Law Commons^™

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2015, the United States Court of Appeals for the Eleventh Circuit decided novel issues in two cases under the Clean Water Act (CWA). In Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, the court held remand of a Corps of Engineers permitting decision for reconsideration without also vacating the permit is a remedy within the court's discretion and was appropriate under the circumstances. In Riverkeeper v. U.S. Environmental Protection Agency, the court held appellate review of a non-final response by the Environmental Protection Agency (EPA) to a petition to withdraw Alabama's authority to administer the National Pollution …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2014, the United States Court of Appeals for the Eleventh Circuit, addressing an issue of first impression, rejected the district court's use of a Lone Pine case-management order as a means of testing the sufficiency of the plaintiffs' pleadings in a state law environmental torts case. The court also interpreted Florida law to mean that plaintiffs are not required to allege that groundwater contamination exceeded regulatory maximum contaminant levels for drinking water to maintain their claims and that they could recover "stigma" damages to their property without alleging actual contamination. The United States District Court for the Middle District …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Navigable Waters” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the third in a series of five, examines the meaning of “navigable waters” under the Clean Water Act. It traces the traditional judicial interpretation of navigable waters and how Congress and EPA attempted to extend its meaning, then examines how the term has been applied in the context of tributaries and wetlands, isolated waters, groundwater, and EPA’s unitary theory of navigable waters. The author then analyzes EPA and the Corps’ 2014 proposed amendments to the definition of “waters of the United States,” and concludes that those amendments may resolve much of the interpretive crisis.

Legal Tools For Climate Adaptation Advocacy: Clean Water Act Permitting And Funding Programs, Channing R. Jones

Sabin Center for Climate Change Law

Climate change imperils the quality of water resources and aquatic ecosystems by introducing or exacerbating supply challenges and pollution threats. Existing legal frameworks, including permitting and grant programs, can incorporate climate change adaptation into the way we protect water. In particular, the Clean Water Act – the primary tool used nationwide to protect surface waters from pollutant discharges and fill activity – can be used to promote climate change adaptation in a number of ways.

The Clean Water Act was enacted in 1972 and amended in 1977 and 1987. The statute is principally administered by the U.S. Environmental Protection Agency, …

An Analysis Of Senator Mcconnell's Letter Urging States Not To Comply With Epa's Clean Power Plan, Daniel Selmi

Sabin Center for Climate Change Law

On numerous occasions Senator Mitchell McConnell, the Senate Majority Leader, has attacked the upcoming Clean Power Plan regulations that the Environmental Protection Agency (EPA) is scheduled to issue in June of this year. Most notably, on March 19, 2015, he sent a letter to the National Governors Association urging the governors of all fifty states not to prepare state plans in response to those regulations. In that letter he laid out what he termed his “serious legal and policy concerns” regarding the EPA proposal. The letter received wide publicity.

Daniel Selmi has written an essay analyzing legal statements made by …

Scale Economies, Scale Externalities: Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Scholarly Publications

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of scaling up. But these laws are not widely observed nor rigorously enforced, which upsets this balance and gives large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture is …

A Primer: Air And Water Environmental Quality Standards In The United State, Jason J. Czarnezki, Siu Tip Lam, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Preservation Is A Flawed Mitigation Strategy, Jessica Owley

Journal Articles

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it …

A Primer: Air And Water Environmental Quality Standards In The United States, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

This article, designed as a resource for environmental law professors both domestically and abroad, addresses how environmental quality standards are created, implemented, and enforced in the United States. The answers to these questions are useful to those teaching U.S. environmental law and international scholars, especially in the European Union, who are faced with the challenge of creating new environmental quality standards under both national and EU directives. It must be noted that this project is complicated by the federal system within the country, and, thus, attention must be devoted to the federal-state relationship. In fact, the major relevant statutes, the …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Point Source” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the fourth in a series of five, examines the continuing struggles to define “point source” and “nonpoint source” under the Clean Water Act. State regulation of nonpoint sources is neither pervasive nor robust, and most continuing water pollution problems can be traced primarily to nonpoint sources. EPA should define nonpoint sources by regulation and begin to expand the definition of point source by incorporating established case law and Agency practice to bring more nonpoint sources into the point source definition.

Slides: Session 2, Water Supply And Quality: The Regulatory Framework, Richard E. Schwartz

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Richard E. Schwartz, Crowell & Moring LLP

38 slides

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

UF Law Faculty Publications

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …

Remedying Regulatory Diseconomies Of Scale, Hannah J. Wiseman

Scholarly Publications

Rules in the modern administrative state tend to lag behind reality, and a key contributor to this stickiness – the volume of regulated activity – is largely ignored. When legislators or agency staff initially write rules to constrain the externalities of an activity, they assume that the activity will occur at a particular scale. Based on the known impacts at this scale, policymakers and regulators balance the harms of the regulated activity against the costs of regulation to industry, striking a compromise within the chosen rule or choosing to not regulate at all.

If the activity later expands from this …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Scholarly Publications

In National Federation of Independent Business v. Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending-power grounds, rounding out the “New Federalism” limits on federal power first initiated by the Rehnquist Court in the 1990s. The new Sebelius doctrine constrains the federal spending power in contexts involving changes to ongoing intergovernmental partnerships with very large federal grants. However, the decision gives little direction for …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Scholarly Publications

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Addition” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Pollutant” Element Of The Federal Water Pollution Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the second in a series of five, examines the meaning of “pollutant” under the Clean Water Act. Congress and EPA have defined “pollutant” to mean a list of specific substances and broad categories of materials and wastes discharged into water, e.g., “biological materials” and “chemical wastes.” The definition is broad enough to encompass virtually all substances associated with human activity that are discharged to water, regardless of whether the substances cause pollution or are produced through human endeavor. Therefore, “pollutant” is rarely a limiting element. Instead, the issues with the definition of “pollutant” primarily address whether it includes …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2012, the United States Court of Appeals for the Eleventh Circuit, deciding an issue of first impression, held that a party that enters a consent order to settle potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not entitled to pursue a cost recovery action against other potentially responsible parties under section 1073 of the Act, but may only seek contribution from those parties under section 113(f) of the Act. The court also affirmed a decision by the Bureau of Ocean Energy Manage- ment to approve an exploration plan for oil and gas drilling in …

Did We Miss The Boat? The Clean Water Act And Sustainability, Ryan P. Murphy

Law Student Publications

This comment argues for more political accountability and more scientific consideration when addressing water quality. It begins, in Section I, with an overview of the Clean Water Act, its distinction between point and nonpoint sources, and the connection between nonpoint source pollution, water use, and land use. Section II considers the tension between beneficial uses and environmental degradation by taking a look at a dramatic example of hydrologic modification. 5 Section III considers an effluent dominated waterbody-the Los Angeles River-and the difficulties that regulating point sources to the river presents. Finally, Section IV suggests a different approach-one that is modeled …

Digest Of Hydraulic Fracturing Cases, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Letting Nature Work In The Pacific Northwest: A Manual For Protecting Ecosystem Services Under Existing Law, Robert L. Glicksman, Robert W. Adler, Daniel J. Rohlf, Robert R.M Verchick, Yee Huang

GW Law Faculty Publications & Other Works

In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. As ecologists learn more about the complex and dynamic interactions that produce valuable ecosystem services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. An ecosystem services approach integrates advances in ecology with the law. It fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it …

Compartmentalized Thinking And The Clean Water Act, Christine A. Klein

UF Law Faculty Publications

Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …

Slides: Colorado Law: Protecting Water Quantity And Quality, Alan E. Curtis

Monitoring and Protecting Groundwater During Oil and Gas Development (November 26)

Presenter: Alan E. Curtis, White & Jankowski, LLP

23 slides

Slides: Colorado’S Groundwater Protection Program, Andrew Ross

Monitoring and Protecting Groundwater During Oil and Gas Development (November 26)

Presenter: Andrew Ross, Colorado Department of Public Health and Environment

22 slides

Manure In The Bay: A Report On Industrial Animal Agriculture In Maryland And Pennsylvania, Rena I. Steinzor, Yee Huang

Faculty Scholarship

This report provides a substantive and detailed look at the concentrated animal feeding operations (CAFO) and other animal feeding operations (AFO) programs in Maryland and Pennsylvania, as well as a general overview of the federal CAFO program. The information in this report was gathered through publicly available resources as well as a series of interviews with agency officials and other individuals who work with the animal agricultural sector. This report identifies concrete and practical recommendations for improving how the waste generated by animal industrial agriculture is managed and controlled by EPA, the Maryland Department of Environment (MDE), and the Pennsylvania …

Water Quality Trading In The Chesapeake Bay, Rena I. Steinzor, Nicholas W. Vidargas, Shana Campbell Jones, Yee Huang

Faculty Scholarship

In May 2009, President Obama issued an Executive Order on Chesapeake Bay Protection and Restoration, declaring the Bay a national treasure and signaling that EPA will play a strong role in leading Bay cleanup. The order marked a dramatic departure, offering the promise of federal leadership on Bay cleanup. The following year, EPA issued a Chesapeake Total Maximum Daily Load (TMDL), a pollution budget for Bay states. Faced with a federal commitment, the states have begun work on complying with the TMDL. One Bay-wide approach under consideration is a market-based initiative, water quality trading, that would allow polluters to trade …

The Judicial Assault On The Clean Water Act, Mark Squillace

Publications

No abstract provided.

Improving Water Quality Antidegradation Policies, Robert L. Glicksman, Sandra B. Zellmer

GW Law Faculty Publications & Other Works

The Clean Water Act’s principal goal is to “restore and maintain” the integrity of the nation’s surface water bodies. The Act’s adoption was spurred largely by the perception that unchecked pollution had caused the degradation of those waters, making them unsuitable for uses such as fishing and swimming. At the time Congress passed the statute, however, some lakes, rivers, and streams had water quality that was better than what was needed to support these uses. An important question was whether the statute would limit discharges with the potential to impair these high quality waters. EPA’s anti-degradation policy sought to ensure …

Wetlands, Property Rights, And The Due Process Deficit In Environmental Law, Jonathan H. Adler

Faculty Publications

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands …

Back To Basics: An Agenda For The Maryland General Assembly To Protect The Environment, Rena I. Steinzor, Lee Huang

Faculty Scholarship

Maryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny. For example, Maryland charges less than Pennsylvania and Virginia for some pollutant discharge permits, and the state does not assess permit fees for municipalities despite the resources required to administer those permits. The penalties for violating the Clean Water Act have remained chronically below the level allowed under federal law. Maryland law does not require MDE to penalize polluters for the full amount of the economic gain they achieved by flouting the law, unlike laws in …