Today, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Because the U.S. Court of Appeals for the 9th Circuit applied a different legal test in determining that a permit was required for a sewage treatment facility operated by the County of Maui, the Supreme Court vacated the 9th Circuit's judgment and remanded the case for application of the standard announced today.

Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority – which drew the votes of Chief Justice John Roberts and …

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case.

The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water.

The textual crux of the case is the word “from”: Does “from” mean that a pollutant must be directly delivered to a navigable water by a point source or that a pollutant must merely originate at a point source?

If “from” means the former …

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it – the "national pollutant discharge elimination system" – and the attendant statutory goal that "the discharge of pollutants into the navigable waters be eliminated by 1985." Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system's reach. County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be argued Wednesday, asks whether the act "requires a permit when pollutants originate from a point source but …

In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern bulwarks against the most pressing challenge of our time.

The legal theories these lawsuits pursue do not come from statutes, but instead rely on constitutional law, natural law, and the common law. This is the kind of litigation that is most likely to draw criticism not only from the governmental and industrial institutions it seeks to constrain, but from within the environmental community itself, as some worry that …

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. Chief Justice John Roberts’ opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court.

The case involves the Fish and Wildlife Service’s designation, under the Endangered Species Act, of property in Louisiana as "critical habitat" for the dusky gopher frog. The frog has not lived on this property for many years, but the service concluded that the property was essential to the conservation of the frog – and thus appropriately deemed critical habitat – because it contains high-quality …

This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission.

Presidents since Ronald Reagan have, by executive order, required agencies to submit significant regulatory actions to the White House for review. Academic and public interest observers have variously criticized this review as slow, opaque, chaotic, lawless, and power-grabbing. Yet every president in the intervening years has not only embraced but also deepened the control of the White House over individual regulations.

Even President Obama, who announced early in his first term that he was conducting a top-to-bottom review of this process, ultimately embraced strict White House control over the rulemaking proceedings of the executive agencies. President Trump has taken White House control over rules to a whole different dimension by ordering agencies to revoke two existing rules for every new rule they issue and by …

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Editor's note: You can read Professor Heinzerling's follow-up post, which analyzes the oral arguments in this case, on SCOTUSblog.

A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the Mobile River delta in Alabama. The frog breeds in ephemeral ponds – ponds that are wet for brief periods and then dry out completely – and spends the rest of its life in upland, open-canopy forests, living in burrows created by other animals. Today, the only known remaining population of the dusky gopher frog lives on a single pond in Mississippi.

In 2001, the U.S. Fish …

Originally published on The Regulatory Review. Reprinted with permission.

In the fitting last act of his corrupt reign as the Administrator of the U.S. Environmental Protection Agency (EPA), Scott Pruitt handed a gift to companies who profit from producing cheaper trucks by dispensing with modern pollution control equipment. He arranged for political appointees at EPA to issue memoranda that together promised that EPA would not enforce an existing legal limit on production numbers for the super-polluting trucks.

The memos had all the usual eyesores of Pruitt's approach to governing EPA: disdain for the law, dismissal of scientific evidence, scrambled logic, and contempt for the environmental mission intended for EPA. EPA's case for granting amnesty to the super-polluters was so threadbare that the U.S. Court of Appeals for the D.C. Circuit granted an unusual administrative stay of EPA's action while the court was considering a …

Originally published on The Regulatory Review. Reprinted with permission.

Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms.

The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many dozens of final rules issued in the Obama administration, often with little explanation other than that a new President had been elected and he wanted the agencies to revisit existing regulations.

Before the Trump administration, there was surprisingly little law on agencies’ power to delay the effectiveness of final rules. A small cohort of judicial decisions came out of the Reagan years, and a …