In Decker v. Northwest Environmental Defense Center, the Supreme Court ruled 7-1 (Justice Breyer did not participate) that EPA’s interpretation of its own rules exempting channelized logging road runoff pollution from Clean Water Act regulation was reasonable. While the opinion authored by Justice Kennedy is a setback for environmental advocates concerned with runoff pollution from timber harvesting, there are some silver linings.

First, the Court cleared away a potential hurdle for citizen enforcement of the CWA when it held that plaintiffs could use the citizen suit provision (CWA § 305) against a polluter, even when the citizen suit inherently challenges an EPA regulatory exemption under the CWA. The CWA provides a different cause of action (CWA § 309(b)) for judicial review of EPA rules and permit decisions in federal circuit court, subject to a 120-day deadline. The plaintiffs in Decker used the CWA § 305 citizen suit provision and alleged that the defendants violated the CWA, regardless of EPA rules that arguably exempted the defendants’ pollution from regulation. In effect, the citizen suit required the court to consider whether EPA’s regulatory exemption complies with the terms of the statute itself, long after the 120-day review period for agency action expired. Nonetheless, the Supreme Court held that CWA § 309(b) does not bar the filing of the citizen suit or the court’s consideration of the EPA’s regulatory exemption. This is a significant procedural win for environmental plaintiffs and clean water advocates, and will likely result in more collateral challenges to EPA’s regulatory exemptions under the CWA.

Justice Scalia’s dissent presents another silver lining. The majority’s opinion relied heavily on deference to the EPA in interpreting its own regulations. While the text of the regulations seemed to indicate that the logging road pollution at issue in the case was subject to regulation, the EPA argued that it has always interpreted the regulations to exempt such pollution from regulation. The majority acknowledged that EPA’s interpretation was not necessarily the best read of its own regulations, but ultimately deferred to the EPA’s technical and policy expertise and held that EPA’s interpretation was reasonable. This principle is often called Auer deference (after Auer v. Robbins, 519 U. S. 452 (1997)), and the precedent directs a court to give an agency deference when the agency is interpreting its own ambiguous regulations, even in litigation.

In an amici brief filed with the Court, I and several other environmental / administrative law professors argued that the Court should limit the application of Auer deference and reconsider this precedent. Auer deference allows an agency to both make and interpret the law without public participation or meaningful judicial review. (The brief is titled Brief amici curiae of Law Professors on the Propriety of Administrative Deference; Sanne Knudsen of Washington and Amy Wildermuth of Utah deserve the lion’s share of credit for the effort.)

Justice Scalia cited our amici brief in his persuasive dissent and rebuke of Auer deference. According to Scalia, the majority opinion “gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right.” Instead, Scalia would toss Auer deference and “presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.” Under this approach, Scalia would have held that the pollution at issue is subject to CWA regulation as the environmental plaintiffs argued.

While Justice Scalia was the lone dissenter against using Auer deference, his views may soon have more support from the Court. Chief Justice Roberts (joined by Justice Alito) filed a separate concurrence suggesting that Auer deference should be revisited. The Chief Justice cited our law professors amici brief but was reluctant to decide the issue on amici briefs alone. Instead, he wrote: “The bar is now aware that there is some interest in reconsidering [Auer], and has available to it a concise statement of the arguments on one side of the issue.”

Given that the EPA has already revised the regulation at issue to make clear that logging road runoff pollution is exempt, the Supreme Court’s decision is just a minor loss for the environmental plaintiffs. (Kudos my old friend and former law school classmate Chris Winter of the Crag Law Center, which represented the plaintiffs superbly.) The loss is offset by the jurisdictional win, which will give environmental advocates more litigation options to challenge regulatory CWA exemptions. And long term, Justice Scalia’s dissent and Chief Justice Robert’s concurrence may be a harbinger of a new standard for holding regulatory agencies accountable to the public.

On March 1, the DePaul Law Review will hold its 23rd annual symposium on the topic of the Great Lakes, specifically addressing the legal issues and policy concerns relating to freshwater resources. I’ll be giving the opening talk on the Great Lakes legal regime, followed by panels and presentations on climate change, invasive species, emerging contaminants, stormwater, and Great Lakes water policy. I’m especially looking forward to Professor Melissa Scanlan’s midday discussion of “virtual water” – an important concept for sustainable and equitable water use. More details and registration information are available online.

Also on March 1, Indiana University’s Robert H. McKinney School of Law is hosting its Sixth Annual Spring Environmental Symposium on the topic of Great Lakes Natural Resource Governance. I’m sorry I can’t be in two places at once, but my colleague Professor Nick Schroeck will be in Indiana kicking off the opening panel on emerging challenges facing Great Lakes governance. Check out the agenda and register online.

Later this month, Professor Schroeck will bring a Great Lakes perspective to the American Bar Association’s 42nd Annual Spring Conference hosted by the Section of Environment, Energy, and Resources. He’ll be discussing stormwater management, just one of the dozens of sessions on a broad range of timely environmental law topics. The conference is March 21–23 in Salt Lake City.

The U.S. Supreme Court just issued a unanimous decision in Arkansas Game and Fish Commission v. United States, allowing a landowner to proceed with a takings claim for compensation from temporary flooding caused by the federal government’s operation of a dam. The decision reversed a 2011 Federal Circuit Court of Appeals decision that would have only allowed takings claims for “permanent or inevitably recurring” flooding.

However, the Court’s decision allowing a landowner’s takings claim for temporary flooding to proceed as a matter of federal takings law is not the end of the case. The more difficult and fundamental issue is whether, as a matter of state property law, ownership of riparian land in Arkansas comes with some expectation of temporary flooding. Justice Ginsburg wrote: “The determination whether a taking has occurred includes consideration of the property owner’s distinct investment backed expectations, a matter often informed by the law in force in the State in which the property is located.”

Then what does Arkansas water law say about a riparian property owner’s expectations regarding temporary flooding? The parties and lower courts did not address this fundamental issue, so Professors Robert Abrams, Zyg Plater, and I filed an amicus curiae brief detailing Arkansas water law, notably the balancing of interests implicit in defining a riparian property right. Justice Ginsburg’s opinion had a nice acknowledgment of our brief (titled Amicus Curiae Brief of Professors of Law Teaching in the Property Law and Water Rights Fields) in the first footnote of the opinion (slip opinion page 13). In reversing and remanding the case back to the Federal Circuit, the Supreme Court emphasized the need to examine state property law and other key facts before determining what compensation (if any) is due. The case demonstrates the continuing importance of common law water rights doctrines, even as many states are moving towards permit systems and administrative regulation of water use.

In “Blue Revolution: Unmaking America's Water Crisis” (Beacon Press), author Cynthia Barnett balances urgency and optimism in describing how our water crisis can be solved with a new water ethic. Barnett’s previous book, “Mirage: Florida and the Vanishing Water of the Eastern U.S.” exposed the myth of water abundance and detailed how law, policy, economics, politics, business, and American culture have all contributed to a system of water overuse and abuse. “Blue Revolution” is an inspiring sequel to “Mirage.” Barnett first looks at the challenges facing America’s freshwater – overuse, degradation, and pollution, caused by all sectors of our economy, sanctioned by all levels of government. It’s easy to simply point fingers at corporations and governments, but Barnett knows the problems are both deeper and simpler than blaming big institutions. Instead, Barnett goes to the underlying cause of our water crisis – a lack of a water ethic. 

Barnett’s solution is to rekindle our natural connection to water and sense of stewardship, then create and instill a new water ethic in our society. Barnett’s water ethic begins with valuing water, “from appreciating local streams to pricing water right.” According to Barnett, our water ethic would lead to cooperation in conserving water rather than fighting to divide water up. It would strive to keep water local, use it sustainably, and leave future generations with the freedom to make their own water use decisions rather than paying for the choices of the past. Beyond these general goals, Barnett doesn’t presume to know exactly what this water ethic will look like for all people. For starters, it will vary by region and community. Some actions can be taken by an individual (the new movement in rainwater harvesting), while some actions require our collective efforts through government (San Antonio’s comprehensive policies to reduce municipal water use). In conceptualizing a water ethic, Barnett builds on the work of Aldo Leopold and his hydrologist son Luna. Barnett sees religion as a partner in shaping a water ethic, sees law and policy as the result of our water ethic (or current lack thereof), and sees science as an informational tool to make ethical decisions. 

Cynthia Barnett will be speaking at the University of Michigan-Dearborn on Friday December 7 (see flier for details). One of the questions she will be exploring with the audience is what a water ethic would like in the Great Lakes region. We are blessed with a relative abundance of freshwater, but this abundance comes with a tremendous responsibility. While our wells aren’t running dry, our region struggles with pollution, invasive species, and balancing many competing uses (human and natural) for our shared waters. But we can meet these challenges. For example, the Great Lakes Compact reflects some elements of a water ethic for our region – a shared sense of stewardship, cooperative protection, a preference to keep water use local (‘living with the watershed’), and a commitment to conserve water for nature and future generations. It’s just a start, and much more needs to be done. But I share Barnett’s fundamental optimism that with a new water ethic, we can solve our water crisis and be responsible stewards of our freshwater.

November 2012 is packed with conferences in the region (and beyond) dealing with the Great Lakes, water, and environmental law. Here’s a quick guide to the highlights: 

Twelfth Annual Great Lakes Water Conference, University of Toledo College of Law, November 2, 2012. This is the leading annual Great Lakes law conference, and the keynote speaker should be terrific. Tom Henry, the award-winning environmental writer for the Toledo Blade, has covered every Great Lakes issue (and has been getting quotes from other speakers at this annual conference) longer than most of us have been in the business. Now it will be his turn at the microphone, and I think he’ll have quite a bit to say. Panel topics include the new Great Lakes Water Quality Agreement, mercury pollution, and Great Lakes compact implementation, all with superb speakers. Details in the conference brochure.  

I’m bummed to miss the Toledo conference and Tom Henry’s keynote, but I’ll be Salt Lake City, Utah talking about… the Great Lakes. I’m spending the week at the University of Utah as the Wallace Stegner Center Young Scholar. On Wednesday October 31, I’ll be downtown giving a public talk for the Utah bar, The Law of the Great Lakes - Ninety Percent of North America’s Available Freshwater and Not a Drop for Utah. The next day, I’ll be speaking at the S.J. Quinney College of Law on Interstate Groundwater Law: Equitable Apportionment of Transboundary Resources and Implications for the Snake Valley Aquifer Dispute. 

Another event far from the Great Lakes but very relevant is Securing Water Supplies for the Future: Risks, Challenges & Opportunities, Texas Wesleyan University School of Law, November 9, 2012. Fantastic line up of speakers.

Back to Michigan, for the State Bar Environmental Law Section conference - Michigan’s Environment in 2012 and Beyond: Developments and Emerging Issues in the Management and Regulation of Air, Water, Energy, and Waste, Lansing, November 14, 2012. Professor Nick Schroeck, Executive Director of the Great Lakes Environmental Law Center, is the featured luncheon speaker, giving a Great Lakes water law and policy update.

The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom, Case Western Reserve University (Cleveland), November 16, 2012. This symposium, sponsored by the Case Western Reserve Law Review, will feature a full day of legal experts discussing fracking. I expect lots of healthy debate, with speakers from diverse perspectives on this controversial issue. Registration and a live webcast are available online.

After three years of negotiations and several limited opportunities for public input, the United States and Canada have signed a new Great Lakes Water Quality Agreement.

The Great Lakes Water Quality Agreement was initiated pursuant to the Boundary Waters Treaty and first signed in 1972 by President Richard Nixon and Prime Minister Pierre Trudeau.  The 1972 agreement focused on phosphorus pollution and created a precedent for environmental leadership by the International Joint Commission.  The Great Lakes Water Quality Agreement was amended in 1978 with a more ambitious purpose, “to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem.”  The 1978 amendments also included the goal of “virtual elimination” of persistent toxic substances.  The agreement was last amended in 1987 with provisions for addressing toxic hotspots and lakewide community planning.

The 2012 Great Lakes Water Quality Agreement continues these commitments, and includes new provisions to address aquatic invasive species, habitat degradation, algae blooms, toxic chemicals, discharges from vessels, management of the nearshore environment, and the effects of climate change. The new agreement should be a useful policy tool in identifying Great Lakes priorities for the governments to address. It is essentially an agreement to cooperate and coordinate governmental efforts on these issues. However, the Great Lakes Water Quality Agreement does not establish any legal standards for pollution and other impacts, nor does it provide a cause of action against parties that violate its terms and commitments, leaving such matters to domestic law. I think this is an appropriate balance between international cooperation and national sovereignty, protecting the Great Lakes without infringing on our domestic legal system. Now it’s up to the U.S. EPA and states to fulfill the objectives and commitments of the Great Lakes Water Quality Agreement.

“On Sunday, July 25, 2010, at 5:58 p.m., eastern daylight time, a segment of a 30-inch-diameter pipeline (Line 6B), owned and operated by Enbridge Incorporated (Enbridge) ruptured in a wetland in Marshall, Michigan. The rupture occurred during the last stages of a planned shutdown and was not discovered or addressed for over 17 hours. During the time lapse, Enbridge twice pumped additional oil (81 percent of the total release) into Line 6B during two startups; the total release was estimated to be 843,444 gallons of crude oil. The oil saturated the surrounding wetlands and flowed into the Talmadge Creek and the Kalamazoo River. Local residents self-evacuated from their houses, and the environment was negatively affected. Cleanup efforts continue as of the adoption date of this report, with continuing costs exceeding $767 million. About 320 people reported symptoms consistent with crude oil exposure. No fatalities were reported.” --- Executive Summary of the National Transportation Safety Board's preliminary report on the Enbridge oil pipleline spill.

It’s been nearly two years since Enbridge’s pipeline spill in Marshall, Michigan dumped almost a million gallons of crude oil into Talmadge Creek and the Kalamazoo River. When I visited the site about a week after the spill, residents wanted to know how it happened and what went wrong. We now know the answers, and it seems that the spill could probably have been prevented, and certainly minimized, if Enbridge had done its job right. The National Transportation Safety Board has released its preliminary report on the Enbridge oil pipeline spill and the section on “Probable Cause” says it all:

"The National Transportation Safety Board (NTSB) determines that the probable cause of the pipeline rupture was corrosion fatigue cracks that grew and coalesced from crack and corrosion defects under disbonded polyethylene tape coating, producing a substantial crude oil release that went undetected by the control center for over 17 hours. The rupture and prolonged release were made possible by pervasive organizational failures at Enbridge Incorporated (Enbridge) that included the following:

• Deficient integrity management procedures, which allowed well-documented crack defects in corroded areas to propagate until the pipeline failed.
• Inadequate training of control center personnel, which allowed the rupture to remain undetected for 17 hours and through two startups of the pipeline.
• Insufficient public awareness and education, which allowed the release to continue for nearly 14 hours after the first notification of an odor to local emergency response agencies.

Contributing to the accident was the Pipeline and Hazardous Materials Safety Administration's (PHMSA) weak regulation for assessing and repairing crack indications, as well as PHMSA's ineffective oversight of pipeline integrity management programs, control center procedures, and public awareness.

Contributing to the severity of the environmental consequences were (1) Enbridge's failure to identify and ensure the availability of well-trained emergency responders with sufficient response resources, (2) PHMSA's lack of regulatory guidance for pipeline facility response planning, and (3) PHMSA's limited oversight of pipeline emergency preparedness that led to the approval of a deficient facility response plan."

Bottom line: pipeline corrosion/fatigue + ignoring warning signs + ignoring calls by residents + poorly trained personnel + weak oversight/regulation + slow emergency response = worst oil spill ever in Michigan.

Update: Enbridge is also pushing for a massive new pipeline project to bring Tar Sands crude to the coast of British Columbia for shipping to Asian markets. Rolling Stone has a short article summarizing the key issues and how this pipeline fight fits in the larger context of North American energy policy.

The Great Lakes Protection Act was recently introduced in Ontario (Bill 100, 1st Sess., 40th Leg.). The Act, administered by the Minister of the Environment, would help to identify areas of concern that may adversely affect the ecological health of the Great Lakes-St. Lawrence River Basin, and establish and prioritize objectives.  In that regard, the Act focuses on incorporating public involvement and collaboration with the Government of Ontario.  These cooperative efforts would be accomplished primarily through the establishment of Ontario’s Great Lakes Strategy and a Great Lakes Guardians’ Council.

As an initial plan of action, the Strategy would summarize the environmental conditions of the Great Lakes-St. Lawrence River Basin, identify and prioritize future actions to be taken to achieve the purposes of the Act, and set forth a summary of those actions. A draft of Ontario’s Great Lakes Strategy has already been proposed and made available for public comment and review. The Council would serve as a forum for ministries, municipalities, environmental organizations, and scientific communities to identify priorities for actions and projects, as well as potential funding measures to carry out the purposes of the Act. This network of collaboration would be critical in providing the Minister with input necessary in identifying specific geographic targets relating to the Great Lakes-St. Lawrence River Basin.

The Act also creates new regulatory authority in order to coordinate public bodies to develop and implement geographically focused initiatives to address those areas. First, the province may make regulations requiring persons to take actions to protect or restore the ecological health of the Great Lakes-St. Lawrence River Basin, or prohibiting activities that may adversely affect the ecological health of the Great Lakes-St. Lawrence River Basin. Second, upon issuing a direction describing the geographic area the initiative would be aimed at and the issues the Minister intend to the initiative to address, the Minister may then order public bodies to develop a proposal for the initiative. That proposal must set forth the objectives of the initiative, the policies that would be set out to achieve those objectives, and consultation with affected communities that would be undertaken during the development of the initiative. After approval, the final initiative will describe the area to which the initiative applies, the objectives of the initiative, the issues the initiative would address, the priorities that should guide the implementation of the initiative, the methods that will be used to assess whether the objectives of the initiative are being achieved, a strategy for financing the implementation of the initiative, and the public bodies that would be ultimately responsible for its implementation.

Additionally, the Act prospectively resolves situations in which a conflict of law may arise.  For instance, the Act expressly provides that in cases where the initiative conflicts with other policy, official plans of a municipality, or by-law, the initiative prevails. Also, if a regulation under the Act conflicts with another regulation issued or created under another Act, the provision that provides the greatest protection to the ecological health of the Great Lakes-St. Lawrence River Basin prevails. However, the Act carefully preserves the integrity of previous international agreements such as the Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement of 2005 and the Great Lakes Charter, by mandating the consideration thereof prior to establishing initiatives. 

Ontario’s Great Lakes Protection Act has already gained support from environmental groups such as the Canadian Environmental Law Association, Sierra Club, and Great Lakes United. Along with the revised Great Lakes Water Quality Agreement and implementation of the Great Lakes Compact, Ontario’s Great Lakes Protection Act could be an important policy tool Canadian freshwater protection and restoration.

Thanks to Kelsi Johnson, Wayne Law student and fellow with the Great Lakes Environmental Law Center, for this post.

The National Association of Environmental Law Societies (NAELS) 25th Annual Conference is this week, March 23-24, at the University of Michigan in Ann Arbor. The theme of the conference is “Environmental Law at the Crossroad: 25 Years Back, 25 Years Forward.” NAELS is an international network of law student groups and professionals working to design and implement innovative energy and environmental solutions through education, law, policy, and advocacy. Founded in Ann Arbor in 1988 by environmental law students and professors, NAELS is thrilled to celebrate its 25th Annual Conference back where it all began - at the University of Michigan Law School. (Nope, I wasn’t around the law school back in 1988, but I chaired the Michigan Environmental Law Society in 1996-1997.)

Keynote and featured speakers include Bob Perciasepe (Deputy Administrator, U.S. Environmental Protection Agency), Professor Richard Lazarus (Harvard Law School), and John Cruden (President, Environmental Law Institute). Along with Professor Reed Benson (University of New Mexico School of Law), I’ll be leading a session titled “Blue Gold: The Future of Great Lakes Water.” (For complete details and schedule, see the conference brochure). The conference is free and open to the public, and co-sponsored by the Michigan Law School’s Environmental Law Society and Environmental Law & Policy Program.

On February 24, the Seventh Circuit Bar Association Foundation and the Field Museum of Natural History in Chicago will present a day long symposium titled “Protecting the Great Lakes.” The program features an impressive line-up of leading scholars and policy makers in the field, addressing a range of topics from pollution to water diversions to invasive species. The complete program is available online. I’ll be speaking in the morning, giving an overview of the Great Lakes legal regime and explaining the complex array of applicable laws, policies, and government actors. I’m especially honored to be sharing this session with the Honorable Frank H. Easterbrook, Chief Circuit Judge of the U.S. Court of Appeals for the Seventh Circuit, one of the leading jurists of our time. (Check out this fascinating and insightful interview of Judge Easterbrook, where he shares his thoughts on everything from textualism and economic theory to filing amicus briefs in appellate litigation.)

There will be several participation options: attend in-person at the Field Museum of Natural History in Chicago; view online via Live Webcast; or view online via Delayed Webcast (view uninterrupted program or in segments). The symposium is supported financially by foundations, law firms and others, and as a result it is priced to encourage viewership; $100 with MCLE; $25.00 without MCLE. To further encourage viewership, the sponsors will make arrangements upon request for viewing without fee by law school audiences, as well as college and university audiences. Interested law school, college and university faculty or groups may email Chris Grubb at cgrubb@kentlaw.edu.