The Supreme Court’s Decision on Healthcare May Prove Fatal to Much Clean Water Regulation.
By Russell V. Randle
In the late June 2012 uproar about the Supreme Court’s decision in the cases challenging the constitutionality of the Patient Care Affordability Act, also called “Obamacare,” even dedicated Court watchers may have missed the Court’s decision to also hear three important environmental cases from the U.S. Court of Appeals for the Ninth Circuit in its next term. The outcome of the Supreme Court’s decisions in those three cases may strongly affect EPA clean water act regulation of the mining, timber and construction industries.
The Court’s decision that the health care law exceeded the permissible scope of the federal government’s authority under the Commerce Clause of the Constitution may in turn significantly affect the outcome in these Clean Water Act cases. The Clean Water Act provisions and definitions at issue in these cases involve a stretch of federal regulatory powers into areas reserved to the states until the 1970s.
Congress justified this entry of the federal government into such regulation on the basis of Congress’ constitutional power to regulate navigation and commerce. These cases involve regulation of stormwater discharges – intermittent or episodic discharges by roads, mines, timber harvesting and farming. One of the cases arises from southern California, where the arid climate stretches the navigable waters definition harder than would be true for a case arising east of the Mississippi.
Under the federal Clean Water Act, any industrial operation which discharges waste water needs a discharge permit under the National Pollutant Discharge Elimination System (NPDES). This includes storm water exposed to production materials like rock to be crushed for roads, timber to be sawn at a saw mill, or mine spoil. Thus, discharge of rain water from a construction or mine site usually requires such a permit, permits which often limit the amount and concentration of discharges, such as suspended solids (e.g. dirt), dissolved solids (e.g. salt), and sometimes metals in solution, depending on the composition of mine spoil.
Rewriting Stormwater Rules
Depending on their outcome, the Supreme Court’s ultimate decisions in these three cases may effectively rewrite storm water rules governing mining and construction operations across the United States. Recent history suggests that the Court may well overturn some or all of these decisions. Because of the Ninth Circuit’s location – the West Coast states as well as Alaska, Hawaii, Montana, Idaho, Nevada and Arizona – its environmental decisions on such issues have a big impact on the mining industry.
In the past decade, the Supreme Court has reversed the Ninth Circuit more often than any other federal court of appeals. Indeed, the Ninth Circuit has been reversed about twice as often as its decisions have been affirmed in that period. Thus, the Court’s decision to review these decisions already suggests that the Court has serious concerns. Those concerns are further underlined because the United States had unsuccessfully urged the Court not to do so.
The Court agreed to review Decker v. Northwest Environmental Defense Center, and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, 640F.3d 1063 (9th Cir. 2011), two related cases, addressing two questions: first, whether point source discharges from logging roads and certain other forestry activities is industrial stormwater requiring an NPDES permit, and second, whether EPA’s interpretation of its stormwater regulation to exclude such discharges could be challenged in a citizen’s enforcement action.
In practical terms, the Court will be addressing whether potentially thousands of additional permits will need to be issued, and doing so in a case which will determine how broad EPA’s discretion is to segment permit requirements to concentrate on what are likely to “dirtiest” potential discharges. Additionally, the Court’s decision about what EPA interpretations of its own rules can be challenged in citizen enforcement actions may significantly reduce potential enforcement claims against dischargers or expand them.
The judicial arithmetic is not favorable to the environmentalists as it appears Justice Breyer will recuse himself. He is, more often that not, a favorable vote for environmentalists in such cases.
The third case the Court will review is styled Los Angeles County Flood Control District v. Natural Resources Defense Council, – F.3d – (9th Cir. 2011), cert. granted, No. 11-460 (June 25, 2012). In this case, the question presented for review was limited by the Court to whether the Court of Appeals’ decision conflicted with the Supreme Court’s holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a “discharge” for purposes of the Act.
The Court’s decision in the LA County case may nonetheless have much wider effects than the Court’s narrow formulation of the question presented for review would suggest. This case also involves liability for municipal stormwater dicharges, and may put the whole definition of “waters of the United States” into play and do so in an arid environment.
The Court’s sharp divisions over that definition in the 2007 Rapanos case about wetlands, [citation], and the muddled result there, may be a strong incentive to “clarify” this issue in a way which deregulates thousands of dischargers and millions of acres of wetlands. Congress’ inability, despite many attempts, to pass any change to the statutory definition from the 1970s may give the Court further incentive to do so.
Given the Court’s current composition, neither EPA nor environmental groups may like the result, which could significantly reduce the scope of applicable federal stormwater and other discharge limitations.
The Court has not yet scheduled these cases for argument, nor have the briefs on the merits yet been filed, so they will probably not be decided before some time next spring. By the time the cases are argued, they are likely to attract a great deal of publicity. As thousands of parties, and potentially tens of thousands, are potentially affected by the decisions, the stakes are quite high. The possibility that the Court may further trim federal environmental and other regulations raise the stakes even higher.