Volume 52, Issue 3

 

 

LAND ACKNOWLEDGEMENT

 

SYMPOSIUM LETTER

 

ARTICLES

Plastic Activism and The Clean Water Act

Rachael E. Salcido

Scientists have been sounding the alarm about the health and environmental dangers of plastics. We have been slow to pay attention. Plastic production causes a range of environmental harms. Furthermore, larger plastic items break down over time into smaller and smaller pieces—microplastics. Much of the plastic waste in our environment originates as single-use items which degrade into microplastics that pollute rivers, wildlife, and humans ourselves. Today, we sit on the verge of a new tidal wave of petrochemical buildout to produce plastic in the United States in areas already overburdened with air and water pollution. Can the Clean Water Act address this challenge?

The Clean Water Act can indeed make an important difference. Why has it failed to do so thus far? Environmental activists have highlighted the Clean Water Act’s potential to stem the tide of plastic toxification of our waters, citizens, and wildlife. This has included important regulatory efforts through citizen petitions, engagement in voluntary EPA programs, and citizen-suit litigation. Although federal law encourages citizen engagement, it should not replace effective regulatory programs to address known threats to water resources. This paper will look at these combined citizen efforts, the pressure these efforts have directed at responsible government officials, and what those efforts reveal about the durability of the Clean Water Act at fifty years old to address evolving threats to the chemical, physical, and biological integrity of our precious water resources.

 

The Myth of State Surface Water Regulation–The Fifty Year Flaw of the Federal Water Pollution Control Act Jurisdictional Debate

Victor Flatt

In 1972, when the federal government took the lead in protecting our nation’s waters from pollution and destruction, it intended to assert federal jurisdiction as broadly as possible. Nonetheless, for the last fifty years, the precise contours of federal jurisdiction (the extent of “waters of the United States” or “WOTUS”) have been in dispute, with multiple alternative administrative proposals to define the legislation rejected by the Supreme Court. A part of this debate has been about both the wisdom of extensive federal jurisdiction as well as the assertion that states, if allowed, would step in and regulate water pollution and destruction themselves. At various points, the argument has thus been about the proper balance of federal and state power. Though this argument has theoretical appeal, and though we may have no choice but to look to states to protect certain waters if the Supreme Court continues to narrow federal jurisdiction, the truth is that this is not going to happen. Most states are never going to expand their jurisdiction to protect waters not protected at the federal level. This is demonstrated by theories of federalism, Congressional observations in passing the 1972 Amendments, empirical data of state regulatory history, and actions the states have positively taken to limit jurisdiction.

Pretending that states asserting jurisdiction is a real possibility or a valid data point is thus pointless and also destructive. It detracts from the real impacts limiting federal jurisdiction.

 

“Don’t Blame the Flint River”

Clifford J. Villa

Since appearing in modern form fifty years ago, the Clean Water Act has proven a powerful force for environmental justice, helping to clean up urban waterways across the country. Through establishment of water quality standards and enforcement of regulatory requirements, the Clean Water Act has compelled public authorities and private companies to upgrade infrastructure and curtail discharge of sewage and other industrial effluent. At the same time, urban communities have continued to struggle with water pollution beyond the reaches of the Clean Water Act. This Article brieflyexamines three such communities: the Anacostia area of Washington, D.C.; the neighborhoods along the Duwamish Waterway of Seattle, Washington; and the residents affected by the Flint Water Crisis in Flint, Michigan. In each case, people have used legal authorities beyond the Clean Water Act to help improve water quality and quality of life in these communities. Equally important may be the character of the people charged with protecting human health and the environment, as the failures leading to the Flint Water Crisis clearly demonstrate.

 

My Own Private Idaho Wetland: What Will the Court Do with the Sackett Case

Patrick Parenteau

The Supreme Court has agreed to review the decision of the Ninth Circuit in Sackett v. Environmental Protection Agency. As framed by the Court, the Question Presented is: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.” Oral argument is set for the October 2022 term.

The grant of review is surprising for many reasons. No constitutional issue is presented. There is no conflict among the courts of appeal requiring intervention by the Court. The Ninth Circuit, like every other circuit that has considered the question, looked to the “significant nexus” test under Justice Kennedy’s concurring opinion in the famously fractured decision in Rapanos v. United States. Petitioners argue that this was an error and that the Ninth Circuit should have applied the test articulated by the late Justice Scalia in the plurality opinion in Rapanos, requiring that there be a “continuous surface connection” between a wetland and “a relatively permanent body of water.” However, none of the circuit courts have ruled that the “Scalia test” is controlling. Rather they have viewed the Scalia test as providing an additional basis for CWA jurisdiction in the event the Kennedy significant nexus test was not met.

Moreover, the responsible agencies, EPA and the Corps of Engineers, are presently engaged in a two-step rulemaking process to develop a new definition of “Waters of the United States.” Normally, the Court would await the outcome of a rulemaking before intervening and issuing an opinion on the scope of an agency’s authority before the agency has adopted a final rule, based on a fully developed administrative record.

Finally, petitioners are not facing any enforcement action and cannot point to any imminent threat of harm. EPA withdrew the compliance order that gave rise to the original controversy and has represented that it has no intention of taking any enforcement action. The Ninth Circuit ruled that the case was not moot because EPA might change its mind. What an agency might do in the future hardly meets the strict standards for Article III standing, and such a ruling raises questions about whether the case is even justiciable at this stage.

Now that the Court has taken jurisdiction and is unlikely to dismiss the petition as improvidently granted, the question is: what will it do? It is safe to assume that it will reverse the Ninth Circuit and reject the significant nexus test for determining what constitutes a water of the United States. How much further it goes in limiting the geographic scope of the CWA is an open question. Conventional wisdom suggests the conservative majority will adopt Justice Scalia’s test and thereby significantly shrink the scope of the Act.

Other possibilities include a narrow, fact-based decision that sends the case back to the lower courts with instructions to reconsider the question based on several factors similar to what the Court did in the County of Maui v. Hawaiʻi Wildlife Fund case in 2020.

Alternatively, should the Court adopt the Scalia test as the only permissible interpretation of the statute, what would be the consequences for water quality across the country? Some argue that the states will simply fill the gap. But the evidence is to the contrary. Over half of the states have laws on the books that prohibit regulations that are stricter than what federal law requires. There is no reason to think these states, many of whom have filed amicus briefs in support of petitioners’ position that federal jurisdiction should be radically reduced, will suddenly have a change of heart and move quickly to change their laws and make the substantial investments required to replace the regulatory framework that EPA and the Corps have administered over the past 50 years.

To the contrary, the loss of federal protection for as much as a third of the nation’s headwater streams and over half of the remaining wetlands will mean little or no regulatory protection for these vital resources and make it virtually impossible to achieve the CWA’s objective to “restore and maintain the chemical, physical and biological integrity of the nations’ waters.”

 

Tear Down This Wall: Aligning the Corps’ Environmental Review Obligations Under NEPA and the Clean Water Act for Section 404 Wetland Permits

Kevin Cassidy & Craig Johnston

Under its “public interest review” regulation, the U.S. Army Corps of Engineers (Corps) reserves to itself the power to consider a broad range of factors in determining whether it should issue Section 404 permits under the Clean Water Act (CWA). This review supplements, and is distinct from, the analysis that the Corps must engage in pursuant to the so-called “Section 404(b)(1) guidelines,” developed by the U.S. Environmental Protection Agency. The legality of the Corps’ supplemental authority is little-questioned after the Supreme Court unanimously upheld the legality of the same “public interest review” authority, in the context of the Rivers and Harbors Act, in United States v. Alaska.

The Corps has muddied these waters, though, both in its regulations and in practice. In one of its regulations under the National Environmental Policy Act (NEPA), the Corps asserts that, for private projects requiring Section 404 permits, it will only consider “those portions of [each] project over which [it] has sufficient control and responsibility to warrant Federal review.” Elsewhere in the same regulatory package, however, the Corps acknowledges that: “In all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal.” In practice, the Corps has a long history of limiting its discussion of negative impacts under NEPA to those that are generated in the relevant waters by the dredging or filling activities themselves. On the other side of the equation, however, it considers all of the benefits of the relevant project, including job growth, etc. This results in a skewed analysis under the public interest review, where the benefits of a project are given full consideration, while some negative impacts are essentially ignored.

At some level, both the Corps and the courts appear to have placated themselves by drawing a distinction between what happens under NEPA versus what happens under the public interest review. But the authors argue that this makes no sense. The purpose of NEPA is to inform agencies’ substantive decisions. The Corps is ignoring potentially significant effects, and thus does not have the information that it needs to appropriately engage in its public interest review process.

The authors conclude that the Corps should harmonize its CWA and NEPA reviews of project impacts so that whenever it relies on public interest benefits to justify issuing a permit, it must use NEPA as a tool to fully consider all of the project’s negative environmental effects, which would more faithfully fulfill the goals of NEPA and the CWA, as well as the Corps’ NEPA implementing regulations.

 

COMMENT

Waste Not, Want Not: Divergent Energy Storage Markets in California and Oregon

Benjamin U. Criswell

Energy storage resources complement renewable energy technologies and improve electricity grid reliability. But to varying degrees across the United States, the regulatory environment for energy storage providers stymies potential system-wide benefits. California likely will continue to outpace Oregon in energy storage deployment, largely because its federal-model grid administrator enables robust wholesale markets and resource aggregation opportunities. Oregon has no such grid administrator, leaving developers with poor incentives and market barriers to recovering the full value of storage resources.

 

 

NINTH CIRCUIT REVIEW CASE SUMMARIES

 

CHAPTERS

Aggregation: An Essential Tool in Achieving Imperative Environmental Enforcement, Protection, and Justice

Jessica Holmes

Climate change is no longer a distant threat. The effects from environmental degradation, exorbitant greenhouse gas emissions, and the exploitation of our natural resources are inducing catastrophic tragedies that were once preventable. For the last four decades, between 1980–2021, the United States averaged seven weather disasters per year. In 2021, there were 20 weather disasters in the United States alone. 724 lives were lost, and the cost of the damage was in the billions.

We must face the reality that we have financially incentivized industry to pollute and violate environmental regulations. The recent U.S. Supreme Court decision in West Virginia v. EPA devastated the effectiveness of EPA’s regulatory development and enforcement powers. It is now inadequate to rest our societal well-being on the hope that environmental regulations are properly developed and enforced, or on the naïve belief that technological advancements are adequately and equitably implemented. Despite the dire situation we face, entrenched with unavoidable harms due to our inaction, there remains time for us to take effective action and evade mounting loss of livelihoods, cultures, biodiversity, infrastructure, and life.

To secure a livable future for all, especially the most vulnerable, we must implement ambitious, innovative, and intersectional solutions. One such solution is aggregate litigation, which has the power to influence industry practices, enforce environmental regulations, achieve justice for disenfranchised communities, provide remedy for injured parties, and protect our environment. In light of the “Clean Diesel” litigation, industry is now aware that it can be more expensive to pollute than to internalize pollution reduction costs.

Unconventional aggregate litigation achieves our conventional environmental goals. Consumer class actions can hold industry accountable for greenwashing and reward the environmentally conscious consumer. Mass torts in response to environmental disasters can take significant strides towards achieving the greatest remedy possible for those injured and facilitate the restoration of the damaged environment. Nuisance class actions against polluting facilities can achieve justice for communities that were otherwise left without viable recourse. Antitrust class actions can hold the oil industry accountable for responding transparently and accurately to our societal shift away from fossil fuels.

Other solutions must advance in tandem, but if we continue to underutilize the power within aggregate litigation, we will continue to allow our society to face pervasive, devastating, and preventable tragedies.

 

How Clearly Does Congress Need to Waive Sovereign Immunity? Environmental Implications of the Clear Statement Rule

Gregory A. Allen

The English fiction that “the king can do no wrong” is clearly wrong, yet according to long-standing Supreme Court precedent, courts must narrowly construe waivers of sovereign immunity in favor of the sovereign. This can shield the government from liability if the statutory text is not crystal-clear, even where congressional intent of waiver is clearly discernable from statutory purpose and legislative history. As a result, many courts strictly construe waivers of sovereign immunity—be it for federal, state, or tribal governments—to the detriment of the environment.

The Ninth Circuit, for example, recently held that the Clean Water Act could not be enforced against a tribally co-operated hydroelectric facility, even though the statute waived sovereign immunity of any “person” and elsewhere defined “person” to include Indian tribes. But not all courts are so strict. Currently, the Circuit Courts of Appeals are split on the issue of whether the Clean Air Act waives federal sovereign immunity for punitive fines. Some judges have found waiver in the clear legislative history and statutory purpose, whereas others have ignored this evidence of congressional intent and have instead demanded a crystal-clear statement.

This Chapter considers how eight of the sitting Supreme Court justices would rule if the issue came before them. I investigate how each justice might vote based on their individual jurisprudences, arguing that the Court will most likely split along its ideological lines. I predict that Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Chief Justice Roberts are most likely to adhere to stricter textualism and find no waiver, and that Justices Sotomayor and Kagan would be more willing to look at legislative history to discern congressional intent and find waiver. It is by no means a foregone conclusion, however, as there are some noteworthy nuances in each of their jurisprudences. Unfortunately, although strict construction of waivers of sovereign immunity in environmental statutes makes little sense in a world threatened by climate change and environmental devastation, with the modern conservative court, it looks as if it is here to stay.