact’s limited exception to the prohibition of diversions.
In the second element of the exception standard, the availability of a “reasonable water supply alternative” is another consideration. Waukesha argues that treatment alternatives are not appropriate and that getting water from Lake Michigan is the best alternative. Opponents argue that there are reasonable alternatives, and that the nearby communities of Brookfield and Pewaukee are utilizing treatment for radium successfully now. They add that the standard is “reasonable,” and that it does not need to be the best alternative, even though treatment for radium may well be the best.
The third element of the standard highlighted is that the diversion will not endanger the integrity of the Basin Ecosystem. The return flow from Waukesha to Lake Michigan is through the Root River. Under the terms of the Compact, as well as State and Federal Law, the discharge must meet all the terms of a permit. Waukesha argues that this protects the Root River and will even improve it. Opponents say that the volume and thermal component, as well as unregulated contaminants such as pharmaceuticals, microbeads, phosphorus and others, will jeopardize the integrity of the Root River. In the summer months, the effluent from Waukesha could be up to 80% of the flow of the River.
Beyond the three elements of the exception standard, there is a question of precedent with this being the first application for an exception to the prohibition against diversions under the Compact and Agreement. Waukesha claims that it meets the exception standard, and that only other straddling communities and counties around the basin might benefit from approval. Opponents claim that the exception standard must be applied strictly because there are so many straddling counties and communities across the eight Great Lakes states and two Canadian provinces that could qualify for exceptions. Furthermore, they argue that jurisdictions outside the straddling counties and communities will be watching closely for an opening to broaden the exceptions to the Compact.
The Regional Body of the eight states and two provinces will meet April 21 and 22, 2016 to make a recommendation on the application to the Compact Council consisting of just the eight states, which will meet in June. It will require a unanimous vote of the Compact Council to approve the application. The decision has implications well beyond Waukesha’s application, and could chart the course for future attempts to divert water from the Great Lakes and St. Lawrence.
Posted on February 19, 2016
Amid the finger-pointing, forced resignations, and mea culpas, a question has hovered over the Flint water crisis. What did staff at the Flint water plant say before the switch to Flint River water?
For months, Michigan’s governor Rick Snyder and the Michigan Department of Environmental Quality have admitted mistakes but never quite explained why Flint switched from Lake Huron water to Flint River water without prior pilot studies. Critics assailed the saving-costs-at-the-expense-of-the-public-health attitude. Apologists apologized and promised remedial measures. But until last weekend, we did not know what the engineers and technicians who operate the Flint water plant thought of the switch.
On February 13, the Detroit Free Press reported that the Flint water lab supervisor questioned the switch. One week before the grandiose public ceremony celebrating the new era for Flint, the lab supervisor told DEQ he needed time to train staff and update monitoring to be ready to use Flint River water. He complained that higher-ups seemed to have their own agenda.
Like many members of this College, I have spent my career fighting the regulator attitude that “we’re the government experts—trust us” and being dismayed when courts blindly defer to an agency. But when faced with a choice, should we believe agency staff, or politicians and their flappers (see Gulliver’s Travels)? We should start by considering the views of the technical folks who take seriously their jobs to protect publichealth. We might get better policy.
From the Detroit Free Press, February 18, 2016
Posted on February 11, 2016
There is no safe blood lead level in children.
In following the inexplicable regulatory missteps in the Flint public water supply debacle, I could not help but think of the progress that has been made in removing lead from the environment and out of our children’s blood. In spending my professional career addressing environmental issues and problems from a state, federal and private practice perspective, I often have wondered what difference does it make. In the case of lead, we can actually measure our progress and success.
As a teenager, I filled my ‘54 Ford with regular leaded gasoline. Lead was not only in gasoline, it was everywhere. Recognizing the significant and often irreversible health effects of lead, regulatory programs were initiated at the federal, state, and local levels to “get the lead out.” The implementation of these programs reduced or eliminated lead from gasoline, foods and food packaging, house paint, water pipes, plumbing fixtures, and solder used in plumbing and drink cans.
Did these programs work? In 1978, approximately 13.5 million children aged 1-5 had blood lead levels (BLLs) greater than or equal to 10 micrograms per deciliter (ug/dL) of blood, which was until recently the level of concern recommended by the Centers for Disease Control (CDC). The recommended level is now 5 ug/dL. Also, back in the 70s, the average BLL was approximately 15 ug/dL. Black children and children living in low-income families were at greater risk.
We have come a long way from the 70s. The average BLL in children dropped to 1.4 ug/dL by 2008. Below is a table graphically demonstrating this dramatic decrease in BLLs. The table is based on data from National Health and Nutrition Examination Survey, United States, 1971 – 2008, taken from a CDC report, Lead in Drinking Water and Human Blood Lead Levels in the United States, August 10, 2012.
As we beat ourselves up over the mistakes in Flint, we should take a moment to reflect on and be re-energized by the demonstrable success of these regulatory programs. What we have done has made a difference! Flint reminds us that more must still be done.
Timeline of lead poisoning prevention policies and blood lead levels in children aged 1–5 years, by year — National Health and Nutrition Examination Survey, United States, 1971–2008
Posted on February 4, 2016
With busloads of concerned citizens from Flint and nearby cities gathered around the Rayburn House Office Building on February 3, environmental regulators and science experts appeared before the U.S. House Committee on Oversight and Government Reform (Committee) to give testimony regarding lead contamination in Flint, Michigan’s public drinking water. As detailed in this recent NPR podcast, well worth the 40 minute listen, between 6,000 and 12,000 children are estimated to have elevated blood lead levels following the City’s drinking water source change from Detroit water to water from the Flint River in 2014.
How could a crisis like this have happened? While at first water policy groups were quick to highlight the nation’s aging water infrastructure and investment gap – EPA’s most recent estimate is that $384 billion is needed to assure safe drinking water from 2013 to 2030 – and certainly lead pipes to homes in older communities is a costly replacement problem – at the root of Flint was classic government dysfunction combined with assessments of safety that make sense to regulators but perhaps not to everyday people. At the hearing Joel Beauvais, acting Assistant Administrator for the U.S. Environmental Protection Agency’s Office of Water faced questions from Committee members about the Agency’s delayed response to the situation, while the Michigan Department of Environmental Quality’s acting Director Keith Creagh was to explain why state officials did not act to address contamination immediately. Both officials attributed the crisis to breakdown in communication between the agencies that inhibited officials’ swift action. What happened in Flint “was avoidable and should have never happened,” according to Beauvais; while Creagh’s testimony stated that “[w]e all share responsibility in the Flint water crisis, whether it’s the city, the state, or the federal government… We all let the citizens of Flint down.”
The hearing ultimately took on a forward look, noting a reaffirmed commitment to protecting public health. “We do have clear standards. We do have clear accountability, so we have a clear path forward, said Creagh. “We are working in conjunction with the city, the state and federal government to ensure it doesn’t happen again.” Beauvais noted “it is imperative that Michigan, other states, EPA and drinking water system owners and operators nationwide work together and take steps to ensure that this never happens again.”
EPA and Michigan state and local officials are now in non-stop mode to ensure that prompt, concerted efforts are taken to address public health hazards. Members of Congress are introducing bills to fund Flint’s systems and to aid the affected citizens. Even philanthropic groups are stepping in. EPA’s Inspector General is doing a deep dive into the Agency’s response, Michigan Governor Snyder is seeking answers, and even the Federal Bureau of Investigation is looking into criminal aspects of the matter. Flint’s drinking water will get better – and yet the affected population may never fully recover from their excessive lead exposures.
The #FlintWaterCrisis is a sober reminder of the need to keep the nexus between environmental quality regulation and public health protection very tight. As professionals in the environmental field, we cannot fear having frank conversations in the open about risks – and the importance of taking precautionary steps – when human health is at issue.
Posted on February 3, 2016
In my last blog, I summarized the substantive arguments made by the City of Margate’s attorneys in their countersuit against the New Jersey Department of Environmental Protection’s eminent domain proceedings, which were filed in state court—the federal court overturned DEP’s attempts to proceed via administrative orders. The court will have to consider: (a) is dune construction a reasonable use of the state’s “taking” powers; or (b) were alternative storm protections – e.g., sea walls and wooden bulkheads – more reasonable?
While awaiting a ruling by the court after the upcoming February 4th hearing, there have been two new developments:
1. Seventeen residents of Point Pleasant Beach in Ocean County have filed a suit against DEP, claiming the agency’s taking of their beaches was a “land grab” of the residents’ private property destined to require future maintenance expenses and possible development of boardwalks, public restrooms, etc. These cases are scheduled for hearings next month.
2. The super storm/blizzard over the January 22-24th weekend again left Margate’s streets flooded. Governor Christie took a “serves you right” position, whereas Margate officials blamed the flooding on the bay, not the ocean.
As I “go to press,” we’ll soon see whether the plaintiffs’ “we don’t need dunes” position “holds water” (pardon the pun).
Posted on December 11, 2015
In my latest blog, I related that New Jersey Superior Court Judge Julio Mendez had taken under advisement the City of Margate’s request for an evidentiary hearing on the reasonableness of the state’s condemnation of easements on 87 City-owned lots. The request had stressed the public’s express opposition to dunes (2 referenda) and the alleged superiority of bulkheads and seawalls for both bay and ocean front properties.
Well, the Judge ruled on Tuesday, December 8, to grant Margate’s Motion to hear its argument in a February hearing on alleged abuse of the state’s eminent domain power. Margate also challenged the Corps of Engineers’ reliance on a 20-year old study, claiming that the study was outdated and its beach protections were as good as, if not better than, dunes.
If Margate’s arguments are successful, Governor Christie’s 127 mile Sandy Relief Act program would have an approximate 1½ mile gap in continuity (its neighbors Ventnor and Longport have agreed to give the state easements to build dunes).
Next month look for the lowdown on Judge Mendez’ decision in Part 8 of my series, “Doin the Dunes.”
Posted on November 30, 2015
As we left off, the New Jersey Supreme Court ruled that in obtaining easements to build dunes, the amount of compensation for the partial loss of ocean view would have to take into account a credit for the benefit afforded by the dunes’ protection.
When the New Jersey Department of Environmental Protection, in carrying out Governor Christie’s program to construct a $3.5 billion dune system to protect its 127 mile coastline, decided to acquire the necessary easements by administrative actions, the City of Margate in Atlantic County challenged the failure to proceed by eminent domain: U.S. District Judge Bumb agreed with Margate and invalidated this mechanism, ordering the Department to proceed with eminent domain in state court.
Ten months later, New Jersey Superior Court Judge Mendez took under consideration two issues: (1) the reasonableness of the use of eminent domain to acquire easements from 10 private lot owners and 87 city-owned lots, and (2) instead of his making a summary ruling, the need to allow Margate to have an evidentiary hearing, citing the two referenda in which Margate’s voters voted to oppose the dunes.
Once Judge Mendez rules, I will update this matter, keeping in mind that the author owns a 10th floor condominium in Margate, the Municipality Governor Christie calls the most “selfish” municipality in New Jersey.
Posted on November 13, 2015
For those of you who are becoming exhausted by the opinions in the Fox River case, it is time to suggest that the fundamental underpinning of the case – the toxicity of PCBs to humans and to fish – may be in jeopardy.
Twice under the auspices of the World Health Organization “consensus toxicity factors” for dioxin-like compounds including PCBs have been published. These factors were based on analysis of laboratory animals, typically rodents. The lead author of both reports was Martin van den Berg.
Recently an article was published in Chemical Research in Toxicology, “Consensus toxicity factors for PCPDs, PCDFs, and PCBs combining in silico models and extensive in vitro screening of AhR-mediated effects in human and rodent cells,” where van den Berg was the second author on the article who reported on the results of dosing human cells with PCBs and found that PCB 126 was the only PCB congener that produced a measurable response from human cells and that the result was more than 30 times lower than the WHO TEF value for PCB 126. Similar results have been reported in other papers.
As to fish, T.B. Henry has recently published analysis in Critical Reviews in Toxicology , “Ecotoxicology of polychlorinated biphenyls in fish – a critical review.” He concludes: “Biological activity of PCBs is limited to a small proportion of PCB congeners [e.g., dioxin-like PCBs…] and occurs at concentrations that are typically orders of magnitude higher than PCB levels detected in wild fish… Overall, there appears to be little evidence that PCBs have had any widespread effect on the health or survival of wild fish.”
What would the District Court and the Seventh Circuit make of this adjustment to the facts of the case?
Posted on November 3, 2015
The Clean Water Act’s judicial review provision is bizarrely phrased and at times impenetrable. It can force litigants into lengthy threshold battles over jurisdiction that delay and sideline the actual challenges to EPA’s action. Nowhere is this better showcased than in the recent litigation over EPA’s new definition of “waters of the United States” (“WOTUS”). Companies, industry groups and public interest organizations have filed dozens of suits in district and circuit courts across the country to cover all the possible jurisdictional possibilities. The circuit court cases were filed under the Clean Water Act’s judicial review provision that automatically centralizes the cases in a randomly selected circuit court (here, the Sixth Circuit). The district court cases were filed under the Administrative Procedure Act, which contains no mechanism for consolidating the numerous cases.
In a heroic attempt to combine the district court cases and litigate in only one court, EPA looked to the multidistrict litigation process designed for coordinated discovery among cases sharing common facts. The circus that ensued was a mini-caricature of the WOTUS litigation and highlighted the intrinsic problems with the Clean Water Act’s judicial review process. The hearing before the multidistrict litigation panel began at 8:00 a.m. in a large courtroom filled beyond capacity with hundreds of lawyers representing the litigants in the fifteen matters scheduled for oral argument that day. Clerks of the court spread across the room calling each matter, and lawyers fought through the crowd to form a bunch in front of their clerk, struggling to hear over the noise. The clerks doled out oral argument time in minute increments, giving some lawyers as few as two minutes of argument time. Once the schedule was set and after a brief recess, the panel called each of the thirteen cases preceding the WOTUS matter on the docket – the Amtrak derailment, airline anti-trust, various medical device and product liability matters, etc. – moving from one matter to the next with seamless agility.
DOJ (Martha Mann) presented oral argument for EPA, and met with stiff resistance from the panel. The panel challenged EPA’s attempt to fit an APA case, to be decided on the record and the law with minimal discovery, into the MDL process designed mostly for coordinated discovery. Ultimately the panel commended Ms. Mann for a noble effort in an exceptionally uphill battle. Elbert Lin, the Solicitor General of West Virginia, presented argument for the plaintiffs and, sensing the favorable persuasion of the panel, highlighted only the diverse procedural postures of the various matters. The various jurisdictional and preliminary injunction rulings in the district courts and an appeal already before the 11th Circuit would all greatly complicate any attempted consolidation.
On October 13th, the panel issued its ruling, deciding not to consolidate the district court cases. The panel agreed that not only was the MDL process not applicable to the predominantly legal WOTUS challenges, but consolidation would only further complicate the already chaotic litigation.
Jurisdictional questions are now pending before the 6th and 11th Circuit Courts of Appeals. The 6th Circuit offers EPA its last hope of litigating the WOTUS challenges in one court. If the 11th Circuit were to disagree, the jurisdictional issues could continue to eclipse the merits of the litigation for months, if not years, pending final resolution by the Supreme Court.
Posted on October 9, 2015
Does this make sense to you? Eighteen states petitioned the Sixth Circuit to challenge the new rule adopted by EPA and the Corps of Engineers defining “waters of the United States” under the Clean Water Act. Then the petitioners move the court to dismiss their own petition for lack of subject matter jurisdiction, but at the same time request a stay of the rule. And then, the court acknowledges it may not have jurisdiction but issues the stay anyway! That is exactly what Sixth Circuit did in the case published today.
This case is among many seeking to block the rule. The Clean Water Act confers original jurisdiction upon the circuit courts for challenges to “effluent limitations or other limitations.” But as reported earlier in this space, thirteen states convinced a federal district judge in North Dakota that he had jurisdiction because the WOTUS rule is merely definitional, and neither an effluent nor other limitation.
The court concluded that petitioners have a good chance at prevailing on the merits, that the rule exceeds “guidance” given by the Supreme Court in extending CWA jurisdiction too broadly. The court also indicated that the final rule may have strayed too far from the notice given in the proposed rule in its definitions of jurisdictional waters.
The majority was not troubled by the fact the parties are still briefing subject matter jurisdiction, finding that it had plenty of authority to preserve the status quo pending a jurisdictional determination. The dissent took the view that the proper sequence is to first decide jurisdiction, then decide on a national stay of a rule years in the making. Pants first, then shoes.
Did the majority consider the situation an emergency that required immediate action? No, the court found that petitioners were not persuasive that irreparable harm would occur without a stay, but neither could the court find any harm with freezing implementation of the rule. The reasoning seems to be that we’ve muddled through so far, let’s take a step back and consider all the implications before implementation.
Why do the states prefer to go after the rule in the district courts instead of the circuit courts of appeal? Maybe they believe they can forum shop to find conservative judges and build a favorable body of case law before appealing. Or maybe they believe they can more directly attack the science underlying the rule or otherwise augment the administrative record. Whatever the reasons, the ultimate return of this issue to the Supreme Court will be delayed and the law dealing with regulation of wetland fills will remain as confused as ever.
Posted on September 24, 2015
Ohio statutes authorize regional sewer districts to collect and treat sewage, including combined sewer overflows, and to charge fees for those services. The regional sewer district in the Cleveland area (“NEORSD”), with a service territory encompassing nearly 60 communities of Cuyahoga County and some nearby counties, took its authority one step further. Nearly fifty years after its creation, the NEORSD added a regional storm water management program that would charge property owners fees on the basis of a formula primarily tied to the square footage of impervious surfaces like parking lots and roofs. The NEORSD envisioned the plan would address the considerable urban sprawl that had occurred since the 1970’s and that had created vast expanses of impervious spaces in the form of parking lots, large clusters of office, shopping, Big Box, commercial and industrial facilities, often in the upland suburban areas to the east and south of the core city (many suburbs’ names end with “Heights”). With the conversion of green space to impervious surfaces, many of the lower lying areas began to experience more flooding and erosion.
Not content to wait for the individual upland communities to control storm water in a decentralized fashion, the NEORSD in 2010 adopted its plan in response to the “regional” flooding that urban sprawl created and exacerbated. But there was immediate and well financed opposition to the expanded storm water program. Opposition came from several communities which maintained their own capital intensive storm water systems and from commercial property owners which feared the hefty fees they would pay as a result of the parking lots and roof structures they had constructed. And the opposition succeeded when, in 2013, the Cuyahoga County Court of Appeals ruled that the statutory charter could not support regional storm water control. See my February 5, 2014 posting, “Storm Water Management by a Regional Sewer District: Was it a Power Grab or a Logical Extension of Existing Powers?”
With that decision, the NEORSD stopped collecting the estimated $35,000,000 per year in fees to implement the regional storm water prevention and abatement measures, but it did not give up. The NEORSD appealed to the Ohio Supreme Court, and received considerable amicus support. [Full disclosure: I authored a supporting amicus brief.]
More than a year after oral argument, the Ohio Supreme Court announced its decision. In a 5-2 vote, the high court reversed, finding that the NEORSD possessed the statutory authority to undertake regional storm water control. But as to the collection of fees, the vote was closer, with four Justices approving of the NEORSD fee plan and three dissenting. One Justice dissented because she believed that the fees are intended to relate to services and are not for the future construction and eventual operation of the infrastructure; therefore, she concluded that the NEORSD is premature in assessing fees until it actually provides a “benefit” or “service” from “water resource projects” already in operation. The other two dissenting Justices found that the regional storm water plan exceeds the NEORSD authority and that the fees are unrelated to services, and therefore, the fees are invalid, un-voted “taxes”. Northeast Ohio Regional Sewer District. v. Bath Twp., Slip Opinion No. 2015-Ohio-3705(decided September 15, 2015.
With the passage of time since the NEORSD plan’s conception in 2010, and the eventual judicial affirmation approximately five years later, a great deal of momentum was lost, with delays in the acquisition of infrastructure to abate storm water runoff and deferral in the collection of funds to implement the program. Nevertheless, the Supreme Court’s validation of the NEORSD regional storm water plan should “greenlight” similar strategies of other regional sewer districts that are grappling with urban-sprawl induced storm water issues.
Posted on September 2, 2015
A whole lot of craziness is going on in federal district and appellate courts all over the country right now. About what? About judicial review of EPA’s recent “WOTUS” rule under the Clean Water Act (CWA). So I can avoid wheel re-invention, see the very recent ACOEL blogs by Seth Jaffe and Rick Glick.
So what’s the problem? You might find a lot to hate about the Clean Air Act, the Resource Conservation Act, the Safe Drinking Water Act, and I could name a few others, but at least they all have one good thing going for them: they all provide in a crystal clear manner that judicial review of EPA’s national rules under those statutes will lie exclusively with the D.C. Circuit. No ifs, ands, buts, or maybes.
For reasons I have never understood (and I have been trying since the 1970s), Congress in its infinite wisdom chose a different path in the CWA. In Section 509, they listed seven types of actions that must be reviewed in a federal Court of Appeal (not necessarily the D.C. Circuit) and left any other type of action to be reviewed initially in federal district court.
Over the years, a lot of mixed case law has developed regarding EPA’s CWA rules that don’t fit neatly within one of the seven types of actions Section 509 has specified for Court of Appeals review. Quite predictably, as reflected in Seth’s and Rick’s recent blogs, three district courts last week reached conflicting results over whether WOTUS fits within the seven types. In its WOTUS preamble, EPA included a discussion about confusion in the courts over the issue and took no position on whether WOTUS should initially be reviewed in a district court or Court of Appeals.
So how crazy is this: right now, we have (1) a ruling from one district court judge in North Dakota finding he has jurisdiction and enjoining EPA from enforcing WOTUS; (2) a statement from EPA saying the agency will honor his injunction only in the 13 States that were plaintiffs in that action; (3) an order from that judge directing the parties to brief the issue of whether EPA has authority to honor his ruling in only those states; (4) decisions from two other federal district judges holding WOTUS judicial review must be brought only in a Court of Appeals; (5) numerous cases filed in several circuit Courts of Appeals that have been transferred (at least for now) to the 6th Circuit; (6) an almost certain EPA appeal to the 8th Circuit in attempt to reverse the North Dakota judge’s injunction; and (7) WOTUS review cases filed in numerous other federal district courts by lots of parties with various motions still pending.
This is early September, and I can’t imagine how this won’t get a lot crazier over the next few months. Congress in its infinite wisdom!
Posted on August 31, 2015
With so many challenges filed in so many venues to EPA’s Waters of the United States or WOTUS rule, it seemed inevitable that some plaintiffs somewhere would find a sympathetic court. And so it is that thirteen states found U. S. District Judge Ralph R. Erickson to preliminarily enjoin the “exceptionally expansive view” of the government’s reach under the Clean Water Act.
This case is interesting from a couple of perspectives. First, Congress conferred original jurisdiction for challenges to EPA “effluent limitations or other limitations” and for permit decisions upon the Circuit Courts of Appeal. In the past two days, district court judges in West Virginiaand Georgiaconcluded they lacked jurisdiction over challenges to the WOTUS rule on that basis. Judge Erickson, however, did not feel so constrained.
The judge found that the WOTUS rule is simply definitional, and neither an effluent limitation nor an “other limitation” on states’ discretion. Further, the judge found that the rule “has at best an attenuated connection to any permitting process.” The conclusion states’ discretion is not affected is a bit odd in that the judge later concludes that the state plaintiffs satisfied all the criteria for a preliminary injunction, including irreparable harm caused by the rule.
Second, Judge Erickson plays on an internecine dispute between EPA and the Army Corps of Engineers in an unusual way. In my first sentence I refer to the WOTUS rule as EPA’s, although the rule was jointly adopted by EPA and the Corps. However, recently leaked internal government memorandaindicate that the Corps disavows much of the technical support and policy choices underlying the rule. Judge Erickson obliquely references these memoranda and seems to rely on them to conclude that plaintiffs are likely to succeed on the merits of their challenge.
Typically, courts are loathe to rely on internal documents of uncertain provenance, as they prefer to leave the government room to openly discuss policies under development without fear its deliberations would be disclosed. But in this case, Judge Erickson notes that he has not been presented with the full record for the WOTUS rulemaking, and so felt justified in citing the Corps memos.
As Seth Jaffe has observed, it seems likely that Judge Erickson’s jurisdictional determination will not stand, and his reliance on the confidential exchanges between the Corps and EPA is a little disturbing. However, his order highlights EPA’s poor management of this rulemaking, which has led to challenges from states, property rights advocates and environmentalists—a kind of anti-EPA trifecta.
As previously noted, EPA released its draft WOTUS rule before the work of the Science Advisory Board was complete, thus raising questions as to the rule’s scientific objectivity. Then EPA seemingly disregarded the technical concerns raised by its rulemaking partner, the Corps. Any WOTUS rulemaking would be controversial, but EPA has unnecessarily raised the bar for public acceptance.
Posted on August 28, 2015
On Wednesday, Judge Irene Keeley of the Northern District of West Virginia held that district courts do not have jurisdiction to hear challenges to EPA’s rule defining waters of the United States, because courts of appeal have original jurisdiction over “any effluent limitation or other limitation.” Yesterday, Judge Lisa Wood of the Southern District of Georgia agreed.
Later yesterday, Judge Ralph Erickson of the District of North Dakota disagreed. Finding that a definitional rule is not an effluent limitation and is not any “other limitation”, because it “places no new burden or requirements on the States”, Judge Erickson concluded that the district courts do have jurisdiction. Addressing the merits, Judge Erickson concluded the states were likely to prevail, and would suffer irreparable harm in the absence of an injunction. He thus enjoined enforcement of the rule in the 13 states involved in the case before him.
I’ll go out on a limb and assert that Judge Erickson’s decision is not likely to survive. Why not?
- Both the Georgia and West Virginia opinions cogently explain why the WOTUS rule is an “other limitation under existing CWA cases.
- Judge Erickson was clearly trying to have his cake and eat it, too. It is, to put it mildly, internally inconsistent for Judge Erickson to conclude that he had jurisdiction to hear the case, because the “rule places no new burden or requirements on the States”, while ruling on the merits that the States will suffer irreparable harm if the rule goes into effect. If they will suffer harm, it is precisely because the rule will limit them in new ways – which is pretty much what his own opinion says.
- As Judge Keeley noted, providing consolidated jurisdiction over all challenges to the rule in one court of appeals furthers
“the congressional goal of ensuring prompt resolution of challenges to EPA’s actions.” That scheme would be undermined by … a “patchwork quilt” of district court rulings.
Based on these three decisions in just the last two days, it would seem that truer words were never spoken.
Posted on July 31, 2015
Anyone who reads this blog must have seen the explosion of reports in the trade press that EPA ignored significant criticism from the Army Corps of Engineers in promulgating its Waters of the United States rule. (For a useful summary of the rule and an analysis of some of the legal issues that might be raised in potential litigation, see Susan Cooke’s post from earlier this month.) I have not seen the memoranda, but, based on the press reports, it appears that EPA ignored criticism both that it was too stringent in some areas and that it was not sufficiently stringent in others. If EPA’s purpose wasn’t simply to make the rule more – or less – stringent, why did it ignore the Corps and try to bury the disagreement?
How about hubris?
I noted earlier this year and as far back as 2010, EPA’s tendency towards self-righteousness. I also pointed out how counterproductive that self-righteousness is; it makes it more difficult for EPA to achieve its goals. While I still think that EPA is self-righteous, hubris seems the apt description today.
Posted on July 10, 2015
The U.S. EPA and Army Corps of Engineers have designated July 13 as the official issuance date for purposes of judicial review of their Final Rule defining the scope of “waters of the United States” or “WOTUS” under the federal Clean Water Act. However, a number of lawsuits have already been filed, including four separate actions brought on behalf of a total of 27 states and a fifth action filed by Murray Energy Corp., a privately held coal mining company.
The lawsuits seek to overturn the Final Rule on several grounds that include:
- Usurpation of state authority over intrastate waters in violation of the Constitution’s Commerce Clause and Tenth Amendment
- violation of the federal Administrative Procedures Act (APA) due to the Final Rule’s allegedly unlawful expansion of federal powers granted under the federal Clean Water Act, as well the arbitrary and capricious nature of the rulemaking;
- violation of the APA’s requirement to provide notice and opportunity for comment on proposed rulemakings, and to properly respond to comments made during the comment period; and
- violation of the National Environmental Policy Act’s requirement to prepare an environmental impact statement for a major federal action significantly affecting the quality of the human environment.
The object of all this attention is a long expected – and expansive – WOTUS interpretation adopted by EPA and the Corps. As reported on this blog site, the rule is controversial; the draft generated over one million comments. For a comprehensive analysis of the draft rule, including the cases leading up to the rule, see the American College of Environmental Lawyers reportfor the Environmental Council of the States.
The Final Rule, which does not change much from the draft, is intended to provide more certainty regarding what is and is not subject to the Clean Water Act’s Section 402 and 404 permitting provisions and its Section 311 oil spill prevention and response provisions so as to reduce case-by-case determinations of applicability. Despite the inclusion of a number of definitions and exclusions, it is doubtful that this goal has been achieved, given the number of new situations where a “significant nexus” determination must be made.
The significant nexus inquiry finds its genesis in Justice Kennedy’s concurring opinion in Rapanos v. United States where Justice Scalia wrote the plurality opinion. According to Justice Kennedy’s opinion, wetlands adjacent to navigable waterways are waters of the United States based on a “reasonable inference of ecologic interconnection” in accordance with the Supreme Court’s 1985 opinion in United States v. Riverside Bayview Homes. However, isolated wetlands or wetlands adjacent to a non-navigable tributary, either alone or in combination with similarly situated lands in the region, [must] significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable” in order to fall within the purview of the Clean Water Act. Rejecting a bright-line test, Justice Kennedy noted that a “mere hydrologic connection should not suffice in all cases” as it “may be too insubstantial . . . to establish the required nexus with navigable waters as traditionally understood.”
The Final Rule broadly defines “tributaries” and “adjacent waters” and classifies them as “per se” jurisdictional waters, along with waters used in interstate or foreign commerce, interstate waters and wetlands, territorial seas, and impoundments of such waters. It also identifies a number of other waters (prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairies) as navigable waters if they meet the significant nexus test which involves consideration of a number of factors identified in a compilation of peer reviewed scientific reports assembled by EPA.
All of the complaints reference the Supreme Court’s Rapanosdecision, as well as the Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, regarding what constitutes a “navigable water”. In particular, they claim that the Final Rule goes well beyond the limits set forth in those decisions, including Justice Kennedy’s “significant nexus” test in Rapanos. Some of the complaints provide pretty convincing arguments on the latter point, and so another “wave” of litigation can be expected. Given that the litigation now extends back 30 years, a paraphrase of that old adage about water – and litigation - being everywhere seems right “on course”.
Posted on June 23, 2015
On June 4, 2015, the U.S. Environmental Protection Agency released a draft “Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources,” which finds no evidence that hydraulic fracturing activities have led to widespread, systemic impacts on drinking water supplies. According to the draft assessment, between 2000 and 2013, there were an estimated 9.4 million people living within one mile of a well that was hydraulically fractured. The draft assessment supports the assertion that state agencies, as the primary regulator of oil and gas development in the United States, are effectively governing hydraulic fracturing activities by the industry.
Initially announced by USEPA in March 2010, the study has a broad scope. USEPA reviewed each stage of the “hydraulic fracturing water cycle” – including water acquisition, chemical mixing, well injection, flowback and produced water recapture, and wastewater treatment and disposal – to assess for any widespread, systemic impacts on the quality or quantity of drinking water resources. The agency also used an expanded definition of drinking water resources that includes currently undrinkable saline aquifers that might be desalinated for consumptive use in the future.
Although the draft assessment acknowledged that hydraulic fracturing could potentially contaminate drinking water resources, USEPA found that the actual occurrences of such impacts were “small compared to the number of hydraulically fractured wells.” The risks related to hydraulic fracturing activities identified in the draft assessment included: water withdrawal in times of low availability; spills of fracturing fluids and produced water; fracturing directly into underground drinking water resources; below ground migration of liquids and gases; and inadequate treatment and discharge of wastewater.
The draft assessment noted that the primary means of disposing of wastewater from hydraulic fracturing activities conducted in the United States is underground injection wells. However, one notable exception to this finding is in the Marcellus shale play, where USEPA found that most wastewater is reused by industry. The high percentage of reuse and recycling of wastewater in the Marcellus shale play is a practice that industry has long asserted is a valuable means of reducing the amount of freshwater needed for well development activities.
USEPA is expected to publish a final assessment after the completion of a notice and comment period, which is currently open and concludes on August 28, 2015, and a review of the draft assessment by the Science Advisory Board Hydraulic Fracturing Research Advisory Panel. The Panel has scheduled a public meeting to conduct a review of the draft assessment from October 28 to October 30, 2015, and teleconferences to discuss the draft assessment on September 30, October 1, and October 19, 2015.