Tribal Claims to Water Continue in Oklahoma

Posted on October 29, 2010 by Mark Walker

Last year, in State of Oklahoma v. Tyson (Case No. 05-cv-329-GKF-PJC), a federal court threw out the State of Oklahoma's claims against poultry companies for $600 million in environmental damages to the Illinois River Watershed (IRW) due to the State's failure to join the Cherokee Nation as a party to the lawsuit. The Court held the Cherokee Nation was an indispensable party because of its potential "substantial interests" in the IRW, but the Nation could not be joined as a party because of its sovereign immunity. The Nation's last minute request to join as a party was denied as untimely. The case then proceeded solely as to injunctive and other equitable relief.

 


On the heels of the Tyson decision, in early 2010, the Apache Tribe filed a lawsuit in federal court seeking a declaratory judgment that it has Winters water rights (referencing the 1908 United States Supreme Court case establishing the doctrine of tribal federal water rights) in the Red River Basin within its historical tribal boundaries in southwest Oklahoma. Ironically, the State of Oklahoma now seeks to dismiss this lawsuit claiming the Tribe has failed to join indispensable parties, namely the Tribal "allotees" who received individual allotments of Tribal lands in the 1890's, as well as all other persons who claim an interest in the basin. The State claims that, in order to resolve the Tribe's claims, the Court must necessarily determine how much water the Tribe owns or can use, which the State contends puts the Tribe at odds with all other users within the basin.

 


In response, the Apache Tribe asserts it is not seeking a quantification of its reserved water rights, rather it is only seeking a determination that it has reserved rights under the Winters doctrine.

 


The motion to dismiss is still pending. If the case survives the motion, the Court will have to grapple with the issue of how the allotment of tribal lands, which occurred with most tribes in the late 1800's and early 1900's, affected the water rights which the tribes held prior to allotment, and the water rights associated with the lands which remained with the tribes after the allotment process, and how such rights interrelate with State water regulatory systems that have existed for decades. The importance of these cases looms large, as most of the State of Oklahoma and its water resources lie within the historical boundaries of 39 different federally recognized tribes.

Winner of the Stephen E. Herrmann Environmental Writing Award for 2010

Posted on October 25, 2010 by Rachael Bunday

The American College of Environmental Lawyers announces the Stephen E. Herrmann Environmental Writing Award for 2010. The winner is Kate R. Bowers for her Note, Saying What the Law Isn't: Legislative Delegations of Waiver Authority in Environmental Laws, 34 Harv. Envtl. L. Rev. 257 (2010).  You may view her article here.

Climate Change Policy

Posted on October 18, 2010 by Rachael Bunday

The American College of Environmental Lawyers has adopted the following policy statement on Climate Change. The statement reflects the collective position of the College and not of any individual member.

 

BE IT RESOLVED, that the American College of Environmental Lawyers urges the Congress of the United States to enact legislation to address climate change without delay;

 

AND, BE IT FURTHER RESOLVED, that the American College of Environmental Lawyers urges that the United States actively promote international action to address climate change.

Climate Change Policy

Posted on October 18, 2010 by Rachael Bunday

The American College of Environmental Lawyers has adopted the following policy statement on Climate Change. The statement reflects the collective position of the College and not of any individual member.

 

BE IT RESOLVED, that the American College of Environmental Lawyers urges the Congress of the United States to enact legislation to address climate change without delay;

 

AND, BE IT FURTHER RESOLVED, that the American College of Environmental Lawyers urges that the United States actively promote international action to address climate change.

40 Years of Federal Environmental Law - How Should Lessons Learned From Our Experience Be Used?

Posted on October 14, 2010 by Charles Tisdale

Congress created the primary framework for air and water pollution control in the 1970 Clean Air Act and 1972 Clean Water Act. RCRA and TSCA were enacted in 1976 and CERCLA in 1980. Thus, we have almost 40 years worth of experience with the major federal environmental laws. What lessons can we learn and how should we use our knowledge in the future?

I began the practice of environmental law in 1973. At that time, the regulated community was very concerned that requiring the best treatment systems technologically available for air and water discharges would cause serious economic problems for U.S. industry and local governments. History has shown that this concern was not justified. The technology forcing aspects of the Clean Water Act and Clean Air Act have worked effectively to limit emissions into water and air from stationary sources. Compliance with the standards created pursuant to the Clean Water Act and Clean Air Act resulted in innovations, including recycling, innovative technology, new jobs and changes in the use of materials, all practices which were beneficial to the economy.

Technology forcing, regulation and uniform enforcement produced substantial results. Why not use the same concepts today where they are applicable to discharges which cause problems? Economic considerations are still important, technology forcing can only go so far, but improvements can be made without adversely affecting the economy. Many of the improvements made to comply with water and air laws would now fit within the rubric of “sustainability”.

American environmental laws set models for other countries. This status is changing. The European Union has created new laws that, in some cases, are better than the United States’ laws while still taking into account cost and economic considerations.
 

Concerns about Competitiveness

It is valid to be concerned about the competitiveness of U.S. industry if new environmental laws and regulations are passed. However, 40 years of history teaches us that carefully drawn legislation can produce new practices, new technologies and new jobs which will be beneficial to the economy and to the environment.

Coordination with Other Countries

There is serious concern that reducing emissions further will create conditions in which U.S. industry cannot compete with foreign industries. There is a need to seek commitments from other countries; however, this need should not be used as an excuse to avoid new environmental laws or regulations. China is ahead of the United States in creating new jobs through new technologies related to energy and improvement of the environment. The economic benefit of using the laws and regulations that worked best in the 1970s and 1980s should not be discounted or used as an excuse for the failure to legislate or regulate.

Environmental Priorities

Federal environmental laws were created in response to crisis. A river catching fire, the loss of visibility in cities due to air pollution, contaminated groundwater and soil from historic disposal. Many factors have created what most people view as an environmental crisis in numerous areas. Politics has played a significant role in preventing an effective response to our current problems. However, we again need to consider what history teaches us. The Clean Water Act is often rated as the most successful environmental law. It was enacted while a Republican was President. Long time EPA employees now in private practice tell me the agency worked the best under George Bush, Sr., another Republican President. Thus, politics should not be used as a basis for opposition to changes and improvements in environmental laws and regulations.

Setting Priorities

When the history of the past 40 years is accurately written, I predict we will question why so much money has been spent on cleanup to stringent levels that were not necessary to protect human health or the environment at superfund sites, and so little attention has been given to the need to improve air quality. Studies from numerous reputable sources have shown that exposure to particulates in cities has a long term effect on the health of all residents. Potential exposure to hazardous substances in soil and groundwater creates significant emotion while poor air quality in major metropolitan areas is generally accepted as inevitable. A comprehensive and holistic review of the piecemeal environmental laws may result in new priorities and the opportunity for creative solutions to the major issues.

Many significant environmental problems are created by pollution from non-stationary sources. Thus, solutions will be more difficult than the technology forcing provisions that work so well in the Clean Water Act and Clean Air Act. Nevertheless, we as environmental lawyers should use our experience and knowledge to educate others and seek legal, regulatory and voluntary changes to address the environmental issues that present the most serious problems to public health and the environment. We have the experience and the knowledge. I submit that it is our duty to the public and to future generations and our ideas can result in changes that improve the economy. Sustainability is the first significant environmental movement to come from the bottom up rather than the top down. We have a responsibility to further that movement in the development of new laws and regulations.

Governor Manchin (D-WV) Sues EPA Over Failure to Issue Mining Permits

Posted on October 12, 2010 by David Flannery

On October 6, 2010, and at the direction of Governor Joe Manchin (D-WV), the West Virginia Department of Environmental Protection (WVDEP) filed a complaint against EPA and the Army Corps of Engineers in U.S. District Court for the Southern District of West Virginia. The complaint alleges that two actions by EPA, requiring surface mine permit applications to undergo enhanced scrutiny and setting a new water quality standard based on conductivity, are unlawful and have brought the permitting process to a standstill. WVDEP is seeking a court order declaring EPA’s actions to be unlawful and enjoining their implementation.

 

WVDEP argues that EPA’s actions 1) are substantive rule changes that did not go through formal rulemaking required by the APA; 2) require the Corps to apply illegal presumptions during environmental assessments of new surface mine permits; 3) usurp West Virginia’s authority to implement its own water quality standards and effectively issue NPDES and SMCRA permits; 4) impose new water quality standards that are not based on sound science; and 5) have caused undue delays in the issuance of surface mining permits and threaten the supply of coal available for the nation’s energy needs.

 

Governor Manchin is in a hotly contested race for the US Senate in which his opponent is accusing him of being a "rubber stamp" for President Obama. Undoubtedly this action will be offered as a response to that criticism.

RIGHTS OF CITIZENS MAY DEPEND ON TIME ZONE

Posted on October 4, 2010 by Brian Rosenthal

Under the Clean Air Act (CAA), how long must an operator worry whether a citizen suit will be filed claiming its facility construction modification triggered Prevention of Significant Deterioration (PSD) permit requirements? The answer may depend on when and where the modification occurred. If a company violates its duty to obtain a preconstruction permit under the CAA’s PSD permitting requirement, it may be subject to a later citizen suit for failing to operate with a proper permit or failing to incorporate best available control technology (BACT). The United States Court of Appeals for the Eighth Circuit joins the Eleventh Circuit by concluding the CAA’s PSD provisions are reviewed when construction or modification is initiated and are not ongoing, operating requirements. While there is no statute of limitations for CAA citizen suit actions, the general federal five year limit applies from claim accrual. Thus, in the reviewed case because the last challenged modification was constructed more than five years before the filed citizen suit, the court found the citizen suit untimely. PSD permits are for construction and do not set operating requirements. BACT and PSD go “hand in hand”, so because PSD permitting could not be timely claimed, neither could the claim as to control technology be sustained. Operators in the Sixth Circuit however may not be so safe—that circuit has held State Implementation Plan (SIP) regulations contain operating requirements, but hold the claim in Kentucky, Michigan and Ohio--the Sixth Circuit contrary case may be limited to Tennessee or any other state with an SIP allowing for permit issuance post-construction. Sierra Club v. Otter Tail Power Co., No. 09-2862 (8th Cir. August 11, 2010).