Wednesday, March 30, 2016

A Few Reactions to the Hawkes Oral Argument

The United States Supreme Court heard oral argument this morning in U.S. Army Corps of Engineers v. Hawkes, a case considering whether "jurisdictional determinations" under the Clean Water Act are subject to judicial review.  Below are a few reactions to the questions and answers at oral argument (all based on reading the transcript; I was not there).

  • This shouldn't be as ideologically fraught as some of the Court's other recent environmental cases.  The basic dilemma raised by this case is that informal government communications can be really helpful to regulated entities, but it can also seem frustrating and unfair when a regulated entity finds itself bound, as a practical if not legal matter, by those informal communications and can't challenge them in court.  Ruling against the government could chill a form of communication that most regulated entities find helpful; ruling against for the government could delay the ability of non-governmental entities of all types--liberal advocacy groups as well as conservative groups and businesses--to challenge legal positions they find objectionable.  That does not, on its face, sound like an overtly ideological dilemma, and, perhaps not surprisingly, some of the justices were clearly troubled by both sides' arguments.  But the more conservative justices appear, from their questions, to be skeptical of the notion that informal communication might be a valuable service offered by agencies, and to have adopted the more cynical view that it's really just about extending the agency's power and reach.  Once they've made that move, the case does start to look a whole lot more ideologically charged. 
  • So is the Clean Water Act "unconstitutionally vague" but not at all ambiguous?  At one point, Justice Kennedy suggested that the Clean Water Act's jurisdictional provisions might be unconstitutionally vague.  Yet fifteen years ago, in SWANCC v. United States, Justice Kennedy signed on to an opinion that expressly declined to accord Chevron deference to the Army Corps's and EPA's interepretation of that same jurisdictional provision.  The Court normally gives Chevron deference to reasonable agency interpretations of ambiguous statutory provisions, but the SWANCC majority instead concluded that the statute's meaning was sufficiently clear that no such deference was required.  Five years later, in Rapanos v. United States, Justice Kennedy authored a concurring opinion interpreting those same provisions; his concurrence again declined to accord Chevron deference.  Perhaps this is just a reminder that no one should make too much of stray asides at oral argument, but the suggestion that the statutory language--which hasn't changed--is now unconstitutionally vague seems drastically at odds with Justice Kennedy's prior positions.
  • The 404 permitting process is faster, usually, than the justices realize.  In one question, Justice Ginsburg described the dilemma of a landowner who receives an unfavorable (from the landowner's perspective) jurisdictional determination: "now they have to go through this whole process, and it's going to take years and cost me a lot of money."  But it probably won't take years.  Below, I've pasted a chart from a recent Army Corps/EPA report on 404 permitting.  As you can see, typical permitting times are much shorter than Justice Ginsburg suggested.  And while the data don't answer this question, I suspect permitting times are likely to be particularly short for the kinds of borderline situations in which landowners request jurisdictional determinations.  Generally speaking, bigger impacts to aquatic resources require longer permitting times, and landowners whose impacts will be big usually have no need of jurisdictional determinations.

Army corps chart

This may not matter for the legal issue in the case.  An obligation to go through a six-month permitting process, or even a two-month process, is still an obligation.  But I'm concerned to see more of the justices implicitly buying into elements of a false narrative about the oppressiveness of the 404 program.  

And that mythmaking was in further evidence later in the argument.  At one point, Justice Alito made the following assertion about the consequences of a jurisdictional determination: "And if they issue a negative,­­ I'm sorry,­­ an affirmative jurisdictional determination, as a practical matter, that's going to mean in most instances that the project is shut down."  That statement is inaccurate.  In reality, an affirmative jurisdictional determination means the landowner may have to adjust the project design and may need to compensate for the resulting impacts to aquatic resources.  But it does not mean the project will be shut down.

  • As an administrative law professor, I love this question from Justice Kagan.  She gets it. 

I mean, one of the reasons I find this case very difficult is because all over the Federal government there are compliance offices of various kinds whose function is to give advice to people. And often that advice comes with very specific recommendations. It says we will not take enforcement action if, or, we do not consider it a violation of law  on the following facts. And I guess what I want to know is your view of how this program compares to various other kinds of programs like this, whether it's the ­­ whether it's tax opinion letters, or SEC opinion letters, or FCC or whatever, how this program compares to those and where you could draw sensible lines, because mostly we want  government agencies to do these things. We think that this helps people, to actually know what the government thinks about particular factual situations. So how do we draw lines in this area, in your view?

Dave Owen


March 30, 2016 | Permalink | Comments (0)

Wednesday, March 9, 2016

The Devil Is in the Design: Forming California's New Groundwater Sustainability Agencies

Not that long ago, the opening words of one of Joe Sax’s articles described California pretty well. “We Don’t Do Groundwater,” the title began, and until recently, that was true—in spite of the immense importance of the resource.  Outside of a few urban areas in coastal southern California, California groundwater use regulation was largely an oxymoron.  

In 2014, that changed. The California Legislature passed the Sustainable Groundwater Management Act, a statute designed to create comprehensive and, as its name suggests, sustainable management of groundwater.  The statute also is designed to promote local discretion and control.  While the legislature defined broad goals and conferred oversight authority on the California Department of Water Resources and State Water Resources Control Board—both of which are statewide agencies—primary implementing authority will rest with local groundwater sustainability agencies, or GSAs.  Those GSAs are now just beginning their work, and many challenges lie ahead.

This week, UC Berkeley Law School’s Center for Law, Energy, and the Environment (working in partnership with UC Water and researchers from UC Hastings, UC Santa Cruz, the University of Idaho, the University of Massachusetts, and the Union of Concerned Scientists) released a report designed to help these GSAs succeed. 

The report begins with the premise that GSA governance systems will help determine the success of SGMA implementation – even the best plan has limited value without an agency that can implement it.  To facilitate effective implementation, the report offers a framework for institutional design. More specifically, it identifies a series of criteria for evaluating whether GSAs are likely to be able to govern both fairly and effectively.  The criteria – scale, human capacity, funding, authority, independence, representation, participation, accountability, and transparency – should help stakeholders and agencies evaluate whether a GSA will be able to manage groundwater sustainably. The report also draws upon examples from the management of other natural resources to illustrate some of the challenges GSAs are likely to face, and some of the ways other resource management agencies have worked through similar challenges.

Some key recommendations include:

  • GSAs should minimize the fragmentation that is so common among California water management. Those GSAs should focus, to the extent possible, on aligning their scale to groundwater basin boundaries, rather than existing jurisdictions.
  • GSAs will need to develop a range of expertise, including technical, legal, financial, and management, in order to understand and effectively manage a complex and hidden resource. Funding the development of this human capacity will require giving careful thought to a variety of sources of revenue. State agencies will also need to consider how they can best lend their expertise to local regulatory efforts.
  • To avoid the potential for domination by a narrow range of interests, GSAs will need to develop mechanisms for participation and representation of a broad range of stakeholders.
  • To ensure accountability, the state needs to be prepared to actively exercise its oversight responsibilities, and to clearly signal now how and under what conditions it will do so.

The report provides more detail on these and other recommendations, and can also serve as a reference to the tools and options available to GSAs. We intend for the report to help the people who staff and manage GSAs as they attempt to meet the challenges of groundwater management, the state agencies who act as the crucial backstop for the act’s implementation, and the many stakeholders who will ultimately benefit from achieving groundwater sustainability in their local basins.  California now does groundwater, and we hope this report will help us do it well.

- Dave Owen and Michael Kiparsky

Michael Kiparsky is Associate Director of the Wheeler Institute for Water Law and Policy at Berkeley Law.  The report's other authors were Nell Green Nylen, Juliet Christian-Smith, Barbara Cosens, Holly Doremus, Andrew Fisher, and Anita Milman.

March 9, 2016 | Permalink | Comments (0)

Sunday, March 6, 2016

Clean Water Act Jurisdiction and the Changing Supreme Court

Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law.  This post adds a little more to that speculation.  My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule.  And my prediction is a bit different from most predictions about the Clean Power Plan.  Here, I predict, that changes in court composition probably won’t matter much.

Before I explain the reasons for that prediction, a little context may be helpful.  The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act.  The Army Corps and EPA jointly released the rule last summer.  Its most controversial provisions retain, with minor adjustments, existing jurisdictional practices for small-ish wetlands and streams.  Most of the rule’s opponents (a combination of states and regulated industries) were hoping for narrower jurisdiction, and they filed many lawsuits challenging the rule.  Some environmental groups, while generally supportive of the rule, objected to a few provisions they thought narrowed jurisdiction too much, and they, too, have sued. 

The challenges will be decided by the Sixth Circuit Court of Appeals, which recently and somewhat grudgingly ruled that it did have jurisdiction over the cases.  I think the outcome before the Sixth Circuit will likely turn on one of two questions: first, was the final rule a logical outgrowth of the proposed rule, or were changes in the final rule sufficiently unexpected that they deprived interested parties of their opportunity to comment?  And, second, is the rule consistent with the text of the Clean Water Act, as interpreted by the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States?  After the Sixth Circuit decides on those issues, cert petitions seem likely.  And a grant of cert would surprise no one (particularly if the Sixth Circuit decision turns on the second question above; the first might seem more fact-bound and less cert-worthy).

If a case is likely to wind up at the Supreme Court, and if the underlying issues have closely divided the Court in the past, a change in the composition of the Court would seem to be very important.  So why not here?  It helps to consider a few different scenarios through which the case could reach the Court.

Scenario 1: The Sixth Circuit upholds the Clean Water Rule, and cert petitions are decided by an eight-member Court.  This scenario could occur if the Sixth Circuit decides the case exceedingly quickly, or if the appointment stalemate drags on well into the next administration.  If that happens, then a denial of cert seems likely—there would probably be a minimum of four strong votes to affirm the Sixth Circuit, and therefore little appetite for further review—and the Sixth Circuit decision would stand.  And the change in Court composition would turn out to matter. 

But this scenario isn’t likely.  Many months will likely pass before the Sixth Circuit issues an opinion, and a petition for cert will probably be reviewed by a nine-member Court.  I’m also mildly pessimistic about the rule’s chances before the Sixth Circuit.  The current panel has two Republican appointees--an imperfect indicator of inclinations, but not a meaningless one--and that panel already has stayed the rule and sent some signals of concern about its legality.  I do not think those signals are justified, but it’s the judges, not me, who will decide the case.

Scenario 2: The Sixth Circuit sets aside the Clean Water Rule, and cert petitions are decided by an eight-member Court.  In this circumstance, I think Supreme Court review is more likely.  The four liberal justices would likely want to reverse the Sixth Circuit and uphold the rule, and they might reasonably hope that Justice Kennedy would eventually join them.  Consequently, the outcome of the case would likely come down to Justice Kennedy’s vote—just as it would have if Justice Scalia still were a member of the Court. 

And (here comes the bolder part of the prediction) I think Justice Kennedy will vote to uphold the rule.  His Rapanos opinion seems to me to reflect three basic concerns: he wouldn't mind some boundaries on federal authority; he wants a science-based rule; and he wants a rule consistent with the basic goals of the Clean Water Act.  This rule may do less than Justice Kennedy might like to limit federal authority.  But, as mountains of record evidence make pretty clear, EPA couldn’t limit federal authority very much while also writing a strongly science-based rule and respecting the goals of the Clean Water Act.  In past cases, Justice Kennedy has acknowledged that his commitments to state empowerment sometimes need to give way to other values, and I think—and hope—he’d say the same thing here.

(I’ve also argued elsewhere that states actually have a lot of influence over what EPA and the Army Corps do within the boundaries of their jurisdiction, which suggests that a proponent of a strong state role could be comfortable with broad federal jurisdiction.  But that’s a little tangential here.)

Scenario 3: A nine-member Court, with five Republican appointees and four Democratic appointees, hears the petition for cert and decides the case.  This circumstance is likely to produce a similar outcome to scenario 2.  There still would be four votes to grant cert; the liberals still would have a reasonable hope of bringing Justice Kennedy to their side, and Justice Kennedy still would be the deciding vote.  He’d have one more colleague asking him to join the conservative bloc, but he seems to make up his own mind.

Scenario 4: A nine-member Court, with five Democratic appointees and four Republican appointees, hears the petition for cert and decides the case.  This might seem to be a very different scenario, for Justice Kennedy now would no longer be the tiebreaking vote, and the rule would probably be upheld.  Indeed, one might think, at first, that the rule would be upheld under a rationale that gives EPA and the Army Corps more latitude to regulate broadly

But EPA and the Army Corps themselves have largely foreclosed that possibility.  In crafting the rule, EPA and the Army Corps adopted Justice Kennedy’s “significant nexus” standard as governing law.  They clearly put a high priority on writing a rule that Justice Kennedy would vote to uphold, and building a record that would convince him to uphold it.  With a reconstituted and more liberal Court, EPA and the Army Corps probably could assert jurisdiction more broadly.  But they had no way of knowing that Court might be coming—and it still might not come—so they decided, quite reasonably, to make Justice Kennedy the deciding vote before the rulemaking even began.

Other scenarios are possible, of course; we live in an unpredictable world.  But if the scenarios above exhaust the most likely possibilities, I think the bottom line is that for Clean Water Act jurisdiction, at least, Justice Kennedy is still the deciding vote.

- Dave Owen

March 6, 2016 | Permalink | Comments (0)