Update: Solicitor General Encourages SCOTUS to Review Vast Expansion of Clean Water Act

supreme courtA November 2018 commentary by our Featured Expert Contributor on environmental-law matters, Samuel Boxerman (with Ben Tannen), discussed two related petitions for certiorari pending at the U.S. Supreme Court that presented a novel Clean Water Act question: whether a discharge through groundwater is an addition of a pollutant to waters of the United States from a point source.  Decisions from the U.S. Courts of Appeals for the Fourth and Ninth reasoned that the groundwater qualifies as a point source. Other appeals courts, including the Sixth Circuit, disagree.

In December, the Court invited the Solicitor General of the United States to present the government’s view on whether to grant the petitions. Yesterday, the Solicitor General filed its brief with the Court, urging it to resolve the circuit split.

The brief doesn’t express the government’s legal position on the groundwater-discharge issue, but it does explain why the Ninth Circuit decision, Hawai’i Wildlife Fund v. City of Maui, offers a better vehicle for circuit-split resolution. The Solicitor General also explained that the Environmental Protection Agency’s ongoing review of groundwater’s status as a point source under the CWA (see WLF’s comments here) is not a reason for the justices to deny certiorari.

The question before the Court is a critical one for free enterprise. As Mr. Boxerman and Mr. Tannen wrote in a February 2018 commentary on the Maui decision:

Left as is, the Maui decision could present significant issues across industry.  By holding that the Clean Water Act regulates discharges through groundwater without providing a limiting principle as to when the connection to U.S. waters is too remote, the Ninth Circuit has exponentially increased a source’s risk of liability under the Act.

 

Update: Justices Seek Federal Government’s Views on Pending Clean Water Act Suit Petitions

supreme courtIn a November 20 Featured Expert Contributor post, Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction, Sidley Austin LLP partner Sam Boxerman and his colleague Ben Tannen discussed two related certiorari petitions pending before the U.S. Supreme Court. Both petitions ask the Court to review circuit court decisions that held discharges through groundwater are an addition of a pollutant to “waters of the United States” from a point source.

Today, the Court released an Order calling for the views of the Solicitor General on the petitions in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 18-260 (Aug. 27, 2018) and Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Case No. 18-268 (Aug. 28, 2018).

The Order asked the Solicitor General to provide his views on the petitions by Friday, January 4, 2019.

In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns

DOIAfter the Executive Branch changed hands a little over two years ago, professional environmental activists promised a steady stream of lawsuits against both private enterprises and the federal government. Such a bold pronouncement was great for the green activists’ fundraising, as environmental non-profits bragged of 100 to 700 percent increases in donations.

Those groups have certainly followed through on their pledge, filling federal district and appellate courts’ dockets with lawsuits. One group’s homepage, for instance, boasts the group has sued the administration 95 times, “and we’re nowhere near finished.” In their zeal to vastly expand the applicability of federal laws and regulations and to block reasonable federal policy changes, green activists have shown little interest in the due-process rights of businesses and individuals. Lawsuits to overturn two federal policies illustrate this disregard. Continue reading “In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns”

Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction

 

Featured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP, with Ben Tannen, Sidley Austin LLP

The definition of waters of the United States is central to the CWA.  At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  33 U.S.C. § 1311(a).  “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,”  and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  See 33 U.S.C. §§ 1362(7), (12) and (14). Continue reading “Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction”

California Appeals Court Upholds Legislative Workaround that Mooted CEQA Suit Targeting Development Project in Los Angeles

stratteGuest Commentary

By Martin P. Stratte, an Associate with Jeffer Mangels Butler & Mitchell LLP in the firm’s San Francisco, CA office.

Ed. Note: This article was first published on JMBM’s California Land Use Blog. Reprinted with permission.

In August 2018, the California Court of Appeal decided Citizens Coalition Los Angeles v. City of Los Angeles, 26 Cal.App.5th 561 (2018), commonly referred to as “Target II,” which arose from a years-long challenge by citizen activist organizations to the development of a Super Target in Hollywood, California.

As discussed below, the court was asked to resolve the following issue of first impression: what level of environmental review is required by the California Environmental Quality Act (CEQA) for a legislative action that re-designates a project site for the purpose of mooting pending litigation that was filed in opposition to an already approved project?

In essence, what the City of Los Angeles did was re-zone the site of a previously approved Super Target to remove the need for the variances that were adopted in support of the project, which the trial court had struck down in the litigation commonly referred to as “Target I.” Continue reading “California Appeals Court Upholds Legislative Workaround that Mooted CEQA Suit Targeting Development Project in Los Angeles”

EPA’s Return to Rigorous Cost-Benefit Analysis Continues with Impending Methane-Rule Revision

EPA-LogoThe Environmental Protection Agency (EPA) is set to propose changes to the regulation of mercury emissions that can recalibrate the balance between the costs of such controls and the benefits they confer. This action would be consistent with other administrative agency moves, which we have discussed recently here, to elevate the level and quality of economic analysis that past and future regulations must undergo.

The proposal EPA recently sent to the White House’s Office of Management and Budget characterizes the Mercury and Air Toxics Standards Rule for Power Plants (“MATS rule”) as a needlessly expensive mandate and recommends that its costs and benefits should be recalculated. The MATS rule was aimed at reducing toxic power-plant emissions, but utilities have spent an estimated $9.6 billion a year to comply with the new standards, while the mercury emissions reductions have led to a comparatively small estimated annual benefit of $4 million to $6 million. When signing the Energy Independence Executive Order, the President singled out MATS, stating, “Perhaps no single regulation threatens our miners, energy workers, and companies more than this crushing attack on American industry.” Continue reading “EPA’s Return to Rigorous Cost-Benefit Analysis Continues with Impending Methane-Rule Revision”

WLF Supreme Court Preview Briefing Delves into Cases and Petitions Affecting Free Enterprise

Our October Term 2018 preview aired live at 12:30 on September 18. Thomas Goldstein of Goldstein & Russell, P.C. moderated a panel that featured Professor John Yoo of UC Berkeley School of Law; Shay Dvoretzky of Jones Day; and Beth Brinkmann of Covington & Burling LLP.

Washington Legal Foundation has filed amicus briefs in four cases currently on the Court’s October 2018 docket and in support of five certiorari petitions:

Merits cases

Cert. Petitions

Relevant WLF Publication

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