The Whittling Away of State Clean Water Act Authority
Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.
States often impose conditions on such projects that are more stringent than federal requirements in order to protect drinking water and local aquatic habitat, among other reasons. The Clean Water Act also empowers states to deny certifications and stop a project from moving forward if it would still violate the state's water quality standards even after conditions are imposed.
The rulemaking was spurred by an executive order from President Trump last year. The order directed the EPA to change the 401 certification process, with an ostensible focus on "the need to promote timely Federal-State cooperation." The executive order followed several situations in which states had declined to provide 401 certifications for fossil fuel infrastructure projects, and so its primary goal was clear: getting the states and their environmental concerns out of the way of energy infrastructure development. And while energy may have been the primary focus, section …
Originally published on Environmental Law Prof Blog. Reprinted with permission.
This morning, the U.S. Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead …
Reposted by permission from the Environmental Law Prof Blog.
This morning E&E News reported that researchers from the Netherlands and the Environmental Defense Fund had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio. According to the study, the well leaked around 60,000 tons of methane.
That made me wonder: what might the carbon tax bill for a leak like that be? The answer, of course, is $0, because neither the United States as a whole nor the state of Ohio has a carbon tax (or a cap-and-trade system that would also put a price on carbon). But what if we did, and what if the tax rate approached the social cost of carbon? How much would that one leak cost Exxon (and, of course, put into the United States treasury, for the benefit of the public)?
A rough answer is very simple …
Originally published on Environmental Law Prof Blog.
Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice. The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies.
For environmental justice advocates, much of the report will paint a depressing, if unsurprising, picture. In 2011, federal agencies participating in an environmental justice working group agreed to develop and periodically update environmental justice strategic plans, but some agencies have never developed plans, and others have stopped updating their plans. Ideally, those plans would include ambitious goals for progress and measurable indicators for evaluating progress toward (or past) those goals, but many agency plans include no such things …
Originally published on Environmental Law Prof Blog.
This morning, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act.
The proposed rule would narrow the scope of federal jurisdiction, primarily in two ways. First, it would eliminate jurisdiction for "ephemeral" streams – that is, streams where water flows only during and shortly after precipitation events. Second, it would eliminate jurisdiction for wetlands that lack an intermittent or permanent surface connection to navigable-in-fact waterways and that are not directly adjacent to those waterways. In practice, this will mean removing protections for wetlands that are close to surface waterways and are connected to those surface waterways through groundwater flows.
In the rule itself, and in the rhetoric surrounding …
Originally published on Environmental Law Prof Blog.
Secretary of Commerce Wilbur Ross just released a statement directing NOAA to "facilitate" water use to respond to California's wildfires (the statement follows several tweets in which President Trump implied that the cause of California's wildfires was the state's ill-advised decision to let some of its rivers flow downhill to the ocean). Because I've already seen a few befuddled headlines about what this all means, I thought a short post explaining a few key points about what NOAA can and can't do here would be helpful.
- Importantly, NOAA does not itself manage reservoirs, forests, or firefighting equipment. It just regulates activities that might harm threatened or endangered salmon (and other oceanic or diadromous species). So headlines saying that Secretary Ross ordered NOAA to "use" water to fight fires are not accurate. Instead, he has ordered NOAA to look favorably upon …
Originally published on Environmental Law Prof Blog.
Last week, the Ninth Circuit decided Hawai'i Wildlife Fund v. County of Maui, a case involving Maui County's practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The county, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county's wastewater traveled through groundwater on its way to the ocean; according to the Ninth Circuit, releasing pollutants from a point source to navigable waters still requires permitting even if those pollutants' pathway is indirect.
The decision is well-reasoned and carefully explained. The Ninth Circuit grounded its holding in both the text and purposes of the Clean Water Act and in a series of prior decisions (including Justice Scalia's Rapanos plurality opinion), and the …
Originally published on Environmental Law Prof Blog.
Today, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions.
This post provides brief answers to a few likely questions about the decision.
Was this a surprising outcome? It was not. Many legal observers expected the Court to reverse the Sixth Circuit. Indeed, the two Sixth Circuit judges who concluded that they did have jurisdiction were rather unenthusiastic about their holding and blamed it primarily on precedent. The government's arguments …
On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration's proposed rollback of the "waters of the United States" rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only from the Trump administration's political appointees). The proposed rule addresses the scope of federal jurisdiction under the Clean Water Act – which means, in non-legal terms, that it decides which waters get protected by federal law.
Two years ago, EPA and the Army Corps released the "Clean Water Rule," which clarified and very slightly increased the scope of these protections. The current proposal would throw the Clean Water Rule onto the scrap heap. The eventual goal, as the administration has made perfectly clear, is to reduce the reach of the …
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.
EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama administration's signature environmental initiatives, and it was one of candidate and then President Trump's signature targets. So the emergence of this proposal is no surprise. Nevertheless, the contents of the new document are surprising in several ways.
First, I'm not sure I have ever seen a notice of proposed rulemaking that makes so little effort to justify the rule it adopts. EPA and the Corps seem to have offered two, and only two, justifications for switching from the newer regulations to …
