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Nov. 10, 2019 by Lisa Heinzerling

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

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 …

Nov. 7, 2019 by David Flores
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As Californians endure yet another round of devastating wildfires, they are rightly wondering if blazes of such frequency and reach are the new normal. The hard truth is that they may very well be. The fingerprints of climate change are all over this disaster, as they have been all over recent hurricane damage, and the trendline is unmistakable. With that in mind, a new report from the Center for Progressive Reform takes a look at the situation in the Golden State and elsewhere and highlights the crucial role state courts play in securing justice for those harmed by climate change.

Just as climate change heats the ocean’s waters, thus increasing the intensity of storms, it also helps drive the drought, wind, and vegetation conditions that provide the fuel and fan the flames of larger and more intense wildfires. Tracing the climate crisis back to its corporate …

Nov. 4, 2019 by Lisa Heinzerling
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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" – and the attendant statutory goal that "the discharge of pollutants into the navigable waters be eliminated by 1985." Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system's reach. County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be argued Wednesday, asks whether the act "requires a permit when pollutants originate from a point source but …

Oct. 31, 2019 by Katie Tracy
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On Halloween, nothing seems spookier than a chance encounter with a ghost or goblin, except maybe a zombie. But there is something much more haunting that happens every day. Across the United States, an average of 137 people die daily from occupational diseases caused by on-the-job exposures to toxic chemicals and other hazardous substances. Nearly 200,000 more suffer from nonfatal illnesses annually.

This is no trick. There is no mystery here. In fact, in 2017, more people died from occupational diseases than from motor vehicle accidents or firearms. And that same year, 41 workers died from acute inhalation of a chemical on the job, according to data reported by the Bureau of Labor Statistics (BLS) earlier this month. With such a high number of deaths, working with chemicals makes every day at work a fright fest.

Chemical exposures may not be the stuff of nightmares or …

Oct. 28, 2019 by Daniel Farber
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Originally published on Legal Planet. Reposted by permission.

The oil industry is enormous – something like 2 to 3 percent of global GDP. Individuals firms like ExxonMobil earn tens of billions of dollars each quarter. Controlling climate change will mean drastic curtailment in the coming decades of the industry’s major products. There’s no way that the industry will accept this lying down, and it’s a formidable opponent. To be successful, we will need a combination of strategies, aside from the rightness of our cause. There’s no doubt that there will be major battles with the industry. The question is only whether we can strengthen the forces on our side or reduce the stakes for the industry now and then. Here are some strategies of both types.

  1. Expand transparency. Most obviously, everything that undermines the political clout of oil companies is good. That means more …

Oct. 23, 2019 by Dave Owen
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Originally published on Environmental Law Prof Blog.

Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice. The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies.

For environmental justice advocates, much of the report will paint a depressing, if unsurprising, picture. In 2011, federal agencies participating in an environmental justice working group agreed to develop and periodically update environmental justice strategic plans, but some agencies have never developed plans, and others have stopped updating their plans. Ideally, those plans would include ambitious goals for progress and measurable indicators for evaluating progress toward (or past) those goals, but many agency plans include no such things …

Oct. 22, 2019 by Robert Glicksman, Alejandro Camacho
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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 the validity of regulatory goals, traditional regulatory approaches too often fail to achieve them or impose unjustified social costs. Others assert that regulatory "intrusions" on the operation of the free market are antithetical to the protection of individual liberty and the economic system on which our nation was built.

We take a different view.

Government regulation serves a critical role in promoting the public interest by, for …

Oct. 21, 2019 by Daniel Farber
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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 hear two environmental cases this year. The first, County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, will be argued on November 6. The issue is whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

The second case was Atlantic Richfield Co. v. Christian, No. 17-1498. It's …

Oct. 17, 2019 by James Goodwin
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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 helped forge the views he brought to his work as representative of Maryland’s 7th District, which includes some of the most economically distressed areas in the country. These lived experiences no doubt led him to view his constitutional duty to "promote the general Welfare" differently from many of his colleagues and to take that duty much more seriously.

Rep. Cummings brought this unique perspective …

Oct. 17, 2019 by Evan Isaacson
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The many thousands of people in the Mid-Atlantic region who care deeply about restoring the Chesapeake Bay tend to be pretty knowledgeable about the causes of the Bay's woes and even some of the key policy solutions for restoring it to health. These concerned citizens may even be familiar with the term "TMDL," a legal concept within the Clean Water Act that is probably completely foreign to most of the rest of the country. But what even the most committed Bay advocates may not be aware of is that a TMDL (short for "Total Maximum Daily Load") is merely a plan, not an enforceable document, and certainly not a self-activating solution to the Bay's problems.

The key to giving effect to the Bay TMDL and the entire Chesapeake restoration framework lies in the mechanics of the Clean Water Act. Quite simply, the TMDL sets an overall …

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