Tuesday, March 17, 2015
On March 11, a panel of the Fifth Circuit (Higginbotham, Jones, Prado) issued a decision in United States v. Kaluza, a criminal prosecution arising out of the Deepwater Horizon disaster in 2010 in the Gulf of Mexico. Robert Kaluza and Donald Vidrine were “well site leaders,” the highest-ranking BP employees working on the Deepwater Horizon rig. A federal grand jury indicted Kaluza and Vidrine on 23 counts: 11 counts of involuntary manslaughter in violation of 18 U.S.C. § 1112, 11 counts of seaman's manslaughter in violation of 18 U.S.C. § 1115, and 1 count of negligent discharge under the Clean Water Act in violation of 33 U.S.C. §§ 1319(c)(1)(A) and 1321(b)(3). The defendants moved to dismiss the seaman’s manslaughter counts on the grounds that, among other things, the Deepwater Horizon was outside of the territory covered by the seaman’s manslaughter statute and defendants were not within the categories of persons covered by the seaman’s manslaughter statute. The district court rejected the defendants’ extraterritoriality argument but granted the defendants’ motion to dismiss the seaman’s manslaughter counts for failure to charge an offense. The government appealed.
The Fifth Circuit affirmed. First, it held that the defendants, by failing to cross-appeal, had waived their extraterritoriality argument. Second, it held that the seaman’s manslaughter statute, which applies to “[e]very captain, engineer, pilot, or other person employed on any steamboat or vessel,” encompasses “a class of persons dealing with the operation and navigation of the vessel” and does not include the defendants, whose duties were unrelated to the “transportation function” of the Deepwater Horizon.
On March 11, a panel of the Ninth Circuit (Schroeder, Silverman, Garbis (by designation)) issued a decision in NRDC v. EPA. In 2011, the South Coast Air Quality Management District adopted Rule 317, which imposes fees on certain programs aimed at reducing emissions from mobile sources that are primarily responsible for air pollution in the area of Southern California governed by the District. The District proposed Rule 317 to EPA as an alternative means of complying with Clean Air Act § 185, 42 U.S.C. § 7511d, which requires states to assess penalties on major stationary sources in severe or extreme ozone nonattainment areas. EPA approved Rule 317 as a modification to California’s Clean Air Act state implementation plan (SIP), on the ground that pursuant to the Clean Air Act’s anti-backsliding provision, § 172(e), 42 U.S.C. § 7502(e), EPA may approve alternative pollution controls “which are not less stringent” than prior controls. On its face, however, Clean Air Act § 172(e) applies when EPA has relaxed an ambient air quality standard. Here, EPA had revised the applicable air quality standard to make it more stringent. Accordingly, NRDC and Communities for a Better Environment petitioned for review of EPA’s approval, arguing that Clean Air Act § 172(e) did not allow EPA to approve alternative pollution controls when an air quality standard has been tightened rather than relaxed.
The Ninth Circuit upheld EPA’s approval of Rule 317. First, the court noted that Clean Air Act § 172(e) “does not provide for what happens in any context except when the NAAQS has been ‘relaxe[d].’ ” Thus, the language of § 172(e) does not unambiguously preclude EPA’s interpretation. Second, the court concluded that EPA’s interpretation of § 172(e) was reasonable, “both textually and as a matter of policy and Congressional intent.” Probably most important to this analysis, the court agreed with EPA that its interpretation promotes alternative programs such as Rule 317 that promote better air quality.
Thursday, March 12, 2015
On Monday, the Supreme Court decided Perez v. Mortgage Bankers Association, a case in which all the fun is in the concurrences. The Court’s opinion, written with efficiency and clarity by Justice Sotomayor, disposes of the Paralyzed Veterans line of cases from the D.C. Circuit. Those cases held that an agency must go through notice and comment if it wants to change its interpretation of a regulation. The Court rejected that requirement, holding that it was foreclosed by the plain text of the Administrative Procedure Act.
Justices Alito, Scalia, and Thomas, all of whom concurred, had no disagreement with that outcome, and they joined much of the reasoning; the decision was unanimous. But they each wrote separately to explain why a separate line of Supreme Court cases, all according deference to agencies’ interpretations of their own regulations, should be overturned. Yet Seminole Rock or Auer deference, as this doctrine is known, wasn’t at issue in the case at bar. Indeed, Justice Alito and Justice Thomas both ended their opinions by noting that their arguments could be relevant in some future case—which, quite clearly, they eagerly await.
This practice isn’t unprecedented. Supreme Court justices often speculate about how they would resolve disputes not currently before them. Concocting and analyzing hypotheticals, after all, are key parts of judges’ stock in trade. Similarly, opinions announcing interest in enacting a new rule of law are neither unheard of nor unique to the Court’s conservative wing. But still, there’s something about all of this that seems a little weird.
The reason, of course, is Article III of the United States Constitution. Article III grants the federal courts jurisdiction over “cases and controversies,” and that jurisdictional grant, the courts routinely remind us, exists to ensure that judges hear actual, live cases, all based on real facts and litigated by parties directly interested in the questions at bar. As every 1L learns, Article III precludes advisory opinions. Yet what Justices Alito, Scalia, and Thomas have done in Perez is write advisory opinions; they make no pretense that the rules of law they promote would be dispositive in the case at bar. And that raises the question: if issuing those advisory opinions would be constitutionally questionable, at best, for a federal district court judge disposing a case, or for a majority on a circuit court of appeals or the Supreme Court, does it become constitutionally permissible when a justice writes alone?
With that said, another related question also arises: should we care? Constitutional or not, is there any harm in this practice? After all, there are some potential benefits. The advisory opinions may signal, much like a policy statement from an administrative agency, future legal changes the Court might produce, and those signals might help private parties and government agencies order their affairs before Auer deference comes crashing down (if it does). They also guide litigants looking for creative new theories, and they give law professors new things to write about. Finally, perhaps they provide some benefit by helping to demolish the confirmation-hearing myth that judges just call balls and strikes as they’re thrown. Here, the better analogy is that judges are previewing their rule changes for a game that has yet to be played. But with all that said, if we really are committed to the notion that better judging occurs in the context of a live, concrete factual dispute, these kinds of opinions ought to be troubling.
Thankfully, there is a potential remedy. A wonderful outlet exists for the kind of writing the concurring justices (particularly Justice Thomas, at least in this case) seem to want to do. And while it’s a form of writing that some judges disparage, I doubt there are any hard feelings; given the stature of the authors, their work probably would be accepted with open arms. Law review submissions season is upon us. And while that season is getting on, it’s not too late. With relatively little revision, Justice Thomas’s concurrence would be ready to go as a law review article. I suspect it would place well.
- Dave Owen
Sunday, March 8, 2015
Settlement in Vermont Clean Water Case May Serve as Model for Managing New Discharges to Impaired Waters
Restoring impaired waters in the face of ongoing development pressures is one of the more nettlesome problems under the Clean Water Act. EPA rules provide that no permit may be issued to a new discharger if the discharge will “cause or contribute” to the violation of water quality standards. 40 C.F.R. § 122.4 (i) (2000). Courts have strictly interpreted this prohibition. See Friends of the Wild Swan v. EPA, 74 F. App’x 718 (9th Cir. 2003). The rule does make an exception where there is an available load allocation for the pollutant of concern under an approved TMDL and a compliance schedule demonstrating how and when compliance with water quality standards will be achieved. In Friends of Pinto Creek v. EPA, the 9th Circuit held that the compliance schedule must include all point source dischargers to the impaired waters and suggested that nonpoint sources must also be included if necessary to achieve standards. 504 F.3d 1007 (9th Cir. 2007).
In the absence of a TMDL load allocation, the permit applicant must prove that the new discharge will not contribute to violation of any water quality standard. One way to do this is to demonstrate, through offsets, that there will be no net addition of the pollutant of concern. This approach has been approved in a number of state court decisions. Cf. In re: Cities of Annandale and Maple Lake, 731 N.W.2d 502 (Minn. 2007); Crutchfield v State Water Control Board, 612 S.E.2d 249 (Va. Ct. App. 2005). The problem with offsets of course is how to assure they will work and how much new development should be allowed in the impaired waters before restoration efforts prove successful.
These issues were recently presented in the appeal of stormwater discharge permits issued by the Vermont Agency of Natural Resources, Department of Environmental Conservation (Department) to Jay Peak Resort, a fast-growing, four-season ski resort in northern Vermont. The Environmental and Natural Resources Law Clinic of Vermont Law School (ENRLC) represented the Vermont Natural Resources Council (VNRC) before the Vermont Environmental Court. The permit issued by the Department was problematic because it lacked adequate protective measures and increased the sediment pollution into the area’s streams, even though those streams have failed to meet water quality standards for at least a decade.
In 2004, the Department found that Jay Branch and Tributary 9 of Jay Branch were impaired by sediment pollution and failed to meet applicable minimum state water quality standards for aquatic life support. According to the Department, the initial impairment of the Jay Branch was attributed to the failure to comply with applicable Vermont construction and erosion control permits and operational stormwater permits. Recently, an additional stream, Tributary 3 of South Mountain Branch, was identified as impaired. Despite implementation of several water quality remediation plans approved by the Agency over the past ten years, the streams remain impaired.
In 2014, VNRC and ENRLC negotiated a comprehensive settlement that, for the first time, requires that the area’s streams meet water quality standards by a date certain before Jay Peak can begin significant new development projects. Another innovative part of the agreement requires Jay Peak to offset sediment discharges for any new discharges so there is no net increase of sediment into impaired streams. The agreement also sets forth detailed stream remediation and monitoring requirements, as well as an enforceable schedule for compliance with water quality standards.
On February 20, 2015, Judge Thomas Durkin issued an order approving the settlement agreement between VNRC, Jay Peak Resort, and the Department. We hope this agreement will set a benchmark for future permits issued to other ski resorts in Vermont and serve as a model for citizen actions not only in Vermont but across the country.
- Guest Bloggers Rachel Stevens, Fellow, ENRLC, and Pat Parenteau, Senior Counsel (both at Vermont Law School)
Wednesday, March 4, 2015
The ABA Section on Environmental, Energy, and Resources just announced a student writing competition. Here's the blurb, with details about where to submit and what you can win:
The Alternative Dispute Committee is pleased to announce the 2015 Law Student Writing Competition--Alternative Dispute Resolution.
Theme: Discuss any aspect of dispute resolution practice, theory or research related to environmental, energy, or natural resource conflicts or should critique or analyze the dispute resolution process used in a particular case. Submissions may advocate a position, educate the reader, or analyze one or more cases.
Submission Deadline: April 13, 2015
View the ADR Topic- Writing Competition Rules.
Submission Requirements: All submissions must be the original work of the entrant. Any relevant article or essay may be submitted for the competition, including writing submitted for academic credit. Submissions must not have been previously published in any media. Only one essay, per competition theme, may be submitted by each entrant. (More details.)
Eligibility: The competition is open to any student enrolled in an ABA-accredited law school during the academic year of the competition who is a legal resident of the United States. Directors, officers and employees of the ABA and their immediate family or household members are not eligible.
Prizes: For each competition theme, the first place winner will receive a $1,000 cash prize, the second place winner will receive $750, and the third place winner will receive $500. The winners will be announced in e-News, the Section's monthly electronic newsletter, as well as on the Section’s website. The three winning essays will be posted on the Section’s website in a pdf format. Winning essays will appear in an upcoming issue of the Section’s Alternative Dispute Resolution Committee Newsletter. Winners must submit a completed W-9 to receive their cash prize. The full fair market value of the prize will be reported on a 1099. Winners are responsible for all taxes in connection with receiving a prize.
Deadline for Submissions: Entries must be submitted by e-mail on or before Monday, April 13, 2015, by 11:59 p.m. (central).
Questions? Please contact Cristina Vautier at (312) 988-5625 or [email protected]