Friday, August 28, 2015

Eighth Circuit Affirms $2.2 Million Judgment for Clean Water Act Violations at Nebraska Rendering Plant

On August 27, the Eighth Circuit (Wollman, Smith, Benton) issued a decision in United States v. STABL, Inc.  STABL owned and operated a rendering plant that discharged wastewater to the Lexington, Nebraska, wastewater treatment plant.  STABL’s discharge monitoring reports indicated that the plant repeatedly discharged excessive amounts of pollutants in violation of its pretreatment permit.  The United States and the State of Nebraska brought an enforcement action against STABL alleging violations of the federal Clean Water Act and the Nebraska Environmental Protection Act, respectively.  The district court granted partial summary judgment on liability for the government and imposed a $2.3 million civil penalty.  STABL appealed.

The Eighth Circuit affirmed.  First, the court held that STABL’s own discharge monitoring reports were admissible evidence of the company’s violations.  A defendant that asserts its own discharge monitoring reports were erroneous bears a heavy burden, which STABL did not meet in this case.  Second, the court held that the district court did not abuse its discretion in admitting the testimony of an EPA compliance officer as lay testimony rather than as expert testimony.  Third, the district court did not abuse its discretion in allowing a government expert to update her expert report to incorporate previously unknown information about the economic benefit STABL received from its violations.  Fourth, the district court properly allowed a government witness to correct his data, especially when the corrections favored STABL.  Fifth, the city’s monitoring records were reliable and admissible evidence of STABL’s violations.  Sixth, any error in denying STABL a jury trial on the number of violations was harmless, because the district court could have granted judgment as a matter of law on that issue.

—Todd Aagaard

August 28, 2015 | Permalink

Thursday, August 27, 2015

Ignored Facts, Distorted Law, and Today's WOTUS Injunction

Earlier today, a federal district court judge in North Dakota enjoined implementation of the new Clean Water Rule (also known as the Waters of the United States rule).  And if ever there was a judicial opinion begging for prompt reversal, this is it.  EPA and the Army Corps of Engineers put years of effort into that rule, and drew upon an extraordinary number of studies to arrive at their position.  The court pretended—among other errors—that all that effort and evidentiary support simply did not exist.

StreamThe Clean Water Rule determines the scope of federal jurisdiction under the Clean Water Act.  More specifically, it includes within federal jurisdiction any tributary of a navigable-in-fact waterway, and the definition of tributary encompasses any stream—even intermittent or ephemeral ones—so long as that stream has a bed, banks, and an ordinary high water mark.  That part of the rule, Judge Erickson has concluded, is inconsistent with the Clean Water Act and the Supreme Court’s Rapanos decision and is arbitrary and capricious (the court also held that another element of the rule was not a logical outgrowth of the proposed rule).  And that holding, in turn, is premised on all kinds of problematic reasoning.

Ignoring the Facts

One crux of the court’s reasoning was its assertion that the rule lacked any support in the administrative record.  The court left no doubt on this point: it charged that “the agencies’ internal documents reflect the absence of any information about how the EPA obtained its presented results;” that “review of what has been made available reveals a process that is inexplicable, arbitrary, and devoid of a reasoned process;” that “[t]he rule allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity of any navigable-in-fact water;” and that “[n]o evidence points to how these intermittent and remote wetlands have any nexus to a navigable-in-fact water.”

These statements are just plain false.  In the rule itself, EPA and the Corps explained in great depth, and over and over again, why tributaries, including ephemeral tributaries, have a significant nexus to water quality in traditionally navigable waters.  The rule also cited and summarized a technical support document—which the court purported to have read—that explained the connections in even greater depth.  And the technical support document in turn cited a massive EPA study of the scientific literature on connections between tributaries and other forms of wetlands and water quality in navigable-in-fact waterways.  That study in turn involved a review of about 1,200 scientific studies.  The support documents also were vetted by EPA’s science advisory board—which concluded, in no uncertain terms, that "[t]here is strong scientific evidence to support the EPA’s proposal to include all tributaries within the jurisdiction of the Clean Water Act."

Over the past few months, I have read the rule, the technical support document, the science literature review, and the SAB report, and I have also read many of the studies cited by the science review.  They contain a mountain of evidence that even intermittent streams and what the court described as “remote wetlands” do have a significant nexus to water quality in navigable-in-fact waterways.  Study after study explains how even intermittent streams process nutrients, reducing downstream algae blooms; process carbon, providing the basis for food chains throughout river systems; provide breeding grounds for a wide variety of aquatic species; and provide a host of other water quality benefits throughout river systems.  I honestly cannot imagine how any federal court judge could write that no such evidence informed EPA’s and the Army Corps’ decision.  At best, that assertion is the wishful guess of an ideologue who had not actually read any of the relevant documents.  At worst, it is just a bald-faced lie.

Distorting the Law

The district court’s opinion also displays a fairly flip attitude toward governing law.  That attitude is on display in both the court’s discussion—or lack thereof—of agency deference and in its application of the Rapanos standard itself.

Deference isn’t much in evidence here.  The idea that EPA and the Army Corps were basing the rule on scientific determinations that were within their expertise, and that a court should not lightly second-guess, appears nowhere in the opinion.  Nor does even a mention of Chevron deference, even though the court was reviewing a challenge to two agencies’ interpretation of their governing statutory law.  That is somewhat ironic, for the opinion itself provides rather compelling support for arguments in favor of agency deference.  The level of expertise and effort that went into the rule quite evidently dwarfs the level of expertise and effort that went into the court’s ruling, which barely even appears to have been proof-read.  But that seems not to have troubled the court at all.

On Rapanos, the problems are more subtle but still quite real.  The court relied heavily—almost entirely—on a Rapanos passage in which Justice Kennedy expressed reservations about a jurisdictional rule that would extend to remote tributaries.  The district court quoted Justice Kennedy’s words accurately, and they do express some concern about broad assertions of jurisdiction.  But that was just two sentences in a long opinion.  Elsewhere in his opinion, Justice Kennedy disagreed at length with the Rapanos plurality’s argument that intermittent waterways should be categorically non-jurisdictional.  And his opinion also evinces a clear expectation that jurisdiction would extend to waterways that have, individually or collectively, a significant nexus to water quality in navigable-in-fact waters, and that significant nexus determinations would be heavily informed by science.  EPA and the Army Corps now have made that significant nexus determination, and it is overwhelming supported by scientific research.  Yet that part of Justice Kennedy’s opinion also is largely absent from Judge Erickson’s reasoning.  As a consequence, Justice Kennedy’s vaguely-implied preference for narrow jurisdiction seems to have trumped the legal rule he actually articulated.

Other Problems

The opinion isn’t long, but it still gives rise to many other critiques.  The court’s persistent references to “EPA regulation” and "EPA’s position" clearly echo the talking points of conservative critics of the rule—EPA is a popular villain these days--but they ignore the reality that this rule was the joint work of EPA and the Army Corps.  Its weighing of hardships suggests very little understanding of how the section 404 program actually is implemented, and by whom, and also assigns absolutely no weight to the public interest in environmental protection.  Its “logical outgrowth” argument ignores a key purpose of that doctrine, which is to allow agencies to make some adjustments based on the comments they receive.  But perhaps those are subjects for another post.  The key point is just that this opinion distorts law and wishes away the central facts of the case.  The sooner an appellate court does some real judging, the better.

- Dave Owen

stream image from usfs.gov.

August 27, 2015 | Permalink | Comments (0)

Saturday, August 8, 2015

The Perils of Cleaning up the Environment

Last summer, my family and I went rafting down the Animas River in Durango, Colorado. I took this picture during the trip:

IMG_6759

This is what the Animas River looks like today:

Untitled

The orange colored water you see here contains sediment mixed with a soup of heavy metals (including iron, zinc, lead, cadmium, arsenic, and copper). It was released in a mishap at the Gold King Mine, when 1 million gallons of contaminated mine waste was accidentally released into the river. You would be right to conclude that "but for industrial development this accident would not have occurred." Yet that does not tell the entire story. This release into the river was not caused by industry. It was caused by none other than the U.S. Environmental Protection Agency. The EPA was attempting to clean the site through its CERCLA Superfund program, which it has used to target a number of mines in the region. Runoff from these mines has led to the continued degradation of the Animas (which even before the spill had become toxic to fish). The team was using heavy equipment and accidentally breached a berm that was holding the contaminated water inside the mine.

The pollution has caused a great deal of uncertainty along the Animas and downstream in the San Juan River. The river has now been closed to recreational activities and downstream users have been warned to shut off their intake valves. David Ostrander, EPA’s director of emergency preparedness for the region, summed the situation up quite bluntly: "This is a huge tragedy. It’s hard being on the other side of this. We typically respond to emergencies, we don’t cause them." 

The lesson from this tragedy is not that we shouldn't clean up contamination. These incidents are infrequent, especially when compared to the number of successful cleanups that have occurred without incident and have done great good for society. And yet, sometimes the risk of cleanup is greater than the risk of leaving contamination in place. It calls to mind the Rocky Mountain Arsenal, described as an "ironic natural park" because, while it is highly contaminated with everything from nerve gas to nasty pesticides, it is also teeming with wildlife in an ecosystem that has returned to the site in force. I joke in class that if it weren't for the waste (and for being federally owned), the area would likely be cleared so yet another big box retailer and strip mall development could come in and pave the whole area over....so maybe humans are worse for the environment than nerve gas. OK, not really. But in all seriousness, Jim Rasband, Jim Salzman, and Mark Squillace raise the question of what is more "natural" in these situations? To leave the site contaminated and allow the wildlife to remain, or to disturb the ecosystem that has arisen and attempt to clean up the contamination? The answer is not so clear. In the long run cleaning up the Gold King Mine seems worth it. But if the risk of greatly damaging the river ecosystem in the short run is great, what steps should be taken? It is not clear that the risk was great here, as this appears to have been a simple accident, but one can imagine situations where the choice is not apparent. And we make these choices quite frequently in environmental law. CERCLA, for example, weighs factors like exposure pathways, proximity to the public, and degree of toxicity to prioritize whether and when a site should be cleaned up. Sometimes, even if toxicity is high, if the public and natural resources are not near and are not being directly harmed, and if exposure pathways are low, it is best to just let the contamination be for a while.

The Chernobyl nuclear site presents a similar conundrum. Trees in the area are absorbing radioactive contamination, which assists with cleanup and also houses wildlife. But what happens when the forest burns? According to Scientific American,"[i]f these forests burn, strontium 90, cesium 137, plutonium 238 and other radioactive elements would be released." The radioactive smoke would likely have profound health impacts hundreds of miles from the site. So do you allow the ecosystem to "self-repair" or do you cut the forest down and dispose of the trees as hazardous waste?

While some caution must be taken at the stage when we decide whether to remediate a contaminated environment or not, the more important lesson here is that government agencies tasked with cleaning up sites are subject to the same risks of harming the environment as the entities they regulate. The EPA and similar agencies, however, should arguably be held to a higher standard. Indeed, much of the backlash against the government for this incident - rightly or wrongly - revolves around "hypocrisy" and the penalties the government would readily dole out if it was industry that made this mistake. 

The circumstances surrounding this incident have yet to become clear, and people seeking to criticize environmental regulatory agencies should not view it as an opportune time to lambaste them for trying to do their job. Accidents happen. But the incident is a good reminder that sometimes the cure can be worse than the disease, and if the government plans to implement a cure it had better ensure that it is prescribing the right medicine.

- Blake Hudson

August 8, 2015 | Permalink | Comments (4)

Wednesday, August 5, 2015

Does the Waters of the United States Rule Give Up Key Protections?

An intriguing little sub-drama is unfolding with the new EPA/Army Corps jurisdictional rule.  Late in the rulemaking process, EPA added a limitation that would place most wetlands located more than 4,000 feet from a “tributary” outside the scope of federal jurisdiction.  In internal memos, which have now gone public, Army Corps staff criticized that change, arguing that it would reduce the scope of federal protection—and, in so doing, undercut some of the other assumptions in the analyses supporting the rule.

The first interesting thing about this controversy is what it reveals about interagency dynamics.  For the Army Corps to be criticizing EPA for reducing the scope of the 404 program might seem, as Pat Parenteau put it in a recent Greenwire story, “amazing.”  But while I’m a little surprised that EPA would be on the receiving end of the criticism, the Army Corps’ commitment to wetland protection is less surprising.  The Corps took some time, several decades ago, to embrace the 404 program, but the many staff I’ve talked to take the protective mission quite seriously.  Sometimes the past really is past.

The other intriguing issue is whether the limits are significant.  The basic question, distilled as much as possible (which isn’t very much), is this: how many wetlands are there that (a) aren’t within 4,000 feet of a tributary (which the rule defines expansively); (b) aren’t within the 100-year floodplain of a tributary; (c) aren’t California vernal pools, prairie potholes, pocosins, Delmarva bays, Carolina bays, or Texas coastal prairie wetlands; and (d) were previously jurisdictional?  I suspect the answer is very few.  The simple reason is that, in most landscapes, wetlands and streams occur in association.  Even if a wetland doesn’t connect to at least an ephemeral stream—and most do—a stream is at least likely to be nearby, for if there’s enough precipitation to create static pools on a landscape, there’s probably also enough precipitation to create flow.  And if a stream isn’t nearby, jurisdiction, at least since the U.S. Supreme Court's SWANCC decision, was probably unlikely.

Now, in a perfect world, the best answer to this question wouldn’t be educated guesswork.  Running GIS analyses on a few sample landscapes (for example, in my previous home state of Maine, where vernal pools are abundant) would probably reveal much, and perhaps EPA and the Corps should have done those analyses (or maybe we'll learn, as this controversy unfolds, that they did).  And, more importantly at this stage, perhaps some of the environmental groups contemplating lawsuits still could have their technical staff spend some time with maps.  The analysis might reveal that, despite the Corps’ initial concerns, the changes in the scope of jurisdiction are quite minimal.  And if that’s true, a lawsuit would be unlikely to produce any greater level of protection, even if it does prevail.  From an environmentalist's perspective, there's a lot to like about these rules.  It would be a shame if they got challenged for reasons that might well turn out to be inconsequential.

- Dave Owen

August 5, 2015 | Permalink | Comments (0)