Tag: environmental law review syndicate

Reinstating CERCLA as the “Polluter Pays” Statute With the Circuit Court’s Mutually Exclusive Approach

Reinstating CERCLA as the “Polluter Pays” Statute With the Circuit Court’s Mutually Exclusive Approach

Brianna E. Tibett, Vermont Law School. This post is part of the Environmental Law Review Syndicate.   INTRODUCTION The purpose of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is to facilitate the “timely cleanup of hazardous waste sites and to ensure that the [cleanup costs […]

FERC Relicensing and its Continued Role in Improving Fish Passage at Pacific Northwest Dams

FERC Relicensing and its Continued Role in Improving Fish Passage at Pacific Northwest Dams

Skylar Sumner, Lewis & Clark Law School. This post is part of the Environmental Law Review Syndicate.  I. Introduction The history of the American west is inextricably intertwined with damming rivers.[1] Whether for navigation, irrigation, or hydroelectric power, nearly every American river has been dammed.[2] In […]

MS4 Regulation and Water Quality Standards

MS4 Regulation and Water Quality Standards

Matt Carlisle, Vermont Law School, JD Candidate 2017

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.


1. Introduction

Storm water is a major polluter. As one judge put it, “Storm water runoff is one of the most significant sources of water pollution in the nation, at times ‘comparable to, if not greater than, contamination from industrial and sewage sources.’”[1] Storm water “runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients (phosphorous and nitrogen), heavy metals and other toxic pollutants, pathogens, toxins, oxygen-demanding substances (organic material), and floatables.”[2] When it storms or rains, “storm water runoff carries these pollutants into nearby streams, rivers, lakes, estuaries, wetlands, and oceans.”[3] This creates an immediate and dire need to regulate effluent from polluting storm water systems.

Municipal storm water regulation has and is continuing to become a regulatory farce. Sloppy legislative language and short cited court rulings have dulled the tools necessary to curb polluted effluent from contaminating municipal storm water. Due to the legislative carelessness and misguided case law, municipal storm water regulation is treated as almost exempt from the Clean Water Act (CWA) because municipal storm water is not required to strictly comply with water quality standards. This paper proceeds as follows. In part one, the discussion will focus on the regulatory mechanisms of industrial and municipal storm water. Part two will discuss the judicial interpretations of industrial and municipal storm water. Part three discusses the counter arguments to the Ninth Circuit’s decision in Defenders. Finally, part four concludes with the common sense interpretation of municipal storm water regulation.

2. Storm Water regulation

a. General Storm Water Regulation

According to the EPA “[s]tormwater runoff is generated from rain and snowmelt events that flow over land or impervious surfaces, such as paved streets, parking lots, and building rooftops, and does not soak into the ground.”[4] Consequently, “[t]he runoff picks up pollutants like trash, chemicals, oils, and dirt/sediment that can harm our rivers, streams, lakes, and coastal waters.”[5] Storm water runs into municipal or industrial conveyance systems and is discharged into the nearest water body.[6]

The storm water conveyance system is regulated under the CWA’s National Pollution Discharge Elimination System (NPDES) authority because polluted storm water is collected, conveyed, and eventually discharged from a point source.[7] The NPDES program controls all effluents that discharge a pollutant or multiple pollutants through a permit.[8]  NPDES permits “contain limits on what you can discharge, monitoring and reporting requirements, and other provisions to ensure that the discharge does not hurt water quality or people’s health.”[9] A NPDES permit specifies “an acceptable level of a pollutant or pollutant parameter in a discharge.”[10]

NPDES permits control effluents through effluent limitations.[11] There are two types of effluent limitations.[12] The first type is technology-based effluent limitations or TBELs.[13] These types of limitations are based on the available technology and cost of the technology that removes the specific pollutants in the effluent.[14] The second is water-quality-based effluent limitations or QBELs. QBELs are developed to achieve compliance with the established water quality standards specific to each waterbody.[15] According to §1313 of the CWA, all states must establish water quality standards for all bodies of navigable water within the state’s jurisdiction.[16] Therefore, QBELs are based on standards the state establishes for the individual water body.[17] NPDES permits include QBELs if TBELs are not enough to ensure compliance with water-quality standards.[18]

QBELs are the safety net in the NPDES permit system.[19] QBELs ensure water quality standards when the technological limitation does not guarantee water quality attainment.[20] The CWA states that “each NPDES permit shall include… any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318, and 405 of CWA necessary to … [a]chieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.”[21] Thus, no matter which effluent technology the program mandates, each NPDES permit must require effluent limitations necessary to achieve the state established water-quality standards.

Storm water effluent limitations are governed by 33 U.S.C. §1342(p). Storm water is divided into two categories: industrial and municipal.[22] According to the act, “[p]ermits for discharges associated with industrial activity shall meet all applicable provisions of this section and §1311 of this title.”[23] Municipal storm water, on the other hand, “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.”[24] The two, understandably, have entirely different mandates on the effluent limitation required by the Act.

b. Industrial Storm Water:

Industrial storm water must comply with effluent limitations like all other effluent limitations in the NPDES program. According to the Code of Federal Regulations, “[s]torm water discharge associated with industrial activity means the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.”[25] Industrial storm water is governed by §1311 of the CWA, which specifies technology- and water-quality-based requirements.[26] The type of pollutant the effluent contains dictates industrial storm water’s effluent limitation.[27] The CWA §1311 mandates that a permit must incorporate both technology and water-quality requirements.[28]

Technology-based effluent limitations are governed by the type of pollutant the effluent contains and reflect the levels of reduction through the use of pollution-control technology.[29] For example, if the pollutant is a toxic or nonconventional pollutant, it must adhere to the “best available technology economically achievable” or BAT.[30] Additionally, if the effluent emits a conventional pollutant then the technology-based limitations are either the “best practicable control technology currently available” (BPT) or “best conventional pollutant control technology” (BCT).[31] In addition to technology-based pollution reduction, the permits must also adhere to QBELs, as mentioned above.[32] Therefore, the CWA requires industrial storm water to adhere to a technologically-based effluent limitation that correlates to the type of pollutant the Industry emits along with water quality based effluent limitations.

c. Municipal Storm Water:

Municipal storm water conveyance systems or municipal separate storm sewer systems (MS4) are regulated “to the maximum extent practicable.”[33] Unlike the TBELs in §1311, Congress did not define what “maximum extent practicable” (MEP) meant. The MEP standard includes “management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.”[34] All MS4s must develop and implement storm water management plans in order to reduce pollutants to the maximum extent practicable.[35] Thus, the storm water management plans are the mechanism to reduce pollutants under the MEP effluent standard.

The storm water management plans (SWMP) implement management practices, control techniques, and system design and engineering methods designed to reduce pollutants to MEP. Phase I and II SWMPs differ, but have six core elements or best management practices (BMPs) that overlap.[36] The two SWMPs include some variation of public education, public participation, illicit discharge detection, construction and post-construction runoff control, and municipal housekeeping. Once a SWMP is implemented it goes through what the EPA has coined as the iterative process.[37] The iterative process is a review and assessment of the MS4’s BMP effectiveness.[38] After the review, MS4s are supposed to revise their BMPs with the ultimate goal of meeting WQSs.[39] Currently, there are no maximum iterations or limits in the Act or EPA guidelines about how many times a SWMP can fail to attain WQSs.[40]

MS4s regulated to the MEP standard achieve the standard by storm water management plans that implement best management practices in a narrative form, not a numeric form.[41] There are no numeric baseline criteria in the MEP standard like there are in the TBELs in §1311. Therefore, the MS4 permitting process has no numeric mandates. Therefore, water quality standards (WQS) are the only baseline that exists within the MEP standard. Thus, WQS’s are the only way to “control [] such pollutants” from municipal storm water because without a concrete standard, there is no measure of control.[42]

3. Judicial Interpretations

a. Judicial Interpretation of Industrial Storm Water

Industrial storm water must conform to TBELs that are based on the effluent’s pollutant and must adhere to water-quality-based standards. When analyzing industrial storm water, the court addresses the effluent limitation accounting for both §1342[43] and §1311[44]. In California Sportfishing Prot. All. v. River City Waste Recyclers, LLC, the district court held that “[f]acility operators must meet the applicable standards for discharge of pollutants using the best available technology economically achievable (BAT) and the best conventional pollutant control technology (BCT) to prevent and reduce pollutants in storm water discharges, under Clean Water Act section 301, which regulates pollutant discharges, and section 402….”[45] According to the court, industrial storm water’s technological limitation correlates with the type of pollutant just like any other effluent under §1311.[46]

Additionally, in Santa Monica Baykeeper v. Kramer Metals, Inc, the district court held that the NPDES “[g]eneral Permit implements the requirements of the Clean Water Act through both technology-based provisions and water quality-based standards.”[47] Courts reinforce the pollutant-based technological limitation and the water-quality effluent limitation, treating industrial storm water just like every other effluent limitation. Just as the legislation mandates, industrial storm water must comply with TBELs and QBELs established in §1311. Industrial standards are concrete and held to both the technology- and water-quality-based limitations, with emphasis on a strict compliance to WQSs.[48] The same cannot be said for municipal storm water.

b. Judicial Interpretation of MS4’s

i. NRDC v. EPA

Unfortunately, judicial interpretations of MS4’s MEP standard has led to an effluent limitation system that has no teeth. This body of law started in NRDC v. EPA.[49] NRDC challenged the EPA’s storm water regulations alleging that it did not develop a new, substantive standard but instead “wrote vague regulations containing no minimum criteria or performance standards” thus failing their mandate from the 1987 amendments.[50] EPA contended that narrative effluent limitations in MS4 permits are acceptable limitations.[51] Thus, according to EPA, MEP’s effluent limitation can be a narrative limitation instead of numeric.[52]

The court based most of its reasoning on the differences between industrial and municipal storm water rules. The court in NRDC stated that “municipal storm water dischargers were subject to the same substantive control requirements as industrial and other types of storm water” before 1987. When amending the CWA, Congress “retained the existing, stricter controls for industrial storm water dischargers but prescribed new controls for municipal storm water discharge.”[53] Also, the court held that “Congress could have written a statute requiring stricter standards, and it did not.”[54] The Court continued by stating, “Congress did not mandate a minimum standards approach or specify that EPA develop minimal performance requirements.”[55] For all of these reasons, the court deferred to EPA’s narrative standard.

Consequently, MEP’s effluent limitation became a narrative limitation. But the court’s ruling in this case became the jump-off point for a later ruling that abrogates water-quality standards in MS4 permits.[56] There are two important things that we need to take from this ruling. First, the decision in NRDC decided to defer to EPA’s interpretation that narrative effluents are acceptable effluent limitations for MS4s.[57] Second, the court quotes EPA rules in 55 FR 47990-01, which discusses the best way to achieve water quality standards through narrative limitations.[58] Therefore, the document that the court defers to for its ruling asserts the use of water-quality standards in MS4 permits, which contradicts the Ninth Circuit’s later decision in Defenders.

ii. Defenders of Wildlife v. Browner

 In Defenders of Wildlife v. Browner, the Ninth Circuit eventually held that there was no strict requirement for MS4s to adhere to water-quality standards.[59] Defenders of Wildlife (Defenders), a citizen group, sued the EPA alleging, among other things, that “EPA acted arbitrarily, capriciously, and contrary to law in issuing NPDES storm sewer permits” to five Arizona municipalities.[60] Defenders alleged that the five permits the EPA issued to municipalities “do not assure compliance with water quality standards” because they use BMPs and not numeric water quality-based effluent limitations.[61] Furthermore, Defenders asserted that the CWA “explicitly requires all NPDES permits to contain whatever limitations are necessary to assure compliance with water quality standards (WQS) in the receiving river or lake.”[62] Defenders argued that EPA waived “the requirement to meet water quality standards” and that the waiver conflicted with the Act’s fundamental goal but also with the “Act’s longstanding approach of requiring dischargers to meet both technology-based and water quality-based limits.”[63] Defenders did not believe that the BMPs and narrative effluents would achieve water-quality standards and contended that all MS4 permits must adhere to WQSs through numeric criteria.

The EPA conceded “that the Municipalities’ storm water NPDES permits must contain requirements as stringent as necessary to meet state water quality standards.”[64] The EPA also stated that “[t]o exempt municipal storm water discharge permits from compliance with water quality standards undercuts the goals of the 1987 amendments and the Clean Water Act as a whole.”[65] But, the EPA disagreed with the premise that numeric limitations are the only way to achieve water quality standards. The EPA asserted that the narrative “permits include effluent limitations as stringent as necessary to meet applicable water quality standards” through the MS4’s storm water management plans.[66] EPA claimed that the effluent limitations “may include ‘best management practices’ to control or abate the discharge of pollutants.”[67] Thus, EPA contends that NPDES permits must comply with water quality standards, but that BMPs in the storm water management plans are sufficient to achieve those standards.

The Ninth Circuit sided with neither party stating that both parties ignore statutory precedent and both parties’ readings would render the section superfluous.[68] The Ninth Circuit held that MS4s are not subject to strict WQS adherence because Congress was not as strict with municipal storm water as Congress was with industrial storm water.[69] The court based it reasoning on several arguments. First, the court stops at Chevron step 1, holding that Congress’s intent was clear because it left out §1311 in the MEP standard.[70] Second, the court states that the “no-strict” standard gives meaning to the entire statute and does not render any part of the act superfluous.[71] Third, the court states that their ruling harmonizes with their previous decision in NRDC.[72] Thus, according to the court, MS4s do not have a strict compliance mandate with WQSs, making it not a mandate or requirement at all.[73]

4. Counterarguments to the Ninth Circuit’s Decision

The court is incorrect on all of its reasons. First, the court applies a Chevron analysis, but the court stops at Chevron step 1, holding that Congress’s intent was clear because it left out §1311 in the MEP standard.[74] Confusingly, the court takes aim at industrial storm water and establishes that 402(p) “expressly required industrial storm-water discharges to comply with the requirements of 33 U.S.C. § 1311.”[75] Logically, as the court pointed out (as with all NPDES permits) this mandates that “industrial discharges must comply strictly with state water-quality standards.”[76] Then, the court emphasizes that Congress did not chose the same language and “required municipal storm-sewer discharges ‘to reduce the discharge of pollutants to the maximum extent practicable’” or MEP standard.[77]

The court concluded that both EPA and Defenders “ignored precedent respecting the reading of statutes.”[78] The court quoted Russello v. United States, reasoning that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”[79] The court applied a pseudo expressio unius form of interpretation and reasoned that it was “Congress’ choice to require Industrial storm-water discharges to comply with 33 U.S.C. § 1311, but not to include the same requirement for municipal discharge.”[80] And when the court read these two sections together, the court concluded that “33 U.S.C. § 1342(p)(3)(B)(iii) does not require municipal storm-sewer discharges to comply strictly with 33 U.S.C. § 1311(b)(1)(C).”[81] The court continues by stating that “33 U.S.C. § 1342(p)(3)(B) replaces the requirements of §1311 with the requirement that municipal storm-sewer dischargers ‘reduce the discharge of pollutants to the maximum extent practicable’” and that “in the circumstances, the statute unambiguously demonstrates that Congress did not require municipal storm-sewer discharges to comply strictly with 33 U.S.C. §1311(b)(1)(C).”[82]

The court mistakenly ignores that § 402(p) is a pollution-based effluent limitation mandate, not just a mandate to water-quality based standards. Industrial storm water effluent is the same as any other effluent from industry. If the court considered this aspect of industrial storm water, it would realize that the act was not just referring to WQSs. The act, in §402(p) mandates industrial storm water to adhere to the pollutant-based effluent limitations in §1311. As stated above, TBELs are based upon the type of pollutant and the correlating technology.[83] Therefore, it is the intent of Congress that industrial storm water be treated like any other effluent limitation. What is not clear is how industrial storm water’s §1311 mandate affects municipal storm water.

The court’s interpretation leaves two issues. First, by addressing other parts of the act, as the court does in its reasoning, it seems that the congressional intent was to ensure that WQSs are met. As discussed the below, other parts in the act point toward this interpretation. Second, even if the intent is not easily discerned, it means there is an ambiguity, thus requiring the court to go to step two of the Chevron Analysis. If the court went to step two, it would have to defer to the EPA’s interpretation, which concludes that WQSs are necessary requirements to the NPDES permit.[84]

It seems logical that the MEP standard is the technology based standard for municipal storm water. And that MEP does not, however, replace the water quality based standard that is required by the Act and Code.[85] Intent in favor of water quality standards is readily ascertained from the Act because looking at the CWA as whole, all parts of the Act point toward the intent to mandate strict compliance of water quality standards. First §1311(c), the mechanism that controls point source pollution, explicitly states, “in order to carry out the objective of this chapter there shall be achieved … any more stringent limitation, including those necessary to meet water quality standards.”[86] Second, 40 CFR 122.44 explicitly mandates that NPDES permits must include “any requirements in addition to or more stringent than promulgated effluent limitations guidelines … necessary to … [a]chieve water quality standards established under section 303 of the CWA.”[87] Third, the act mandates that states enact water quality standards for the purpose of NPDES permits, effluent limitations, and ultimately water quality improvement.[88] Thus, all parts of the act show congressional intent that favors strict compliance to water quality standards.

Furthermore, the court ignores the context of the rest of the section, especially §1342(p)(2)(E). The Act states that if “the Administrator or the State … determines that the storm water discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States” the Administrator or State can mandate a NPDES permit from the storm water discharger.[89] This particular section is called Residual Designation Authority, and if the Administrator determines that a non-regulated storm water discharger contributes to a water quality standard violation, the EPA or Administrator can bring the discharger within the NPDES permitting authority.[90] It would be illogical, at best, to include a way to bring a storm water discharger that has not been named in the Act under the NPDES permitting authority for WQS violations and yet allow a no-strict WQSs approach to a storm water discharger already under the NPDES permitting authority. Thus, the storm water discharger that is originally unregulated is strictly held to WQSs; yet, according to the Ninth Circuit, MS4s are not strictly held to WQSs even if they are specifically regulated under the CWA.[91] Section 1342(p)(2)(E) demonstrates the illogical nature of allowing MS4s, a specified discharger under the CWA, to fail to strictly adhere to WQSs when the Act can mandate a non-CWA-specified storm water discharger to attain a permit for WQS violations.

EPA has also explicitly expressed, in a legal memorandum in addition to their brief before the Ninth Circuit, that MEP was not supposed to supplant WQS attainment.[92] In 1991, a legal opinion issued by EPA’s general counsel explained that the MEP standard was only meant to modify the technology-based requirement of §301.[93] The opinion states that one can read §1342 (p)(3)(B)(iii) “as modifying only technology-based requirements for municipal storm water (i.e., MEP substitutes for BAT/BCT); any WQ-based requirements would still be necessary in a municipal permit, even if those requirements are more stringent than ‘practicable.’”[94]

According to the legal opinion, the MEP is the new technology standard used for MS4s, however, WQSs still apply.[95] EPA’s general counsel also stated, “[t]he only interpretation by EPA to date, contained in its proposed rulemaking, has been that WQS would continue to apply to permits for municipal storm water discharges.”[96] Therefore, MEP is the technology used to attain the WQSs that the states have set. In 1996, EPA implicitly affirmed their legal opinion stating that numeric effluent limitations would be substituted by “best management practices … and expanded or better tailored BMPs in subsequent permits … to provide for the attainment of water quality standards.”[97] According to EPA, WQSs have always been part of the NPDES permit requirements regardless of the category of discharge.

Furthermore, if congressional intent is not clear, courts must defer to EPA. If congressional intent is ambiguous, Chevron analysis mandates that EPA’s interpretation should stand as long as the interpretation is not arbitrary or capricious.[98] Since EPA’s view on mandating WQSs as part of MS4s is within its scope of the CWA and serves the purpose of the Act, the court will have no choice but to defer to EPA. Thus, regardless of intent or ambiguity, water-quality standards must be part of every MS4 NPDES permit and must require strict compliance.

The second argument that the court mentions is that the ‘no-strict’ standard gives meaning to the entire statute and does not render any part of the act superfluous.[99] The court states that if it applies a strict water quality mandate on MEP, then it would render §1342(p)(3)(B)(iii) meaningless because “the more stringent requirements of that section always would control,” thus making MEP superfluous.[100] The court misses its mark on three accounts.

First, the court’s reasoning does not pass logical muster. The court contends that because §1311(c) will always be stricter, it will render the MEP standard superfluous. The court provides no evidence of this. Additionally, there are plenty of occasions where WQSs are more stringent than the effluent limitations. Such is the purpose of WQSs; they are ambient requirements that act as a safety net when effluent limitations are not enough.[101] The court misinterprets the Act. WQSs are the baseline standard.[102] If the effluent limitation is not enough, then there needs to be stricter controls of that very effluent limitation. For example, if a MS4 is not meeting WQSs, then the MEP standard it uses will be stricter, just like 40 CFR 122.44 requires. But, the standard is still MEP.

Second, the court’s ruling renders parts of the CWA superfluous in its ruling. As stated above as examples of congressional intent, there are three main parts of the CWA that the court renders superfluous. First, it renders §1311(c) meaningless because it states that it does not apply to MS4s even though the section specifically states that any more stringent limitations necessary to meet water-quality standards must be included in NPDES permits in order to carry out the objectives of the Act.[103] Second, the court ignores that 40 CFR § 122.44 explicitly mandates that NPDES must have requirements that ensure WQS attainment.[104] Finally, the court ignores that the Act mandates that states enact water-quality standards.[105] Thus, in an attempt to not render the MEP standard superfluous, the court renders three other substantial parts of the Act superfluous.

In addition to rendering other parts of the Act superfluous, the court renders the MEP effectively superfluous. By creating the no-strict standard, courts have interpreted that WQSs play no part in MS4 permits. As an example of this consequence in action, in Maryland Dep’t of Environment v. Anacostia Riverkeeper, a state court held that MS4s do not need to adhere to WQSs, period.[106] Environmental groups challenged NPDES permits that were issued to several counties by the Maryland Department of the Environment (MDE), contending that the NPDES permits failed to comply with the state water-quality standards or the TMDL limits.[107] In the opinion directly quoting the Ninth Circuit’s Defender language, the court expressly stated, “MS4s are not subject to the requirement of imposing effluent limitations ‘necessary to meet water quality standards.’”[108] The court stated that the MEP standard established by Congress is a “broad requirement for MS4s and that 33 USC 1342(p)(3)(B)(iii) ‘imposes no minimum standard or requirement on MDE other than to establish controls for MS4s to reduce the discharge of pollutants.’”[109] The holding is an impermissible extension of Defenders, and contradicts the clear mandate that all NPDES permits must adhere to WQSs.[110]

Furthermore, courts are ignoring the purpose of the storm water management plans because there is no strict compliance to WQSs. In Jones Creek, a district court held that “the EPA’s regulations state that this requirement [SWMPs] is satisfied merely by implementing the best management practices listed in the MS4 permit” and “[w]hether those BMPs actually reduce pollutants in the stormwater is immaterial.”[111] The court concluded that because a MS4 permit only requires the county “to ‘implement and enforce’ it’s [sic] SWMP, and because the undisputed facts on the record are that it has implemented and enforced its SWMP to some degree, Columbia County has not violated its NPDES permit by failing to enforce the SWMP as a matter of law.”[112] This court held that as long as a MS4 has a SWMP, whether that plan reduces pollutants is irrelevant. Thus, according to this court, SWMPs are nothing more than a meaningless, or as the Ninth Circuit puts it, superfluous pieces of paper whose impacts are irrelevant. Therefore, without WQSs as the baseline, courts can view SWMPs as superfluous. Furthermore, without WQSs as a strict baseline standard, the MEP is effectively rendered superfluous and meaningless.

The final reason the court gives for its ruling is that its decision is supported by the NRDC case. But requiring MS4s to adhere to WQSs is also supported by the court’s decision in NRDC. The court held that industrial and municipal are different, which the two are. The court also held that industrial’s effluent limitations are stricter, which they are. Industrial storm water has to adhere to pollutant-based technology standards and water quality based standards. MS4s just have to adhere to water-quality-based standards. There is no conflict with the Ninth Circuit’s ruling in NRDC.

5. The Common Sense Reading of MEP

First, the industrial mandate of §402(p) should be read to mandate industrial storm water’s adherence to a pollutant-based effluent limitations listed in §1311 of the Act. Thus, the effluent limitation is based on whether it is a conventional, nonconventional, or toxic pollutant, just like every other effluent limitation from industrial activity.[113]

Second, the MEP standard should be read according to the EPA legal memorandum by which the MEP standard is nothing more than the effluent technology standard that MS4s must abide by. Because of the wide array of pollutants that storm water produces, MEP’s flexibility allows for a better tailored effluent limitation. The SWMP allows for assessment of these different pollutants, but the MEP standard must still produce an effluent that does not interfere with water-quality standards. From a practical standpoint, this type of reading is common sense. Thus, industrial storm water must adhere to the higher standard of pollutant-based technology standards and MS4s must adopt a SWMP that adheres to WQSs set by the state. If they fail, then their SWMP must increase its efficacy, just like the iterative process that exists today. The only difference is that if the SWMP fails, it is still in violation of the CWA because it failed to attain WQSs. Holding MS4’s feet to the fire is the only way to clean up MS4 effluent.

6. Conclusion

Storm water is a major challenge in this country. Yet, the tools and regulations are in place. The EPA has NPDES permitting authority that uses technological limitations and water-quality-based limitations. The only issue is shortsighted judicial interpretation that conflates a different standard with no standard at all.

Finally, §1342(p) must be read to include strict adherence to WQSs. Strict adherence is the only way to be consistent with the goals of the Act. It is consistent with all parts of the Act. And finally, it is consistent with EPA’s interpretation of the dynamic between technology-based effluents and water-quality-based effluent limitations. Thus, MS4s must strictly comply with WQSs.

[1] Envtl. Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 840 (9th Cir. 2003) (citing Richard G. Cohn–Lee and Diane M. Cameron, Urban Stormwater Runoff Contamination of the Chesapeake Bay: Sources and Mitigation, The Environmental Professional Vol. 14, p. 10, at 10 (1992)).

[2] Id.

[3] National Pollutant Discharge Elimination System—Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 FR 68722-01.

[4] Problems with Stormwater Pollution, National Pollutant Discharge Elimination System (NPDES), Envtl. Protection Agency, https://www.epa.gov/npdes/npdes-stormwater-program (last visited May 3, 2017).

[5] Id.

[6] Steven Strom, Kurt Nathan, Jake Woland, Site Engineering for Landscape Architects 157 (5th ed. 2009).

[7] 33 USC §1311(a); 33 U.S.C. §1362(12).

[8] National Pollution Discharge Elimination System, NPDES Permit Basics, Envtl. Protection Agency, https://www.epa.gov/npdes/npdes-permit-basics (last visited Feb. 2, 2017).

[9] Id.

[10] Id.

[11] See 33 U.S.C. §1311.

[12] See generally id.

[13] Id.

[14] See generally id. §1311(b); see also Theodore Garrett, Overview of the Clean Water Act, in The Clean Water Act Handbook 4 (Mark A. Ryan 3d ed. 2011) (“Technology-based requirements are designed to reflect the levels of effluent quality achievable through the use of the pollution control technology.”).

[15] Id.

[16] 33 U.S.C. §1313.

[17] Id.

[18] Id. §1311(b)(1)(C); 40 CFR 122.44(d).

[19] Karen M. McGaffey and Kelly F. Moser, Water Pollution Control Under the National Pollutant Discharge Elimination System, in The Clean Water Act Handbook 34 (Mark A. Ryan 3rd ed. 2011) (QBELs developed to achieve compliance with established water quality standards and “are included in NPDES permits if technology-based limitations alone are not sufficient to ensure compliance with applicable water quality standards.”); see also 33 U.S.C §1311(b)(1)(C); 33 USC §1312(a); 33 USC §1313(e)(3)(A); 40 C.F.R. §122.44(d).

[20] 33 USC §1311(b)(1)(C) (mandating “any more stringent limitation, including those necessary to meet water quality standards”).

[21] 40 C.F.R. § 122.44(d)(1); see also 1311(b)(1)(C).

[22] 33 U.S.C. § 1342.

[23] Id. § 1342(p)(3)(A).

[24] Id. § 1342(p)(3)(B).

[25] 40 C.F.R. § 122.26(b)(14).

[26] 33 U.S.C. § 1342(p)(3)(A).

[27] Id. §1311.

[28] Theodore Garrett, Overview of the Clean Water Act, in The Clean Water Act Handbook 4 (Mark A. Ryan 3rd Ed. 2011).

[29] 33 USC §1311; Id. (reduction reflects the type of pollutant and applicable technology).

[30] Id. §1311(b)(2)(C).

[31] Id. §1311(b)(1)(A).

[32] Id. §1311(b)(2)(C); see also McGaffey, supra note 20, at 34.

[33] 33 U.S.C. §1342(p)(3).

[34] Id. § 1342(p)(3)(B).

[35] 40 C.F.R. 122.26(d)(2)(iv) (involving large to med MS4s; 40 C.F.R. 122.34 (involving small MS4s).

[36] see generally 40 C.F.R. 122.26(d)(2)(iv); 40 C.F.R. 122.34.

[37] John H. Minan, Municipal Separate Storm Sewer System (Ms4) Regulation Under the Federal Clean Water Act: The Role of Water Quality Standards?, 42 San Diego L. Rev. 1215, 1249 (2005).

[38] 40 C.F.R. 122.26(d)(2)(v); 40 C.F.R. 122.34(g).

[39] 40 C.F.R. 122.26(d)(2)(v); 40 C.F.R. 122.34(g).

[40] 40 C.F.R. 122.26(d) (no text on minimum iterations); 40 CFR 122.34 (no text on minimum iterations).

[41] See Tualatin Riverkeepers v. Oregon Dep’t of Envtl. Quality, 235 Or. App. 132, 141–42, 230 P.3d 559, 564 (2010) (quoting Interim Permitting Approach for Water QualityBased Effluent Limitations in Storm Water Permits, 61 Fed Reg 43,761–01 (Aug 26, 1996) (EPA considers the use of best management practices appropriate in permitting of municipal storm water based on typical lack of information on which to base numeric water quality-based effluent limitations)).

[42] 33 U.S.C. § 1342(p)(3)(B) (MEP standard mandates that the storm water management plan consisting of BMP’s have “control of such pollutants.”).

[43] 33 U.S.C. §1342 is §402 in the Clean Water Act legislation.

[44] 33 U.S.C. §1311 is §301 in the Clean Water Act legislation.

[45] No. 214CV01452KJMCKD, 2016 WL 4679791, at *5 (E.D. Cal. Sept. 6, 2016).

[46] 33 U.S.C. §1311 (technology requirement based on whether pollutant is toxic, conventional, or non-conventional).

[47] 619 F. Supp. 2d 914, 919 (C.D. Cal. 2009).

[48] Defs. of Wildlife v. Browner, 191 F.3d 1159, 1164 (9th Cir. 1999) (using industrial’s strict §1311 mandate as a basis for a municipal storm water to a non-strict WQS standard).

[49] Nat. Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 966 F.2d 1292 (9th Cir. 1992);

National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 FR 47990-01.

[50] Id. at 1308; National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 FR 47990-01.

[51] Nat. Res. Def. Council, Inc., 966 F.2d at 1308.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] See generally Id.

[57] Id.

[58] National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 FR 47990-01 (Under the Field Screening Program “state water quality standards should be utilized along with focusing on actual quality in the reaches of a stream.”) (Under Storm Water Quality Management Plans “EPA requested comments on the process and methods for developing appropriate priorities in management programs proposed in applications and how the development of these priorities can be coordinated with controls on other discharges to ensure the achievement of water quality standards and the goals of the CWA.”).

[59] 191 F.3d 1159, 1164 (9th Cir. 1999).

[60] Brief for Petitioner at 26, Defs. of Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir.) (No. 98-71080) (1999 WL 33617766).

[61] Id. at 17.

[62] Id. at 14-15.

[63] Id. at 15.

[64] Brief for Respondent at 20, Defs. of Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir.) (No. 98-71080) (1999 WL 33617766).

[65] Id. at 24.

[66] Id.

[67] Id. at 24–25.

[68] Defs. of Wildlife v. Browner, 191 F.3d 1159, 1164 (9th Cir. 1999).

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] Id. (quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983)).

[80] Id.

[81] Id.

[82] Defs. of Wildlife, 191 F.3d at 1165.

[83] Garrett, supra note 28, at 4.

[84] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”).

[85] 33 U.S.C. §1311; 40 CFR 122.44(d).

[86] Id. § 1311.

[87] 40 C.F.R. § 122.44.

[88] 33 U.S.C. § 1313(a)

[89] Id. § 1342(p)(2)(E).

[90] Id.

[91] See generally Defs. of Wildlife, 191 F.3d at 1164.

[92] Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits, 61 FR 43761-01.

[93] Id.

[94] Id.

[95] See id.

[96] Id.

[97] Id. (emphasis added).

[98] Chevron, supra note 79, at 843.

[99] Defs. of Wildlife, 191 F.3d at 1165.

[100] Id.

[101] Garrett, supra note 28, at 4.

[102] Id.

[103] 33 U.S.C §1311(b).

[104] 40 C.F.R 122.44.

[105] 33 U.S.C. § 1313(a).

[106] Maryland Dep’t of Env’t v. Anacostia Riverkeeper, 447 Md. 88, 104, 134 A.3d 892, 901 (2016), reconsideration denied (May 20, 2016).

[107] Id.

[108] Id. at 913.

[109] Id.

[110] 33 U.S.C. § 1342(a)(2) (requiring that the administrator prescribe conditions for permits to assure compliance with the requirements in §1311 which includes water quality standards).

[111] Jones Creek Inv’rs, L.L.C v. Columbia Cty., Ga., 98 F. Supp. 3d 1279, 1300 (S.D. Ga. 2015), reconsideration denied sub nom. Jones Creek Inv’rs, LLC v. Columbia Cty., Georgia, No. CV 111-174, 2016 WL 593631 (S.D. Ga. Feb. 12, 2016).

[112] Id.

[113] 33 U.S.C. §1311.

The SB 32 Scoping Plan Update, Waivers, and ZEVs

The SB 32 Scoping Plan Update, Waivers, and ZEVs

Garrett Lenahan, UCLA School of Law, JD Candidate 2017 This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. I. Scoping Plan Background  Two prominent pieces of Californian legislation that seek to address climate change are Assembly Bill […]

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By Andrew Miller Andrew Miller is a law student at Berkeley and Articles Editor at Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate. Introduction In March of 2015, the Associated Press (AP) published AP Investigation: Slaves May Have Caught the Fish You Bought.[1] […]

Navigating with an Ocean Liner: The Clean Water Rule, Trump’s Executive Order, and the Future of “Waters of the United States”

Navigating with an Ocean Liner: The Clean Water Rule, Trump’s Executive Order, and the Future of “Waters of the United States”

By Kacy Manahan

Kacy Manahan is a 3L at Lewis & Clark School of Law and Symposium Editor of Environmental Law.

This post is part of the Environmental Law Review Syndicate.


I. Introduction

The scope of the Clean Water Act’s jurisdiction has been controversial throughout the statute’s history. Reconciling the extent of Congress’ Commerce Clause authority with the reality of vast hydrological connections across the United States has been an unenviable task delegated to the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps). This post is a comprehensive, though certainly not exhaustive, examination of EPA’s and the Corps’ efforts to define the jurisdictional scope of the Clean Water Act. The issue is once again embroiled in litigation, and regulation is in the hands of an Administration seeking to depart substantially from prior policies. For that reason, I also discuss potential outcomes of the litigation and President Trump’s Executive Order.

II. History of the “Waters of the United States” Rule

In 1972, Congress amended the Federal Water Pollution Control Act to create what we know today as the Clean Water Act.[1] For the first time, federal jurisdiction based on the Commerce Clause power extended beyond traditional navigable waters, as the Act defined “navigable waters” to mean “waters of the United States, including the territorial seas.”[2] EPA and the Corps (the Agencies) share regulatory authority under the Act, however, EPA has ultimate authority to interpret the term “navigable waters.”[3]

A. The Regulatory Evolution of Waters of the United States

The first substantive definition of “waters of the United States” came from EPA’s Office of General Counsel in 1973.[4] EPA believed that removal of the word “navigable” from the definition evidenced congressional intent to regulate “pollution of waters . . . capable of affecting interstate commerce.”[5] The definition included navigable waters, tributaries of navigable waters, interstate waters, and interstate lakes, rivers, and streams used by interstate travelers for recreational purposes, for commercial fishing, or for industrial purposes.[6] EPA issued an official regulatory definition shortly thereafter, changing the final three categories of jurisdictional waters to intrastate waters used by interstate travelers for recreational purposes, for commercial fishing, or for industrial purposes.[7]

The Corps issued its regulatory definition in 1974, covering “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.”[8] In 1975, the United States District Court for the District of Columbia determined that Congress’ intent in defining “navigable waters” as “waters of the United States” was to assert “federal jurisdiction over the nation’s waters to the maximum extent permissible under the Commerce Clause of the Constitution” and that the term was “not limited to the traditional tests of navigability” as they appeared in the Corps’ definition.[9] The Corps was ordered to publish new regulations based on this interpretation.[10]

Ultimately, after some political controversy,[11] the Corps published an interim final rule aligning with EPA’s regulation.[12] Notably, the Corps definition included wetlands, intrastate waters used for agricultural production, and other waters that, on a case-by-case basis, may be determined by the Corps to “necessitate regulation for the protection of water quality” as defined in EPA’s guidelines.[13] In 1977, the Corps published its final definition distinguishing its jurisdiction under the Act from its jurisdiction under older laws such as the Rivers and Harbors Act.[14] The 1977 definition included five categories of waters including a Commerce Clause-based category: “All other waters of the United States not identified in Categories 1–3, such as isolated lakes and wetlands, intermittent streams, prairie potholes, and other waters . . . the destruction of which could affect interstate commerce.”[15]

The Commerce Clause category, once codified, was adopted by EPA in later regulations.[16] This basis for jurisdiction remained on the books until the latest attempt at defining “waters of the United States” in 2015.[17] By 1982, the Agencies had matching regulatory definitions (the 1982 Rule).[18]

B. Challenges to the 1982 Rule in the Supreme Court

Over the decades, the 1982 Rule faced repeated challenges in court. However, three Supreme Court rulings have fundamentally defined the jurisdiction of the Clean Water Act, influencing the Agencies’ interpretation of the 1982 Rule, and ultimately straining that interpretation to the point where revision was necessary.

1. Riverside Bayview

United States v. Riverside Bayview Homes, Inc.[19] (Riverside Bayview) originated as an enforcement action against defendants who commenced filling wetlands located on their property before the Corps took action on their permit application.[20] The issue before the Court was whether the defendants’ land fell within the Clean Water Act’s jurisdiction.[21]

The Court noted that the language, legislative history, and underlying policy of the Clean Water Act regarding its jurisdictional reach was ambiguous.[22] Based on this ambiguity, the Court analyzed the reasonableness of the Corps’ assertion of jurisdiction over adjacent wetlands.[23] The Court determined:

In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.[24]

In deferring to the Corps, the Court upheld the 1982 Rule as permissible under the Clean Water Act.

2. SWANCC

In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers[25] (SWANCC), the petitioner was a municipal corporation seeking to develop a parcel of real estate for use as a balefill (a type of landfill).[26] Based on a finding that migratory birds utilized gravel pits on the parcel, the Corps asserted jurisdiction, and denied the petitioner’s applications for a section 404 permit.[27]

The controversy in this case arose from language in the preamble to a Federal Register publication by the Corps suggesting that “other waters” as defined in the 1982 Rule included waters utilized by migratory birds.[28]

Distinguishing this case from Riverside Bayview, the Court planted the seed of the now-familiar “significant nexus” standard.

It was the significant nexus between the wetlands and “navigable waters” that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not “express any opinion” on the “question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . . .” In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this.[29]

This statement arguably eliminated the entire category of “other waters” from the jurisdictional scope of the Clean Water Act. A narrower interpretation of the holding focuses on the Migratory Bird Rule. The Court chose to read the Clean Water Act “to avoid the significant constitutional and federalism questions raised by respondent’s interpretation,” meaning the Migratory Bird Rule, and therefore gave the Corps no deference.[30] The Court held that the “other waters” provision “as clarified and applied to petitioner’s balefill site pursuant to the ‘Migratory Bird Rule’ exceeds the authority granted to respondents under § 404(a) of the CWA.”[31]

The Corps interpreted this holding narrowly by issuing guidance advising regulators to no longer assert jurisdiction based on the presence of migratory birds, but to “consult legal counsel” if a water body in question might be connected with interstate commerce.[32]

3. Rapanos

In 2006, the Supreme Court issued its decision in Rapanos v. United States.[33] This decision vacated and remanded two decisions from the United States Court of Appeals for the Sixth Circuit upholding the Corps’ assertion of jurisdiction based on a “significant nexus” standard,[34] however, the contemporaneous opinion was fractured and no majority opinion emerged.[35] Justice Scalia authored the plurality opinion, joined by Chief Justice Roberts and Justices Thomas and Alito.[36] Chief Justice Roberts and Justice Kennedy wrote concurring opinions.[37] Justice Stevens authored the dissenting opinion, joined by Justices Souter, Ginsburg, and Breyer.[38]

In this 4–1–4 split, five justices agreed that the lower court decisions should be vacated.[39] Four justices agreed that the lower court decisions should be affirmed.[40] Eight justices agreed that Scalia’s test would confer jurisdiction.[41] Five justices agreed that Kennedy’s test would confer jurisdiction.[42] Since both tests were approved by a majority of the justices, a definitive test for determining the appropriate connection between traditional navigable waters and other hydrological features was once again eluded.

i. Justice Scalia’s Plurality Opinion

The plurality simplified the jurisdictional inquiry by focusing on the word “waters”, which appears in both sections 502(7) and 502(12).[43] The plurality examined a dictionary definition of “waters” and concludes that based “[o]n this definition, ‘the waters of the United States’ include only relatively permanent, standing or flowing bodies of water.”[44]

The plurality noted that the Court in Riverside Bayview found the line between waters of the United States and dry land to be ambiguous, and therefore deferred to the Corps’ determination.[45] Without pointing to any particular language from SWANCC, the plurality stated that in SWANCC the Court rejected the notion that ecological considerations can provide an independent basis for jurisdiction.[46] Based on this assumption, the plurality added a second requirement to its jurisdictional test: “[O]nly those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”[47]

The plurality’s test therefore requires a determination that 1) the “adjacent” water is relatively permanent, and 2) that there is a continuous surface connection to the “adjacent” water.[48]

ii. Justice Kennedy’s Concurrence

In his concurring opinion, Justice Kennedy’s view of the “significant nexus” standard suggests that it is more than an indicator of “adjacency”—he found that Riverside Bayview stood for the proposition that “the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a ‘navigable water’ under the Act.”[49] Justice Kennedy characterized SWANCC as standing for the inverse: if there is “little or no connection” between a nonnavigable water and a traditional navigable water, then that water is not jurisdictional.[50]

His concurrence discusses how a “significant nexus” may be established: “[W]etlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”[51]

iii. Aftermath of Rapanos

Because there is no single “logical subset” from which a clear rule can be divined, courts have disagreed on how to apply the law. Nonetheless, most courts agreed that a water was jurisdictional under the Act at least where Justice Kennedy’s significant nexus test was satisfied, and no court has held that a water is jurisdictional only if it meet’s the plurality’s “continuous surface connection” requirement. [52] In 2008, the Agencies issued a guidance document instructing regulators as to what waters were now considered jurisdictional considering the Supreme Court’s opinion.[53]

III. The Current Status of the 2015 Clean Water Rule

Accepting Justice Kennedy’s invitation to clarify CWA jurisdiction through a new rulemaking,[54] the Agencies promulgated the final Clean Water Rule (2015 Rule) on June 29, 2015.[55] Several states, industry groups, and environmental stakeholders challenged the 2015 Rule on the day of promulgation.[56] One day before the effective date, a district court judge in North Dakota granted a temporary injunction in favor of state petitioners.[57] Meanwhile, the Agencies sought to transfer nine district court cases for centralized pretrial proceedings.[58] The United States Judicial Panel on Multidistrict Litigation denied the government’s motion based on a lack of discovery or questions of fact.[59] By the end of 2015, over one hundred parties had filed twenty-three petitions for review in the courts of appeals, and almost one hundred parties had filed seventeen district court complaints.[60]

A. The Sixth Circuit’s Jurisdictional Ruling

Many petitions originating in the courts of appeals were consolidated in the Sixth Circuit.[61] Determining that state petitioners had demonstrated a substantial possibility of success on the merits, the court issued a nationwide stay of the Clean Water Rule which remains in place today.[62] Several petitioners then moved to dismiss their own petitions due to lack of jurisdiction.[63] Before a panel of judges, petitioners and intervenors argued that the Clean Water Act’s judicial review provision, section 509(b)(1), should be read narrowly to exclude the 2015 Rule from its scope.[64] The federal defendants, on the other hand, argued that either sections 509(b)(1)(E) or 509(b)(1)(F) could be used to invoke court of appeals jurisdiction.[65]

Judge McKeague, delivering the opinion of the court, agreed with federal defendants that section 509(b)(1)(E) applied because the 2015 Rule “indirectly produce[d] various limitations on point-source operators and permit issuing authorities.”[66] Furthermore, § 509(b)(1)(F) applied as well, since the extension of jurisdiction found in the 2015 Rule “indisputably expand[ed] regulatory authority and impact[ed] the granting and denial of permits in fundamental ways.”[67] Judge Griffin, concurring in the judgment, did so only because of circuit precedent.[68] Therefore, petitioners’ and intervenors’ motions to dismiss were denied, and the Sixth Circuit retained jurisdiction based on section 509(b)(1)(F).[69]

B. The Supreme Court Case

Sixth Circuit intervenor National Association of Manufacturers petitioned the Supreme Court for writ of certiorari in September 2016.[70] The Court granted the petition on the following issue:

[W]hether the Sixth Circuit erred when it held that it has jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to decide petitions to review the waters of the United States rule, even though the rule does not “issu[e] or den[y] any permit” but instead defines the waters that fall within Clean Water Act jurisdiction.[71]

At the time of this writing, opening briefs are due to be filed on April 27, 2017[72]

IV. President Trump’s Executive Order and the Future of Rulemaking and Litigation

The election of Donald Trump undoubtedly ushered in the beginnings of a seismic shift in federal environmental policy. On February 28, 2017, President Trump signed an Executive Order directing the Agencies to review the 2015 Rule for consistency with the following policy: “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”[73] The Agencies are next directed to “publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.”[74] Finally, the Order mandates that the Agencies “shall consider interpreting the term ‘navigable waters,’ . . . in a manner consistent with the opinion of Justice Antonin Scalia” in Rapanos.[75] A rule defining “waters of the United States” in accordance with this Order would represent a significant and unprecedented narrowing of Clean Water Act jurisdiction. Notably, this Executive Order has no immediate regulatory effect. However, for the remainder of this post, the discussion will assume that the Agencies share the interests of the State petitioners, and will seek a litigation strategy leading to the collapse of the 2015 Rule.

As a result of the Executive Order, the federal respondents in National Ass’n of Manufacturers v. United States Department of Defense sought to hold the Supreme Court briefing schedule in abeyance. This motion was denied, however, after facing opposition from several parties.[76]

A. Potential Outcomes of Current Litigation

Based on federal respondent’s failure to convince the Court to hold briefing in abeyance, it is likely that the Court will decide the jurisdictional issue before the 2015 Rule’s revision or rescission. Once litigation returns to the Sixth Circuit or the district courts (depending on the ruling), it is unclear whether a court will decide the merits of the 2015 Rule. If the Agencies take regulatory action either before or shortly after the litigation becomes active again, those who petitioned for review of the 2015 Rule may find their petitions mooted.

A two-part test determines mootness: a case is moot if “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”[77] “When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.”[78] Undoubtedly, the Agencies’ action in rescinding or revising the rule would qualify as “interim relief or events,” but there is a question of whether a rescission means that “no reasonable expectation that the alleged violation will recur,” or in the event of a revision, whether it has “completely and irrevocably eradicated the effects of the alleged violation”.[79] Additionally, an exception to mootness occurs when a petitioner demonstrates that: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.”[80]

As an example, if the Agencies rescind the 2015 Rule without immediately replacing it with a new rule, the “capable of repetition yet evading review” exception may apply regarding certain claims. In another scenario, if a revision of the 2015 Rule presents many of the same issues, then the effects of the alleged violations are not completely and irrevocably eradicated and litigation may continue. On the other hand, if the Agencies are not prepared to rescind or revise the 2015 Rule upon resumption of litigation, and they attempt to argue that the case is moot by virtue of the Executive Order’s expression of intent alone, it is unlikely that such an argument will meet the Davis test for mootness.

Precedent from the United States Court of Appeals for the Ninth Circuit suggests that if the Agencies cannot immediately revise or rescind the rule, they may have another option—a consent judgment. In Turtle Island Restoration Network v. United States Department of Commerce[81] (Turtle Island), the court held that no Administrative Procedure Act[82] (APA) rulemaking procedure was necessary when environmental plaintiffs and federal defendants entered into a consent decree vacating a portion of a final rule, temporarily reinstated the previous rule, and remanded the rule to the agency to reconsider a new rule.[83] Industry defendant-intervenors appealed the consent decree and cited the United States Court of Appeals for the District of Columbia Circuit’s decision in Consumer Energy Council of America v. Federal Energy Regulatory Commission[84] (Consumer Energy) for the proposition that notice and comment is required prior to repeal.[85] The Ninth Circuit distinguished Consumer Energy by finding the concerns motivating the agency in that case to be different from those raised during the original rulemaking and noting that no party in that case had suggested repeal as a remedy.[86] In Turtle Island, the environmental plaintiffs sought repeal for reasons that they had raised during the initial rulemaking.[87] The court also noted that no substantive changes were made to the rule—repealing the provision at issue simply reinstated the prior rule.[88]

In a more recent Ninth Circuit opinion, the court simultaneously reaffirmed its holding in Turtle Island while limiting the types of consent decrees that may alter a regulation:

It follows that where a consent decree does promulgate a new substantive rule, or where the changes wrought by the decree are permanent rather than temporary, the decree may run afoul of statutory rulemaking procedures even though it is in form a “judicial act.” […] We therefore hold that a district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.[89]

Together, Turtle Island and Conservation Northwest v. Sherman create the following positive rule: If a consent decree repeals or vacates an agency action, the legal effect is to restore the status quo, and if this restoration is temporarily subject to further agency action—the substance of which remains within the agency’s discretion—then the consent decree may be upheld.[90]

Entering a consent decree may be an attractive option if federal defendants see it as the quickest escape route from litigation. However, petitioners who prefer the 2015 Rule to the prior rule will likely object to the decree. If objection is unsuccessful, the court may consider whether all petitioners’ claims have been mooted by the terms of the consent decree.

B. Possible Regulatory Actions

Shortly following the issuance of President Trump’s Executive Order, the Agencies published a notice of their intent to engage in a rulemaking consistent with that Order.[91]

It is unlikely that they will accomplish this task quickly. Considering the nine-year gap between Rapanos and the final 2015 Rule, the prospect of a final rule occurring within the current administration is questionable. In the meantime, the Agencies may attempt to use a guidance document similar to the 2008 guidance issued after Rapanos. A guidance document based on the plurality in Rapanos will be less susceptible to challenge if implemented while the 1982 Rule is in force, as opposed to the 2015 Rule, which relies heavily on the “significant nexus” test. However, any guidance document that substantively changes the legal meaning of a regulation may be set aside by a court if challenged.[92]

Therefore, if the federal defendants are unable to dispose of the 2015 Clean Water Rule via litigation, they may attempt to revoke the 2015 Rule without immediately replacing it. Such a revocation may be subject to challenges based on procedure, substance, or both. If the Agencies fail to utilize APA notice and comment procedures in revoking the 2015 Rule, a court could invalidate the revocation.

In Consumer Energy, federal defendants argued that their revocation of the rule at issue rendered the case moot.[93] However, the court held that the Federal Energy Regulatory Commission’s revocation order was invalid because the agency did not follow APA rulemaking procedures: “The value of notice and comment prior to repeal of a final rule is that it ensures that an agency will not undo all that it accomplished through its rulemaking without giving all parties an opportunity to comment on the wisdom of repeal.”[94] Substantive challenges to a revocation, rescission, or revision are discussed in the following section.

C. Challenging a New Rule

The oft-cited Motor Vehicle Manufacturers Ass’n of the United States v. State Farm Mutual Automobile Insurance Co.[95] stands for the proposition that “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”[96] This case arose when the Reagan Administration, in a nationwide deregulation effort, rescinded a rule requiring auto makers to install either airbags or passive restraints.[97]

However, in Federal Communications Commission v. Fox Television Stations, Inc.[98] (Fox Television), the Court clarified its ruling: “[O]ur opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.”[99] The Court explained that the distinction being made in State Farm was between a § 706(1) review of a failure to act and a § 706(2)(A) review of agency action, not initial and subsequent agency action as in a rulemaking and rescission.[100]

Describing the support required for a change, the Fox Television Court highlighted that an agency must “[1)]display awareness that it is changing position,” and it is sufficient if the record shows that “[2)] the new policy is permissible under the statute, [3)] that there are good reasons for it, and [4)] that the agency believes [the new policy] to be better.”[101] The fourth element is similar to a free space in bingo—the agency’s change in policy “adequately indicates” its belief that the new policy is better.[102]

Fox Television says an agency must “provide a more detailed justification than what would suffice for a new policy created on a blank slate”: When 1) “its new policy rests upon factual findings that contradict those which underlay its prior policy” or 2) “when its prior policy has engendered serious reliance interests that must be taken into account.”[103] In these scenarios, “a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.”[104]

Although it seems relatively easy for an agency to justify a change in policy based on the Fox Television standard, a question remains regarding what role the extensive scientific record used to justify the 2015 Rule may play in challenging a new rule.[105]

Ninth Circuit precedent emerging from the Bush-era “Roadless Rule” provides useful guidance for how a court may handle a changed policy. In a case regarding the “Tongass Exemption” to the Roadless Rule, the court held that the United States Department of Agriculture’s 2003 Record of Decision (ROD) adopting the Tongass Exemption (which was based on the 2001 Roadless Rule Final Environmental Impact Statement) was arbitrary and capricious based on a Fox Television analysis of the change in policy.[106] In the 2001 ROD for the Roadless Rule, the agency found that “the long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to southeast Alaska communities from application of the Roadless Rule.”[107] In the 2003 ROD for the Tongass Exemption, however, the agency reversed its policy based on “concern about economic and social hardship that application of the roadless rule’s prohibitions would cause in communities throughout Southeast Alaska.”[108]

The Ninth Circuit found that the agency “made factual findings directly contrary to the 2001 ROD and expressly relied on those findings to justify the policy change.”[109] The court was careful to note that agencies are entitled to give more weight to certain concerns, but may not “simply discard prior factual findings without a reasoned explanation.”[110] The finding at issue was the necessity of the Roadless Rule to maintain important roadless area values.[111] The 2001 ROD made this finding, but the 2003 ROD found that the Roadless Rule was unnecessary because roadless values were protected by the Tongass Forest Plan.[112] The agency concluded that the sufficiency of the Forest Plan struck a new balance in its analysis, causing socioeconomic concerns to outweigh the benefits of the Roadless Rule’s protections.[113] The court found that the 2003 ROD violated the APA because the agency provided no reasoned explanation for “why an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a ‘minor’ one.”[114]

However, the Agencies may reevaluate their policy choices based on the facts available to them if the statute permits the resulting rule. In National Ass’n of Home Builders v. United States Environmental Protection Agency,[115] the D.C. Circuit rejected petitioners’ argument that the amendment of a rule was invalid because the promulgating agency merely revisited old arguments rather than basing its amendment on new facts or circumstances.[116] The court held that “a reevaluation of which policy would be better in light of the facts” is permissible, as Fox Television made clear that “this kind of reevaluation is well within an agency’s discretion.”[117]

The court also rejected petitioner’s contention that “because the [r]ule eliminates a provision that was consistent with congressional intent, the Court should not defer to EPA in making such a decision.”[118] The court held that “the fact that the original [rule] was consistent with congressional intent is irrelevant as long as the amended rule is also permissible under the statute.”[119] However, it was also emphasized that EPA found the rule’s amendment to promote “to a greater extent, the statutory directive.”[120] The court noted that “it was hardly arbitrary or capricious for EPA to issue an amended rule it reasonably believed would be more reliable, more effective, and safer than the original rule.”[121]

Again, assuming that any new rule will be promulgated pursuant to the Executive Order, the rule will likely follow the standard enunciated by the late Justice Scalia in Rapanos. A petitioner may have an uphill battle in arguing that such a policy is not permitted by the Clean Water Act—not only is the plain language of the Act uncommonly vague, but an interpretation crafted by a Supreme Court justice and accepted as sufficient to establish jurisdiction by a majority of the Court is uncommonly valid. However, those who wish to see a more protective rule may be able to argue congressional intent despite the D.C. Circuit’s holding in National Ass’n of Home Builders—since EPA, in that case, believed its new regulation increased conformity with the purpose of the statute rather than deviated from it.[122]

V. Conclusion

Although it is difficult to see clearly into the future, those who have studied or practiced administrative law know that APA notice and comment rulemaking requires substantial resources. To develop an administrative record supporting a rule based on Justice Scalia’s plurality in Rapanos may take years. Once the rule is final, it will face opposition from many directions. In the case of Clean Water Act jurisdiction, a change in the regulatory landscape affects a wide swath of interests—state sovereignty, landowner rights, industry flexibility, human health, conservation, and recreation. Considering that even a guidance conforming with Justice Scalia’s test could be subject to judicial review, there seems to be no tool that the Trump Administration can utilize to rapidly change the regulatory landscape of the Clean Water Act. In the words of former President Barack Obama, “the federal government and our democracy is not a speedboat, it’s an ocean liner.”[123]

[1] Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251–1388 (2012)).

[2] Clean Water Act, 33 U.S.C. § 1362 (2012); Stephen P. Mulligan, Cong. Research Serv., R44585, Evolution of the Meaning of “Waters of the United States” in the Clean Water Act 1 (2016).

[3] See 33 U.S.C. § 404 (2012) (describing the duties of the Corps and EPA in permitting discharge of dredged or fill material); Administrative Authority to Construe § 404 of the Federal Water Pollution Control Act, 43 Op. Att’y Gen. 197 (1979).

[4] Office of Gen. Counsel, U.S. Envtl. Prot. Agency, Meaning of the Term “Navigable Waters” (Feb. 6, 1973), reprinted in Office of Gen. Counsel, U.S. Envtl. Prot. Agency, A Collection of Legal Opinions: December 1970–December 1973, at 295 (1975).

[5] Id.

[6] Id.

[7] See National Pollutant Discharge Elimination System, 38 Fed. Reg. 13,528, 13,529 (May 22, 1973) (current version codified at 40 C.F.R. § 230.3 (2016)).

[8] Permits for Activities in Navigable Waters or Ocean Waters, 39 Fed. Reg. 12,115, 12,119 (Apr. 3, 1974) (current version codified at 33 C.F.R. § 328.3 (2016)); see also 33 C.F.R. § 209.260 (1974)) (providing detailed information regarding how navigability was determined).

[9] Nat. Res. Def. Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).

[10] Id.

[11] Mulligan, supra note 2, at 9.

[12] Compare Permits for Activities in Navigable Waters or Ocean Waters, 40 Fed. Reg. 31,320, 31,324–25 (July 25, 1975) (the Corps’ definition), with 40 C.F.R. § 125.1(p) (1974) (EPA’s definition at the time of the Corp’s promulgation).

[13] 40 Fed. Reg. at 31,324–25.

[14] Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401–418, 502, 687 (2012); Regulatory Programs of the Corps of Engineers, 42 Fed. Reg. 37,122, 37,127 (July 19, 1977); Mulligan, supra note 2, at 10 n.64.

[15] 42 Fed. Reg. at 37,127–28, 37,144 (codified at 33 C.F.R. § 323.2(a) (1978)); Mulligan, supra note 2, at 10.

[16] See Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,424 (May 19, 1980) (codified at 40 C.F.R. § 122.3 (1981)).

[17] Mulligan, supra note 2 at 10.

[18] 40 C.F.R. § 122.3 (1982), Interim Final Rule for Regulatory Programs of the Corps of Engineers, 47 Fed. Reg. 31,794, 31,810 (July 22, 1982).

[19] 474 U.S. 121 (1985)

[20] Id. at 124.

[21] Id. at 126.

[22] Id. at 132.

[23] See generally Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (establishing a two-part test to determine whether to grant an agency deference in interpreting a statute).

[24] Riverside Bayview, 474 U.S. at 134.

[25] 531 U.S. 159 (2001).

[26] Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 998 F. Supp. 946, 948 (N.D. Ill. 1998), aff’d, 191 F.3d 845 (7th Cir. 1999), rev’d, 531 U.S. 159 (2001).

[27] Id.

[28] Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41,206, 41,216–17 (Nov. 13, 1986).

[29] SWANCC, 531 U.S. at 167–68 (2001) (citation omitted) (alteration in original).

[30] Id. at 174.

[31] Id. (citation omitted).

[32] Matthew B. Baumgartner, SWANCC’s Clear Statement: A Delimitation of Congress’s Commerce Clause Authority to Regulate Water Pollution, 103 Mich. L. Rev. 2137, 2147–48 (2005).

[33] Rapanos v. United States, 547 U.S. 715 (2006).

[34] United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004); Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6th Cir. 2004).

[35] Rapanos, 547 U.S. at 757.

[36] Id. at 718.

[37] Id. at 757 (Roberts, CJ., concurring); id. at 759 (Kennedy, J., concurring in judgment).

[38] Id. at 787 (Stevens, J., dissenting). Justice Breyer also wrote a separate dissent. Id. at 811 (Breyer, J., dissenting).

[39] Id. at 757 (plurality opinion); id. at 787 (Kennedy J., concurring in judgment).

[40] Id. at 810 (Stevens, J., dissenting).

[41] Id.

[42] Id.

[43] Id. at 732 (plurality opinion). Section 502(7) defines “navigable waters to mean “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7) (2012). Section 502(12) defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12).

[44] Rapanos, 547 U.S. at 732.

[45] Id.

[46] Id. at 741–42.

[47] Id. at 742.

[48] Id.

[49] Id. at 767 (Kennedy, J., concurring in judgment) (emphasis added).

[50] Id.

[51] Id. at 779–80.

[52] E.g., United States v. Robison, 505 F.3d 1208 (11th Cir. 2007) (applying Justice Kennedy’s test because it is the least disruptive to prior case law); United States v. Gerke, 464 F.3d 723 (7th Cir. 2006) (same); United States v. Donovan, 661 F.3d 174 (3d Cir. 2011) (finding jurisdiction under either Justice Kennedy’s or Justice Scalia’s test); United States v. Bailey, 571 F.3d 791 (8th Cir. 2009) (same); United States v. Johnson, 467 F.3d 56 (1st Cir. 2006) (same); United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) (finding jurisdiction in situations where at least Justice Kennedy’s test would be met); N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) (same).

[53] U.S. Envtl. Prot. Agency & U.S. Dep’t of the Army, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States (Dec. 2, 2008), https://perma.cc/XE8Q-UJ53.

[54]

[55] Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37,054 (June 29, 2015).

[56] E.g., Complaint, Texas v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00162 (S.D. Tex. June 29, 2015); Complaint, North Dakota v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00059-RRE-ARS (D.N.D. June 29, 2015); Complaint, Murray Energy Corp. v. U.S. Envtl. Prot. Agency, No. 1:15-cv-00110-IMK (N.D.W. Va. June 29, 2015).

[57] North Dakota v. U.S. Envt’l Prot. Agency, 127 F. Supp. 3d 1047, 1060 (2015)

[58] In re Clean Water Rule: Definition of “Waters of the United States,” 140 F. Supp. 3d 1340, 1340–41 (J.P.M.L. 2015).

[59] Id. at 1341.

[60] Federal Defendant’s Notice of Appeal of Ruling at 2 n.1, North Dakota v. U.S. Envtl. Prot. Agency, No. 3:15-cv-00059-RRE-ARS (D.N.D. Nov. 24, 2015), 2015 WL 10642813.

[61] Murray Energy Corp. v. U.S. Dep’t of Def. (In re U.S. Dep’t of Def.), 817 F.3d 261, 264 (6th Cir. 2016), cert. granted sub nom. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 137 S. Ct. 811 (2017).

[62] Ohio v. U.S. Army Corps of Eng’rs (In re Envtl. Prot. Agency), 803 F.3d 804 (6th Cir. 2015).

[63] Murray Energy Corp., 817 F.3d at 264.

[64] Id. at 265; 33 U.S.C. § 1369(b)(1) (2012).

[65] Murray Energy Corp., 817 F.3d at 266, 270–71. Section 509(b)(1)(E) provides review of the Administrator’s action “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title.” 33 U.S.C. § 1369(b)(1)(E) (2012). Section 509(b)(1)(F) providing review of the Administrator’s action “in issuing or denying any permit under section 1342 of this title.” Id. § 1369(b)(1)(F).

[66] Murray Energy Corp., 817 F.3d at 270.

[67] Id. at 272.

[68] Id. at 275 (Griffin, J., concurring in judgment) (citing Nat’l Cotton Council of Am. v. U.S. Envt’l Prot. Agency, 53 F.3d 927 (6th Cir. 2009)). In National Cotton Council of America, the Sixth Circuit held that section 509(b)(1)(F) authorizes review of regulations governing the issuance of permits. 53 F.3d at 933.

[69] Murray Energy Corp., 817 F.3d at 274 (majority opinion).

[70] Petition for a Writ of Certiorari, Nat’l Ass’n of Mfrs. v. U.S. Dep’t of Def., No. 16-299 (U.S. Sept. 2, 2016), 2016 WL 4698748.

[71] Id.

[72] Nat’l Ass’n of Mfrs (U.S. Apr. 6, 2017) (No. 16-299) (order further extending the time to file Petitioner’s Brief on the Merits to April 27, 2017).

[73] Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, Exec. Order No. 13,778, § 1, 82 Fed. Reg. 12,497 (Mar. 3, 2017).

[74] Id. § 2(a).

[75] Id. § 3.

[76] Nat’l Ass’n of Mfrs, 2017 WL 1199467 (U.S. Apr. 3, 2017) (mem.) (order denying motion of federal respondents to hold the briefing schedule in abeyance).

[77] Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (citations and quotation marks omitted).

[78] Id.

[79] Id.

[80] Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). This exception is commonly known as the “capable of repetition, yet evading review” exception. Id.

[81] 672 F.3d 1160 (9th Cir. 2012).

[82] 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).

[83] 672 F.3d at 1164.

[84] 673 F.2d 425, 446 (D.C. Cir. 1982).

[85] Turtle Island, 672 F.3d. at 1168 (citing Consumer Energy, 673 F.2d at 446).

[86] Id. at 1169.

[87] Id.

[88] Id.

[89] Conservation Nw. v. Sherman, 715 F.3d 1181, 1187 (9th Cir. 2013).

[90] Turtle Island, 672 F.3d at 1167–69; Conservation Nw., 715 F.3d at 1187.

[91] Intention to Review and Rescind or Revise the Clean Water Rule, 82 Fed. Reg. 12,532 (Mar. 6, 2017).

[92] See Appalachian Power Co. v. U.S. Envtl. Prot. Agency, 208 F.3d 1015 (D.C. Cir. 2000).

[93] Consumer Energy, 673 F.2d at 445.

[94] Id. at 446.

[95] 463 U.S. 29 (1983).

[96] Id. at 42.

[97] Id. at 36–38.

[98] 556 U.S. 502 (2009).

[99] Id. at 514.

[100] Id. at 515.

[101] Id.

[102] Id.

[103] Id.

[104] Id. at 516.

[105] See generally Office of Research & Dev., U.S. Envtl Prot. Agency, EPA/600/R-14/475F, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (2015), https://perma.cc/7V2L-ZLQ8

[106] See Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 969 (9th Cir. 2015).

[107] Id. at 967 (internal quotations omitted).

[108] Id. (internal quotations omitted).

[109] Id. at 968.

[110] Id.

[111] Id.

[112] Id.

[113] Id.

[114] Id. at 969.

[115] 682 F.3d 1032 (D.C. Cir. 2012).

[116] Id. at 1037–38.

[117] Id. at 1038.

[118] Id. at 1036 (internal quotations omitted).

[119] Id.

[120] Id. at 1039.

[121] Id.

[122] Id.

[123] The President’s News Conference, 2016 Daily Comp Pres. Doc. 777, at 8–9 (Nov. 14, 2016).

Funding Adaptation: Financing Resiliency Through Sea Level Derivatives

Funding Adaptation: Financing Resiliency Through Sea Level Derivatives

By Sevren Gourley Sevren Gourley is a 3L at the University of Virginia School of Law and Editor-in-Chief of the Virginia Environmental Law Journal. This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Coastal municipalities are struggling […]

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By Olivia Bensinger Olivia Bensinger is a 3L at Harvard Law School and managing editor of the Harvard Environmental Law Review.   This post is part of the Environmental Law Review Syndicate (ELRS).  Read the original at Ecology Law Quarterly’s website. As we move further into the era of […]

Enough Horsing Around

Enough Horsing Around

By Joseph Godio

Joseph Godio is a 3L at Georgetown University Law Center and a senior editor of the Georgetown Environmental Law Review.

 

This post is part of the Environmental Law Review Syndicate (ELRS).  Read the original at Ecology Law Quarterly’s website.


Introduction

New York City is a city thought by many to be one of the most incredible, majestic, and beautiful cities in the world. Its prominence and prosperity has grown just like the skyline, continuously reaching new heights. Ironically, one of the most beautiful places in New York City, Central Park, is also home to one of the most ugly and archaic realities of not just the city, but of the country. Walking through midtown Manhattan you will find iconic buildings, thousands of business professionals and tourists, and incredible culture. The ugliness that you will also find is animal cruelty, on full display.

There is a large horse and carriage industry in New York City and carriage drivers are able to exploit horses for upwards of fifty dollars for a short twenty-minute ride.[1] Under the Animal Welfare Act, horses do not receive any federal protection.[2] As such, day in and day out, horses are treated in an inhumane manner by the carriage industry in New York City.[3] The American Society for the Prevention of Cruelty to Animals (“ASPCA”), stated “[t]he life of a carriage horse on New York City streets is extremely difficult and life threatening . . . carriage horses were never meant to live and work in today’s urban setting.”[4]

Carriage horses are forced to work in a harsh environment, foreign to their natural habitat. They work roughly nine hours per day, seven days a week, walking on hard pavement, pulling a carriage weighing hundreds of pounds, and inhaling unhealthy air from cars, buses, and taxis.[5] Among the many effects of working in this unnatural environment are incidents where horses will react by taking off at full speed into the busy city streets.[6] These horses are denied the their fundamental needs to live healthy lives, such as pasture time to “graze, stroll and socialize freely on grass.”[7]

Background

The protection of horses was a central campaign policy used by Mayor Bill de Blasio in his 2013 Mayoral campaign.[8] Mayor de Blasio gained support of animal rights activists because of his political stance on the issue.[9] In January of 2016, an “agreement in concept” was announced by Mayor Bill de Blasio’s office, which would have significantly reduced the horse carriage industry.[10] The agreement would have shrunk the horse and carriage industry from its current size of two hundred and twenty horses down to ninety-five by 2018.[11] The agreement would have required the building of a new stable in Central Park, which would have been large enough to house seventy-five horses at the time.[12]

In order to effectuate and implement the agreement and plan, the City Counsel needed to approve the deal. Unfortunately, in February of 2016, the New York City Counsel did not simply reject the vote, rather they canceled the vote altogether.[13] The legislation failed as a result of the Teamster’s union pulling support for Mr. de Blasio.[14] When the Teamsters pulled out, the legislation no longer had the sufficient number of votes for it to pass. After the cancelation of the vote, a carriage driver and spokesman for the industry, Ian McKeever, stated to reporters, “It’s a great day for the horse and carriages.”[15] However, for the horses, it meant the continuation of inhumane treatment, starvation and borderline torture.

Currently, most carriage horses are housed in Clinton Park Stables, which is a building located on 52nd Street near the Hudson River.[16] Most of the stalls inside the Clinton Park Stables are eight feet by ten feet.[17] However, according to customary and humane housing for horses, the ideal stall size for a horse of one thousand pounds or larger is twelve feet by twelve feet.[18] For more “compact breeds,” such as ponies, the ideal size is ten feet by ten feet.[19] This necessarily entails another level of inhumane treatment of these horses. When they are not subject to the harsh life on the job, they retire to a stall that is too small for house their large frames.

In addition to ill-equipped housing, horses are treated inhumanly throughout the course of their lives. Even as the horses grow tired, sick and old they are still required to work long excruciating hours every day.[20] They often suffer from respiratory ailments as a result of breathing exhaust fumes on a daily basis, and typically develop extreme leg issues from traversing the city streets on hard, unforgiving surfaces all day.[21]

In many instances, these issues go untreated. On September 14, 2006, a horse that had worked pulling carriages through New York City for nearly two decades, collapsed in Central Park.[22] After the horse collapsed, the carriage driver began to whip the defeated horse repeatedly in attempts to get the horse to stand up and continue working.[23] A crowd, terrified, gathered around urging the carriage driver to stop.[24] Eventually, a police trailer took the horse away to her stable, and the horse died early the next morning.[25] Similarly, in April of 2014, a carriage driver falsified records to force an “old, asthmatic” horse to continue working.[26] The horse was involved in a horse-carriage accident in September 2013, and the carriage deriver was previously charged with working horses for more than twelve hours in a twenty-hour period.[27]

As another example, on February 23, 2015, a horse was found in his stall unable to stand up.[28] Thereafter, it was discovered that the horse had suffered a fractured leg and was later euthanized.[29] In another event, in December of 2013, a carriage driver was charged with cruelty to animals after he was discovered to be working a horse that was “visibly inured and struggling to pull the weight of the carriage.”[30] A veterinarian later found that the horse had “thrush—an infection of the hoof that, if left untreated, can lead to permanent lameness and sometimes even require euthanasia.”[31] These are just a few examples of the multiple pages of reports of inhumane treatment of these horses that occur far too often.

The horses are not the only living beings at risk due to the horse and carriage industry. Horses are prey animals and, therefore, have a “highly developed flight drive that is easily triggered when they are startled by an unexpected or threatening stimulus.”[32] In other words, the loud, busy and chaotic streets of New York City seems like the worst place for an extremely sensitive thousand pound animal to be.

There have been over thirty carriage horse accidents in the past few years alone. Many of these instances involve horses being “spooked,” from which their natural reaction is to take off running.[33] On June 9, 2014, something in the city spooked a horse and he bolted through the city streets.[34] An innocent bystander attempted to stop the horse by grabbing its reins and was then dragged by the horse.[35] On October 19, 2014 a witness videos shows a spooked horse bolting up 11th avenue in Manhattan, running full speed through busy a busy intersection.[36] In another incident involving a bolting horse, occurring on October 28, 2011, a witness described the incident, “The horse took off at top speed and could not be stopped. He could have easily trampled a pedestrian.”[37] Had the horse trampled an innocent pedestrian, who would have been to blame? In our society, it is more likely than not that the media would have depicted the horse as out of control, where it was merely acting instinctively, but in the wrong environment.

Therefore, having horses in an over populated New York City is incredibly dangerous to all that are in the area. At any moment, a horse may be spooked and may take off, putting everyone in its path at risk of serious injuries, if not death. The risk to public safety does not end there, however. Spending about nine hours a day on the job, horses naturally defecate on the same streets they traverse. There are two hundred and twenty horses in the horse and carriage industry in New York City.[38] Making matters worse, “carriage drivers often do not clean up after the horses, leaving waste and rotting debris.”[39] Therefore, city health officials have an additional burden to regularly monitor the horses for diseases to ensure that they are not carrying disease that could be transmitted to other animals, or to humans.[40]

Solution

Given the fact that previous efforts by Mayor de Blasio and animal rights activists have failed, a different approach is needed to effectuate a change in the exploitation of horses in New York City. I will propose two approaches that will result in a cleaner environment in the streets of New York City, as well as eliminate the inhumane treatment of horses. The first approach that I propose will result in the end of the horse and carriage industry through a phase-out process, and is likely to be met with the strongest opposition, as it is the more ambitious approach. The second approach will still allow the operation of the industry, but will reduce the number of horses allowed, as well as increase the standards of horse keeping, ensuring that they are treated humanely.

First Approach

Too drastic of a change, too quickly, will not only be logistically difficult to implement, but also will result in the displacement of many workers that rely on the industry for income. Therefore, the first approach that I propose is a phase-out process by which carriage drivers will still be able to operate for a certain amount of time, but after which operation will be in violation of the law. This process will be implemented through newly promulgated regulations and a strict permit process.

Under this approach, beginning January 1, 2018, no more permits will be issued to operate a horse a carriage. After this date, those with current and up to date permits will be allowed to continue operation. Those with said permits will be legally allowed to continue operation until July 1, 2019. After this date, any operation of horse and carriage will be in direct conflict with the law and will be subject to minimum fines of $5,000, confiscation of the horse and any additional penalties imposed by law. This approach is similar to the workings amortization periods with non-conforming uses in the context of zoning laws.

Second Approach

In the alternative, this more lenient approach is more of a compromise. It will have the effect of minimizing the possibility that horses are treated inhumanely, will reduce the number of horses used in the city, but will still allow for the operation of the industry. This approach, like the approach of Mayor de Blasio previously discussed, will reduce the number of horse in the New York City horse and carriage industry from two hundred and twenty to seventy-five.

In addition, these seventy-five horses will be placed on a rotation system and will, by law, only be allowed to serve a maximum of six months of service every three years. This will help to ensure that the polluted air, hard concrete, and busy Manhattan streets will have as little impact on the longevity of the life of the horse as possible. Furthermore, this rotation will ensure that large, full-grown horses are not subject to living in stalls that are too small for the majority of their lives. Finally, this compromise will require that carriage operators attain a higher level of horse training, will be subject to city inspections of housing arrangements for the horses, and will be subject to high fines and relinquishment of license after only one violation.

Conclusion

In recent years the debate over the horse and carriage industry in New York City has grown more and more contentious. Meanwhile, these horses are treated inhumanely, subject to harsh working conditions, and, the public is put at risk. Through either of the approaches I have proposed, we can begin to protect horses and make the streets of New York City a more sanitary environment. Implementation will be met with strong opposition, but that cannot deter action. Mistreated horses cannot speak for themselves and tell us the pain that they go through, but the record of inhumane treatment speaks volumes. If we stand by and allow this inhumane treatment continue, that too, speaks volumes about us as a society.

[1] Inside A Stable Where Central Park’s Carriage Horses Live, Business Insider, http://www.businessinsider.com/the-stables-where-central-park-carriage-horses-live-2012-4?op=0#clinton-park-stables-is-located-on-52nd-street-near-the-hudson-river-1 (last visited May 12, 2016).

[2] The Cruelty of Horse-Drawn Carriages, PETA http://www.peta.org/issues/animals-in-entertainment/horse-drawn-carriages/ (last visited May 13, 2016).

[3] Carriage Horses, The Humane Society of the United States, http://www.humanesociety.org/issues/carriage_horses/ (last visited May 13, 2016).

[4] Cruel and Inhumane Horse Drawn Carriages, NYCLASS, http://www.nyclass.org/horse_drawn_carriages (last visited May 11, 2016).

[5] Id.

[6] Id.

[7] Id.

[8] Michael M. Grynbaum, New York City Announces Deal on Carriage Horses in Central Park, NY Times, http://www.nytimes.com/2016/01/18/nyregion/new-york-city-announces-deal-on-carriage-horses-in-central-park.html (last visited May 14, 2016).

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] J. David Goodman and Michael M. Grynbaum, Mayor de Blasio’s Carriage-Horse Plan Falters in City Counsel, NY Times, http://www.nytimes.com/2016/02/05/nyregion/horse-carriage-deal-new-york.html (last visited, May 15, 2016).

[14] Id.

[15] Id.

[16] Supra Inside A Stable Where Central Park’s Carriage Horses Live note 1.

[17] Id.

[18] Karen Briggs, Stall Design, The Horse, http://www.thehorse.com/articles/10366/stall-design (last visited, May 18, 2016).

[19] Id.

[20] Supra The Cruelty of Horse-Drawn Carriages note 2.

[21] Id.

[22] Incidents Involving Horse-Drawn Carriages, PETA, http://www.mediapeta.com/peta/PDF/HDCIncidentsFactsheet_JO_Jan2016.pdf (last visited May 18, 2016).

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Supra Carriage Horses note 3.

[33] Id.

[34] Supra Incidents Involving Horse-Drawn Carriages note 22.

[35] Id.

[36] Id.

[37] Id.

[38] Supra New York City Announces Deal on Carriage Horses in Central Park note 8.

[39] Supra Cruel and Inhumane Horse Drawn Carriages note 4.

[40] Id.

Climate Change Regulation Through Litigation: New York’s Investigation of ExxonMobil under the Martin Act

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