CQ WEEKLY – IN FOCUS
March 31, 2012 – 1:21 p.m.
Branches Clash Over Water Act’s Wording
By Geof Koss, CQ Staff
After decades of legal battles over how much power the Environmental Protection Agency has, the Supreme Court is pressing Congress to clarify the reach of the Clean Water Act, last overhauled in 1987.
Congress has been in a stalemate for years on virtually every big environmental issue since the Clean Air Act was rewritten in 1990. While the courts have stepped in to settle disputes — sometimes siding with the agency and more recently reining it in — the result has been unsatisfying policy outcomes and more litigation.
But in the past month, two rulings have declared that the agency was abusing its mandate in important ways.
In the most significant case, all nine Supreme Court justices found themselves in the rare position of agreeing that the EPA had gone too far in enforcing provisions to protect wetlands.
Just days later, a federal district court judge chastised the EPA for “magical thinking” in arguing that it could retroactively cancel a coal-mining permit that had been approved by another federal agency years earlier.
EPA critics in Congress praised the rulings as proof the agency has run amok, but in both cases the courts also cast blame on what the district court judge called the “poorly written” language in the water law.
In the wetlands case, Justice
Clarification by Congress seems unlikely, though. Efforts by Republicans to limit EPA’s statutory reach in the current Congress have not gone far. And Democrats were unable to rewrite the Clean Water Act to address the wetlands controversy even when they controlled the House, the Senate and the White House, or to enact legislation to address climate change.
The current gridlock all but ensures that the courts will have to continue to sort out the complex legal issues underpinning the regulatory battles.
“Ultimately you have the question of when Congress will jump in” on the scope of the Clean Water Act, says Bruce Myers, a senior attorney with the Environmental Law Institute, a Washington research center. “I would suspect that will happen at some point. I don’t think it will happen anytime soon.”
‘Navigable Waters?’
The case of Mike and Chantelle Sackett offers a textbook example of the confusion surrounding the Clean Water Act. In 2007, the couple began to fill in with dirt and rock a two-thirds acre lot they owned near Priest Lake, in northern Idaho, to begin construction of a house. Later, the EPA issued an order alleging they had illegally filled in wetlands without a permit. The order directed them to remove the fill and take steps to restore the land, or face fines of up to $32,500 per day.
The Sacketts asked for a hearing to determine whether the land at issue was actually covered by the law. When EPA denied the request, the Sacketts sued in federal court. The court ultimately dismissed the case, finding that the law barred early review of such enforcement orders. The couple lost an appeal, but the Supreme Court took up the case.
Branches Clash Over Water Act’s Wording
In a unanimous March 21 decision, the court found the Sacketts were entitled to file a suit under the Administrative Procedure Act, which generally allows for outside parties to challenge final agency actions in federal court. In doing so, the justices rejected EPA’s argument that allowing accused polluters to initiate such litigation would undercut its ability to prevent environmental disasters through quick enforcement.
“In a nation that values due process, not to mention private property, such treatment is unthinkable,” Alito wrote in a concurring opinion.
The high court’s ruling in Sackett v. EPA spoke to the process. But at the heart of the case lies the unresolved legal question of what exactly is covered by the Clean Water Act.
The 1972 law requires permits for the release of pollutants into “navigable waters” but vaguely defines its jurisdiction as “the waters of the United States.”
Determining the application of that standard to wetlands — which themselves may not be navigable but can have a hydrological connection to bodies of water that are — has bedeviled regulators, regulated parties and the courts for decades. The Supreme Court has ruled three times on the issue since 1985, including 2001 and 2006 decisions that offered narrow views of the law’s application to wetlands.
However, a 2006 split among the justices resulted in competing tests for determining the law’s reach — none of which commanded a majority of the nine-member court.
Legal experts say the legal opinions and corresponding responses from federal agencies have served only to further confuse things. “The fact that this case came up was engendered by the confusion in the state of the law right now,” says Larry Levine, a senior attorney with the Natural Resources Defense Council.
Chief Justice
“The Sacketts are interested parties feeling their way,” Justice
Democrats spent several years pressing a simple but controversial legislative fix: deleting the word “navigable” from the statute. However, industry feared the change would empower federal agencies to assert broader regulatory powers over all waters, and successfully kept it from being enacted.
In the current Congress, Republicans have accused the Obama administration of plotting to broaden the law’s reach through guidance and possible rulemaking, thereby attempting to achieve administratively what Democrats were unable to achieve through legislation. A bill introduced by 30 Senate Republicans last week would bar the administration from finalizing a guidance related to the water law’s reach or from using it as the basis for developing future policies. A GOP-authored appropriations bill passed by the House last year also would have barred the guidance from taking effect, but the provision was dropped in conference negotiations with the Senate.
Legal experts on both sides warn that additional litigation is likely, highlighting the tendency of regulatory lawsuits to multiply. “The EPA uses compliance orders routinely in many contexts other than the Clean Water Act, and I think you can definitely expect regulated parties to be pushing back and demanding due process,” says Sheldon Gilbert, an attorney with the U.S. Chamber of Commerce’s National Chamber Litigation Center.
‘Poof!’
Branches Clash Over Water Act’s Wording
In a ruling issued days after the Sackett decision, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia offered a scathing analysis of another provision of the Clean Water Act as she overturned EPA’s attempt to reject retroactively a coal mining permit issued three years earlier by the Army Corps of Engineers in West Virginia.
While acknowledging that the water law assigns EPA authority to prohibit a specific site for disposal of mountaintop mining debris if it finds environmental risks, Jackson called it “stunning” for the agency to claim that it can later revoke the permit issued by the corps — the only agency identified in the law as having permitting authority. In doing so, she accused EPA of misinterpreting a single word in the relevant statutory provision — “whenever” — to imply that its authority could be invoked at any time.
“It posits a scenario involving the automatic self-destruction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!” Jackson wrote March 23 in Mingo Logan Coal Company v. EPA.
Jackson also devoted several pages to deciphering several “clumsy” parenthetical phrases that Congress included in the law. She ended up using statements by Democratic Sen. Edmund S. Muskie of Maine from the 1972 conference report that accompanied the Clean Water Act to determine that the EPA’s position was contradicted by congressional intent.
Sen.
Despite such words, an EPA spokeswoman said in an email that agency staff and the Justice Department were reviewing the decision, which “does not affect the EPA’s commitment to protect the health of Appalachian communities who depend on clean water.”
Gilbert says the two court rulings highlight longstanding industry frustration with a confusing law and its implementation.
“An important takeaway from both of these cases is that for regulated entities, it’s really hard to know what the Clean Water Act covers and EPA has only muddied those waters even more, according to the district judge,” he says.
Myers predicts that courts and federal agencies will continue to struggle in interpreting the reach of the water law until Congress breaks its current impasse on environmental issues.
“I think you will find that most observers will agree that the only true way to once and for all clear up this jurisdictional issue in light of the Supreme Court rulings is to have Congress clarify through an amendment to the Clean Water Act,” he says. “That’s very controversial and not something you would expect to see imminently.”
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