Environmental Law Commons^™

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” …

How An Environmental Commerce Clause Challenge Presaged The Decision Of Chief Justice Roberts In Nfib V. Sebelius, M. Reed Hopper

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Spending Power And Environmental Law After Sebelius, Erin Ryan

University of Colorado Law Review

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 evaluating …

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 …

A Muddy Decision - The High Court Fails To Define The Corps' Wetland Jurisdiction In Rapanos V. United States, Jill Lambird

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Permits For Puddles? The Constitutionality And Necessity Of Proposed Agency Guidance Clarifying Clean Water Act Jurisdiction, Jennifer L. Baader

Chicago-Kent Law Review

The Clean Water Act, enacted and amended in the mid-20th century, was a significant development in the protection and restoration of the Nation’s waters. The Act authorized the Environmental Protection Agency and the Army Corps of Engineers to regulate the discharge of pollutants into many types of bodies of water. However, this wide-spread jurisdictional authority was challenged by the Supreme Court in two turn of the century cases which limited the application of the Act to certain waters. In 2011, a draft guidance document was released by the Environmental Protection Agency and the Army Corps of Engineers, which would increase …

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.

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 …

Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton

Michigan Journal of Environmental & Administrative Law

Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of …

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.

Worthy Of Their Name? Addressing Aquatic Nuisance Species With Common Law Public Nuisance Claims, Christopher Grubb

Chicago-Kent Law Review

Aquatic invasive species like the Asian carp and zebra mussel have caused grave ecological and economic harm across the United States, and frequently harm rights common to the public such as boating, fishing, and bathing. Yet, Congress' efforts to address the problem through legislation have been piecemeal and unsuccessful. Historically, the common law of public nuisance served as an important tool to remedy transboundary pollution. More recently, courts have established that such public nuisance claims will be displaced where Congress has comprehensively regulated in a field. This Note explores whether public nuisance claims involving aquatic invasive species should be displaced …

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 …

Investigating 40 C.F.R. Sec. 124.55(B): State-Court Review Of Npdes Permit Certifications, Tad Macfarlan

University of Michigan Journal of Law Reform

This Note investigates the wisdom and validity of 40 CER. § 124.55(b), a Clean Water Act regulation promulgated by the U.S. Environmental Protection Agency (EPA) as part of the National Pollution Discharge Elimination System (NPDES) permitting program. The Clean Water Act provides affected states with an opportunity to certify federally administered NDES permits before issuance by EPA. State certification is a meaningful moment in water quality regulation, and judicial review of these critical decisions takes place in state courts. Unfortunately, 40 C.ER. § 124.55(b), designed to bring certainty and finality to permit-holders, effectively removes state courts from the process of …

Carbon Offshoring: The Legal And Regulatory Framework For Coal Exports, Daniel M. Firger, Robert Denicola, Katherine English, Daniel Raichel, Ross Wolfarth, Kennan Zhong

Sabin Center for Climate Change Law

This report examines the legal and regulatory framework for U.S. coal exports, focusing in particular on the significant improvements in railroad and port infrastructure that will be necessary in order to boost the volume of overseas coal shipments to the degree anticipated by recent industry projections. While existing railroads and ports have the capacity to handle current coal export volumes, much more infrastructure will be needed to meet surging foreign demand. A wide variety of new construction projects are under consideration to expand capacity and relieve congestion. These range from double-tracking existing Class I railroad rights of way to dredging …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers, Jr., Jason Derosa, Sarah Reyneveld

Articles

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann

Articles

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are …

The Legal-Political Barriers To Ramping Up To Hydro, Dan Tarlock

Chicago-Kent Law Review

Hydroelectric energy is the oldest major source of non-carbon, renewable energy and is the only conventional renewable resource in the current energy mix. Increased hydro capacity would seem to be a key element of any United States energy policy designed to promote the greater use of renewable resources. However, for several decades hydro has been perceived as a mature, fully developed technology. This article argues that any effort to stimulate substantial new hydro capacity will face a series of environmental legal and policy constraints. Efforts to adapt to global climate change will further complicate efforts to increase hydro electric generation. …

Slides: Development Of Shale: Water Resource Concerns And Policy Considerations, Katy Dunlap

Shale Plays in the Intermountain West: Legal and Policy Issues (November 12)

Presenter: Katy Dunlap, Eastern Water Project Director, Trout Unlimited, Inc., Burdett, NY

24 slides

Slides: Evolving Policy On Shale Plays, John Martin

Shale Plays in the Intermountain West: Legal and Policy Issues (November 12)

Presenter: John Martin, Crowell & Moring, LLP, Washington, DC

17 slides

Ecosystem Services And The Clean Water Act: Strategies For Fitting New Science Into Old Law, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Article explores the administrative reform potential that exists for integrating new knowledge about ecosystem services into Clean Water Act (CWA) regulatory programs as an example for all environmental laws. Part II of the Article reviews the relevant general rules of federal administrative law governing agency interpretation of the policy space available under statutory authority for integrating new science into decision making. Part III then explores the strategies an agency such as EPA can use under those rules to integrate the concept of ecosystem services into regulatory programs by searching for statutory provisions to support what I call "direct protection" …

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights , Allison M. Dussias

Cleveland State Law Review

The Article examines three pathways recently followed by tribes and Native communities in seeking protection of their rights to valued subsistence resources focusing on the legal principles and theories on which they have relied, including treaty rights, environmental law, tribal sovereignty, and international human rights law, as they have followed their different pathways.

Using The Clean Water Act To Protect Our Ocean's Biodiversity, Kate Halloran

Sustainable Development Law & Policy

No abstract provided.

Crimes On The Gulf, David M. Uhlmann

Articles

The explosion that rocked the Deepwater Horizon oil rig on April 20, 2010, killed 11 workers and triggered the worst environmental disaster in U.S. history. After six weeks of failed efforts to stop the gushing oil and protect the fragile ecosystem of the Gulf of Mexico and the communities along its shores, President Obama pledged on June 1 that “if our laws were broken . . . we will bring those responsible to justice.”

Slides: Innovative Best Practices For The Western Slope: Stormwater Management Solutions And Philosophy For The Oil And Gas Industry, Kyle N. Schildt

Best Practices for Community and Environmental Protection (October 14)

Presenter: Kyle N. Schildt, P.E., LT Environmental, Inc.

12 slides

Agenda: Western Water Law, Policy And Management: Ripples, Currents, And New Channels For Inquiry, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

In many pockets of the American West, stresses and demands on water resources are overwhelming our capacity to effectively manage change and accommodate the diversity of interests and values associated with our limited water resources.

This event will offer an opportunity for lawyers, policymakers, and water professionals to engage the experts on the challenges and emerging solutions to the most pressing water policy and management issues of the day.

Slides: Finding Flows: Fish Still Need Water Everyday, Melinda Kassen

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Melinda Kassen, Director of the Western Water Project, Trout Unlimited

12 slides