12 September 2018

Sidley Environmental Trends

Topics discussed this week include:

  • Petitioners ask Supreme Court to weigh in on whether Clean Water Act regulates discharges through groundwater to waters of the United States
  • EPA OECA issues guidance document on National Compliance Initiatives
  • DOI seeks comment on its NRD regulations
  • Eight states sue DOI, its Principal Deputy Solicitor, and FWS over MBTA guidance

Petitioners ask Supreme Court to weigh in on whether Clean Water Act regulates discharges through groundwater to waters of the United States. Petitioners in two separate cases from different circuit courts of appeals recently requested that the Supreme Court rule on those opinions’ holdings that the Clean Water Act regulates discharges through groundwater to waters of the United States. Section 301 of the Clean Water Act prohibits the discharge of a pollutant from a point source to the waters of the United States unless in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System permitting program. On August 27, the County of Maui filed a petition for a writ of certiorari asking that the Supreme Court take up the U.S. Court of Appeals for the Ninth Circuit’s March 30 amended opinion in Hawai’i Wildlife Fund v. County of Maui, which held that the flow of pollutants disposed into underground effluent disposal wells through the groundwater into the Pacific Ocean constituted a prohibited discharge because the pollutants traveled from point sources (the wells) to navigable waters (the Pacific Ocean). Likewise, on August 28, Kinder Morgan Energy Partners, L.P. and Plantation Pipe Line Company, Inc. filed a certiorari petition asking the Supreme Court to take up the Fourth Circuit’s April opinion in Upstate Forever v. Kinder Morgan Energy Partners, L.P., which held that unrecovered gasoline from a pipeline spill that traveled through groundwater to a surface water body violated the Clean Water Act. These decisions set up a circuit split with earlier opinions from the Fifth and Seventh Circuits, increasing the likelihood that the Supreme Court will choose to address this key Clean Water Act jurisdictional issue.

EPA OECA issues guidance document on National Compliance Initiatives. Susan Bodine, the Assistant Administrator of the U.S. Environmental Protection Agency’s (EPA’s) Office of Enforcement and Compliance Assurance (OECA), recently issued guidance governing the transition from OECA’s existing National Enforcement Initiatives to a new National Compliance Initiative format. Historically, EPA maintained several National Enforcement Initiatives, or areas in which it prioritized compliance and enforcement resources. These National Enforcement Initiatives lasted for three fiscal years and were determined based on an analysis of whether a particular environmental issue was national in scope, whether EPA believed there to be longstanding and widespread significant noncompliance, and where EPA believed that federal enforcement efforts could make a difference. Under prior administrations, these initiatives could be controversial as they sometimes targeted specific industries, such as the oil and gas sector. OECA’s new guidance document announces a number of changes. Among other new features, the new National Compliance Initiatives will focus more on compliance assurance than enforcement, provide states and tribes with a greater role and last for four fiscal years rather than three. In the interim, EPA plans to reinterpret several existing fiscal 2017-19 National Enforcement Initiatives, in some cases to return them to the core enforcement program.

DOI seeks comment on its NRD regulations. On August 27, the U.S. Department of the Interior (DOI) issued an advance notice of proposed rulemaking (ANPRM) seeking comment on the existing regulations governing natural resource damage (NRD) assessments. The Comprehensive Environmental Response, Compensation, and Liability Act authorizes states, federally recognized Indian tribes and the federal government, acting as trustees for the public, to bring claims for injuries to natural resources harmed by hazardous substance releases. Trustees must use recovered damages to restore or replace injured natural resources or to acquire equivalent natural resources. DOI has previously published two categories of NRD regulations: Type A rules are intended to provide standard procedures for simplified assessments (and are seldom, if ever, used), and Type B rules are intended for individual NRD assessments. While compliance with these rules is not mandatory, trustees who follow them are entitled to a rebuttable presumption in favor of their assessment in any action to recover the NRD. DOI is seeking comment on a wide range of topics relating to these regulations, including how to make the NRD assessment process more efficient/cost effective, how to simplify the regulations, how to improve the Type A rules to increase their workability and how to provide guidance on advance restoration and restoration banking techniques. Comments on the ANPRM are due on October 26.

Eight states sue DOI, its Principal Deputy Solicitor, and FWS over MBTA guidance. A coalition of eight states — New York, California, Illinois, Massachusetts, Maryland, New Jersey, New Mexico and Oregon  — sued DOI, the U.S. Fish and Wildlife Services, and DOI’s Principal Deputy Solicitor in the U.S. District Court for the Southern District of New York over the agencies’ interpretation of the meaning of an “incidental take” under the Migratory Bird Treaty Act (MBTA). The MBTA prohibits the taking of migratory birds unless otherwise permitted by regulation. “Taking” includes actions such as pursuing, hunting, killing and collecting. The circuit courts of appeals have split on whether the MBTA applies to incidental taking or to actions such as routine industrial activity that accidentally cause the taking of a migratory bird but were not intended to do so. In December 2017, the Principal Deputy Solicitor issued guidance determining that the MBTA did not prohibit incidental takes, altering the agencies’ past position on the issue. The state coalition’s lawsuit seeks a declaratory order finding the guidance to be unlawful and asks the court to vacate it. It follows similar environmental NGO lawsuits, including one by the Natural Resources Defense Council and National Wildlife Federation and one by a coalition including the National Audubon Society.

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