The recent court decisions summarized here do not represent a comprehensive survey of all cases of concern. Instead, they typify cases in which “new federalist” or other controversial legal theories have been applied to environmental law. These decisions undermine environmental protection by:
This body of jurisprudence hampers federal regulation and judicial oversight while claiming to give more power to the states. Instead, these decisions often limit state environmental authority as well. Under the guise of striking a balance between federal and state regulation, certain parties are pursuing an agenda that is in fact wholly anti-regulatory. No matter how you slice these decisions, public health and the environment lose.
In 2001, the Supreme Court called into question the federal government’s long-standing authority to protect certain waters and wetlands that function to control pollution, limit flooding, and provide wildlife habitat. Under the Clean Water Act, the federal government can regulate “navigable waters of the United States,” a term that Congress, EPA, and the U.S. Army Corps of Engineers had long understood to include isolated, intrastate waters and wetlands that provide habitat for migratory birds. In its Solid Waste Agency of Northern Cook County (SWANCC) decision, a bare 5-4 majority of the Court rejected this interpretation. The Court found that although “navigable waters” must continue to be defined broadly, their use by migratory birds cannot be the sole basis for protecting such waters. The Court also suggested — but did not decide — that such protection might exceed the federal government’s authority under the Commerce Clause of the U.S. Constitution, a claim that, if ever accepted, would severely limit the scope of the Clean Water Act.
While lower courts struggle to interpret SWANCC, as discussed in the next case summary, its impact is already being felt on the regulatory front. The Bush Administration attempted to use the case to justify new deregulatory initiatives that would limit the scope of the Clean Water Act. A draft Army Corps of Engineers regulation leaked to the press would have eliminated “ephemeral washes or streams” or streams that flow for less than six months a year from Clean Water Act protection.
A Washington Post article suggested that “up to 20 million acres of wetlands” could lose protections under a rule similar to the one in the draft. President Bush directed the Corps to abandon this rulemaking only after western hunters and anglers expressed their outrage over its potential impact on wildlife habitat. An interim policy that accompanied the abandoned rulemaking is still in effect, however. It requires Army Corps of Engineers personnel to obtain headquarters permission prior to asserting jurisdiction over so-called isolated wetlands.
Case: Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers, 531 U.S. 159 (U.S. Supreme Court, 2001).
While the Supreme Court’s decision in SWANCC was limited, it has provided developers an opportunity to lay claim to anywhere from 20% to 60% of the nation’s wetlands, which now may be completely unprotected by either federal or state law. Fortunately, several recent cases have narrowly interpreted the SWANCC decision and have upheld the federal government’s power over wetlands.
But even when courts take this tack, the environment can be harmed when trial courts refuse to intervene and stop developers. In the Newdunn case, for example, a development company repeatedly undertook to develop property after the U.S. Army Corps of Engineers had informed the company that the site contained valuable wetlands for which a permit was required. When the Corps sought to enforce orders against the company calling for development to cease, the federal district court for the Eastern District of Virginia refused to enforce the order and refused to issue injunctions stopping the development.
The Virginia state agency responsible for wetlands in turn sought to enjoin the development in state court, but the same federal judge consolidated the cases and ruled that the state agency lacked the authority to seek to halt the action as well. Thus, the court tied the hands of both state and federal regulators to stop development of the wetlands. Relying upon U.S. v. Wilson, a Fourth Circuit opinion that pre-dates SWANCC and goes well beyond the Supreme Court’s decision in SWANCC, the court ultimately ruled that neither the federal Corps nor the state agency had authority to regulate the wetlands.
On appeal, the Fourth Circuit Court of Appeals soundly rejected the district court’s rationale. Not only did the Corps of Engineers have jurisdiction over the wetlands, but the district court also wrongly took the case away from the Virginia authorities, thus stripping them of their ability to halt development. While the court of appeals may have reversed the district court’s decision, significant environmental damage had already been done, according to state regulators.
Defendants in Newdunn and U.S. v. Deaton, a similar case that also arose in the Fourth Circuit, have asked the Supreme Court to review these cases. The Supreme Court has also been asked to weigh in on U.S. v. Rapanos, a criminal case raising similar issues in the Sixth Circuit. To complicate matters, the Fifth Circuit, while ruling that federal jurisdiction did exist, indicated disagreement with its sister circuits on interpretation of SWANCC in In re Needham, by stating that Clean Water Act and Oil Pollution Act jurisdiction reaches only waters that are navigable or adjacent to navigable waters.
Case: United States v. Newdunn Associates, 195 F. Supp. 2d 751 (Eastern District of Virginia 2002); overruled 344 F.3d 407 (4th Circuit 2003), petition for certiorari filed No. 03-637 (Oct. 27, 2003).
Other cases narrowly interpreting SWANCC: United States v. Phillips, 2004 WL 144129 (9th Circuit 2004); United States v. Deaton, 332 F.3d 698 (4th Circuit 2003), petition for certiorari filed No. 03-701 (Nov. 10, 2003); United States v. Rapanos, 339 F.3d 447 (6th Circuit 2003), petition for certiorari filed No. 03-929 (Dec. 22, 2003); United States v. Krilich, 303 F.3d 784 (7th Circuit 2002), petition for certiorari denied No. 02-915 (April 21, 2003); United States v. Rueth Development. Co., 335 F.3d 598 (7th Circuit 2003), petition for certiorari denied No. 03-548 (Dec. 1, 2003); Community Association for Restoration of the Environment v. Henry Bosma Dairy, 305 F.3d 943 (9th Circuit 2002); Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Circuit 2001).
Cases broadly construing SWANCC: In re Needham, 354 F.3d 340 (5th Cir. 2003); Rice v. Harken Exploration Co., 250 F.3d 264, 267 (5th Cir. 2001).
In the recent GDF Realty case, Texas developers sought to build a Wal-Mart on land inhabited by several endangered species of spiders and insects that were found only in that part of Texas. Because the species were endangered, federal authorities denied the developer’s request to build on the site and thus harm the species. The developers challenged the constitutionality of the Endangered Species Act and its prohibition on harming endangered species or destroying their habitat. They claimed that the federal government lacks Commerce Clause authority to apply the Act to species that do not cross state lines.
Citing an unbroken string of precedents, the Fifth Circuit Court of Appeals disagreed. The court found that the protection of endangered species is a legitimate exercise of federal authority under the Commerce Clause because the harming of endangered species, in the aggregate, has a substantial effect on interstate commerce. Nevertheless, plaintiffs have asked the Fifth Circuit to rehear the case en banc, and could ultimately appeal the decision to the Supreme Court.
Like GDF Realty, the Rancho Viejo case saw a real estate developer proposing to build housing on critical habitat, this time the habitat of an endangered species of California toad. The developer challenged the Fish and Wildlife Service’s regulation under the Endangered Species Act, asserting that it was an unconstitutional exercise of federal authority. However, the D.C. Circuit Court of Appeals upheld the regulation, finding that it was authorized under the Commerce Clause and the D.C. Circuit’s prior decisions. Plaintiffs have asked the Supreme Court to hear their arguments.
While the attempt to limit federal power to protect endangered species was defeated in both of these cases, developers and others continue to attack the scope of the Endangered Species Act. Indeed, despite losing the constitutional argument in four separate Courts of Appeals, litigants are still claiming that Supreme Court review is required to “resolve uncertainty.” These cases drain resources and attention from the critical work of protecting endangered and threatened species. Instead of working to restore species, the government, advocates, and business spend their energy fighting over whether the federal government has the power to protect them. If challenges like those in GDF Realty and Rancho Viejo continue, the federal power to protect endangered species will remain at risk.
Cases: GDF Realty Investments v. Norton, 326 F.3d 622 (5th Circuit, 2003), petition for rehearing filed May 21, 2003; Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Circuit 2003), petition for rehearing en banc denied 334 F.3d 1158 (D.C. Circuit 2003), petition for certiorari filed Nov. 19, 2003.
In 1999, several industry groups challenged EPA’s authority to set certain air quality standards under the Clean Air Act. Despite three decades of judicial affirmation of the agency’s authority to set such standards, this time industry invoked the antiquated “non-delegation doctrine” to argue that Congress had improperly delegated its lawmaking authority to EPA without providing sufficient guidance on how to exercise this authority. A divided panel of the D.C. Circuit Court of Appeals — the nation’s second-highest court — agreed, marking the first time this theory had been applied to limit congressional authority in more than 70 years.
This decision not only undermined the Clean Air Act, but also threatened EPA’s ability to frame specific rules to implement almost any environmental legislation. Fortunately, a unanimous Supreme Court overturned this far-fetched result, finding that the Clean Air Act’s delegation of authority to the EPA is in fact constitutional.
While this battle for environmental protection has been won, the war continues. In a separate concurring opinion, Justice Clarence Thomas invited future litigants to continue to challenge whether Congress can delegate important decisions to administrative agencies. Lower courts may seize similar opportunities to adopt this approach, which could eviscerate EPA’s role in environmental regulation and bring a high degree of uncertainty to federal environmental regulation.
Case: American Trucking Association v. U.S. Environmental Protection Agency, 175 F.3d 1027 (D.C. Circuit, 1999), reversed by the U.S. Supreme Court in Whitman v. American Trucking Association, 531 U.S. 457 (2001).
In response to a congressional mandate, EPA issued new regulations that set the amount of arsenic that is allowable in drinking water supplies, which is known as a maximum contaminant level. The Attorney General of Nebraska sued, challenging both EPA’s authority to set maximum contaminant levels under the Safe Drinking Water Act and its rule governing arsenic levels in public drinking water supplies. Nebraska argued that the Act and the application of the rule to intrastate drinking water systems is an impermissible exercise of the Commerce Clause, despite decades of precedent affirming its reach. It also claimed that the power to regulate water suppliers who served wholly intrastate populations was reserved to the states under the Tenth Amendment of the Constitution.
A unanimous panel of the D.C. Circuit Court of Appeals rejected this argument, finding that the Act on its face is an acceptable exercise of Congress’ Commerce Clause power, and that Nebraska had failed to properly raise its challenge to the rule as applied. The full court refused to rehear the case, and it is unlikely the Supreme Court will be asked to, or would, hear the case.
Case: Nebraska v. EPA, 331 F.3d 995 (D.C. Circuit 2003), rehearing en banc denied August 22, 2003.
In Rose Acre Farms, the U.S. Department of Agriculture (USDA) placed restrictions on a company’s industrial chicken farms after several salmonella outbreaks that sickened hundreds of people were traced back to the company’s eggs. The company complained that the government requirements (pasteurization of eggs, cleaning of barns, and testing of hens) forced it to sell eggs at a lower price than it otherwise would have received.
While most citizens would view the USDA’s actions as reasonable and necessary public health measures, the company challenged them as a “taking” of private property and demanded compensation under the Fifth Amendment to the Constitution. The Court of Federal Claims agreed, holding that the salmonella-control regulations went “too far” and that USDA must pay the company millions of dollars for its reduced profit on the eggs.
By requiring compensation, these kinds of decisions could make necessary public health measures prohibitively expensive, and could undermine efforts to prevent diseases transmitted by animals or though the food supply. Moreover, this use of the “takings” doctrine allows federal judges to elevate their own idea of the “wisdom” of government regulation, improperly trumping the expertise and congressionally delegated authority of regulatory agencies.
The decision is on appeal to the Federal Circuit, a specialized court with appellate jurisdiction over federal claims.
Case: Rose Acre Farms, Inc. v. United States, 55 Fed. Cl. 643 (Court of Federal Claims 2003), appealed to the Federal Circuit, No. 03-5103 (May 16, 2003). The case was argued in the Federal Circuit on February 3, 2004.
Similarly, the Court of Federal Claims has also ruled that measures intended to protect the chinook salmon and delta smelt from extinction constitute a Fifth Amendment taking of property. In an Endangered Species Act case, the Fish & Wildlife Service determined that a number of measures, including limits on the amount and rate of water removed from the Sacramento-San Joaquin Delta for irrigation, were necessary to protect the fish and their critical habitat. Even though water rights in California are limited by a rule of reasonable use and the public trust doctrine (which includes the protection of fish and wildlife), and even though water supplies were reduced by less than three percent, the court found that the water was plaintiffs’ “property” and ordered the government to pay nearly $14 million dollars to prevent it from being pumped out of the stream.
This decision departed from conventional “takings” law by characterizing the government regulation as a “physical” confiscation of water rather than a simple restriction of its use. The consequences of this logic on endangered species protection could be far- reaching. Shortly after this opinion, another set of plaintiffs filed a one-billion-dollar regulatory takings lawsuit challenging protections for coho salmon in Oregon. By characterizing protections for endangered species as “takings,” decisions in the mold of Tulare Lake threaten the government’s ability to carry out the wishes of Congress expressed in the Endangered Species Act.
Case: Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (Court of Federal Claims, 2001), damages awarded by the Court of Federal Claims on Dec. 31, 2003 (No. 98-101).
Appalachian landowners have repeatedly tried to challenge the highly destructive practice of mountaintop removal coal-mining, in which entire mountains are dynamited and the waste dumped in nearby valleys and streams. In the Bragg case, West Virginia citizens whose health and property were damaged by the resulting noise and dust brought a claim in federal court against the Director of the West Virginia Division of Environmental Protection, arguing that he had failed to enforce the federal Surface Mining Control and Reclamation Act (SMCRA).
Instead of reaching the merits of plaintiffs’ harms and the companies’ illegal practices, the Fourth Circuit Court of Appeals held that the case was barred from federal court by the Eleventh Amendment to the Constitution, which grants states “sovereign immunity” in certain kinds of situations. Even though in the past sovereign immunity did not bar citizens from going to court when states were violating federal law, the court found that SMCRA enforcement has more the character of state law and may not be challenged by citizens in federal court.
Bragg raises serious concerns for both SMCRA and other federal environmental statutes, which have a similar federal-state structure. It also is part of a larger trend of states and state entities invoking the Eleventh Amendment and the so-called “sovereign dignity of the state” to gain immunity from clear violations of civil rights, labor, and other federal laws. The U.S. Supreme Court declined to hear this case, making it the governing law for coal-mining activity in West Virginia, Maryland, Virginia, North Carolina, and South Carolina.
Shortly after the Bragg decision was released, the Third Circuit Court of Appeals adopted the Fourth Circuit’s reasoning and held that most kinds of citizen suits against state agencies to enforce federal coal-mining laws are barred from federal court. This case extended the sovereign immunity defense to coal-mining activities in Pennsylvania, which were at issue in that case, and to the neighboring states of New Jersey and Delaware.
As a direct result of the Bragg decision, a federal district court in West Virginia was forced to reverse its prior holding on a similar issue. In that case, the West Virginia Highlands Conservancy also had sued the state Division of Environmental Protection, alleging that the state’s surface mine reclamation bond program was insufficient to meet SMCRA minimum standards. This program is meant to ensure that mining companies and the states put aside enough money to clean up mining areas once the mines are closed. A West Virginia official admitted under oath that the state program had failed to meet federal requirements and that there were insufficient funds to close more than a few of the dozens of open mines in the state. Despite the court’s explicit finding that “federal law has been ignored and violated by West Virginia for more than a decade,” the court was reluctantly forced to conclude that the state was immune from suit, and to dismiss the case.
Cases: Bragg v. West Virginia Coal Association, 248 F.3d 275 (4th Circuit, 2001), cert. denied, 534 U.S. 1113 (2002); Pennsylvania Federation of Sportsmen’s Clubs v. Hess, 297 F.3d 310 (3rd Circuit, 2002); West Virginia Highlands Conservancy v. Norton, 147 F. Supp. 2d 474 (Southern District of West Virginia 2001).
In its 2002 Federal Maritime Commission decision, which involved an obscure federal shipping statute, the Supreme Court further expanded the bounds of 11th Amendment sovereign immunity. Even though the 11th Amendment provides that states are immune from the federal “judicial power,” the Court held that states are shielded from private actions brought before a federal administrative agency. Justice Thomas, who wrote the majority opinion, departed from his usual strict reading of the text of the Constitution and quoted an earlier case to stand for the proposition that “[w]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms . . . .” In dissent, Justice Stephen Breyer predicted that this interpretation would deny citizens meaningful remedies under many other federal laws, including the “whistleblower” provisions of several major environmental statutes.
Justice Breyer’s prediction came to pass three months later, when the First Circuit Court of Appeals barred administrative complaints brought by employees of the Rhode Island Department of Environmental Management (RIDEM), who alleged that the agency had retaliated against them for revealing its failure to implement the Solid Waste Disposal Act (SWDA). The primary plaintiff had complained to federal EPA that RIDEM had greatly reduced its enforcement of the SWDA when a new governor ordered a reorganization of the agency. She presented evidence that RIDEM was not taking enforcement actions again violations discovered by RIDEM inspectors and that in some instances the agency had failed to take action despite identifying barrels that were leaking hazardous waste into the environment. The plaintiff claimed that after making her concerns known, she was reassigned, demoted, and repeatedly harassed and abused by her supervisors.
The federal administrative law judge who heard the evidence during a 23-day hearing found that the state agency had clearly retaliated against the plaintiff and awarded her back pay and damages. The RIDEM responded by appealing the primary plaintiff’s case to the federal courts. The federal court combined the primary plaintiff’s case with two other cases that had yet to be heard on their merits. On appeal, the federal court held that despite the clear factual findings of the administrative hearing, the Federal Maritime Commission decision completely barred all the plaintiffs’ complaints, threw out their cases, and denied them any payment for their lost wages.
This case creates a chilling effect that will make it much more difficult for state employees to report on states’ violations of federal environmental laws, and make it less likely that such violations will be detected and corrected. It leaves state employees unprotected by federal courts when they raise possible issues of wrongdoing by the state. Under this new federalist theory, the state government serves as both defendant and jury because it is both the alleged wrongdoer and the employer of the state judges who will hear the cases.
Cases: Federal Maritime Commission v. South Carolina State Ports Authority, 122 S.Ct. 1864 (2002); and Rhode Island Department of Environmental Management v. United States, 304 F.3d 31 (1st Circuit, 2002).
The Supremacy Clause of the U.S. Constitution states that federal law is “the supreme Law of the Land.” Inconsistent state laws or regulations are “preempted” by federal law unless Congress authorizes states to enact more stringent laws or regulations. In general, federal environmental laws set minimum national standards that states must enforce. But these laws also usually allow the states to set more stringent standards of their own.
In a pending case, a regional air quality management district adopted rules that required certain public and private vehicle fleet operators to purchase or replace their vehicles only with the lowest-emission vehicles available under California law. California has explicit authority to set motor vehicle emission standards more stringent than federal standards under certain conditions set out in the Clean Air Act. This rule took effect in the area that includes Los Angeles, which has some of the most polluted air in the nation. By requiring businesses and governments that run fleets of vehicles to buy vehicles that emitted less pollution, the district hoped to improve the overall air quality around Los Angeles.
The Engine Manufacturers Association and other industry interests have argued that these regulations are preempted by the Clean Air Act, which prohibits states from adopting a “standard relating to the control of emissions from new motor vehicles.” The federal district court held that the state rule did not constitute such a standard, and was not preempted by the Clean Air Act, because it only governed the purchase of vehicles, and did not directly set any new requirements on what vehicles manufacturers could sell. Thus, the court reasoned, there is no conflict between federal law and the local regulation.
The Ninth Circuit of Appeals upheld the district court’s opinion. The manufacturers appealed to the Supreme Court, which agreed to hear the case. This case will be significant in defining the scope of preemption doctrine under the Clean Air Act, and perhaps more broadly determine the ability of state and local governments to set higher environmental standards that go beyond the requirements of federal law.
Case: Engine Manufacturers Association v. South Coast Air Quality Management District, 158 F. Supp. 2d 1107 (C.D. Cal. 2001), affirmed, 309 F.3d 550 (9th Circuit, 2002), certiorari granted by the U.S. Supreme Court, No. 02-1343 (June 9, 2003), oral argument held January 14, 2004.
* * * * *