Legal Briefing: Want to Pollute? Just Dump in a Stream, Not a River


A daily look at legal news and the business of law:

Big Impacts From Supreme Court Decisions Limiting Clean Water Act

In 2001 and 2006 the a bare majority and a plurality of the U.S. Supreme Court interpreted the language of the Clean Water Act that defines the reach of the Environmental Protection Agency's regulatory authority -- over "navigable waters" -- in a way that narrowed it considerably. As TheNew York Timesreported Monday, these decisions have led to 1,500 major pollution investigations being abandoned in the last four years, among other consequences. In one recent case, an EPA victory against a polluter that dumped oil, lead, zinc and other chemicals into a creek was overturned based on these decisions. Given the present regulatory uncertainty, some 117 million Americans, more than one in three, ultimately get their drinking water from sources that may no longer be protected by the Clean Water Act.

During the first three decades after the Clean Water Act's passage, the regulatory reach of the Army Corps of Engineers and the EPA was virtually unlimited due to expansive interpretations of the statute's "navigable waters" language. The Supreme Court, prior to the 2001 and 2006 decisions, had interpreted the statute to include at least some waters not understood as navigable under a classical interpretation of the term, which the agencies viewed as giving them license to regulate any body of water anywhere that migratory birds might use. Their purview thus encompassed drainage ditches, arroyos, wetlands not adjacent to rivers and other isolated, temporary waters.

In the 2001 and 2006 cases, the Court held that "navigable waters" meant only those bodies of water that were permanent (or virtually so) and connected to a traditionally navigable waterway, wiping out much of the EPA's prior area of authority. Now the full extent of the EPA's ability to regulate is uncertain, which has led to the current enforcement problems.

Interestingly, the EPA and others raised this enforcement issue in the 2006 case, but in his opinion, Justice Antonin Scalia, dismissed that concern as overblown and misguided. Some suggest the EPA has regulatory authority it's not using to address at least some of the present problems. Congress is officially considering legislation to restore the agencies' original interpretations of the act. However the legislation has made little progress.

EPA Stepping up Chicken Guano Regulation

Manure is a pollutant that has gotten lax regulatory attention because, unlike most EPA targets, manure isn't toxic. However, the high volumes of manure flowing into waters near industrial chicken farms can trigger massive algae growth, which in turn depletes the waters of oxygen, killing fish and other aquatic life so thoroughly the resultant area is called a "dead zone." Monday's Washington Post reports the EPA has recently issued new rules regulating manure and announced that reducing manure-laden runoff is one of six national enforcement initiatives that it will focus on for the next three years.

And in the Business of Law...

There's a common belief in the legal profession that blacks and other minorities are "last hired, first fired." Recent research suggests the concept is only half true; at law firms, minorities are definitely the "first fired" but not always the "last hired." In any case, a study in Monday's American Lawyer adds more fuel to that fire; the massive lawyer layoffs during the Great Recession have hit minority attorneys disproportionately hard.