Environmental Law Discussion
The lecture, book, and podcast Navigating Challenges to the Clean Water Rule with Sheila Olmstead (December 2020, ~39 minutes, transcript at link) talked about the progression of Commerce Clause cases that restricted the reach of Army Corps of Engineers' and EPA's jurisdiction over wetlands, particularly wetlands that are intrastate and/or not hydrologically connected to navigable or intrastate water ways. Since 2009, the Army Corps of Engineers and EPA had been asserting federal jurisdiction over waterways with a "significant nexus" to a navigable or interstate waterway, based on Supreme Court decision in Rapanos.
Because determining "significant nexus" for each waterway was slow and uncertain for landowners, in 2015 the EPA adopted a new Clean Water Rule, aka Waters of the US (WOTUS) rule. The rule was challenged in court because some considered too broad, covering too many waterways.
In 2020, the new Navigable Water Protection Rule rolled back the definition of WOTUS to 4 categories of water ways. Please review this explanation of the differences between the 2015 rule and the 2020 rule: The New Navigable Waters Protection Rule, Explained (Links to an external site.)(Property and Environment Research Center, XXXXXXXXXXThere are several lawsuits in progress, and this topic will continue to evolve with litigation and the new administration.
With that background in mind, note that one justification for narrowing the scope of federal jurisdiction is respecting states' interests in regulating their own waterways, but only 23 states have significant protection for wetlands that do not fall under federal jurisdiction, leaving many wetlands in the country without protection: Water Act Rule Poses Challenges for States (Links to an external site.) (Environmental Law Institute, 2020).
Based on the short readings and background, please discuss:
· What is the appropriate scope of government control over shared natural resources like water?
· As a legal matter, when does a waterway have a "substantial impact on interstate commerce," given the importance of water quality and quantity and ecosystem services provided by waterways like wetlands?
Consider the 2012 annual report for the USDA Conservation Reserve Program (Links to an external site.) and the website showcasing projects around the country at the CRP is 30 website (Links to an external site.).
Which policy tool is being used to influence environmental practices on agricultural land? Why?
What do you think of the public outlay of funds to support these environmental practices? Consider your answer from the perspective of an agricultural producer, then consider the answer from the perspective of a consumer/citizen.
Note that 2012 is the most recent annual report, but if you want more statistics about recent years, they are at the USDA FSA Conservation Reserve Program Statistics (Links to an external site.) page.
One of the goals of this class is to think about the regulatory structure of these laws, in the context of our federalist system of government and the tensions of wanting a clean and healthful environment while allowing economic activity that often results in pollution.
Notice the difference in the regulatory structure in the CWA and CAA:
The CWA starts with the federal government setting technology-based limits, industry-by-industry, pollutant-by-pollutant, on point sources. Then the states set water quality standards and seek to reduce the total pollution load (TMDL) to achieve acceptable water quality.
The CAA starts with the federal government setting health-based air quality standards, then lets the states write permits for their stationary sources of air pollution and meeting air quality standards in the way they see fit, considering cost and technology (put aside the HAP, New Source Review and cap and trade programs for a moment).
Why do you think the CWA and CAA take opposite routes to the same basic goals? Does each structure make sense, given the medium carrying pollution in each case? Is there something fundamentally different about regulating water and air to justify this difference? Or do you prefer one system over the other, and think that both should have the same structure
EPA received a petition to regulation GHGs as a criteria pollutant under the CAA, so that it would have to set National Ambient Air Quality Standards that would have to be met in each Air Quality Control Region of the country.
EPA has not acted on the petition at all. Instead, it has started regulating GHGs via emissions standards from mobile sources, then under the permitting requirements for stationary sources.
If EPA did add GHGs as a criteria pollutant:
1. How would it determine the "safe" level of GHGs to protect public health (remember American Trucking v. Whitman—no cost analysis allowed!)
2. What is the next action that must be taken in the CAA when a new NAAQS is set for a pollutant?
3. Is setting NAAQS for GHG pollutants a good policy choice? Remember that this is not a legal question—considering the goal of the program, the costs and benefits to society of reaching the goal, the constraints imposed by economic and physical realities—is using the NAAQS structure a good idea for regulating GHGs, or do you prefer another possible regulatory scheme? Which one and why?