Government Seeks Certiorari on Clean Water Act’s Direct Review Provision in EPA v. Friends of the Everglades

by Bill Funk | July 17, 2013

Environmentalists know about the Environmental Protection Agency’s Water Transfer Rule. See 40 CFR § 122.3(i). It states in essence that discharging polluted water from one body of water to another unpolluted body of water is not a discharge of a pollutant under the Clean Water Act. According to the EPA, this action would not be regulated by the Act, because no pollutant is being “added” to the “waters of the United States.” There may be an addition of a pollutant to a particular body of water, but that is not enough, the EPA says. There must be an addition to the “waters of the United States” as a whole. This is also known as the “unitary waters” approach.   

This issue has arisen in a number of different cases, perhaps most notably in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), in which polluted water from canals was being pumped into Lake Okeechobee without a permit. The Supreme Court rendered its decision in that case before the EPA adopted the Rule, although EPA had earlier interpreted the Act informally to the same effect. The Court declined to decide the validity of the EPA’s informal interpretation, remanding the case to the lower courts on other grounds. After remand and the EPA’s adoption of the Rule, the Eleventh Circuit upheld the transfer, deferring to the EPA’s interpretation of the Act under Chevron, USA, Inc. v. NRDC, 467 U.S. 837 (1984). Before the Eleventh Circuit issued ...

Some Encouraging News About Everglades Restoration

by Joel Mintz | August 26, 2010
The past year has certainly had disappointments for people who care about protecting the environment. A major international conference on global climate change yielded no sweeping agreement to reduce greenhouse gases. The United States Senate declined to pass comprehensive climate change legislation, and residents of Louisiana and other states bordering the Gulf of Mexico suffered the ill effects of a long-running, disastrous offshore oil spill. One recent—far more sanguine—development development should not be overlooked, however: the decision of a special ...

Conservation Deal Just a Sugar Fix?

by Holly Doremus | March 10, 2010
Cross-posted from Legal Planet. When government decides that private economic activity needs to be restricted in order to preserve some part of nature, there are two basic ways to get that result — by demanding cooperation through regulation or by buying it through economic incentives or outright purchase. The second approach is often politically easier, but environmentalists have long been skeptical of relying too heavily on it.  Two major concerns have repeatedly been expressed. First, paying for conservation suffers from ...

What's Wrong with Juliana (and What's Right?)

Farber | Jan 22, 2019 | Climate Change

Regulatory Review in Anti-Regulatory Times: Congress

Farber | Jan 17, 2019 | Regulatory Policy

Using Emergency Powers to Fight Climate Change

Farber | Jan 14, 2019 | Climate Change

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