Thursday, January 23, 2020
This morning, the US Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead you to believe. So the goal of this post is to explain the changes the new rule actually makes for farmers and the reason those changes are more modest than you might expect.
To start, it's helpful to understand the relationship between farming and the Clean Water Act prior to this rule. Several key exemptions limited the act's effects on farmers. First, the act's most important regulatory programs affect only point sources of water pollutants, and the act specifically excludes agricultural stormwater runoff and irrigation return flows from the definition of "point sources." Not all agricultural activity is excluded from that definition; concentrated animal feeding operations, for example, can be point sources. But most agricultural activity is uncovered.
Agricultural activity can be covered, and can require permitting under Clean Water Act section 404, when it requires filling in aquatic features like streams or wetlands. The scope of those protections on filling activities is centrally at issue in today's rule. But for years, EPA and the US Army Corps of Engineers have not treated "prior converted cropland"--that is, cultivated areas that were converted to wetlands in the past--as Clean-Water-Act-covered aquatic features. That exemption has been part of Clean Water Act regulations since 1993, and it was explicit in the 2015 regulations that the Trump Administration has criticized and then repealed. Thousands of acres of aquatic features are affected by that exception. It also explains why a common image appearing in Farm Bureau advocacy materials--a flooded cornfield, usually accompanied by statements implying that the farmer faces legal liability--is misleading. Unless that cornfield was just recently undeveloped land with a natural stream, the farmer's plowing of the field was clearly legal.
Finally, it's important to realize that under a 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, isolated wetlands were not covered. An isolated wetland, under the 2015 regulations, was a wetland whose protection lacked a "significant nexus" to water quality in traditionally-navigable waterways. That case and the resulting regulations meant that many hydrologically-disconnected wetlands could be filled, even if they were not on prior converted cropland.
Consequently, even before this new rule, farmers could continue farming lands that once were streams or wetlands, even if those lands continued to flood. They also could continue to discharge large amounts of pollutants into wetlands, streams, lakes, and rivers. And they could establish new farming operations in areas where wetlands or streams presently existed if removing those wetlands or streams would not have a "significant nexus" to water quality in traditionally navigable waterways. They also could also fill streams and wetlands that did have regulatory protection; they just needed permits (which do take time and money to obtain and come with strings attached) in order to do so.
So what does the new rule actually change? It will matter primarily in two circumstances. First, it will give farmers more ability to cultivate new areas (without first obtaining permits) even if those areas contain wetlands that are not directly connected to surface waterways or if those areas contain ephemeral streams. Some of those disconnected wetlands and ephemeral streams would have received protection under the 2015 rule, and under prior rules dating back several decades; now they will not. Second, it will give agricultural activities that were traditionally regulated (for example, concentrated animal feeding operations) more ability to discharge waste directly into disconnected wetlands and ephemeral streams. Those are meaningful changes. But it is hard to see how they offer major benefits to farmers. The vast majority of farmers is likely to be completely unaffected.
So why was this such a priority for the Farm Bureau, and why will there be so much celebration? Here the post turns speculative; I am not privy to the Farm Bureau's strategic calculations. But I suspect one reason is that this issue has been very effective for rallying the organization's membership. The Farm Bureau, like other advocacy organizations, needs members, and it needs those members to pay their dues. It's easy for any advocacy organization to sustain that interest and support if it provides issues around which members can rally. And often identifying those issues is more a process of finding a compelling, appealing narrative than it is about factually and carefully identifying opportunities to advance members' interests. I suspect that's what's going on here. "Obama and EPA are coming to regulate you out of business, and our dues-supported advocacy is all that protects you" is a compelling narrative. "This change won't affect you one bit unless you're looking to expand your farm into undeveloped land that has ephemeral streams on it" is more accurate, but it's not nearly so exciting.
A second reason is forward-looking. I suspect the Farm Bureau flexed its muscles here just to make sure anyone who actually does contemplate more extensive water-quality-based regulation of farming thinks twice about taking that step.
So if you're a reporter covering this rule, you might think twice about leading with a quote from the Farm Bureau. A mining company, an oil company, or a developer might be a better place to start.
- Dave Owen
Tuesday, January 21, 2020
What just happened? Twenty-one young people have declared “We’re Not Done!” in response to a dismissal of their historic case, Juliana v. United States, which seeks a court-ordered plan to phase out fossil fuel emissions. On Jan. 17, a sharply divided panel of the Ninth Circuit Court of Appeals held that the remedy they sought was beyond the court’s capacity to order.
The panel’s three judges agreed that the federal government is pushing the nation to collapse by promoting fossil fuels. Quoting the song, “Eve of Destruction,” Judge Andrew Hurwitz (writing for the majority) explained that the federal government has long known that fossil fuels “can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse”—burying cities, unleashing life-threatening disasters, and jeopardizing crucial food and water sources. All three judges also agreed that the young plaintiffs have suffered cognizable injuries and have constitutional rights to a stable climate system.
But the majority “reluctantly” concluded that courts have no role in putting brakes on the federal government’s disastrous fossil fuel policy. Because a remedial plan would involve judicial supervision of government’s policy choices (involving transportation, energy, and public land management), they felt recourse was available only through the political branches.
The judges offered no false hope, however, that those branches would respond in time. Observing that atmospheric carbon levels have “skyrocketed to levels not seen for almost three million years,” and that the U.S. is expanding oil and gas extraction four times faster than that of any other nation – growth that “shows no signs of abating” -- Judge Hurwitz acknowledged that the problem is “approaching the point of no return.” Nevertheless, the majority concluded that the climate crisis presented a “political question” not appropriate for judicial relief.
In a blistering and scholarly dissent, Judge Josephine Staton countered: “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. [T]he government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. My colleagues throw up their hands.” Submitting that courts bear affirmative constitutional responsibility to preserve the nation from existential danger, Judge Staton saw a “perpetuity principle” embedded in the Constitution’s structure.
The case was an appeal of a decision by the federal district court of Oregon, where the 21 youth plaintiffs won a landmark victory. Judge Ann Aiken ruled that plaintiffs had a constitutional right to a “climate system capable of sustaining human life,” grounded in the due process clause of the Constitution and the venerable public trust doctrine. That decision inspired other atmospheric trust cases brought by citizens against governments around the world.
The case, originally set for trial in October 2018, was anticipated to be the “trial of the century,” the first time U.S. fossil fuel policies would be subjected to non-partisan climate science for causing extreme danger. But as the trial date approached, Trump Administration lawyers made a series of unprecedented procedural motions to thwart going to trial. They succeeded in the Ninth Circuit’s panel decision, which would have the unusual effect of blocking the trial from going forward on prudential grounds.
Why did it happen?
The posture of this appeal might partially explain the majority’s aversion to a judicial remedy. Typically, trial judges carefully craft remedies based on evidence developed in the case, sifting through possibilities to fulfill their constitutional responsibility and provide a concrete remedy, reviewable by an appeals court. But the Juliana case had no trial record (because of the government’s early appeal), so the remedy question arrived in the Ninth Circuit as an abstract hypothetical. Curiously, the majority shut the courtroom door without mentioning the many times courts have supervised remedies and ordered plans in litigation against government defendants. A notable example was Brown v. Board of Education, which required a complex judicial remedy to achieve school desegregation.
The Juliana plaintiffs also filed an emergency motion to enjoin several classes of fossil fuel projects the Trump administration was poised to deploy. Prohibitive injunctions are standard forms of relief, but the majority swept away that request in a footnote, dismissing the motion with virtually no discussion. It is possible that the majority was reading the tea leaves sent by Chief Justice John Roberts, who in October 2018 issued an extraordinary stay halting the trial pending the government’s appeal–after the Ninth Circuit refused to do so twice and former Justice Anthony Kennedy concurred.
There were some “wins” for the young plaintiffs in the Ninth Circuit decision. Government lawyers had long tried to confine the Juliana case to a narrow statutory claim, insisting plaintiffs must bring climate grievances in the form of individual challenges to agency action under the federal Administrative Procedure Act. Judge Aiken had rejected that approach, observing that statutory remedies offered little more than a game of “whack a mole” for plaintiffs, forcing them to challenge an impossible number of federal actions comprising national fossil fuel policy. All three judges agreed with Judge Aiken, rejecting a significant platform that federal attorneys had hoped to solidify. Yet, a right without a remedy is no win for the youth.
The Ninth Circuit grants full-court review (called en banc review) to only a few cases a year. A majority (16) judges of the 30-member court (now including 10 Trump appointees) would have to vote to accept the case for en banc review. The Juliana plaintiffs may well defy these slim odds. As Judge Staton observed, the urgency and danger of the climate crisis puts this case in a “category of one.” This case will also attract notice because it profoundly constrains the court from providing traditionally-used remedies (such as plans and injunctions) in institutional litigation against government defendants, ramifications that strike at the heart of the judicial role. Whether the full court will accept this doctrinal straightjacket delivered by just two colleagues is hardly clear.
If en banc review is granted, an 11-member panel (chosen by lot) could narrowly decide the remedy question, deciding that it needs a full trial record for proper appellate resolution. That would send the case back to the district court to resume the normal litigation process. Or it could affirm the dismissal. Either way, the case could ultimately end up in the Supreme Court.
Although the Juliana case is not binding on state and foreign courts, there is a growing cross-fertilization of approaches as judges across the world delineate their role in climate cases. Last month, the Supreme Court of the Netherlands squarely rejected the political question defense that the Juliana majority endorsed. In Urgenda v. The Netherlands, the high court decided that climate was judicially redressable and upheld a lower court’s order requiring government to reduce greenhouse gas emissions 25% by the end of 2020.
Several state cases now pending before courts in Oregon, Washington, Alaska, Florida and elsewhere involve remedy questions similar to Juliana. Any one of these courts could invoke traditional judicial tools to fashion a remedy structure serving as a model for Juliana and other climate cases around the world.
How does this decision affect the climate movement? The vivid descriptions of climate catastrophe in both the majority and dissenting opinions will undoubtedly amplify calls for urgent climate action. Describing “compelling evidence” of looming disaster, the judges leave any remaining doubt over whether climate change is real to drown in the ongoing sea level rise. The dissent characterized the government’s fossil fuel policy as nothing less than “willful destruction of the Nation.” Tapping spirited American patriotism through writings of George Washington, Alexander Hamilton, and Abraham Lincoln, Judge Staton described an inescapable moment of truth for the destiny of the United States, as the federal government continues to create, through surging fossil fuel development, “an existential crisis to the country’s perpetuity.”
In one crucial respect, the dissenting opinion forces a decision for all judges everywhere to choose a side of history—"When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”
That question will soon be put to the full Ninth Circuit.