The U.S. Food and Drug Administration (FDA) recently proposed updates to the Nutrition Facts label. The amendments are aimed at “provid[ing] updated nutrition information on the label and improve[ing] how the nutrition information is presented to consumers.” First Lady Michelle Obama has enthusiastically supported these revisions in connection with her Let’s Move! initiative: “Our guiding principle here is very simple: that you as a parent and a consumer should be able to walk into your local grocery store, pick up an item off the shelf, and be able to tell whether it’s good for your family.”
But to what extent will these updated labels tell consumers whether the food is “good” for their families? The answer depends on what consumers subjectively believe is important to know about the food that they are purchasing, and whether those facts are listed on the labels. In response to this proposed rule, consumer advocate groups have been quick to point out that the proposal fails to address labeling requirements pertaining to a subject of great interest: genetically modified organisms (GMOs).
Proponents of GMO labeling say that foods that contain GMOs are not “good” for people and their families. GMOs are produced when a favorable trait from one organism is transferred to another organism: a segment of DNA is taken from the favorable organism and “is extracted and spliced into a recipient organism’s preexisting DNA.” The effects of tempering with the recipient organism’s DNA are a concern because of the current food and agricultural industry assumption that “if a gene was safe in one plant, it ‘will be safe when transferred’ via biotechnology ‘to another plant.’” However, unexpected toxins and allergens can be created when genes are spliced and transferred. Unseen gene mutations may result, or plants may be created “in which the levels or bioavailability of important nutrients are altered in significant ways that could be harmful to human health.” And there is the possibility that bioengineering of food and plant organisms could inadvertently create a super-virus, which could cause disease among humans and have the potential to be widespread and fatal to human life.
So far, the FDA has simply supported voluntary GMO labeling. The first question, then, is whether the FDA can mandate a GMO-labeling requirement. Under their current rulemakings, the FDA does not have this power. In accordance with the Federal Food, Drug, and Cosmetic Act (FDCA), the FDA regulates the safety of food, including those that are genetically engineered. And under § 343(a), the FDA may declare mislabeling if the labeling is “false or misleading in any particular.” In determining whether a product is mislabeled, the FDA is required to consider “the extent to which the labeling or advertising fails to reveal facts material… with respect to consequences which may result from the use of the article.” The FDA has interpreted “material” to mean “whether consumers view such information as important and whether the omission of label information may mislead a consumer.”
The landmark case in the dispute over GMO labeling is Alliance for Bio-Integrity v. Shalala. There, consumer groups and individuals brought suit against the FDA, alleging that the FDA’s refusal to require mandatory labeling of GMOs was arbitrary and capricious. Plaintiffs claimed that foods containing GMOs were mislabeled under § 321(n) because the FDA failed to include consumer interests in its interpretation of “material.”
The court in Alliance deferred to the FDA in its holding. In general, provided Congress has not spoken directly to the issue via statutory language, courts generally defer to agencies and allow them a great deal of discretion in their statutory interpretations. Courts are particularly unlikely to strike down an agency’s interpretation if it pertains to the agency’s own enabling statute. The caveat is that the agency’s interpretation must be “based on a permissible construction of the statute” and cannot be arbitrary and capricious. In Alliance, the court held that the agency’s interpretation of the statute was reasonable and was therefore not arbitrary and capricious. Since Congress did not provide a clear definition of the term “material,” the agency was within its means to interpret it in such a way that focused on safety concerns while excluding consumer interests. In addition, the court held that GMOs do not materially alter foods. Thus, “the FDA lacks a basis upon which it can legally mandate labeling, regardless of the level of consumer demand,” given the FDA’s interpretation of the term “material.” So, if the FDA were to change its definition of “material,” it might have jurisdiction to mandate the labeling of GMOs.
Since the FDA’s refusal to require GMO labeling is within its powers, the next question focuses on what can be done to encourage, if not mandate, the labeling of GMO products. Since courts are likely to uphold Alliance and defer to the FDA with respect to statutory interpretation, one solution is to go through Congress. If Congress clarifies the term “material” so as to include consumer interest, the FDA will have to mandate GMO labeling. In addition, on the state level, citizens and consumer groups could push for GMO labeling. In fact, several states have already considered either legislation or ballot initiatives to accomplish this goal. In addition, due to the voluntary nature of GMO labeling, consumers could encourage the labeling of GMOs by boycotting manufacturers who are known to use GMOs, but who fail to label the products accordingly.
Yet the initiative to label GMO products is not without its critics. Some have stated that it is unclear how much consumer interest is coming from individual consumers as opposed to consumer groups. So even if the FDA were to interpret the term “material” to include consumer interest, it is unknown how many people would actually appreciate and utilize the change in label.
In addition, there are concerns with giving consumers an unrestricted “right to know” what is in their food products, as conveyed by labels. First, requiring the labeling of GMOs because consumers have a right to know would be a fundamental shift in nutritional labeling. Rather than being governed by significant health effects, nutritional labeling would also be governed by what people want to know. And what people want to know could be something that might pose a health risk, or it could be something that provides a health benefit.
Second, labels can only hold so much information to be reasonably beneficial to consumers. If nutrition labels contained every little product for which consumers demanded a right to know, the labels would be filled with too much information. Consumers will not want to spend unreasonable amounts of time looking through the fine print on a label to find the ingredient (or ingredient which makes up the ingredient) with which they are concerned. And the value of having a label will be diluted, as too much information could lead people to simply ignore the labels altogether.
Moreover, despite current labeling rules, due to FDA requirements, consumers do not actually know every single thing that goes into their food products. Nor would they likely want to know if some of the ingredients are repulsive. Under the current rules, although the FDA approves food products as unadulterated, they may contain trace amounts of “poisons, pesticide residues, additives, filth, or decomposed manner… as long as the levels are below those set by the FDA.” So even if the FDA were to require GMO labeling, it is possible that products that actually contain GMOs would not have to be labeled to reflect the presence of GMOs if they do not meet the threshold amount of GMO ingredients.
At this time, although consumers and consumer groups may not be too enthusiastic that the proposed Nutrition Facts label does not include information about GMOs, there are ways to change the food labeling policy. As bioengineering in the food industry becomes more prevalent, and studies on the effects of GMOs are done, consumers may be more insistent on transparency from manufacturers. But until Congress enacts legislation that would require such labeling, it is very unlikely that the FDA will change its stance and mandate the labeling of GMOs.
-Dayna Chikamoto is a General Member on MJEAL. She can be reached at email@example.com.
 Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 79 Fed. Reg. 11879 (proposed Mar. 3, 2014).
 Press Release, Office of the First Lady, The White House and FDA Announce Proposed Updates to Nutrition Facts Label (Feb. 27, 2014), http://www.whitehouse.gov/the-press-office/2014/02/27/white-house-and-fda-announce-proposed-updates-nutrition-facts-label.
 Ronnie Cummins, New FDA Food Label Rules Ignore the GMO Elephant in the Room, Huffington Post, http://www.huffingtonpost.com/ronnie-cummins/new-fda-food-label-rules-_b_5022900.html (last visited Apr. 8, 2014).
 David Alan Nauheima, Food Labeling and the Consumer’s Right to Know: Give the People What They Want, 4 Liberty U. L. Rev. 97, 102 (2009) (discussing the creation of genetically modified organisms).
 Id. at 105.
 Id. at 106.
 Id. at 107.
 21 U.S.C.A. § 342.
 21 U.S.C.A. § 343(a).
 21 U.S.C.A. § 321(n).
 21 C.F.R. § 179.
 Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166 (D.D.C. 2000).
 Id. at 170.
 Id. at 178.
 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
 116 F. Supp. 2d. at 179.
 Id. at 178-79.
 Id. at 179.
 Frank J. Miskiela, Voluntary Labeling of Bioengineered Food: Cognitive Dissonance in the Law, Science, and Public Policy, 38 Cal. W. L. Rev. 223, 240 (2001) (discussing consumer demand for labeling).
 Id. at 241.
What are the “waters of the United States”? Re-defining or clarifying EPA’s jurisdiction under the Clean Water Act?
The Clean Water Act (CWA) is designed, “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.A. § 1251. The Act declares an ambitious goal for the United States, “It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;” Id. Unfortunately, many of the key terms within the statute are somewhat vague and require very different practical applications depending on their interpretations. These conflicting interpretations make enforcing the initiatives in the Act and meeting its goals more challenging. For instance, the mandatory permit process under the CWA only applies to discharges of a pollutant into navigable waters. Therefore the scope of EPA’s regulatory jurisdiction under the CWA is dependent on the definition of navigable waters. The term “navigable waters” is defined by the EPA as, “the waters of the United States, including the territorial seas.” 33 U.S.C.A. § 1362 (7). This vague definition of navigable waters leads to more questions of statutory interpretation, namely what waters are included in, “waters of the United States (U.S.)”. Generally, “waters of the U.S.” includes navigable-in-fact waters or those waterways that can be or are used in commerce and are subject to the ebb and flow of the tide. 33 C.F.R. § 329.4. However, there are many other waterways in the United States besides those waters directly engaged in commerce. The legal debate as to whether narrow or shallow rivers and streams should be included in the waters of the United States and in turn whether discharges into them are subject to the EPA’s permit process under the CWA is wide and complex.
Several Supreme Court rulings address the vagueness of the term “waters of the U.S.” and make an attempt to further define the term. Among those rulings is United States. v. Riverside Bayview. The Riverside Court “conclude[d] that it is permissible for the Army Corps of Engineers to define ‘waters of the United States’ as encompassing wetlands adjacent to other bodies of water over which the Corps has jurisdiction.” 474 U.S. 121, 135, (1985). Therefore, any wetland that actually abuts a navigable-in-fact waterway, such as a river or lake, is within the scope of the CWA’s provisions. Later the Court clarified its position in Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, commonly referred to as SWANCC. 531 U.S. 159, (2001). The majority wrote, “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.” Id. at 167.
The most recent judicial attempt to interpret “waters of the United States” was the 2006 U.S. Supreme Court case, Rapanos v. United States. 547 U.S. 715, (2006). The Rapanos decision written by Justice Scalia held that the term “navigable waters,” under CWA, “includes only relatively permanent, standing or flowing bodies of water… The phrase does not include channels through which water flows intermittently or ephemerally.” Id. at 739. Justice Scalia went on to clarify that, “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.” Id. at 742.
The Rapanos case was unique because the Court was extremely divided. Only three justices joined or concurred in Justice Scalia’s opinion, four justices dissented and Justice Kennedy wrote his own opinion concurring in the judgment. Justice Kennedy’s concurrence in the judgment allowed the Court to form a plurality opinion (Justice Scalia’s opinion) and a judgment; his opinion is considered a controlling concurrence. A controlling concurrence is a concurrence that is adopted as law by the majority of lower courts. Lower courts will follow a controlling concurrence rather than a plurality opinion for a number of reasons. Some courts choose to adopt the law of a controlling concurrence because part of the concurrence’s reasoning overlaps with the plurality opinion or with the dissenting opinion and therefore that interpretation of the law is the only reading that a majority of the justices found persuasive. See Waters v. Churchill, 511 U.S. 661, 685, (1994) (Souter, J., concurring). (analyzing the points of agreement between plurality, concurring, and dissenting opinions to identify the legal test that lower courts should apply). Alternatively, lower courts will follow a controlling concurrence because it represents the narrowest change in the law. Marks v. United States, 430 U.S. 188, 193, (1977). In the Rapanos case, Justice Kennedy’s definition of waters of the U.S. was encompassed in the definition accepted by the four dissenting Justices. His definition was also the lesser deviation from the legal definition provided by the Army Corps of Engineers at the time of the case.
Consequently, in practice, the definition of waters of the United States that is most commonly endorsed by agencies and courts is the definition laid out in Justice Kennedy’s concurrence. Justice Kennedy wrote that, “Absent a significant nexus, jurisdiction under the Act is lacking. Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary.” Rapanos, 547 U.S. at 767. Justice Kennedy clarified that a waterway has a significant nexus to a navigable-in-fact waterway if it serves a critical function related to water quality. The waterway must a substantial impact on the traditionally navigable waterway, not simply a speculative impact. Id. at 717.
Several rulings since Rapanos applied the significant nexus test from Justice Kennedy’s concurrence. See United States v. Moses, 496 F.3d 984, 990 (9th Cir. 2007) (stating that Justice Kennedy’s opinion in Rapanos is the controlling law and holding that a manmade creek empting into a river is a ‘water of the U.S.’ under the CWA). N. California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007). (holding that a pond is a ‘water of the U.S.’ because it has a significant effect on the biological integrity of an adjacent river and therefore meets Justice Kennedy’s significant nexus test in Rapanos) (amended holding 496 F.3d 993, 999–1000 (9th Cir.2007) (limiting the holding to the specific facts of the case). Other courts adopted Justice Scalia’s actual surface water connection test from the plurality opinion because it was the official judgment of the court. See, E.g., Haniszewski v. Cadby, 03-CV-0812 SR, 2013 WL 6816622 at *8 (W.D.N.Y. Dec. 20, 2013). (holding that a wetland drain was not a water of the U.S. because it did not have a continuous surface connection to the necessary navigable waterway as required by Justice Scalia’s test in Rapanos). Some jurisdictions have held that either test is acceptable. United States v. Johnson, 467 F.3d 56, 66 (1st Cir. 2006). (The federal government can establish CWA jurisdiction if it can meet either the plurality’s or Justice Kennedy’s standard as laid out in Rapanos.)
Essentially instead of clarifying the CWA’s definition of waters of the U.S., the Rapanos case further divided the circuit split on the law resulting in confusion over the reach of the EPA’s jurisdiction under the CWA. United States v. Hamilton, 952 F. Supp. 2d 1271, 1274 (D. Wyo. 2013). (noting that the Tenth Circuit has yet to decide which test controls in Clean Water Act cases). United States v. Osborne, 1:11CV2039, 2012 WL 4483880 at 3 (N.D. Ohio Sept. 27, 2012). (noting that the Third, Fourth, Fifth, Sixth and Ninth Circuits have reserved the issue of which Rapanos test controls in CWA enforcement actions). The uncertainty has been a problem not only for the EPA’s ability to bring enforcement actions, but also for dischargers. Dischargers must obtain a permit from the EPA if they are releasing a pollutant into a water of the U.S. Since the definition of waters of the U.S. varies, dischargers are unsure of when they must obtain a permit or risk liability. In an attempt to alleviate the confusion and jurisdictional problems, on March 26th, 2014, the EPA issued a proposed rulemaking aimed at clearly defining the term “waters of the U.S.”
The agency proposes to define “waters of the United States” in section (a) of the proposed rule for all sections of the CWA to mean:
traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional ‘waters of the United States’ by rule – no additional analysis would be required.
Docket No. EPA-HQ-OW-2011-0880 at 2.
Although EPA administrator Gina McCarthy stated in an editorial that the proposed rule will not alter the EPA’s current jurisdiction under the CWA, an EPA press release admits that the new definition encompasses[i]:
-Most seasonal and rain-dependent streams …
-Wetlands near rivers and streams …
-Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant[ii]
Depending on the court and which definition of waters of the U.S. that court has applied in the past, the new definition may very well be an expansion of EPA’s jurisdiction. The new rule would grant EPA the authority to regulate non-navigable waters such as wetlands, tributaries and intermittent and seasonal streams that previously may have been outside its jurisdiction because these waters are not directly connected to a navigable waterway on the surface as required by Justice Scalia’s test in Rapanos. The EPA has deemed regulation of these waters important because they are hydrologically connected to navigable waters and consequently impact their flow and water quality. As EPA notes on its website, it was previously unable to bring some enforcement actions due the inconsistencies in its jurisdictional authority regarding seasonal flowing waters, tributaries and intermittent streams[iii]. However, Administrator McCarthy’s statement claiming that the new rule only clarifies EPA’s jurisdiction and does not expand it, is not entirely disingenuous as the new rule is fairly consistent with Justice Kennedy’s significant nexus test.
Overall, the rule should help EPA advance the goals Congress declared in the CWA. Although not everyone is supportive of the proposed definition, farmers and industry interest groups are concerned that the new rule will widen their scope of liability[iv] Their concern is that the new rule will expand EPA’s authority to include minor discharges from remote agricultural sources if the discharges flow into small streams, wetlands, drainage ditches or certain sub-surface water reservoirs. Industry groups also raised concerns that the new rule is another political step toward increasing regulation of non-point sources. Non-point source discharges include runoff from agricultural practices and stormwater discharges. 33 U.S.C. § 1362 (14). Non-point source discharges have traditionally been exempt from the NPDES permit process under the CWA. Before the rule is approved, everyone will have the opportunity to voice their concerns as the proposed rule will be viewable and available for public comment on the federal registrar’s website shortly[v].
-Amanda Urban is a General Member on MJEAL. She can be reached at firstname.lastname@example.org
[i] Gina McCarthy, Clearer protections for clean water, Washington Post. (March 25, 2014). http://www.huffingtonpost.com/gina-mccarthy/clearer-protections-for-c_b_5029328.html.
[ii] Julia Q. Ortiz, EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal, Environmental Protection Agency. (March 25, 2014). http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30.
[iii] The website notes three enforcement actions in Arizona, Georgia and Texas that EPA had to discontinue pursuing due to jurisdictional issues under the CWA. http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm
[iv] Ron Nixon, E.P.A.’s proposed rules on water worry farmers, New York Times (March 12th, 2014). http://www.nytimes.com/2014/03/13/us/politics/environmental-protection-agency-water-rules.html?_r=0.
Richard Gupton, Waters Advocacy Coalition, Agricultural Retailers Association. (Feb 6th, 2014). http://www.aradc.org/browse/resources/viewdocument/?DocumentKey=c09f34e9-2cd4-41bf-8e31-a0041aa1f8e6.
On April 1st of this year, Tesla was banned from selling cars in New Jersey. Jim Appleton, the President of the New Jersey Coalition of Automobile Retails (NJ CAR) was riding high off the victory and could not stop himself from sticking a barb to Elon Musk, Tesla’s co-founder:
“If you’re an internet billionaire, maybe you think the world revolves around you, and the world springs from your laptop. Well, I got news for [Musk]. This is not a new law, Tesla is operating illegally, and as of April 1st, they will be out of business unless they decide to open a franchise.”[i]
The growing gadget press was predictably upset by New Jersey’s decision to prohibit Tesla from directly selling to consumers. One Wired article, pointedly titled, “New Jersey Bans Tesla to Ensure Buying a Car Will Always Suck,” denounced lobbyists and politicians who preach legislation that stamps out innovation.[ii]
But to be fair to Appleton and the New Jersey Motor Vehicle Commission, Tesla should not have been allowed to sell cars in the first place. The protectionist statute clearly prohibits any motor vehicle franchisor “to offer to sell or sell motor vehicles, to a consumer…except through a motor vehicle franchisee.”[iii]
Besides this strict textualist argument, NJ CAR has also emphasized how the law protects consumers. As the argument goes, dealerships are uniquely positioned to provide consumers with in-demand services like warranties. Furthermore, dealerships believe that healthy competition among dealerships can adequately fuel innovation and aid in driving down prices.[iv]
Of course, NJ CAR also likes this law because it gives New Jersey’s dealerships a monopoly on car sales. The law is protecting dealerships first, consumers second, and we should be suspicious of any justification that dances around this point. Let us move beyond a textual analysis to figure out how exactly this law should be applied.
The legislative history of the statute cuts both ways. The Assembly Committee and Industry Committee Statement succinctly states that the bill was designed to “prohibit the manufacturers, distributors and importers of motor vehicles from engaging in a business of new car sales,” lending support to the underlying idea that the statute was designed to prevent manufacturers from selling directly to consumers.[v]
It’s unfair to take a law originally designed to target the Big Three and aim it at a small company like Tesla. Tesla is not the kind of dealership that the Committee was worried about. The Committee statement specified that the law’s purpose was to “prevent the replacement of the State’s independently-owned franchises with manufacturer-controlled dealerships.”[vi] In enacting this law, the Committee was not concerned about a start-up like Tesla undercutting Chevy dealers. It was concerned that Chevy corporate would undercut Chevy dealers. That being said, we should be wary of any argument that puts too much weight on a committee report. Who knows why the rest of the legislature voted for the bill?
With the legislative history split, we turn now to the policy reasons for keeping up the prohibition. Dealerships have asserted that their presence as middlemen drives down prices and keeps customers satisfied, but curiously, they do not cite hard evidence to back up these claims.
That’s likely because the data leans the other way. A 2009 report from the Economic Analysis Group (EAG) of the Department of Justice’s Antitrust Division advocated “eliminating state bans on direct manufacturer sales in order to provide automakers with an opportunity to reduce inventories and distribution costs by better matching production with consumer preferences.”[vii] According to this report, if manufacturers switched to a build-to-order model, they would be able to more accurately estimate consumer demand, which in turn would allow them to run leaner inventories.
The EAG theorizes manufacturers would pass on the savings to consumers as lower prices. In fact, GM did just that in Brazil with its car, the Celta. Consumers could purchase the Celta directly through GM’s website, where they could customize the car’s accessories and colors. Additionally, GM collaborated with suppliers to deliver modules as they were needed, enabling GM to use 50% fewer parts than in an American assembly line. More impressively, GM passed the savings onto the consumers: prices were about 6% lower than for sales made through dealerships.[viii] The evidence indicates that franchise laws like New Jersey’s actually hurt consumers.
To sum up, the textual, historical, and policy reasons are against these protectionist statutes. It might be time to amend the law. In fact, there’s currently a bill in New Jersey’s Senate that is trying to do just that.[ix] As Daniel O’Connor notes in “Tesla, the Auto Dealers, and New Jersey,” entrenched institutions have always relied on “consumer protection” arguments to try to stave off extinction. In the 1920s, that meant that the Horse Association of American lobbied against “less reliable, less efficient” automobiles, and we all know how that turned out.[x]
-Percy Olsen is a General Member on MJEAL. He can be reached at email@example.com
[i] Ben Popper, Auto Dealers Fire Back at Tesla CEO, The Verge (Mar. 19, 2014), http://www.theverge.com/2014/3/19/5525544/new-jersey-auto-dealers-respond-to-teslas-elon-musk.
[ii] Marcus Wohlsen, New Jersey Bans Tesla to Ensure Buying a Car Will Always Suck, Wired (Mar. 12, 2014), http://www.wired.com/2014/03/tesla-banned-ensure-process-buying-car-keeps-sucking/.
[iii] N.J. Stat. Ann. § 56:10-27 (West 1985).
[iv] Daniel O’Connor, Tesla, the Auto Dealers, and New Jersey: Playing the Consumer Protection Card, Disruptive Competition Project (Mar. 11, 2014), http://www.project-disco.org/competition/031114-tesla-the-auto-dealers-and-new-jersey-playing-the-consumer-protection-card/.
[v] Assembly, No. 2117—L. 1985, c. 361.
[ix] New Jersey Senate Bill No. 1898, Permits manufacturer to sell electric motor vehicles to consumers under certain conditions (2014).
[x] O’Connor, supra note 4.
Deforestation and habitat destruction in tropical rainforests have long been a concern for conservationists. The country of Belize has fared better than many countries in protecting its bio-diverse habitats; for instance, approximately 93 percent of Belize is covered by forests, housing more than 220 tree species and 350 species of birds.[i] Further, Belize has the second largest barrier reef in the world, and the second largest population of West Indian Manatees.[ii]
However, recent petroleum development condoned by the Belizean government has sparked concerns over the strength of environmental protections in the country. In 2004 and 2007, the Belizean Department of Natural Resources and the Environment awarded numerous petroleum contracts (called Production Sharing Agreements or PSAs) to oil companies. Following the PSA awards for petroleum exploration and development in areas including protected lands, Oceana (an NGO focused on protecting marine environments in Belize) organized a special unofficial referendum on the issue. In the special referendum, about 20 percent of Belizeans came out to vote; of those voters, 96 percent wanted to prevent the government from allowing oil development pursuant to the PSAs.[iii] While there may be some selection bias in this result, the intensity of the results does indicate popular support for environmental protections.
However, the government’s actions still might place numerous protected areas in jeopardy. A trial court decision struck down the PSAs once because they did not require Environmental Impact Assessments (EIAs) in violation of the Environmental Protection Act (EPA). [iv] However, the Minister of Natural Resources and Environment appealed, with the appeal outcome still pending for appeal as of this post. If the decision is reversed, the PSAs will be allowed to continue. As written, the PSAs allow invasive exploration activities, even in forest and marine reserves, without EIAs.[v]
Even if the trial court decision striking down the PSAs is affirmed, the government could award only slightly modified PSAs that do require EIAs. However, the EIA requirement only mandates that the Minister of Natural Resources and Environment conduct the study as an information gathering exercise.[vi] Oil exploration activities might include seismic testing and drilling test wells, both of which include clearing large areas of forest and creating loud, disturbing noises. Previously, these activities were declared to have a substantial environmental impact;[vii] recent regulatory changes now purport to make EIAs for such activities optional.[viii] In addition to the potential impact on lands protected principally by the Government of Belize (GOB), it is unclear what impact oil development activities may have on lands protected through conservation agreements between the U.S. and GOB.
In 2001, the U.S. and GOB signed a conservation agreement in the form of a debt-for-nature (DFN) swap. DFN agreements emerged as a conservation tool in the 1980s when concerns over deforestation in developing countries, particularly in bio-diverse tropical areas, erupted.[ix] Concurrently, developing countries were overwhelmed by a debt crisis that forced the promotion of extractive industries in order to raise the funds to fulfill debt obligations.[x] DFN agreements were proposed as a practical tool to address both of these problems; they could “reroute the money developing countries spend servicing their enormous debts into conservation projects in their own countries.”[xi]
The U.S. has relied on DFN agreements since their emergence, using them regularly throughout the world.[xii] In 1998, Congress passed the Tropical Forest Conservation Act, designed to provide debt relief in exchange for conservation.[xiii] While this may appear to be a win-win, one of the largest environmental concerns with these agreements regards the “extent to which the benefits of the conservation commitment hold over time.”[xiv] Thus, it is critical to examine the effectiveness of the Belize DFN agreement as new issues, like the new PSAs, arise.
The 2001 DFN agreement between the Nature Conservancy, the U.S. government, and GOB protected almost 30,000 acres of lands in the Maya Mountain Marine Corridor (“MMMC”),[xv] a region home to numerous endangered species with an inter-related group of ecosystems, including tropical rainforests, mangrove forests, seagrass beds, and a barrier reef.[xvi] About 11,000 acres of land in “Crown Block 127” in the MMMC were transferred from GOB to the Toledo Institute for Development and Environment (“TIDE”) “to be held in trust for the people of Belize.”[xvii] An additional 19,000 acres were purchased by TIDE with funds provided as part of the agreement.[xviii] The DFN agreement included specific provisions requiring land transfers to TIDE to be “free of all liens and encumbrances under the laws of Belize.”[xix] Because that land is no longer government-owned or co-managed, it is not clear that the government could authorize any petroleum activities directly on the DFN-protected land.[xx]
Even if the GOB cannot directly authorize petroleum activities on the DFN land, it might still be substantially impacted by petroleum activities on neighboring lands. While a thorough review of all of the awarded PSAs is beyond the scope of this post, an examination of one PSA (that with US Capitol Energy) revealed a potential conflict; the land awarded to US Capitol Energy appears to surround some of the DFN land.[xxi] Due to the interconnected nature of the MMMC ecosystems and the gravity of potential environmental impacts from petroleum activities, the DFN land in Block 127 may still be detrimentally impacted. Further study will be necessary to determine the gravity of these impacts.
Just as the DFN agreement regarding lands under TIDE may be less problematic than conservationists initially feared, conservation concerns might be somewhat alleviated in the Sarstoon Temash National Park, also part of the MMMC region. A Supreme Court (trial-level) decision on April 4, 2014 prevented pre-drilling activities including road construction in the National Park, co-managed by Sarstoon Temash Institute for Indigenous Management (SATIIM) and the Forest Department.[xxii] While the decision was not explicitly based on conservation grounds,[xxiii] it follows a 2006 decision quashing permits for oil development activities in the same park in part for not conducting EIAs in violation the EPA.[xxiv] While environmental groups have hailed the decision as a legal success for conservation,[xxv] these rulings have not prevented U.S. Capitol Energy from continuing with their pre-drilling activities.[xxvi]
Though the tension between conservation and extractive industries in Belize is not unique, the popular support for environmental protections and the small size of Belize’s population make strong environmental protections potentially achievable. While Belize has enacted multiple environmental protection statutes, the power and strength of those protections are still being established. The fate of the current PSAs in the court system will provide significant guidance in determining the environmental impacts on national protected lands and DFN-protected lands in the future. Further, it will play a key role in sending a message about the priority that environmental protections do or do not take in Belizean society.
-Louisa Eberle is a General Member on MJEAL. She can be reached at firstname.lastname@example.org.
[i] The Nature Conservancy, WORKING WITH COMPANIES: THE TOLEDO INSTITUTE FOR DEVELOPMENT AND ENVIRONMENT, http://www.nature.org/about-us/working-with-companies/the-toledo-institute-for-development-and-environment-tide.xml#sthash.ixir1kK2.dpuf (last visited Apr. 9, 2014).
[iii] About 30,000 voters turned out to vote in the referendum, which was held during working hours on a weekday. Andy Sharpless, Oceana, CEO Note: 30,000 Strong Against Drilling in Belize, BLOG, (Mar. 5, 2012), http://oceana.org/en/blog/2012/03/ceo-note-30000-strong-against-drilling-in-belize.
[iv] Oceana in Belize v. Minister of Natural Res. and the Env’t, (2013) No. 810/2011, ¶33 (Belize Sup. Ct.), notice of appeal filed May 2, 2013 (Belize App. Ct.), available at http://www.belizejudiciary.org/web/wp-content/uploads/2013/01/Supreme-Court-Claim-No-810-of-2011-Oceana-in-Belize-Citizens-Organized-for-Liberty-throuhg-Action-et-al-v-Minister-of-Natural-Resources-and-The-Environment-1.pdf.
[vi] The Queen v. Belize Alliance of Conservation & Non Governmental Orgs., No. 61/2002, ¶23 (Belize Sup. Ct.) available at http://www.belizejudiciary.org/web/judgements/dec_2002/61_of_2002.html (recognizing that the EIA is an information-gathering exercise).
[vii] Sarstoon-Temash Inst. for Indigenous Mgmt. v. Forest Dep’t, (2006) No. 212/2006, ¶19 (Belize Sup. Ct.), available at http://www.elaw.org/node/2280; Oceana in Belize, No. 810/2011 at ¶29.
[viii] Environmental Impact Assessment Regulations 2007 Amendment (Act No. 24/2007), Schedule II ¶16(a) (Belize), available at http://www.doe.gov.bz/index.php/services/doc_download/76-environmental-impact-assessment-amendment-regulations-2007 (defining “Petroleum exploration activities such as seismic surveys” as only requiring an Environmental Impact Assessment at the discretion of the Minister of Natural Resources and the Environment).
[ix] In the 1980s, ecologists estimated that approximately 100,000 square kilometers of tropical forests were being lost each year and all of the tropical forests in the world “would be destroyed or seriously diminished by the year 2000.” See Laurie P. Greener, Comment, Debt-for-Nature Swaps in Latin American Countries: The Enforcement Dilemma, 7 Conn. J. Int’l L. 123, 132–34 (1991).
[x] Amanda Lewis, Comment, The Evolving Process of Swapping Debt for Nature, 10 COLO. J. INT’L ENVTL. L. & POL’Y, 431, 432 (1999).
[xi] Jared E. Knicley, Note, Debt, Nature, and Indigenous Rights: Twenty-five Years Of Debt-For-Nature Evolution, 36 HARV. L. REV., 79, 81 (2012)
[xii] Examples of other DFN agreements include those between the U.S. and Bolivia, Bangladesh, Ecuador, and Indonesia. Jared E. Knicley, Note, Debt, Nature, and Indigenous Rights: Twenty-five Years Of Debt-For-Nature Evolution, 36 HARV. L. REV., 79, 94;96;100;106, (2012)
[xiii] Suzanna Egolf, MOBILIZING FUNDING FOR BIODIVERSITY CONSERVATION: A USER-FRIENDLY TRAINING GUIDE (Ctr. for Biological Diversity, Working Paper), available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CC0QFjAB&url=https%3A%2F%2Fwww.cbd.int%2Fdoc%2Fnbsap%2Ffinance%2FGuide_TrustFunds_Nov2001.pdf&ei=_gxGU9G5DoXkOo31gKgJ&usg=AFQjCNE0vyp-f41BpXM5DrQdMPwGlTEhqQ&sig2=xxXpDGcN5Ll_bOJzgwqntQ&bvm=bv.64507335,d.ZWU.
[xiv] Jared E. Knicley, Note, Debt, Nature, and Indigenous Rights: Twenty-five Years Of Debt-For-Nature Evolution, 36 HARV. L. REV., 79, 87 (2012)
[xv] Agreement Regarding a Debt-For-Nature Swap to Prepay and Cancel Certain Debt Owed By the Government of Belize to the Government of the United States of America and its Agencies, U.S.-Belize, Art I, Aug. 2, 2001, State Dept. No. 01-95 [hereinafter DFN Agreement], available at http://www.state.gov/documents/organization/16685.pdf.
[xvi] The Nature Conservancy, Belize: Maya Mountain Marine Corridor, PLACES WE PROTECT, http://www.nature.org/ourinitiatives/regions/centralamerica/belize/placesweprotect/maya-mountain-marine-corridor.xml (last visited Apr. 9, 2014).
[xvii] DFN Agreement, supra note 15 at Art. II §2.
[xviii] Id. at Art. I.
[xix] Id. at Art. §1(g).
[xx] Id. at Art. III §1(b)-(c).
[xxi] See the map of the conservation areas in MMMC, with Block 127 representing a substantial portion of the DFN land. Greg DeVries et al., Enhancing Collaboration for Conservation and Development in Southern Belize, 151, available at http://www.snre.umich.edu/ecomgt/pubs/belize/belizecomplete.pdf. Compare with the map of the PSA award to US Capitol Energy, and see that the DFN lands are surrounded by the contract US Capitol Energy contract. Ministry of Energy, Science & Technology and Public Utilities, BELIZE PETROLEUM CONTRACT MAP, http://estpu.gov.bz/images/GPD/Belize%20Petroleum%20Contracts%20Map.pdf (last visited Apr. 9, 2014).
[xxii] Isani Cayetano, Major Court Ruling in Favor of SATIIM, but Oil Company Says it Will Continue Drilling, NEWS FIVE (Apr. 3, 2014), http://edition.channel5belize.com/archives/97374.
[xxiii] The April 4 decision focused on the lack of indigenous consent for the oil development activities and indigenous property rights in the area. See Sarstoon Temash Inst. for Indigenous Mgmt. v. Attorney Gen. of Belize, (2014), No. 394/2013 ¶13 (Belize), available at http://www.belizejudiciary.org/web/wp-content/uploads/2014/01/Supreme-Court-Claim-No-394-of-2013-Sarstoon-Temash-Institute-for-Indigenous-Management-et-al-v-The-Attorney-General-of-Belize-et-al-.pdf.
[xxiv] Sarstoon-Temash Inst. for Indigenous Mgmt. v. Forest Dep’t, (2006) No. 212/2006, ¶19 (Belize Sup. Ct.), available at http://www.elaw.org/node/2280; Oceana in Belize v. Minister of Natural Res. and the Env’t, (2013) No. 810/2011, ¶58-59 (Belize Sup. Ct.), notice of appeal filed May 2, 2013 (Belize App. Ct.), available at http://www.belizejudiciary.org/web/wp-content/uploads/2013/01/Supreme-Court-Claim-No-810-of-2011-Oceana-in-Belize-Citizens-Organized-for-Liberty-throuhg-Action-et-al-v-Minister-of-Natural-Resources-and-The-Environment-1.pdf..
[xxv] Environmental Community Supports Supreme Court Decision in SATIIM/GOB Lawsuit, NEWS FIVE (Apr. 4, 2014), http://edition.channel5belize.com/archives/97404.
[xxvi] Daniel Ortiz, Mayans Claim Victory in Court, US Capital Clings to Status Quo on the Ground, NEWS 7 BELIZE (Apr. 3, 2014), http://www.7newsbelize.com/sstory.php?nid=28362&frmsrch=1.
The Administrative Procedure Act (“APA”) states that agencies must engage in notice-and-comment rulemaking, a three-step process that requires agencies to notify and solicit public feedback, before promulgating a legally binding regulation.[i] The APA does not, however, require notice-and-comment for “interpretative rules, general statements of policy, or rules of agency organization . . . or practice.”[ii] Whether agencies should be allowed to issue interpretive rules without soliciting public input is an important and evolving issue in administrative law.
The APA does not define interpretive rules,[iii] but the Attorney General’s Manual on the APA describes them as “rules or statements issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.”[iv] Agencies use interpretive rules to establish how their regulations will apply in situations that were unforeseen when a regulation was promulgated, to resolve ambiguities, and to provide information to regulated parties on the way the agency plans to administer a certain program.[v]
Exempting interpretive rules from the notice-and-comment requirement affords agencies a degree of flexibility and enables them to issue timely communications to the public without having to engage in the cumbersome, time-consuming, and expensive notice-and-comment procedure.[vi] On the other hand, this flexibility can be a cause for concern. Some scholars have argued that interpretive rules, while not legally-binding, are often “practically binding,” and that enabling agencies to issue binding rules without soliciting public input is problematic.[vii] As one scholar noted: “The agency treats the interpretation as dispositive of the question involved, and private parties can ignore it only at their peril.”[viii] Because the APA does not explicitly define interpretive rules, moreover, it can be difficult to distinguish between legislative rules that require notice-and-comment and interpretive rules that do not.[ix]
Allowing agencies to issue interpretive rules without engaging in notice-and-comment rulemaking may also permit agencies to change the way they interpret and enforce regulations from one administration to the next. The D.C. Circuit recently addressed this very issue in Mortgage Bankers Ass’n v. Harris, invalidating an interpretive rule the Department of Labor (“DOL”) set forth in 2010 to rescind an interpretation it previously issued in 2006. The court reaffirmed a line of D.C. Circuit cases holding that once an agency has given a regulation a definitive interpretation, it may not significantly revise that interpretation without first engaging in notice-and-comment proceedings.[x] The court reasoned that because “a definitive interpretation is so closely intertwined with the regulation, . . . a significant change to the former constitutes a repeal or amendment of the latter,” which should trigger the notice-and-comment requirement.[xi]
DOL has petitioned the Supreme Court to review the D.C. Circuit’s opinion.[xii] DOL argues that because interpretive rules reflect only the agency’s “own views” and do not have the force of law, it does not makes sense to “force agency decisionmakers to dedicate limited agency time and resources” engaging in notice-and-comment rulemaking “simply to inform the public about the agency’s views on the meaning of relevant statutory and regulatory provisions.”[xiii] DOL also observes that the Courts of Appeals do not agree on this issue and requests that the Court grant certiorari to resolve the split.[xiv] Lastly, DOL argues that requiring an agency to complete notice-and-comment rulemaking would be inconsistent with the APA and would violate the Vermont Yankee rule that the APA’s rulemaking provision “specifies the ‘maximum requirements which Congress was willing to have the courts impose on agencies’ for rulemaking.”[xv]
A group of 72 administrative law professors have filed an amicus brief in support of the government’s petition.[xvi] The professors contend that requiring agencies to engage in notice-and-comment rulemaking before issuing interpretive rules would make agencies less likely to respond to requests from regulated entities for clarification as to whether and how agency regulations would apply in a particular situation. This, the professors argue, would “create unnecessary uncertainty for regulated firms and for the general public.”[xvii]
Mortgage Bankers’ response to DOL’s petition is currently due on May 2.[xviii] If the Supreme Court decides to hear the case, its decision will likely have important implications for administrative agencies seeking to revise and refine the way they interpret and apply pre-existing regulations. Perhaps the Court will provide a clearer way to differentiate between legislative and interpretive rules. Or maybe the Court will determine that, despite the language of the APA, certain types of interpretive rules are sufficiently significant to require notice-and-comment rulemaking. We will have to wait and see.[xix]
-Sommer Engels is a general member on MJEAL. She can be reached at email@example.com.
[i] 5 U.S.C. § 553.
[ii] 5 U.S.C. § 553(b)(A).
[iii] Although the APA calls these informal statements “interpretative rules,” they are more commonly referred to as “interpretive rules.” William Funk, A Primer on Nonlegislative Rules, 53 Admin. L. Rev. 1321, 1352 n.2 (2001).
[iv] Attorney General’s Manual on the Administrative Procedure Act at 30 n.3, available at, https://archive.org/details/AttorneyGeneralsManualOnTheAdministrativeProcedureActOf; see also Funk, supra note 3, at 1324-25.
[v] Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them to Bind the Public?, 41 Duke L.J. 1311, 1313 & n.5 (1992); Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 Cornell L. Rev. 397, 399-400 (2007).
[vi] Funk, supra note 3, at 1323; Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretative Rules, 52 Admin. L. Rev. 547, 550-51 (2000).
[vii] Anthony, supra note 5, at 1314 n.6, 1327-32 (practically binding in effect); see also Funk, supra note 3, at 1323.
[viii] Anthony, supra note 5, at 1314 n.6.
[ix] Pierce, supra note 6, at 547-48 (“Courts often refer to the distinction between [legislative rules and interpretive rules] as ‘fuzzy,’ ‘tenuous,’‘blurred,’ ‘baffling,’and ‘enshrouded in considerable smog.’”).
[x] Mortgage Bankers Ass’n v. Harris, 720 F.3d 966, 967 (D.C. Cir. 2013)(citing Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997); Alaska Prof’l Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999)).
[xi] Id. at 969 n.3 (internal emphasis omitted)(citing Envtl. Integrity Proj. v. EPA, 425 F.3d 992, 997 (D.C. Cir. 2005)).
[xii] Petition for a Writ of Certiorari, Perez v. Mortgage Bankers Ass’n, 2014 WL 825178 (Filed Feb. 28, 2014).
[xiii] Id. at *13.
[xiv] Id. at *16-18.
[xv] Id. at *19.
[xvi] Amicus Curiae Brief of Administrative Law Scholars in Support of the Petitioners, 2014 WL 1275189 (Filed Mar. 26, 2014).
[xvii] Id. at *7.
[xviii] Docket, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-1041.htm.
[xix] The case has been docketed as Perez v. Mortgage Bankers Ass’n, Case No. 13-1041.
Defining “Water”: EPA and Corps of Engineers’ Proposed Rule to Clarify Jurisdiction is a Positive Step Towards Greater Environmental Protection
On March 25, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) announced that a proposal for a new rule defining “waters of the United States” as it appears in the Clean Water Act (“CWA”) would be appearing in the Federal Register for notice and comment in the coming weeks.[i] The definition is meant to clarify the scope of federal jurisdiction under the CWA, including the reach of the National Pollutant Discharge Elimination System (“NPDES”) permitting program, the oil spill prevention and response program, and the state water quality certification process.[ii]
The pre-existing regulatory definition is very broad; existing regulations (last codified in 1986) define ‘waters of the United States’ as traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”[iii] However, recent Supreme Court decisions have called it into question by holding that the phrase “waters of the United States” as used in the CWA conferred authority over only those waters with a “significant nexus” to navigable waters (because waters of the United States is used as part of the Act’s definition of “navigable waters”).[iv] While not necessarily blocking EPA action, these rulings have made it more difficult for the agency to exercise its regulatory authority, because it must determine whether or not it has jurisdiction over a given body of water before even considering whether or not a regulatory action should be taken under the substantive provisions of the acts/regulations it administers.[v] Determining whether or not it has jurisdiction over particular waters is more difficult for the agencies than it might seem. Several Supreme Court rulings make it clear that the administrative record must contain sufficient evidence/explanation to allow insight into an agency’s decision making processes, which typically requires extensive research, fact-finding and explication on the agency’s part before any action can be taken.[vi] Thus, the agency was required to engage in “time and resource demanding case-specific analysis prior to determining jurisdiction and any need for permit or enforcement actions.” [vii]
The proposed rule issued by the EPA and the Corps would remove this burdensome requirement in many situations by concluding, on the basis of the best available science, that certain water sources are, in a sense, “pre-cleared” as sources over which the CWA grants jurisdiction.[viii] This determination would be based on a peer-reviewed report by the EPA surveying a wide variety of scientific research and concluding that such sources have a “significant nexus” to navigable waters as defined in the CWA.[ix] These would include all “waters which are currently used, were used in the past, or may be susceptible to use in interstate commerce,” interstate waters (including wetlands), the territorial seas, as well as impoundments of the aforementioned waters and their tributaries.[x] The agencies would still be required to conduct case-specific analysis in order to exercise their jurisdiction over all “other” waters not mentioned in the proposed rule to determine whether or not those waters have a “significant nexus” to navigable waters.[xi] Additionally, the rule would (for the first time) explicitly deny the agencies jurisdiction over types of waters that have traditionally not been regulated, including “artificially irrigated areas that would revert to upland should application of the irrigation water to that area cease” and “water-filled depressions created incidental to construction activity.”[xii]
The most significant aspect of this “pre-clearance” is its application to “tributaries,” combined with the inclusion, for the first time, of a regulatory definition of that term as:
[A] water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined by 33 CFR § 328.3(e), which contributes flow, either directly or through another water, to a [larger body of water, such as a river, identified earlier in the regulation]. In addition, wetlands, lakes, and ponds are tributaries (even if they lack a bed and banks or ordinary high water mark) if they contribute flow, either directly or through another water to a water identified [earlier in the regulation]. . . . A tributary, including wetlands, can be natural, man-altered or man-made water and includes waters . . . . not excluded [by other parts of the regulation].[xiii]
The definition also explains that man-made breaks in tributaries do not deprive them of their status as a “water of the United States.” [xiv] It is this provision that will have the largest impact in reducing the number jurisdictional investigations the agencies must conduct before taking regulatory action.[xv]
Consequently, this is the provision of the rule, which has already drawn the most criticism, even though the official agency announcement of the rule has yet to appear in the Federal Register.[xvi] Various industries affected by EPA regulations (including the construction industry and various agricultural interests) argue that it will increase costs and waste taxpayer money by expanding the scope of agency jurisdiction.[xvii] In particular, farmers are concerned that irrigation ditches and other agricultural activities or uses of water might fall under EPA permitting regimes, while construction companies have expressed similar fears regarding water control measures (such as rainwater ditches) at construction sites.[xviii]
Perhaps in an attempt to head off such criticism, the EPA has expressly denied that the new rule would expand agency jurisdiction in a variety of outlets, including an op-ed by EPA Administrator, Gina McCarthy.[xix] Moreover, the EPA plans to simultaneously issue an interpretive rule addressing concerns that the new rule would increase oversight of farming activities.[xx]
Overall, the criticism of the agency’s proposed rule seems overblown for several reasons. First, it is worth noting that run-off from many industrial sites is already within the regulatory jurisdiction of the EPA.[xxi] Additionally, the proposed rule would not remove any of the myriad statutory limitations on the extent of EPA jurisdiction, including agricultural storm water discharges, maintenance of draining ditches, and return flows from irrigated agriculture. [xxii] The mere fact that the agency need not conduct jurisdictional analysis as to a particular source of water does not mean that the agency will ultimately conclude that regulation or an enforcement action is appropriate.
Interest groups like the American Farm Bureau counter this analysis by suggesting that these exceptions would apply only to “dredge and fill” activities and would leave other normal farming activities (including the use of pesticides) open to increased federal scrutiny.[xxiii] However, while it is true that the interpretive rule issued by the EPA and Corps applies only to dredge and fill activities, the preexisting exceptions to CWA jurisdiction are not so narrowly limited.[xxiv] Among these long-standing regulatory exemptions is one for discharges related to “normal farming, silvicultural, and ranching” activities.[xxv] It is difficult to see how this would not extend to the types of activities the Farm Bureau has expressed concern about. Additionally, the EPA has requested comments from agricultural interests regarding the interpretive rule, which seems to indicate a willingness to make additional adjustments to its regulations in order to avoid severely damaging farming activities.[xxvi]
It is also worth noting that the very nature of the CWA is to impose costs on those whose activities have an impact on our nation’s waterways in order to protect them. While it is important to ensure that farmers are not forced to bear onerous burdens that jeopardize their livelihoods, this concern must be balanced with a need to fulfill the environmental goals of the CWA. This is a balancing that should be addressed head on through a discussion of the substantive merits of exempting certain activities from regulation, not collaterally through a debate over whether or not protection of the waters in question is outside the jurisdiction of the agencies.
Furthermore, it is true that the proposed rule may lead to regulatory actions that the agency had previously declined to pursue due to a hesitancy to engage in the onerous process of jurisdictional analysis and/or a fear of overstepping its statutory authority due to uncertainty over the scope of the CWA.[xxvii] However, the overriding purpose of the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,”[xxviii] suffers when the EPA does not exercise jurisdiction over waters that are covered by the statute’s terms. If the public must bear those harms because the agency chooses not to act, it should be based upon a rational consideration of the merits of the proposed action, not on jurisdictional uncertainty. For instance, according to the Fish and Wildlife Service, tens of thousands of acres of wetlands have been lost from 2004 to 2009 alone, approximately 30% of which was due to development activities.[xxix] To the extent those losses could and should have been prevented but for jurisdictional confusion at the EPA, they likely constitute unnecessary damage to the environment that we will pass on to future generations.
The EPA and the Corps’ efforts seem well designed to maximize the protection provided by the CWA, provide greater clarity to regulated entities regarding what is and is not covered by the CWA’s provisions, and reduce red tape at the agency level. For these reasons, it has been applauded by a number of groups who have long requested greater jurisdictional clarity from the agencies.[xxx] At the end of the day, clearer rules and the resulting cleaner water is in everyone’s best interest, despite the opposition of some who would prefer to benefit from the pre-existing uncertainty.
The proposed rule will be subject to a 90-day notice and comment period required by the Administrative Procedure Act before any final action may be taken by the agency. The proposed rule itself specifically requests input into the provisions regarding the assessment of “other waters” in order to determine if the “significant nexus” language drawn from Justice Kennedy’s concurrence is the most appropriate formulation [xxxi] as well as several other aspects of the proposed rule.[xxxii] Accordingly, the issuance of a final version of the rule, if the agencies choose to proceed after reviewing those comments, will not take place in the immediate future.
- Ben Reese is a General Member on MJEAL. He can be reached at firstname.lastname@example.org.
[i] Neela Banerjee, Clean Water Act Proposal Would Protect More Water Sources in West, L.A. Times, Mar. 25, 2014, http://www.latimes.com/nation/la-na-epa-waters- 20140326,0,1080552.story#axzz2y2VrYy3Q
[ii] U.S. Envtl. Prot. Agency, EPA-HQ-OW-2011-0880, Definition of “Waters of the United States” Under the Clean Water Act, at 15-16 (2014), http://www2.epa.gov/sites/production/files/2014-03/documents/wus_proposed_rule_20140325_prepublication.pdf [hereinafter Proposed Rule].
[iii] Proposed Rule at 16 (quoting 33 C.F.R. § 328.3; 40 C.F.R. § 122.2).
[iv] Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs., 531 U.S. 159, 167 (2001) (citing United States v. Riverside Bayview Homes, 474 U.S. 121(1985)); Rapanos v. United States, 547 U.S. 715, 759 (2006) (Kennedy, J., concurring in the judgment).
[v] Proposed Rule, supra note ii, at 14-15.
[vi] See e.g. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45, 864-66 (1984); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-51 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 417-20 (1971); Sec. and Exch. Comm’n. v. Chenery Corp. (Chenery I), 318 U.S. 80, 92-93 (1943); Sec. and Exch. Comm’n. v. Chenery Corp. (Chenery II), 332 U.S. 194, 198-202 (1947).
[vii] Proposed Rule, supra note ii, at 15.
[viii] Id. at 19-20.
[ix] Proposed Rule at 13; U.S. Envtl. Prot. Agency, Office of Research and Dev., EPA/600/R-11/098B, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, at 1-3 to 1-4 (2013).
[x] Proposed Rule, supra note ii, at 325.
[xi] Id. at 19-20, 325-26.
[xii] Id. at 326.
[xiii] Id. at 22, 327-28.
[xiv] Id. at 328.
[xv] Id. at 22.
[xvi] Banerjee, supra note i.
[xviii] See Id.
[xix] Gina McCarthy, Clearer Protections for Clean Water, Huffington Post, Mar. 25, 2014, http://www.huffingtonpost.com/gina-mccarthy/clearer-protections-for-c_b_5029328.html (“Some may think this rule will broaden the reach of EPA regulations — but that’s simply not the case. Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act.”); Press Release, U.S. Environmental Protection Agency, EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal (Mar. 25, 2014), http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30 (“[The rule] does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.”).
[xx] Proposed Rule, supra note ii, at 25-26.
[xxi] See e.g. David Hopkins, No Permit Necessary: How Decker is Expanding Pollution, Mich. J. Envtl. & Admin. L. Blog, March 28, 2014, http://students.law.umich.edu/mjeal/2014/03/no-permit-necessary-how-decker-is-expanding-pollution/.
[xxii] Proposed Rule, supra note ii, at 25.
[xxiii] Annie Snider, Farm Bureau Vows to “Dedicate Itself” to Opposing Clean Water Act Proposal, Greenwire, April 2, 2014, http://libproxy.law.umich.edu:2217/greenwire/stories/1059997197/search?keyword=farmers; David Hopkins, Balancing Clean Water Act Jurisdiction with Agricultural Pragmatism, Mich. J. Envtl. & Admin. L. Blog (forthcoming).
[xxiv] Id.; Proposed Rule, supra note ii, at 25.
[xxv] Proposed Rule, supra note ii, at 25.
[xxvi] Proposed Rule, supra note ii, at 25-26.
[xxvii] Banjeree, supra note i.
[xxviii] 33 U.S.C.A. § 1251(a) (West, Westlaw through P.L. 113-74).
[xxix] Banjeree, supra note i.
[xxx] Press Release, U.S. Environmental Protection Agency, Here’s What They’re Saying About the Clean Water Act Proposed Rule (Mar. 25, 2014), http://water.epa.gov/lawsregs/guidance/wetlands/upload/wus_quotes_326.pdf.
[xxxi] Proposed Rule, supra note ii., at 20-21
[xxxii] See e.g. Proposed Rule, supra note ii, at 29-30.
Over the past few years local plastic bag ban campaigns have been gaining momentum, particularly in California and other coastal states. Environmentalists encourage the bans because the plastic bags currently used in most retail check-out stands are not easily recyclable. In addition, almost all of the 400 plastic bags used per second in California are discarded.[i] Plastic bags end up in landfills, on city streets, or in water bodies where they can take up to hundreds of years to decompose and release tiny toxic bits as they do.[ii]
In addition to being environmentally hazardous, studies have also shown plastic bags to be economically wasteful. The Environmental Protection Agency (“EPA”) sponsored two studies that collected data in 2011 and 2012 from 95 communities located throughout California, representing over one-third of the state’s population. [iii] The studies revealed that Californian communities spend more than $428,000,000 annually to combat litter, primarily consisting of plastic bags, in order to prevent it from entering the state’s waterways.[iv] This data did not include money spent by the state government. So far, to address this significant problem, 76 ordinances have been adopted in California, covering 105 cities or counties.[v] This includes Los Angeles, which became the largest city in the country to enforce a plastic bag ban in 2013.[vi]
The California Courts have repeatedly upheld local bans despite heated opposition by plastic companies. In 2012, San Francisco enacted an ordinance expanding existing restrictions on the use of plastic bags at check-out counters. Save the Plastic Bag Coalition (“the Coalition”), a group of plastic bag manufacturers and distributors, filed a petition for a writ of mandate seeking to invalidate the 2012 ordinance.[vii] This case went before the California Court of Appeal, First District, earlier this year.
The Coalition argued that since San Francisco has “15.9 million tourists and hundreds of thousands of commuters each day,” the 2012 ordinance will increase the use of single-use paper and compostable bags without decreasing the use of reusable bags at all because tourists and commuters will “almost never” bring their own reusable bags to the City and, even if they do, they are likely to underuse them before throwing them away which is bad for the environment.[viii] The Court held that the Coalition failed to cite any evidence to support their claim.[ix]
The Coalition also asserted that “plastic bag bans are unusual because, while they purport to protect the environment, paper and compostable bags and underused reusable bags are worse for the environment.”[x] To support this allegation, the Coalition pointed to six studies which allegedly show that the overall “life cycle” of a paper bag has a greater negative impact on the environment than the life cycle of a plastic bag.[xi] The Court held that the studies were not convincing as a “fair or accurate mechanism for measuring the impacts of a local ordinance which is clearly tailored to address the specific environmental goals of that specific locality.”[xii] The Court emphasized that the 2012 ordinance is a Checkout Bag ordinance with a goal to reduce all single-use bags in San Francisco by banning single use, noncompostable plastic check-out bags, and imposing a 10–cent bag charge on single use paper or compostable plastic bag.[xiii]
With the legal success of local plastic bag ban campaigns, and increasing public support, the State of California now looks to pass a statewide legislative ban. Earlier this year, California State Senator Alex Padilla proposed Senate Bill 270 to accomplish this goal.[xiv] The state agency CalRecycle reported the bill would end the use of 13 billion single-use plastic bags a year, 95 percent of which are not recycled.[xv] The bill included four major terms: 1) Single-use plastic bags would be banned at groceries and big box stores as of July 1, 2015, and at pharmacies and liquor stores in 2016; 2) The stores would have to charge at least 10 cents for any type of bag they sell made of recyclable paper, reusable plastic or compostable material; 3) Starting in 2016, reusable plastic bags must contain at least 20 percent recycled material, increasing to 40 percent in 2020; 4) $2 million in incentives would be provided for retraining plastic bag factory workers and retooling companies.[xvi] After three unsuccessful attempts to pass legislation banning plastic bags, supporters of the bill say they are confident it will receive the votes needed in the Senate to pass.[xvii]
The plastics industry has been speaking out aggressively against this legislation and has spent millions of dollars lobbying lawmakers to stop efforts to pass previous bills for statewide bans in California as well as a handful of other states.[xviii] Hilex Poly, one of the nation’s largest manufacturers of plastic bags, spent more than $1 million lobbying against the bill proposed in California in 2010, which ultimately failed. Hilex Poly also made political donations to every Democrat in the California Senate who voted against the plastic bag ban bill proposed in 2013.[xix] One of the main criticisms against the ban has been the jobs that would be lost. Mark Daniels, vice president of Hilex Poly, reported a ban would cost the state up to 2,000 jobs.[xx] This concern is countered by argument that the considerable savings that will be realized by retailers (who will not be supplying plastic bags) and the $2 million which will fund job training, benefitting workers and the community. [xxi]
- Chelsea Thomas is a General Member on MJEAL. She can be reached at email@example.com.
[i] The Problem of Plastic Bags, Californians Against Waste (last visited Apr. 9, 2014), http://www.cawrecycles.org/issues/plastic_campaign/plastic_bags/problem.
[ii] John Roach, Are Plastic Grocery Bags Sacking the Environment?, National Geographic News, (Sept. 2, 2003), http://news.nationalgeographic.com/news/2003/09/0902_030902_plasticbags.html.
[iii] Barbara Healy Stickel, Waste in Our Water: The annual cost to California communities of reducing litter that pollutes our waterways, NRDC (Aug. 2013), http://docs.nrdc.org/oceans/files/oce_13082701a.pdf.
[v] Plastic Bags: Local Ordinances, Californians Against Waste (last visited Apr. 9, 2014), http://www.cawrecycles.org/issues/plastic_campaign/plastic_bags/local.
[vi] Ian Lovett. California Endangered Species: Plastic Bags, New York Times (Feb. 25, 2014), http://www.nytimes.com/2014/02/26/us/plastic-bags-come-under-siege-in-california.html?_r=0.
[vii] Save the Plastic Bag Coal. v. City & Cnty. of San Francisco, 166 Cal. Rptr. 3d 253, 256 (2014).
[viii] Id. at 266.
[ix] Id. at 266.
[x] Id. at 266.
[xi] Id. at 266-67.
[xii] Id. at 267.
[xiii] Id. at 267.
[xiv] Mercury News Editorial: California ban on plastic bags is way overdue, San Jose Mercury News (Feb. 3, 2014), http://www.mercurynews.com/opinion/ci_25052780/mercury-news-editorial-state-ban-plastic-bags.
[xvi] Boyle, supra note xiv.
[xvii] Patrick McGreevy, Compromise bill would ban plastic bags throughout California, Los Angeles Times (Jan.23, 2014), http://www.latimes.com/local/political/la-me-pc-agreement-reached-on-banning-plastic-carryout-grocery-bags-20140123,0,3607652.story#axzz2xjjPAuwu.
[xviii] Lovett, supra note vi.
[xxi] Boyle, supra note xiv.
March was a significant month for the Cape Wind project: the utility-scale wind farm proposed for the waters off of Cape Cod would be the first of its kind in the United States. Last month, Cape Wind secured an additional $400 million in financing, bringing its total fundraising to $1.3 billion or about half of the project’s estimated cost of $2.5 billion.[i] The project also prevailed last month in federal court, defeating numerous challenges to federal agency authorizations of the project.[ii] The wind farm has seen well-organized and well-funded opposition since its proposal in 2001.[iii] After more than a decade of litigation, the project may be approaching a crucial turning point. As a Cape Wind press release puts it: “The Court soundly rejected the plaintiffs’ request to vacate the granting of the nation’s first offshore wind lease by the Department of the Interior to Cape Wind.”[iv] But opponents also characterize the outcome as a win for their side too, seeing their narrow gains in the lengthy opinion as further obstructing progress on the planned wind installation.[v]
Plaintiffs in the consolidated case, Pub. Employees for Envtl. Responsibility v. Beaudreu, included a variety of environmental groups, individuals, a Massachusetts township, the Wampanoag Tribe of Gay Head (Aquinnah), and a citizens’ group backed and co-chaired by billionaire industrialist William I. Koch (Alliance to Protect Nantucket Sound). This diverse group brought a litany of charges against several government agencies, including alleged violations of the Administrative Procedure Act (APA); the Endangered Species Act (ESA); the National Environmental Policy Act (NEPA); the Migratory Bird Treaty Act; the Outer Continental Shelf Lands Act (OCSLA); the Clean Water Act (CWA); the Energy Policy Act of 2005; and the Rivers and Harbors Act.[vi]
The court granted summary judgment to the defendants on most of plaintiffs’ challenges, including disposing of arguments regarding alternative locations and technology, navigational safety, historic preservation, sea turtles, and the adequacy of the project’s environmental impact statement (EIS) and biological opinions. Plaintiffs did, however, prevail on two administrative claims.
The court granted summary judgment to the plaintiffs on their claims that the Fish & Wildlife Service (FWS) violated the ESA by failing to make an independent determination as to whether a “feathering operation adjustment” was a reasonable and prudent measure.[vii] The FWS delegated decisionmaking regarding the determination to Cape Wind and to the Bureau of Ocean Energy Management (BOEM). But FWS did not provide any indication that their finding that the measure was not reasonable and prudent since “it modifies the scope of [a] project in a manner that is adverse to the project’s stated purpose and need” was based on an independent determination.[viii] Judge Walton explained:
While collaboration is encouraged, the Joint Consultation Handbook does not support the notion that the FWS should have deferred to the BOEM or Cape Wind when discarding the operational adjustment at issue without at least making clear that it was doing so based on its own independent determination of the issue.[ix]
The court remanded to the FWS to make such an independent determination.
The court also granted summary judgment to the plaintiffs on claims that the National Marine Fisheries Service (NMFS) violated the ESA by failing to issue an “incidental take statement” for North Atlantic right whales. The NMFS did not include an incidental take statement, even though North Atlantic right whales have appeared in the area of the proposed project as well as along routes to be taken by project vessels. “And while the biological opinion states that the ‘NMFS [ ] concluded that the proposed action is not likely to adversely affect right … whales and, therefore, is not likely to jeopardize the[ir] continued existence,’ NMFS1534, the NMFS did not state that incidental take would not occur or was ‘not anticipated.’” Thus, since an incidental take “may occur,” the court concluded that the failure by NMFS to include an incidental take statement with its biological opinion was arbitrary and capricious. The court remanded to NMFS for the issuance of an incidental take statement concerning the take of right whales with its biological opinion, in compliance with the ESA.[x]
The wind project’s latest win comes on the heels of another key victory. In January, the D.C. Circuit upheld the Federal Aviation Association’s (FAA) no hazard determination in the Cape Wind proposal. The FAA “found that the turbines, individually and as a group, would neither exceed the obstruction standards in 14 C.F.R. § 77.17 nor have a physical or electromagnetic radiation effect on the operation of air navigation facilities.”[xi] The FAA’s no hazard determination meant, the court concluded, that no further NEPA analysis was required by the FAA, and that if additional NEPA analysis were to be conducted by FAA it would be duplicative of NEPA analysis being undertaken by the Department of the Interior.
These recent court opinions suggest that opponents of Cape Wind are running out of court options. The Cape Wind saga has been a case study on the use of the courts to stall a locally unpopular project. And what’s more, the opposition in Cape Cod came with a war chest, thanks to billionaire William Koch – a man who owes his fortune to fossil fuels.[xii] So the failure to persuade the courts to put a stop this project is meaningful.[xiii] It would seem the courts are shifting this debate back to the experts in the various federal agencies, inserting themselves only where judicial intervention may be necessary to ensure regulatory compliance.
Indeed, developers have returned to Long Island as a potential site for offshore wind projects. Previous proposals for the New York area have failed (including a proposed wind farm near Long Island that was to be built by FPL Energy but ballooned in cost and never manifested, and more recently, a stalled 350 MW project offshore of the Rockaway Peninsula considered as a “Wind Collaborative” between the local utilities and other stakeholders). But Deepwater Wind, a developer currently looking to site a farm off of Long Island, has already found success in the region, constructing a pilot project off the Rhode Island coast. [xiv] The five-turbine 30 MW demonstration project is located off of Block Island, and could be the first offshore wind farm to generate power in the United States.[xv]
Cape Wind would be the first large-scale offshore wind farm in the United States. The comprehensive opinion finding in favor of Cape Wind and deferring to the federal agencies’ determinations on all but two claims may foreclose not only future challenges to the Cape Wind project, but also to other large-scale offshore wind proposals like the Deepwater proposal for Long Island as well. It would seem the outcome in the most recent Cape Wind courtroom battle has narrowed the scope of possible challenges to future offshore wind proposals, at least for comparable sites in the Mid-Atlantic.
-Daniella Roseman is a General Member on MJEAL. She can be reached at firstname.lastname@example.org.
[i] Erin Ailworth, Cape Wind secures $400 million in financing, The Boston Globe (Mar. 26, 2014), http://www.bostonglobe.com/business/2014/03/26/cape-wind-secures-million-financing/tsSLCZCrijgAdUQHZFcgjM/story.html.
[ii] Pub. Employees for Envtl. Responsibility v. Beaudreu, No. 10–1067 (RBW) (DAR), No. 10–1073, No. 10–1079, No. 10–1238, 2014 WL 985394, at *42 (D.D.C. Mar. 14, 2014).
[iii]E.g., Katharine Q. Seelye, Koch Brother Wages 12-Year Fight Over Wind Farm, The New York Times (Oct. 22, 2013), http://www.nytimes.com/2013/10/23/us/koch-brother-wages-12-year-fight-over-wind-farm.html?pagewanted=all&_r=0 (Profiling William Koch’s efforts to stop the Cape Wind project).
[iv] Cape Wind Wins Major Legal Victories, Cape Wind (Mar. 14, 2014), http://www.capewind.org/news1349.htm.S
[v] Barry Cassell, Cape Wind Says Partial Loss in Court not a Major Setback, RenewableEnergyWorld.com, (Mar. 17, 2014), http://www.renewableenergyworld.com/rea/news/article/2014/03/cape-wind-says-partial-loss-in-court-not-a-major-setback (“The court has validated that federal agencies have taken unacceptable shortcuts in their review of Cape Wind.”).
[vi] See Public Employees, 2014 WL 985394 at *1.
[vii] Such an adjustment would cause the turbine rotors to face the wind and stop spinning in order to reduce the risk of collision with the turbines by roseate terns and migrating piping plovers. Public Employees, 2014 WL 985394 at *25.
[viii] See Public Employees, 2014 WL 985394 at *25; see also Cassell, supra note v (noting that Cape Wind has resisted the feathering adjustment as one that would “destroy the economic feasibility” of the proposed project.).
[ix] Public Employees, 2014 WL 985394 at *26.
[x] Id. at *30.
[xi] Town of Barnstable, Mass. v. F.A.A., 740 F.3d 681, 686 (D.C. Cir. 2014).
[xii] Seelye, supra note iii.
[xiii] See, e.g., Lewis Milford, Court Rules for Cape Wind, Ending a Decade of Failed Opposition, Huffington Post (Mar. 18, 2014, 9:38 AM), http://www.huffingtonpost.com/lewis-milford/court-rules-for-cape-wind_b_4979589.html.
[xiv] Claude Solnik, Deepwater Wind proposing wind farm off Montauk coast, Long Island Business News (Mar. 28, 2014), http://libn.com/2014/03/28/deepwater-wind-proposing-wind-farm-off-montauk-coast/.
The conflict between private property and public land is nothing new. Property rights have shaped the way in which American society was structured from the moment Europeans reached the New World. Although there have been instances where conservationists have been able to use property rights to their advantage, such as in buying up land that houses sensitive environments, the relationship between conservation and property has typically been rocky. For example, legislation such as the Endangered Species Act allows the federal government to require landowners to preserve critical habitats on their land at the expense of uninterrupted use. Property owners are understandably resistant to this type of intervention, which is often justified in the name of preservation for future generations. On March 10, 2014, the Supreme Court of the United States addressed a case where the federal government wanted to convert railroad tracks into public use trails through private property. The Court came down on the side of the property owners.
The Marvin Brandt Revocable Trust owns a significant amount of land in the Medicine-Bow Routt National Forest. Some of this land contained railroad track easements owned by the federal government. The United States Forest Service wanted to continue a trail through the family’s land on these federally owned easements, with permission of the railroad and the National Forest Service. The family argued that the land could only be used for railroad purposes, and could not be converted to another public use at the will of the government. After the trust lost in two lower court decisions, the Supreme Court held that after five years of non-use as railroad tracks, these easements reverted to the owner of the property. As such, the Forest Service could not use them as a part of their trail program.
The trail in question is part of the Rails-to-Trails movement that began in the 1980s when railroad transport was beginning to fall into disuse. The government did not want to lose the transportation network for fear that it may one day become useful, so they amended the National Trails System Act to include a procedure called “railbanking.” This procedure allows public or private agreements between track owners and trail builders to convert the land into a public trail until the railroad might need it again.
Resulting trails have a variety of benefits, and seemed like the perfect fix to preserve the railroad network while creating something productive. Health benefits include greater public access to exercise trails and green space, especially in lower-income neighborhoods without many parks where abandoned tracks are often found. The trail system also provides the economic benefit of connecting areas of varying socio-economic wealth, which promotes community development. Transportation infrastructure also improved in many urban areas. For example, the Atlanta Beltline, which is currently in the process of being converted into a multi-use path, allows users to bike or walk short distances that would take infinitely longer in the infamous Atlanta traffic. Trails through national forests or other conservation areas also promote tourism and education about conservation goals. Furthermore, trails have a variety of environmental benefits, such as providing links between fragmented habitats, and improving wetland systems.[i]
These trails have not gone without criticism. Many of the railroad tracks, such as the ones contested in the Supreme Court case, run through what is otherwise private property in federally-owned easements. An easement is a property right to use someone else’s piece of land for a specific purpose, such as access to the easement owner’s land, or in this case, for railroad tracks. The government owns the easement in question that runs through the family’s land and had the power to assign use of the tracks on its easement to railroad companies. Property owners draw a distinction between this agreed use, and simply allowing the government to do whatever it wishes with the land, especially something that will allow public access to private land.
The Supreme Court agrees with the property owners. The Court seemed extremely concerned about the possibility that some railroad easements go right through people’s homes, saying that this intrusion is unreasonable for any but the initial agreed use.[ii] This contention seems suspect both because the United States government does not have a central database of land that it owns under such circumstances[iii] and because the people who hypothetically built houses on easements are still undertaking a significant risk.
Others criticize that the government is spending exorbitant amounts of money to settle property claims with landowners whose plots abut the trails. In 2013, the government spent $49 million on such claims.[iv] For a project that was supposed to be almost cost-free, that is a lot of money. Additionally, scholars have pointed out that the government is not even getting a deed for this money. So the taxpayers are not paying for the government to buy land for trails.[v]
The real question underlying all of this is whether the benefits are worth the costs. Is the court siding with private property owners when the policy and benefits point the other way? Both the environmentalist and the outdoorsman in me say of course. But legally, there is a long history of protecting private property. Our country was built on this system. And the lone dissenting vote of Justice Sotomayor, shows that the Court is in agreement. Property comes first.
-Rachael Westmoreland is a General Member on MJEAL. She can be reached at email@example.com.
[i] Benefits of Rail-Trails, Rails-to-Trails Conservancy (Apr. 9, 2014), http://www.railstotrails.org/ourWork/trailBasics/benefits.html.
[ii] Bill Chappell, Family Trust Wins Supreme Court Fight Against Bike Trail, The Two Way- Breaking News from NPR (Mar. 10, 2014), http://www.npr.org/blogs/thetwo-way/2014/03/10/288584936/family-trust-wins-supreme-court-fight-against-bike-trail.
[iv] Jenna Greene, Rail-to-Trails Program Costly to Taxpayers; what could go wrong adapting old railway lines for recreation?, Nat. Law J. (2013).
Hydraulic fracturing, more commonly known as “hydrofracking,” is a controversial mining technique that allows natural gas and oil industry developers to reach otherwise unattainable deposits of shale gas.[i] There are varying techniques currently in use, but the general process involves pumping fluids at high pressures into underground wells to force out either oil or natural gas.[ii] The composition of this ‘fluid’ is generally unknown because disclosure is not required by industry groups, but it is estimated that some fluid mixtures may contain up to 29 different carcinogens.[iii] The Environmental Protection Agency (“EPA”) is in the process of actively researching hydrofracking techniques and potential human health effects with a focus on groundwater contamination.[iv]
Hydrofracking took off in the United States in the early-2000s, when the public health and environmental effects of the process were still largely unknown. Since then, there have been various problems with groundwater contamination, leading to people being exposed to an array of chemical compounds, as well as other anecdotal evidence of unforeseen consequences including earthquakes in Ohio and flammable faucets.[v] This type of ‘unconventional natural gas’ development has grown steadily in the United States. According to the EPA, in 1998, unconventional natural gas techniques comprised 28 percent of total U.S. natural gas production versus 50 percent in 2009.[vi]
Environmentalists and various opposition groups are calling for a halt on hydrofracking until the human health and environmental impacts are completely assessed and discussed seriously before moving forward.[vii] These groups feel that adherence to the precautionary principle is crucial, calling for mitigation techniques and remedies to pollution and other potential problems to be handled at the outset rather than as remedial measures.[viii]
There are a variety of legal issues that come with the advent of hydrofracking – while the practice is not particularly new, the application to directional drilling is new along with the sheer growth of the industry. Environmental effects of hydrofracking include air pollution, groundwater depletion and contamination, surface water pollution, soil erosion and sedimentation, among others.[ix] These diverse issues present a jurisdictional problem: both the environmental hazards and broader effects of the oil and natural gas resources are variously national, statewide, regional, and local.[x] Thus, the pervasive nature of hydrofracking activity presents the unanswered question, which level of authority should regulate – federal, state or local?[xi]
Another area of legal concern is the scope and effectiveness of the Safe Drinking Water Act (“SDWA”) in protecting against contamination due to hydrofracking. The SDWA is set up “to ensure the integrity and safety of public water for human consumption,” focusing mainly on toxic substances.[xii] EPA sought to regulate hydrofracking under the SDWA, and conducted a study of hydrofracking and potential impacts on underground sources of drinking water, concluding that injection of hydrofracking fluids posed a minimal threat, yet said that some chemicals can lead to environmental concerns.[xiii] Since this study, Congress passed the Energy Policy Act of 2005, which essentially left a loophole open so that states only have to obtain permits before drilling when diesel fuel is involved.[xiv]
The only effort so far to remove this loophole is the proposed Fracturing Responsibility and Awareness of Chemicals Act of 2011, which would impose two avenues of federal regulation.[xv] First, it would repeal the hydrofracking exemption mentioned above in the SDWA to include “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities”.[xvi] This would then require EPA to monitor and issue permits, requiring state underground injection control programs that previously did not need a permit to acquire one. This bill died at the end of the 112th Congress, and was reintroduced on June 11th, 2013 in the Senate.[xvii]
The Clean Water Act (“CWA”) was put in place to restore and maintain the physical, chemical and biological integrity of waters of the United States.[xviii] The CWA further prohibits the discharge of “point source” pollution into the “waters of the United States,” without a permit acquired from EPA through the National Pollution Discharge Elimination System (“NPDES”).[xix] Hydrofracking produces tremendous amounts of wastewater which, mentioned above, may contain many different contaminants. The EPA generally defers to the various state permitting authorities, though the issue of permitting again implicates the jurisdictional issues of hydrofracking.[xx]
As hydrofracking is a novel and developing technique to mine oil and natural gas, there are a variety of other legal problems besides those mentioned here. The resolution of these issues depends on many factors, including the economic costs of permitting, environmental remediation efforts, and the interplay of federal, state and local actors. With new legislation pending in the Senate, the future of hydrofracking activities is currently uncertain.
- Christina Bonanni is a General Member on MJEAL. She can be reached at firstname.lastname@example.org
[i] Hydraulic Fracturing (Hydrofracking), Pace Law Library, http://libraryguides.law.pace.edu/content.php?pid=227170&sid=1880060 (last visited April 1, 2014).
[iii] Goldfarb, Ben, Hydrofracking Poses Serious Risks to Human Health, PolicyMic, December 22, 2011, http://www.policymic.com/articles/2985/hydrofracking-poses-serious-risks-to-human-health.
[iv] Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources, U.S. Environmental Protection Agency, EPA/600/R-11/122. http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/FINAL-STUDY-PLAN-HF_Web_2.pdf (November 2011).
[v] Supra, note ii.
[vi] Supra, note iv.
[vii] Supra, note iii.
[ix] John R. Nolon and Steven E. Gavin, Symposium: The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom, 63 Case W. Res. 995 (2013).
[xii] 42 U.S.C. § § 300f-300j-26.
[xiii] Supra, note iv.
[xvi] Id.; H.R. 1084, 112th Congress. (2011).
[xvii] s.1135: FRAC Act, https://www.govtrack.us/congress/bills/113/s1135 (last visited April 1, 2014).
[xviii] 33 U.S.C. § § 1251-1387 (2006).
[xx] Supra, note viii.