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”

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”

Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements

dojenrdThe Justice Department’s (DOJ) policing of class-action settlements in recent months has the potential to serve as a significant check on the plaintiffs’ bar. While DOJ has had the right to express its view of proposed class-action settlements since 2005 pursuant to the Class Action Fairness Act (CAFA), only recently has the department’s Consumer Protection Branch exercised its authority to oppose such settlements. Washington Legal Foundation certainly applauds these efforts to intervene in and oppose frivolous, unfair, or inequitable class settlements, but what DOJ has done recently in several environmental citizen suits may be even more significant. Continue reading “Environmental Ambulance Chasing: DOJ Urges Court to Scrutinize Clean Water Act Citizen-Suit Settlements”

Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach

sboxermanFeatured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP

In a recent decision, Upstate Forever v. Kinder Morgan Energy Partners, L.P., Case No. 17-1640 (4th Cir. Apr. 12, 2018), a panel of the U.S. Court of Appeals for the Fourth Circuit held that federal Clean Water Act (“CWA” or “Act”) jurisdiction extended to pollutants released into soil that then migrated through groundwater to a water of the United States.  Last, week the full court denied rehearing en banc, clearing the way for a petition for certiorari to the U.S. Supreme Court.

Indeed, with this ruling, it seems ever more likely the Supreme Court will weigh in on this question of the scope of Clean Water Act jurisdiction.  In Upstate, the Fourth Circuit panel joined the Ninth Circuit, which recently ruled that the Act did extend to a release of pollutants through groundwater to a water of the United States, Hawai’i Wildlife Fund v. Cty. of Maui, 881 F.3d 754 (9th Cir. 2018) (click here for my analysis of that decision), but those rulings conflict with two earlier rulings by the Fifth and Seventh Circuits.  See Rice v. Harken Exploration Co., 250 F.3d 264, 271 (5th Cir. 2001); Vill. of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, 965 (7th Cir. 1994).  Continue reading “Fourth Circuit Exacerbates Court Split Over Clean Water Act’s Jurisdictional Reach”

Environmental Enforcement Implications from Recent DOJ and EPA Guidance

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP

Last month, the U.S. Department of Justice (DOJ) and the Environmental Protection Agency (EPA) separately issued informal guidance documents that could have a major impact on businesses enterprises’ environmental law and regulatory compliance. DOJ’s guidance relates to civil enforcement activities generally, while EPA’s involves environmental law enforcement at the state level under the rubric of cooperative federalism. Each document is explained below. Continue reading “Environmental Enforcement Implications from Recent DOJ and EPA Guidance”

D.C. Circuit Once Again Reminds EPA Which Governmental Branch Enacts Laws

Featured Expert Column – Environmental Law and Policy

sboxermanBy Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In recent years, either when Congress has chosen not to act on certain matters—or arguably does so without sufficient clarity—the Executive Branch has asserted the power to address issues through regulation. These agency actions, of course, run headlong into one of the core separation of powers under the Constitution—that Congress is empowered to enact laws while the Executive is tasked with implementing them.

Hence, not surprisingly, the judiciary has increasingly been asked to answer whether an agency had the statutory authority to issue a particular regulation—or whether the agency exceeded the power it had been granted by the Congress.

A recent decision of the U.S. Court of Appeals for the D.C. Circuit adds to that jurisprudence. On August 8, 2017, a three-judge panel ruled in Mexichem Fluor, Inc. v. EPA that the U.S. Environmental Protection Agency (“EPA”) exceeded its authority under the Clean Air Act (“CAA” or Act) when it issued a 2015 rule eliminating the use of hydrofluorocarbons (HFCs) in certain products (the “2015 HFC Rule”). Continue reading “D.C. Circuit Once Again Reminds EPA Which Governmental Branch Enacts Laws”

DC Circuit’s “Aneurysm of Activism”: EPA Temporary Stay of Air Rule Is Final Agency Action

Featured Expert Column – Environmental Law and Policy

sboxermanBy Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

On July 3, 2017, in a 2-1 per curium decision, the US Court of Appeals for the DC Circuit vacated a three-month stay that the United States Environmental Protection Agency’s (“EPA”) had issued while the agency reconsiders its 2016 New Source Performance Standard (NSPS) for the oil and gas sector.  See Clean Air Council v. Pruitt, No. 17-1145, (D.C. Cir. July 3, 2017).  In a well-reasoned dissent, Judge Brown argued neither the agency’s decision to grant a temporary stay nor reconsider aspects of its own regulation were final agency action.  Relying on the dissent, intervening states and industry stakeholders have sought rehearing en banc and that request is pending.  However, regardless of the outcome of that request, the panel ruling indicates that EPA may face an activist DC Circuit that will scrutinize the agency’s process as it reconsiders regulations promulgated during the previous Administration.     Continue reading “DC Circuit’s “Aneurysm of Activism”: EPA Temporary Stay of Air Rule Is Final Agency Action”