Justia Environmental Law Opinion Summaries

The river basin is formed by the Chattahoochee and Flint Rivers, which flow south through Georgia and converge at Lake Seminole, just north of Florida, where the Apalachicola River begins and flows south into the Gulf of Mexico. Florida sued, seeking a decree equitably apportioning the basin’s waters. The Supreme Court agreed to exercise its original jurisdiction and appointed a Special Master. The U.S. Army Corps of Engineers declined to waive sovereign immunity. The Master recommended that the Court dismiss Florida’s complaint, concluding that Florida did not present clear and convincing evidence that its injuries could be redressed by a decree capping Georgia’s upstream water consumption if the decree does not bind the Corps.The Supreme Court remanded, concluding that the Special Master applied too strict a standard. In interstate water disputes raising questions beyond the interpretation of an interstate compact's language, the doctrine of equitable apportionment applies. Equitable apportionment is flexible and requires consideration of physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses, and the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed. Extensive, specific factual findings are essential. Until the Master makes the findings necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, Florida should not have to prove the details of a workable decree by “clear and convincing” evidence but only that, applying the principles of “flexibility” and “approximation,” it is likely to prove possible to fashion such a decree. At this stage and in light of certain assumptions, Florida made a sufficient showing that the extra water that would result from its proposed consumption cap would lead to increased streamflow in Florida’s Apalachicola River and significantly redress the economic and ecological harm that Florida has alleged. The United States has indicated that the Corps will cooperate. View "Florida v. Georgia" on Justia Law

The Clean Water Act, 33 U.S.C. 1362, prohibits “any addition of any pollutant to navigable waters,” defined as “the waters of the United States.” Section 1311(a) contains exceptions, including permitting schemes under the EPA's National Pollutant Discharge Elimination System (NPDES) program and an Army Corps of Engineers program, which encompass the “waters of the United States.” The EPA and the Corps proffered the “Waters of the United States (WOTUS) Rule,” which “imposes no enforceable duty on any state, local, or tribal governments, or the private sector,” 80 Fed. Reg. 37102 and “does not establish any regulatory requirements.” Objectors challenged the Rule in district courts. Many filed “protective” petitions in Circuit Courts to preserve their challenges should their district court lawsuits be dismissed for lack of jurisdiction under 33 U.S.C. 1369(b), which enumerates EPA actions for which review lies directly and exclusively in the federal courts of appeals. Such actions include EPA actions “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” and EPA actions “issuing or denying any permit under section 1342.” The Sixth Circuit denied motions to dismiss consolidated actions. The Supreme Court reversed. The Rule falls outside section 1369(b)(1), so challenges must be filed in district courts. It is not an “effluent limitation,” “on quantities, rates, and concentrations” of pollutants, nor is it an “other limitation under section 1311; it simply announces a regulatory definition. The Rule was promulgated under section 1361(a), which grants the EPA general rulemaking authority. The Rule neither issues nor denies NPDES permits under section 1342. View "National Association of Manufacturers. v. Department of Defense" on Justia Law

The Clean Water Act, 33 U.S.C. 1362, prohibits “any addition of any pollutant to navigable waters,” defined as “the waters of the United States.” Section 1311(a) contains exceptions, including permitting schemes under the EPA's National Pollutant Discharge Elimination System (NPDES) program and an Army Corps of Engineers program, which encompass the “waters of the United States.” The EPA and the Corps proffered the “Waters of the United States (WOTUS) Rule,” which “imposes no enforceable duty on any state, local, or tribal governments, or the private sector,” 80 Fed. Reg. 37102 and “does not establish any regulatory requirements.” Objectors challenged the Rule in district courts. Many filed “protective” petitions in Circuit Courts to preserve their challenges should their district court lawsuits be dismissed for lack of jurisdiction under 33 U.S.C. 1369(b), which enumerates EPA actions for which review lies directly and exclusively in the federal courts of appeals. Such actions include EPA actions “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” and EPA actions “issuing or denying any permit under section 1342.” The Sixth Circuit denied motions to dismiss consolidated actions. The Supreme Court reversed. The Rule falls outside section 1369(b)(1), so challenges must be filed in district courts. It is not an “effluent limitation,” “on quantities, rates, and concentrations” of pollutants, nor is it an “other limitation under section 1311; it simply announces a regulatory definition. The Rule was promulgated under section 1361(a), which grants the EPA general rulemaking authority. The Rule neither issues nor denies NPDES permits under section 1342. View "National Association of Manufacturers. v. Department of Defense" on Justia Law