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Legal Watch
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In a close but great decision, the US Supreme Court ruled on April 2 that the US Environmental Protection Agency (EPA) has the authority to regulate greenhouse gases, including most importantly carbon dioxide, in vehicle emissions. This means that, under the Clean Air Act, the EPA is responsible to protect the atmosphere from the effects of carbon dioxide, typically emitted by burning fossil fuel for power and heat. Limits on carbon emissions are essential to slowing global climate change. Water resources worldwide are rapidly altering as an effect of global warming. The Court's majority decision and dissent are posted here: http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf
Chief Justice John Roberts, unfortunately, dissented. Justice John Paul Stevens wrote the majority opinion. The swing vote came from Justice Anthony Kennedy. The case, Massachusetts v. EPA, was a setback for the Bush Administration’s laissez-faire policy toward environmental regulation. Connecticut was one of the 11 states that joined Massachusetts in this challenge.
In a 2nd Federal Circuit Court decision, issued January 25th, the Court rejected key parts of a 2004 EPA rule that allowed power plants and other industrial plants to continue to use once-through-cooling technology that causes massive fish kills. The new ruling in a case brought by six states (including Connecticut) the Riverkeeper Network and a number of conservation organizations requires EPA to reconsider the rule and the environmental benefits of closed-cycle cooling to meet the environmental goals of the Clean Water Act and to avoid the killing up to a trillion fish per year. Thanks to David Conrad of the National Wildlife Federation and Rep. Terry Backer of Soundkeeper, who participated in this important work and brought the decision to our attention.
On March 9, a Superior Court ruling in New London held that the Conservation Commission of East Lyme had appropriately denied an application for a residence on a 4,954 square foot parcel containing wetlands. The Commission denied the application on the basis that the negative effects would cause an irreversible and irretrievable loss of wetlands. But Superior Court also found that the denial constituted a taking of the property. The parcel is a pre-existing, nonconforming lot. The developer had scaled back the project considerably, without avoiding the negative impacts, and the Commission noted that no prudent or feasible alternative existed to the application.
The Court found this to be a practical confiscation of the plaintiff's property. Additional defendants were the Town of East Lyme and the Connecticut Department of Environmental Protection. Thanks to our director Dwight Merriam for bringing this case to our attention. It is titled Guy Turgeon v. Town of East Lyme Conservation Commission et al.
The Clean Water Act Post Rapanos
In our last newsletter, we reported on the U.S. Supreme Court's somewhat puzzling ruling in the Clean Water Act case Rapanos v. U.S.. The Court split 4-4 on the question of whether waters not in fact navigable are covered by the Clean Water Act. In the circumstances, a separate concurring opinion by Justice Anthony Kennedy offered hope for the large expanses of wetlands and streams traditionally protected under the Act. Justice Kennedy ruled that federal protections apply where one can show a "significant nexus" with navigable waters.
Connecticut river advocates were dismayed by a U.S. District Court's ruling in January that the Metacon Gun Club in Simsbury was not liable under the Clean Water Act for lead shot deposited in a floodplain zone, vernal pool and wetlands, which plaintiffs claimed flowed directly into the Farmington River. The relative good news is that the plaintiffs did not attempt to use Justice Kennedy’s "nexus" criterion, but evidently assumed that the Supreme Court plurality decision (anti-wetlands) governed. Possibly Simsbury-Avon Preservation Society et al v. Metacon Gun Club will be appealed or otherwise clarified. The U.S. Court of Appeals for the First Circuit in U.S. v. Johnson came to much happier conclusion in October that one can apply either the Supreme Court's restrictive criteria or Justice Kennedy's more expansive 'significant nexus' test.
Wetlands commissioners hate after-the-fact applications. Someone does regulated work without a permit, and then applies for approval afterward, often after being caught. Dwight Merriam sent along a case that should be reassuring for commissioners faced with such vexing circumstances. In Wishnafski v. Columbia IWC, the Superior Court in Tolland found in October that the wetlands commissioners in Columbia were within their rights to deny an after-the-fact application for a patio nearly twice the size as the one approved.
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Cooling Water Decision
In a 2nd Federal Circuit Court decision issued Thursday January 25, 2007, the Court has rejected key parts of a 2004 EPA rule that allowed power plants and other industrial plants to continue to use once-through-cooling technology though it results in massive fish kills. The new ruling in a case brought by six states, the Riverkeeper Network and a number of conservation organizations requires EPA to reconsider the rule and the environmental benefits of closed-cycle cooling to meet the environmental goals of the Clean Water Act and to avoid the killing up to a trillion fish per year.
A number of organizations are parties to this important lawsuit, including: Riverkeeper, Inc., National Wildlife Federation, Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Scenic Hudson, Save the Bay -- Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, New York / New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, and Surfrider Foundation.
States joining conservation organizations were Rhode Island, Connecticut, Delaware, Massachusetts, New York, and New Jersey. Congratulations and thanks for carrying this forward!
Click here to read the full text of the decision.
Can Hydropower Dams Be Regulated?
In S.D. Warren Co. v. Maine Board of Environmental Protection, the Court took up the question of whether under the CWA the operation of a hydroelectric dam could result in a discharge (water over the dam) requiring compliance with a state's 401 water quality certification program. This issue is extremely important in Connecticut, where, the Department of Environmental Protection has relied on the certification program to protect rivers, even while federal protections are weakening.
Under section 401 of the CWA, federal licenses issued for activities that may result in a discharge into navigable waters require a state certification that the state's water quality standards will not be violated by the discharge. To ensure the standards are not violated, states may impose conditions on the activity in their certification that are then incorporated into the federal license.
The Court's decision to review the S. D. Warren case this case came as a surprise to many (environmentalists and regulators at state and federal agencies alike) who considered a state's right to impose water quality conditions on federal hydroelectric licenses a foregone conclusion.
The central argument made by the petitioner, S.D. Warren Company, was that its hydroelectric operation, consisting of five dams and power canals on the Presumpscot River in Maine, did not result in a discharge under the CWA (the term "discharge" is used, but not defined, in the CWA). Consequently, S.D. Warren argued that their hydroelectric operation did not trigger section 401 and the conditions imposed on their operation by the State of Maine (which included maintaining a minimum stream flow, meeting specified dissolved oxygen levels, and providing fish passage) lacked legal authority. Unfortunately for S.D. Warren, the United States Supreme Court unanimously disagreed with this line of reasoning.
In an opinion written by Justice David H. Souter, the Court held that the water going over a hydro dam was indeed a discharge that could be regulated under CWA, thus triggering section 401 and the state water quality certifications. Essential to the Court's holding was its adoption of the ordinary and natural meaning of the word discharge (to flow or issue out) as derived from dictionary definition. Adopting the ordinary and natural meaning of a word is a canon of statutory interpretation when a term is neither defined by the governing statute, nor a term of art. The Court relied on this definition despite S.D. Warren's arguments that a more narrow definition was warranted.
Rivers Alliance joined in an amicus brief with the National Wildlife Federation and other environmental organizations cited by the Supreme Court in its decision.
In two consolidated cases involving wetlands, the Court was far more divided and the outcome was ominous for protection of streams and wetlands.
The cases, Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, involved the scope of federal authority to regulate private land use pursuant to the CWA. At issue in both Rapanos and Carabell was whether privately owned wetlands not adjacent to navigable-in-fact waters are covered by the CWA. Since the enactment of CWA in 1972, it has been interpreted to cover almost all wetlands and streams, although the Act in fact refers to navigable waters (the traditional public trust resource). The reasoning has been that wetlands, ground water and small streams all are essential to the prudent maintenance of navigable waters. These cases challenged that reasoning.
This issue sharply divided the Court. Indeed, although five Justices agreed that the case should be remanded to the lower court for further consideration, a majority of the Court could not agree on a rationale for the lower court to apply.
Referring to the Army Corps of Engineers as an "enlightened despot," Justice Antonin Scalia set a stern tone for the plurality opinion he authored, joined by Justices Samuel Alito, Clarence Thomas, and Chief Justice John Roberts. Scalia's pivotal argument suggested the CWA protects fewer waters than previously articulated by the Court. Particularly, Scalia interpreted the phrase "the waters of the United States" to "include only relatively permanent, standing or flowing bodies of water." And, referring to wetlands, Scalia suggested that the CWA only covers "those wetlands with a continuous surface connection to" the aforementioned "waters of the United States."
In contrast, the dissent, in an opinion authored by Justice John Paul Stevens and joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, found the Army Corps interpretation of the CWA permissible.
Due to the split in the Court, Justice Anthony Kennedy's concurring opinion - which takes an analytic middle road - will be the most influential on the lower courts. Kennedy proposed that lower courts apply a "significant nexus" test to waters or wetlands not adjacent to navigable-in-fact waters. According to Kennedy's reading of the CWA, only those waters or wetlands that "posses a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made" are covered. Wetlands have the requisite significant nexus when "the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters." Kennedy believes that because the current Army Corps of Engineer regulations are too broad, the Corps must demonstrate a significant nexus on a case-by-case basis.
The final outcome can be considered a win for wetlands for the time being. Kennedy suggested that the wetlands at issue in both Rapanos and Carabell likely had the requisite significant nexus, but the facts necessary to establish that nexus needed to be presented to the lower court on remand.
Meanwhile, at the federal level, environmental advocates are lobbying for the Clean Water Authority Restoration Act, which would amend CWA to clarify that it covers all public trust waters. (Many Rivers Alliance members and friends have responded to our appeals to contact members of Congress to urge support of this bill.) At the state level, our laws in Connecticut are quite strong. Nevertheless , the state laws are somewhat weakened in effect by the difficulty of enforcement at the local level, and now this challenge to the underlying federal law.