Argument Analysis: Context Trumps Text as Justices Debate Reach of Clean Water Act

by Lisa Heinzerling | November 11, 2019

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case.

The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water.

The textual crux of the case is the word “from”: Does “from” mean that a pollutant must be directly delivered to a navigable water by a point source or that a pollutant must merely originate at a point source?

If “from” means the former, the County of Maui wins, because the millions of gallons of treated sewage it discharges into its underground wells run through groundwater before reaching the Pacific Ocean. If it means the latter, the environmental groups win, because the treated sewage originates from the county’s wells, and all agree that these wells are point sources under the statute.

At oral argument yesterday, the justices appeared to find little purchase in the bare word “from.” Justice Brett Kavanaugh was most explicit on this point. He suggested that both ...

Argument Preview: Justices to Consider Reach of Clean Water Act's Permitting Requirement

by Lisa Heinzerling | November 04, 2019
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it – the "national pollutant discharge elimination system" – ...

How to Improve Allocations of Regulatory Authority

by Alejandro Camacho | October 23, 2019
Originally published on The Regulatory Review. Reprinted with permission. Ever since Ronald Reagan declared government to be the problem rather than the solution, the federal bureaucracy has been the target of criticism from right-leaning think tanks, regulatory skeptics in academia, and politicians of all political persuasions. Lately, members of the federal judiciary have visibly joined this chorus of criticism. Among the charges leveled against regulation and the agencies responsible for issuing and enforcing rules is the claim that, even assuming ...

2020 in the Courts: A Preview

by Daniel Farber | October 22, 2019
Originally published on Legal Planet. There are going to be some significant environmental cases over the next year. In addition, some important new cases will be filed now or in the near future, which may produce some interesting rulings. It will probably take more than a year, however, for some of the big new cases down the turnpike to result in their first level of judicial opinions, let alone reach completion. The Supreme Court The Court agreed last spring to ...

A Tribute to Rep. Elijah Cummings: Fueled by Compassion, a Champion of Social Justice

by James Goodwin | October 17, 2019
Rep. Elijah Cummings of Maryland was different from most other lawmakers we see today. He embodied a moral authority that others try to project but that for him was unquestionably authentic. When he spoke of working on behalf of "the people," there was never a shred of a doubt that he meant just that. Rep. Cummings is a vivid reminder that our democratic institutions work best when they are open to genuinely diverse perspectives. His personal experiences with adversity and injustice ...

The Trump Administration's New Anti-Safeguard Executive Orders on Guidance, Explicated

by James Goodwin | October 14, 2019
Last week, President Trump unleashed the latest volley in his administration's efforts to bring about the "deconstruction of the administrative state" with the signing of two new executive orders relating to agency issuance and use of "guidance documents." The first purports to ensure "improved agency guidance," while the second claims to promote "transparency and fairness" in the use of guidance for enforcement actions. The bottom line for the orders is that, with a few potentially big exceptions, they are unlikely ...

What the Trump Impeachment Inquiry Teaches Us about the Federal Bureaucracy

by James Goodwin | October 10, 2019
Just when it seemed that President Donald Trump was completely immune to accountability for his various abuses of power, impeachment proceedings against him have quickly picked up steam over the last couple weeks. Laying aside what happens with Trump, it's significant that it was a whistleblower complaint from a current CIA officer that helped expose the president's misconduct. (Reports that a second whistleblower, another intelligence official, is preparing to step forward have emerged in recent days.) Therein lies one of ...

New Report: How to Build a Regulatory System for a More Just and Equitable America

by James Goodwin | September 25, 2019
Last week's televised climate town hall saw several Democratic presidential candidates outline an impressive array of policies that, if implemented effectively, offer some measure of hope for averting the worst consequences of the climate crisis for us and future generations. The operative concept there – lurking in the background and too often taken for granted – is effective implementation. The fact of the matter is that meeting our country's greatest challenges – climate change, economic inequality, systemic racism, access to ...

A Welcome Victory in the D.C. Circuit

by Daniel Farber | September 17, 2019
Originally published on Legal Planet. Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The federal appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak. Last week also featured depressing examples of the drumbeat of Trump administration rollbacks, so it was especially nice to have some good news. I hesitated about whether to write something about the case because the opinion makes for ...

Overshoot: Trump's Deregulatory Zeal Goes Beyond Even Where Industry Asks Him to Go

by Amy Sinden | September 16, 2019
Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0. The Trump EPA last month proposed a new plan to remove oil and gas developers’ responsibility for detecting and fixing methane leaks in their wells, pipelines and storage operations. This proposal to axe the Obama-era methane rule is notable for two reasons. First, it is a huge step backward in the race to stabilize the climate, just at the moment scientists warn we need to move forward ...

Cost-Benefit Analysis and the Next President

by Daniel Farber | September 06, 2019
Originally published on Legal Planet. Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration ...

Clearing the Air

by Daniel Farber | August 26, 2019
Originally published on Legal Planet. On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to ...

President Trump's Call for 'Red Flag' Laws Is a Hypocritical Distraction

by Thomas McGarity | August 19, 2019
In response to this month's mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump urged legislators to enact "red flag" laws to prevent future tragedies. Red flag laws allow police or family members to seek court orders (sometimes called "extreme risk protection orders") that temporarily remove firearms from individuals who present a danger to themselves or others. But do these laws and regulations distract from the larger point about gun violence and mass shootings in the United ...

Can Hip Hop Save Rulemaking?

by James Goodwin | August 06, 2019
Originally published by The Regulatory Review. Reprinted with permission. Public participation is one of the cornerstones of U.S. administrative law, and perhaps nothing better exemplifies its value than the notice-and-comment rulemaking process through which stakeholders can provide input on a proposed rule. Yet there remains an inherent tension in the democratic potential of this process. In reviewing final rules, courts demand that agencies demonstrate that those rules are responsive to any substantive comments they receive. But courts generally limit this ...

Get Ready for Phase 2 of the Deregulation Wars

by Daniel Farber | August 05, 2019
Originally published on Legal Planet. The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution. The Clean Air Act, the federal air ...

The Cost-Benefit Boomerang

by Amy Sinden | July 29, 2019
This commentary was originally published by The American Prospect. Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House’s annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and ...

Cost-Benefit Analysis According to the Trump Administration

by Rena Steinzor | July 23, 2019
Originally published by The Regulatory Review. Reprinted with permission. As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking. To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and ...

The Coming Decline of Anti-Regulatory Conservatism

by Joel Mintz | July 23, 2019
Originally published by The Regulatory Review. Reprinted with permission. When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and ...

Regulatory Policy

When it comes to health, safety and the environment, executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities, including companies that pollute or  make potentially dangerous products, spend millions working to block, delay, and unravel such protections.

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