March 1, 2010

Clean Water Act point-counterpoint

By Clean Water Act point-counterpoint

Author:  Damien M. Schiff

Today's New York Times has this article contending that, at least from the US Environmental Protection Agency's perspective, that agency's ability to enforce the Clean Water Act and prevent the Nation's waters from becoming polluted has been seriously constrained by recent federal court rulings. The article's general contention, as well as its several subordinate assertions, are demonstrably false.

Point: "Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators."

Counterpoint: The observation is vacuous: uncertainty can cut either way, i.e., if nothing is regulated, then that state of affairs is as certain as if everything were regulated.

Point: "Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to Environmental Protection Agency regulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years."

Counterpoint: Obviously, the agency is in the best position to track its enforcement statistics. But if there really were big bad polluters out there who are not being prosecuted, not only would I be genuinely surprised, but I would also then ask why the agency is spending millions of dollars prosecuting small landowners (many of them PLF clients) throughout the Nation for allegedly putting clean fill on putative wetlands, far removed from any navigable water, without a CWA permit? Is the Nation's water quality being harmed by these activities? Of course not. If problem there be, it's wholly a product of the agency's bizarre enforcement priorities.

Point: "‘We are, in essence, shutting down our Clean Water programs in some states,’ said Douglas F. Mundrick, an E.P.A. lawyer in Atlanta. ‘This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.’"

Counterpoint: This verges on the disingenuous. PLF attorneys work on CWA cases from around the country, and we have observed no hands-off or underenforcement attitude in any region of the country.

Point: "‘This is a huge deal,’ James M. Tierney, the New York State assistant commissioner for water resources, said of the new constraints. ‘There are whole watersheds that feed into New York’s drinking water supply that are, as of now, unprotected.’"

Counterpoint: Now, this is truly misleading. Mr. Tierney gives the clear impression that limitations on the power of the feds to enforce the CWA somehow restricts the power of the states to enforce their own water quality rules. Of course not: the states are free to impose restrictions far tougher than any federal standard. Either Mr. Tierney is trying to deceive, or he has forgotten some basic principles from his high school civics course.

Point: "But the two decisions [Rapanos v. United States and Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers] suggested that waterways that are entirely within one state, creeks that sometimes go dry, and lakes unconnected to larger water systems may not be ‘navigable waters’ and are therefore not covered by the act — even though pollution from such waterways can make its way into sources of drinking water."

Counterpoint: Uh, wrong, wrong, wrong. Just read the EPA's guidance on Rapanos. That document has no difficulty, post-Rapanos, asserting jurisdiction over waterbodies that would fall under the abovementioned categories.

Point: "‘Cases now are lost because the company is discharging into a stream that flows into a river, rather than the river itself,’ said David M. Uhlmann, a law professor at the University of Michigan who led the environmental crimes section of the Justice Department during the last administration."

Counterpoint: I would ask the good professor to provide any examples. I doubt that he could, because he knows, as well as the agency, that liability under the CWA can still attach even if the immediate receptacle for the pollution is nonjurisdictional. In fact, Justice Scalia, in his plurality opinion in Rapanos, specifically noted that some waterbodies that are not jurisdictional in themselves could still form the basis of a CWA violation if they were reconceptualized as "pointsources." See Rapanos v. United States, 547 U.S. 715, 742-45 (2006) (plurality opinion).  But the chief point here is that, if it can be proved that pollution ended up in navigable water, then it’s quite likely that the polluter can be held liable, even after Rapanos.

Point: In 2007, for instance, after a pipe manufacturer in Alabama, a division of McWane Inc., was convicted and fined millions of dollars for dumping oil, lead, zinc and other chemicals into a large creek, an appellate court overturned that conviction and fine, ruling that the Supreme Court precedent exempted the waterway from the Clean Water Act. The company eventually settled by agreeing to pay a smaller amount and submit to probation.

Counterpoint: The passage refers to United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), an 11th Circuit decision that interpreted the CWA’s scope post-Rapanos. But the discussion of Robisonis misleading, because it gives the impression that the appellate court held that the waterbodies at issue were beyond federal regulation. That’s just plain false. What the 11th Circuit actually held was that the district court had not applied the correct Rapanos standard (specifically, Justice Kennedy’s significant nexus test), and therefore a remand was appropriate for the trial court to apply the correct standard. See id. at 1223-24.  True, the government settled, but settlements happen all the time for a multitude of reasons; there is no indication that the government settled because it believed that the waterbodies at issue wouldn’t meet the Kennedy test.

Point: Professor Farber at Legal Planet, responding to the Times article, observes: "According to the Times, efforts to restore the previous coverage of the Clean Water Act have been blocked by conservatives and farm interests. The Clean Water Act was in effect for many years before the Supreme Court’s conservative majority applied the pruning shears. Yet the sky didn’t fall, and federal bureaucrats didn’t prosecute farmers for filling in mud puddles. It’s time for Congress to undo the mischief of the Court’s ruling."

Counterpoint: Is Professor Farber familiar with the "prior converted cropland" exemption for farmers?  Under this longstanding exemption, most agricultural operations are already exempt from CWA regulation.  And Professor Farber conveniently ignores the scores of landowners who were prosecuted by the feds under pre-Rapanosstandards, prosecuted, mind you, for doing pretty much what Professor Farber says has always been off the regulatory table.  In fact, Mr. Rapanos himself fits right into that mold.

In sum, here’s hoping that in the future the federal regulatory cheerleaders will at least present their arguments fairly and accurately, rather than, as they have today, in an obtuse, opaque, and misleading manner.

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