January 13, 2014

The Clean Water Act v. the Fourth of July

By Jonathan Wood Attorney

A Lake Tahoe couple are challenging the biannual fireworks display that takes place every Independence and Labor day at the lake. They’re seeking $75 million dollars in fines, but insist that they’re not trying to prevent the non-profit organization that sponsors the display from continuing to host it. The case raises an interesting question about the scope of the Clean Water Act.

The Clean Water Act requires a permit for the discharge of pollutants from a “point source.” When it enacted the act, Congress had in mind industrial discharges, things like pipes depositing industrial waste into rivers or ditches that did the same. “Point source” can’t be construed so broadly as to include everything. But, if not limited to the industrial sources that Congress had in mind, drawing particular lines can be bedeviling. For instance, courts have concluded that utility poles and human beings are not point sources, but airplanes can be.

For the first 40 years after it was enacted, fireworks displays went on without anyone thinking they required a Clean Water Act permit. If this case successfully expands the act to include these celebrations, this will mean substantial delays and costs for the — often-charitable — institutions that put them on and dampened spirits for celebrants. Tellingly, the plaintiffs had to alert the EPA that they were bringing this suit before they filed it and the agency, apparently, wanted no part of it.

What to read next