2018 STEPHEN E. HERRMANN ENVIRONMENTAL WRITING AWARD WINNER – EMILY HUSH

Posted on December 12, 2018 by JB Ruhl

Co-Author: Mary Ellen Ternes

For those Fellows who were not able to attend the Annual Meeting in Grand Teton National Park, this is to fill you in on the winner of the Herrmann Award this year, Emily Hush.  Emily is a recent graduate of Columbia University Law School and a student of our own Michael Gerrard (although we did not learn of the Gerard connection until after completion of the award selection process). The title of Emily’s winning article is Where No Man Has Gone Before:  The Future of Sustainable Development in the Comprehensive Economic and Trade Agreement and New Generation Free Trade Agreements, Columbia Journal of Environmental Law, Vol. 43:1 (link).

In the time Emily spent with us, she met many College Fellows and ably presented her winning article, which is an analysis of the recent trade agreement between Canada and the EU, the Comprehensive Economic and Trade Agreement (or CETA), as it pertains to sustainable development. As noted in the summary of the paper, in free trade agreements, a country’s power to protect the environment depends on the scope of its right to regulate, as interpreted by investment dispute resolution bodies. This right determines to what extent the State may regulate in the public interest without incurring the obligation of compensating investors for an indirect expropriation of their property. Some scholars have argued that arbitration panels and trade agreements define the sovereign right to regulate too narrowly, unduly favoring investor interests. In response, the EU has spearheaded the development of the so-called New Generation Free Trade Agreements. New Generation Agreements combine traditional free trade agreements with international investment agreements and add sustainable development as a guiding principle to create a new, all-inclusive type of bilateral agreement. These Agreements seek to recalibrate the power balance between investors and States by strengthening the right to regulate. CETA represents the culmination of the EU’s aspirations for New Generation Agreements thus far. Emily’s paper asks whether the right to regulate as granted by this progressive agreement will enable Canada and the EU to successfully defend regulation undertaken to further sustainable development against investor claims of indirect expropriation. She concludes that CETA provides a useful framework for expanding the reach of the principle of sustainable development and effectively shields the Parties’ right to regulate, without contradicting existing case law.

Emily earned her law degree from Columbia Law School in May 2018, where she was the winner of both the Harlan Fiske Stone Moot Court and the European Law Moot Court in Luxembourg. Prior to law school, Emily earned a Bachelor’s degree in French horn performance from McGill University. Emily is now an associate of Debevoise & Plimpton. She will be clerking for Judge Wendy Beetlestone in the Eastern District of Pennsylvania in 2021-2022, and for Judge Robert E. Bacharach in the 10th Circuit from 2022-2023. 

The Stephen E. Herrmann Environmental Writing Award is a prize presented to the author of a student article, note, case comment or essay published in a law journal during the current academic year, or scheduled for publication in the next academic year, that best presents a current topic in the field of environmental law.  Submissions are judged on the basis of originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. The Herrmann Award includes a stipend of $3,500 to the author of the winning article, note, case comment or essay, and $500 to the submitting law journal. The winner of the Herrmann Award is invited to present his or her submission to the Fellows at the College at their Annual Meeting. Emily is the third winner in a row to attend.

Channeling Scalia: Does the Clean Water Act Regulate Indirect Discharges “to” Navigable Waters Via Groundwater?

Posted on December 11, 2018 by Patrick A. Parenteau

On December 4 the Supreme Court signaled its interest in this question when it requested the views of the Solicitor General on whether to grant review in two pending petitions for certiorari. In County of Maui v. Hawai'i Wildlife Fund, the Ninth Circuit held that wastewater injection wells are point sources requiring NPDES permits because the “pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” In Kinder Morgan Energy Partners LP v. Upstate Forever the Fourth Circuit held that gasoline from a ruptured underground pipeline that was seeping into a nearby waterway was subject to the CWA due to a "direct hydrological connection."

By contrast the Sixth Circuit as well as a different panel of the Fourth Circuit have ruled that leachate from coal ash pits that is polluting rivers and lakes is not a “discharge from a point source” requiring a permit under the CWA. Though a majority of the thirty-odd decisions on this issue have found in favor of CWA jurisidiction, there is a definite split among the lower courts as described in a handy chart and accompanying article published by Greenwire. In looking over the decisons it appears that the “conduit” theory, evaluating time and distance between the source of the pollutants and the receiving water, and often supported by a dye test, is perhaps the most defensible methodology for asserting jurisdiction over discharges to “tributary groundwater.”   

Meanwhile EPA is pondering whether to change its longstanding position, reiterated in the Clean Water Rule (aka WOTUS), that the CWA does cover, on a case-by-case basis, point source discharges to groundwater that are directly connected to navigable waters. Back in February EPA published a request for comment in the Federal Register on “whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation.” The comment period closed in May and since then there has been no futher announcement.

The SG’s response is due January 4, which is an unusually short turnaround time that indicates four Justices may be in favor of granting one or both of the petitions in time for argument this term. The SG could cite EPA’s ongoing review with the prospect of a new policy statement or rulemaking as a reason to deny review at this time, but it is unlikley the Court would accede to that. This issue has been kicking around for decades; it has generated a good deal of confusion among the lower courts and conflicting rulings not only among but within the Circuits; it adds to the uncertainty and controversy that plagues the implementation of the CWA; and it has significant economic and environmental implications. Awaiting further word from EPA is unlikely to clarify or resolve any of this. Nor is a re-interpretation of the statute by the current EPA likely to garner much deference from a Court that has shown signs of cutting back on the scope of the Chevron doctrine.

That leaves the question how should the Court resolve the issue. In the Maui case the Ninth Circuit relied fairly heavily on Justice Scalia’s plurality opinion in Rapanos in which he  recognized the CWA does not forbid the addition of any pollutant directly to navigable waters from any point source, ” but rather the “addition of any pollutant to navigable waters.” (547 U.S. 715, 743 (2006)) Though Rapanos was a splintered decision on many points there was no disagreement with Scalia’s view that the text of the statute clearly encompassed an indirect discharge that simply “washes into” navigable waters. Whether that view prevails this time around is of course unknown.

Any rule this Court would adopt would have to be narrowly tailored to situations where the source of the pollutant was clearly a “discrete conveyance” and the evidence of a direct hydrological connection to navigable water was convincing. But assuming those predicates were proven it would be hard to justify on either scientific or policy grounds excluding such discharges from the ambit of the permit program. Indeed it would create a pollution loophole that no other existing regulatory program --federal or state--would adequately fill.

Two Strikes Against the Administration’s WOTUS Suspension Rule

Posted on December 10, 2018 by Seth Jaffe

In August, a judge in South Carolina issued a nationwide injunction against the “Suspension Rule,” which delayed the effective date of the 2015 Waters of the United States rule.  Now, a judge in Washington has gone even further.  Judge John Coughenour has vacated the rule.

The core of the new decision is the same as that in South Carolina.  By refusing to take comment on the impact of the delay in the effective date of the WOTUS rule, the Administration acted arbitrarily and capriciously and thus violated the Administrative Procedure Act.

For my non-lawyer readers wondering what the difference is between a nationwide injunction against the Suspension Rule and vacatur of the Rule, I’m picturing a petulant President Trump, sitting in a corner.  First, his teacher tells him that he can’t play with his shiny new toy – that’s an injunction.  Then, still not satisfied, another teacher comes by and takes the toy away completely.  That’s vacatur.

Two Wrongs Don’t Make a Right for the Dusky Gopher Frog

Posted on December 3, 2018 by Jeffrey Porter

You don’t see a unanimous decision of the United States Supreme Court very often, especially in an environmental case.  But that’s what happened last week when the Court held that in order for an area to be a “critical habitat” of an endangered species, it first has to be a habitat.

The case is Weyerhaeuser Company v. United States Fish and Wildlife Service, et al, 586 U.S.      , (November 27, 2018) and it revolves around 1500 acres in Louisiana where the dusky gopher frog, an endangered species, once lived but hasn’t been seen for over a half century.   The United States Fish and Wildlife Service designated the area as “critical habitat” for the endangered frogs even though everyone agreed that they could not live there without “some degree of modification,” including replacing the timber plantation currently occupying the area with a different type of forest, something the property owner, Weyerhaeuser, did not want to do.  The District Court upheld the Fish and Wildlife Service’s “critical habitat” designation and a divided Fifth Circuit Court of Appeals did as well.

The Supreme Court sent the case back to the Fifth Circuit for reconsideration in light of the Court’s holding that an area can be designated as “critical habitat” of an endangered species only if it is first actually a habitat for that species.  While that certainly makes sense, there are two other less obvious aspects of its decision that are worthy of note.

First, although the Endangered Species Act requires the designation of “critical habitat” for an endangered species at the same time the species is listed as an endangered species, the dusky gopher frog was listed in 2001, when there were only 100 of them left at a single pond in southern Mississippi, and the Fish and Wildlife Service didn’t designate any “critical habitat” for them until 2010, after it was sued by the Center for Biological Diversity for failing to do what the law requires.   This disregard by an agency of the Federal Government of its unambiguous statutory mandate is at least as disturbing as its misapplication of the law when it was forced to honor that mandate.   While two wrongs don’t make a right, the first blatant wrong should not be lost in the shuffle.

Second, the Supreme Court went to great lengths to make clear that the courts can, and should, review the Fish and Wildlife Service’s decision not to exclude an area from a “critical habitat” designation even though the statute leaves the decision of whether or not to exclude an area to the agency’s discretion.  In its unanimous opinion, the Supreme Court said that courts “must assess whether the agency’s exercise of that discretion was based on consideration of the relevant factors, including costs and benefits.

It is striking that the Supreme Court opinion went this far since it is pretty clear from the record that the area in question does not qualify as “critical habitat”, and so whether or not it would be appropriate to exclude that area is likely irrelevant in this case.   Indeed, it is hard not to read this substantial part of the Court’s opinion without wondering about the future of the 35 year old Chevron doctrine of deference to agencies which touches every aspect of environmental law, and not just dusky gopher frogs.