Water Pollution
Clean Water Act - Safe Drinking Water Act - National Environmental Policy Act - Boulder Canyon Project Act
Clean Water Act (CWA) of 1972 (33 U.S.C. § 1151, et seq.)
The Clean Water Act (CWA) currently stands to replace The Federal Water Pollution Act of 1948 after a series of significant amendments in 1972. The current law outlines the structure for discharging pollutants into water, requires water quality standards for surface waters, gave the EPA the authority to put water pollution control programs in place, and as the main focus for the case briefed below, made it illegal for any person(s) to discharge pollutants from a point source into navigable waters, unless a permit was obtained under its provisions.
The initial Federal Water Pollution Act of 1948 and other water pollution-directed laws such as the Rivers and Harbors Act of 1899 and Water Quality Act of 1965 were all created with the goal of protecting aquatic life and maintaining water quality. However, even after the passing of the original Federal Water Pollution Act, which was meant to curb water pollution, a series of studies and incidents surrounding various bodies of water around the country came to light. Pollution in the Chesapeake Bay was found to have cost fisherman significant revenue in 1968, bacteria levels in the Hudson River were found to be 170 times the legal limit in 1969, 26 million fish in a Florida lake were found dead due to pollution from local food-processing plants, an oil spill resulted in a disastrous fire on the Cuyahoga River. After the EPA’s establishment by President Nixon in 1970, amendments to address increasing public interest and concern in water pollution were made to the Federal Water Pollution Act. In 1977, the act was further amended to judge water pollution using a series of technology based standards. These amendments also enforced a deadline by which industrial sources needed to comply.
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Overview 1
Section 33 U.S.C. § 1251 of the Clean Water Act, Declaration of Goals and Policy, lays out the Act's purpose and policy goals. It is the standard the federal government follows for water pollution control. The statute sets the goal of protecting and improving the nation’s water by eliminating pollution, supporting clean water programs, and establishing a shared responsibility between federal and state governments.
The first main goal of the statute is to restore and maintain the integrity of United States waters. The overarching goal is to protect the nation's water bodies' chemical, physical, and biological integrity. The second goal of the statute is to eliminate discharges of pollutants into navigable waters by 1985. That goal has not been fully achieved. The third goal is to make the waters suitable for fishing and swimming. In other words, to achieve a water quality that allows for recreation and “provides for the protection and propagation of fish, shellfish, and wildlife” by July 1, 1983. The fourth goal is to prohibit toxic pollutants in toxic amounts—no toxic substances should be allowed in waters at levels that harm people or the environment. The fifth goal is to support municipal and state wastewater treatment. The statute supports funding for publicly owned waste treatment works to manage sewage. Finally, the statute emphasizes a cooperative federal and state partnership. The federal government is to set national standards, but the states can enforce stricter regulations.
Overview 2
Before receiving the commonly known title, “Clean Water Act,” this statute was “The Federal Water Pollution Control Act,” which was first passed in 1948, and laid the early groundwork for federal governance of water pollution prevention in the United States. However, in 1972, 33 U.S.C. §1251 et seq. was substantially amended due to the growing concerns surrounding visible water pollution in the U.S., and the ineffectiveness of the 1948 version. This pollution largely stemmed from industrial discharges and toxic dumping that powered the economic boom in the 1950s and 60s which led to the complete ruin of rivers, lakes, and coastal waters, rendering much of the U.S. waterways to be too hazardous for swimming, drinking, and fishing.
Section §1251, titled “Congressional declaration of goals and policy,” is a vital portion of the statute because it outlines the necessary steps to be undertaken so that the statute is effectively upheld and executed. The foremost goal of this statute is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” through various provisions such as the elimination of pollutants discharged into “navigable waters” by 1985; improving the water quality enough for it to be swimmable and fishable by July 1, 1983; prohibiting the expulsion of toxic pollutants into waters; constructing “publicly owned waste treatment works” that are efficient at decreasing water pollution through federal support; and innovating as much as possible to create programs and technology that seek to put a permanent end to the emission of pollutants into U.S. waters.
There are many other notable elements of the Clean Water Act that are worth mentioning. One of these elements is known as NPDES, short for the “National Pollutant Discharge Elimination System,” found in section 1342, which mandates that anyone who is dumping pollutants from a “point source” (ditch, pipe, drain, etc.) into national waters must have a permit to do so. This way the government can track how much, and what types of substances are being discharged. There is a separate section that deals with pollution via non-point sources, like agriculture runoff, but the CWA is most concerned with point source pollution. Another system of enforcement that is integral to the CWA is found in section 1311-1319, “Standards and Enforcement,” which outlines the different standards to be followed by the various technological mechanisms that track water quality. If the standards are not met, there will be penalties, both civil and criminal. The effectiveness of the CWA relies on states to administer these programs and standards, given the necessary support by the federal government– this includes the improvement of municipal water treatment plants. Then, it is the EPA’s role to monitor state compliance with the CWA and step in when standards and programs are not duly upheld.
One final section of the statute that has proved to be a point of importance and contention is § 1344, “Permits for dredged or fill material,” which establishes the permitting process needed to dump dredged (removal/ excavation of materials like sediments from the bottom of waters) and fill (materials like sand, concrete, etc., put into waters for construction/ land development) into the “waters of the United States.” Permits are administered by the U.S. Army Corps of Engineers, through cooperation with EPA. Therefore, the EPA can veto a permit under § 1344 (c) given that the disposal of such materials has “unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” The most prominent legal issues associated with this statute arise through debates surrounding wetlands and exemptions; effectively, what defines “waters of the United States,” and which activities are exempt from permits?
Sources:
Ashwander v. TVA, 297 U.S. 288 (1936)
Bower, Peter M., and Dana Neacsu. Introduction to U.S. Law, Policy, and Research: An Environmental Perspective. Vandeplas Publishing, 2019.
Jonathan H. Adler, Reckoning with Rapanos: Revisiting "Waters of the United States" and the Limits of Federal Wetland Regulation , 14 Mo. Envtl. L. & Pol'y Rev. 1 (2006)
Available at: https://scholarship.law.missouri.edu/jesl/vol14/iss1/2Mulligan, Steve. “Evolution of the Meaning of ‘Waters of the United States’ ...” Congress, 5 Mar. 2019, www.congress.gov/crs-product/R44585.
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)
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Brief 1
Link to the case: https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title33/USCODE-2023-title33-chap26-subchapIV-sec1344
Please note that the following brief was prepared by a student.
Court: Supreme Court of the United States
Facts: Sackett owned property next to Priest Lake which borders state and national parklands. They began to backfill with dirt in order to build a home, which was halted by the Environmental Protection Agency. Because the Sackett property contained wetlands, the EPA ordered them to restore the lot where backfilling occurred or face a fine. The justification for the EPA’s jurisdiction over these wetlands was that they were near a ditch that fed into a creek that fed into Priest Lake, a “navigable, intrastate lake.”
Procedural History: District Court entered summary judgment for EPA, confirmed by Ninth Circuit, confirming that the wetlands on Sackett’s property were covered by an ecologically significant nexus to navigable waters.
Legal Issue: Do wetlands without a continuous surface connection to the rivers, lakes, and streams of the United States count as "navigable waters of the United States" protected by the CWA?
Holding: No, wetlands without a continuous surface connection do not count as navigable waters of the United States, and are not subject to the CWA and EPA intervention.
Reasoning: The meaning of “navigable waters” means waters of the United States as indicated by 33 USCS § 1362(7). What classifies as “waters” within this definition, then, involves a significant nexus. According to 33 U.S.C.S. § 1344(g)(1), wetlands are included in the definition of waters, but only up to the extent that they are “adjacent” to these traditional waters such as streams, lakes, etc. In reference to the CWA, 33 U.S.C.S. § 1251, “‘waters’ may fairly be read to include only those wetlands that are as a practical matter indistinguishable from waters of the United States, such that it is difficult to determine where the "water" ends and the "wetland" begins.” Because the Sackett’s wetlands on their property were not continuously connected to waters of the United States, then they are distinguishable from these waters, and thus not subject to the jurisdiction of the EPA.
References:
FEDERAL STATUTE: Clean Water Act "Waters of the United States" Sackett v. EPA, 137 Harv. L. Rev. 390
ARTICLE: People and Penguins: The Case for an Environmentally Conscious Property Law, 55 Ariz. St. L.J. 1395
NOTES: CLIMATE ADAPTATION AND THE NEED FOR A NATIONAL LAND USE POLICY, 103 B.U.L. Rev. 1843
Brief 2
Heading: Sackett v. EPA, 598 U.S. 651 (2023)
a. Plaintiff: Michael and Chantell Sackett
b. Defendant: Environmental Protection Agency
c. Court: Supreme Court of the United States
Facts: Petitioners Michael and Chantell Sackett began preparing a residential lot near Priest Lake, Idaho. They began backfilling the lot with dirt to build a home. The EPA determined that the lot contained wetlands subject to federal regulation under the Clean Water Act (CWA) because they were adjacent to a tributary of Priest Lake. The EPA ordered the Sacketts to halt construction and restore the property, claiming they had illegally discharged pollutants into "waters of the United States" without a permit. The EPA threatened the couple with penalties up to $40,000 per day if they did not restore the property.
Procedural History: The Sacketts challenged the EPA’s compliance order, arguing their property was not subject to CWA jurisdiction.The U.S. District Court ruled in favor of the EPA. The Ninth Circuit affirmed, finding the wetlands on the Sacketts’ property were jurisdictional under the "significant nexus" test from Rapanos v. United States (2006). The Supreme Court granted certiorari to clarify the scope of "waters of the United States" under the CWA.
Legal Issue: Does the EPA have the authority to regulate wetlands under the Clean Water Act that are near, but not directly connected to, navigable waters?
Holding: The Supreme Court held that the Clean Water Act extends only to wetlands that have a continuous surface connection to bodies that are “waters of the United States” in their own right, such that the wetlands are "indistinguishable" from those waters.
Rationale: The majority rejected the "significant nexus" test used by the EPA and lower courts, finding it overly broad and inconsistent with the statutory text. The test was used to assess whether a waterbody significantly affects the chemical, physical, or biological integrity of traditional navigable waters. Additionally, the Court concluded that the term "waters of the United States" refers only to relatively permanent, standing, or continuously flowing bodies of water. Wetlands are covered only if they have a continuous surface connection with such waters, making them difficult to distinguish as separate. The decision emphasized the need for a clear and administrable rule, warning against vague standards that raise constitutional concerns about overreach and lack of fair notice.
Concurrences: Justice Thomas, joined by Justice Gorsuch, emphasized concerns about federal overreach and highlighted constitutional limits on the scope of the Commerce Clause. Justice Kavanaugh, joined by Sotomayor, Kagan, and Jackson, agreed with narrowing the definition but disagreed with the "continuous surface connection" requirement, arguing it excludes wetlands that have long been regulated and are ecologically significant.
Dissenting Opinions: There was no formal dissent, but Justice Kavanaugh’s Concurrence in the Judgment was effectively a partial dissent. He argued that the majority’s new test improperly narrows the CWA’s coverage. He noted that for decades, wetlands "adjacent" to navigable waters—whether or not directly connected by surface water—had been included under federal jurisdiction. He also warned that the new standard may leave many important wetlands unprotected, undermining the Act’s environmental goals.
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The Federal Water Pollution Control Act (FWPCA) is a foundational piece of U.S. environmental legislation that regulates water pollution and strives to restore and maintain the integrity of the nation’s waters. The FWPCA, initially enacted in 1948 as the first major U.S. law to address water pollution, was substantially revised by Congress in 1972 and was reinforced with the Oil Pollution Act in 1990. Henceforth, the law has been commonly referred to as the “Clean Water Act (CWA),” although its official title remains unchanged from its original. The act granted the EPA authority to implement programs to control pollution, and made it illegal to discharge any pollutant into navigable waters without a permit (Environmental Protection Agency, 2024).
Among the many provisions of this statute, 33 U.S.C. § 1321, also referred to as Section 311, governs the prevention of and response to oil and hazardous substance spills. This section specifically prohibits the discharge of oil in harmful quantities into or upon navigable waters. It outlines statutory terminology, reporting requirements, enforcement authority, and civil and criminal penalties for violations. Thorough comprehension of the statutory framework and congressional intent behind § 1321 is essential for interpreting how courts apply and enforce its provisions. § 1321(b) is the subsection of the statute that addresses discharges of oil and hazardous substances. It includes a declaration of Congressional policy (in essence, there should be no discharge of oil or hazardous substances into navigable U.S. waterways), designations of hazardous substances, determination of liability and penalties.
A major influence of § 1321(b) of the Clean Water Act has been the establishment of strict liability on any party responsible for a discharge, regardless of fault. Given the potential colossal costs of cleaning up a spill, this feature of law has incentivized the private sector to make substantial investments in safety and prevention. The pivotal 1977 case United States v. Atlantic Richfield Co., which was a consolidation of ten cases whose defendants were seeking exceptions from strict liability, established the core principle of strict liability as sacrosanct. For example, § 1321(b) was referenced as justification for the $5.5 billion civil penalty BP paid to the government for the record discharge of oil from the Deepwater Horizon oil rig in the Gulf of Mexico in 2010 (Consent Decree, 2016).
Key divisions of § 1321(b) include: (b)(2), which authorizes the EPA Administrator to designate the discharge of specific prohibited pollutants other than oil; (b)(3) expressly prohibits the discharge of harmful quantities of pollutants into navigable waterways; (b)(4) determines what constitutes harmful quantities; (b)(5) mandates the prompt reporting of discharges, with criminal consequences; (b)(6) and (b)(7) enumerate the penalties for unlawful discharges.
In sum, § 1321(b) of the Clean Water Act plays a critical role in safeguarding U.S. waters from oil and hazardous substance discharges. Its strict liability framework, enforcement mechanisms, and preventative focus continue to shape environmental responsibility and legal accountability in pollution control.
Works Cited
Consent Decree, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, No. 2:10-cv-04536 (E.D. La. Apr. 4, 2016). Retrieved from https://www.justice.gov/enrd/file/838066/dl?inline=.
Environmental Protection Agency. (Last Updated: 2024, June 12). History of the Clean Water Act. EPA. https://www.epa.gov/laws-regulations/history-clean-water-act.
United States v. Atlantic Richfield Co., 429 F. Supp. 830, 1977 U.S. Dist. LEXIS 16687, 7 ELR 20635, 9 ERC (BNA) 1993, 1978 AMC 1304 (United States District Court for the Eastern District of Pennsylvania March 29, 1977 ), available at https://advance-lexis-com.ezproxy.cul.columbia.edu/api/document?collection=cases&id=urn%3acontentItem%3a3S4N-VRB0-0054-73K7-00000-00&context=1519360&identityprofileid=GZVX8R51690.
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Link to case: https://law.justia.com/cases/federal/district-courts/FSupp/429/830/1554989/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title33/USCODE-2023-title33-chap26-subchapIII-sec1321&collectionCode=USCODE
Please note that the following brief was prepared by a student.
Heading:
Plaintiff: United States of America
Defendants: Atlantic Richfield Company (ARCO)* Gulf Oil Company
Court: U.S. District Court for the Eastern District of Pennsylvania
Judge: Edward R. Becker, District Judge
Date: March 29, 1977
* This is a consolidated case. For the sake of this brief, only the facts associated with the original case filed against ARCO are illustrated in detail.
Facts: The first defendant, Atlantic Richfield Company (ARCO), owned a refinery in Pennsylvania that discharged several thousand gallons of oil into the Delaware River on December 6, 1973 as a result of the rupture of an underground pipe. The Delaware River is a navigable waterway and the oil spill created a visible sheen on top of the water, satisfying the criteria that trigger sanctions under the Clean Water Act. This is one of a series of oil discharges that ARCO experienced at multiple refineries along the Delaware and other waterways during this time period that followed similar patterns of facts (Atlantic Richfield 10-K, 1977). The discharge was accidental, caused by unforeseeable equipment failure, and was promptly reported to the authorities by the person at charge in the ARCO refinery. In addition, ARCO promptly cleaned up the oil spill at its own cost. The Coast Guard assessed civil penalties despite the abovementioned mitigating circumstances. ARCO refused to pay the penalties, so the government sued ARCO (p. 833).
Procedural History: The United States filed a civil action against ARCO in the U.S. District Court for the Eastern District of Pennsylvania, pursuant to 33 U.S.C. § 1321(b) (6). ARCO became a defendant in three other cases involving similar legal issues, which were assigned to various judges. Gulf Oil Company also became a defendant in six cases involving similar legal issues, which were assigned to various judges. All ten cases were consolidated and transferred to District Judge Edward R. Becker (p. 831-832). The defendants agreed to the transfer. The parties stipulated to the facts and submitted cross motions for summary judgement on the legal issues (p. 832).
Legal Issues: The case rides on three statutory legal issues**:
Does § 1321(b) (6) impose strict liability, whereby the penalty is automatically assessable upon discharge of a harmful quantity of oil into a navigable waterway, or is it necessary to prove that the discharge was intentional or the result of negligence?
Does the waiver of immunity in (b) (5), which states it applies to criminal cases, also apply to the civil penalty under (b) (6).
If a discharger promptly cleans up their spill at their own cost, should the determination of “harmful quantities” of oil under (b) (3) be made at the time of discharge or after completion of the clean-up (832, 834)?
** Additional constitutional legal issues that are raised by the defendants are not considered in this brief, which is limited in scope to statutory issues.
Holdings: The court decided:
Yes, § 1321(b) (6) imposes strict liability. It is not necessary for the government to prove intent or negligence, and evidence that the discharge was accidental is not a defense (p. 834, 837, 843).
No, immunity under (b) (5) does not apply to the civil penalty under (b) (6) (p. 839, 843).
The determination of “harmful quantities” of oil under (b) (3) should be made at the time of discharge, even if the oil is later cleaned up by the discharger (p. 839, 843).
Reasoning: 33 U.S.C. § 1321 (b) (3) prohibits discharge of oil “in harmful quantities” into navigable waters (p. 833). It also requires the “person in charge” of the facility that discharges the oil to notify the authorities as soon as they become aware of the discharge, otherwise they may be liable to the government for a civil fine of up to $10,000 under (b) (5) (p. 832). The Coast Guard may also assess a civil penalty of up to $5,000 under (b) (6). If the person in charge makes a prompt notification, they will be immune from criminal prosecution according to (b) (5). If the discharger does not clean up the spill, the Coast Guard will do so and the discharger will be liable for the cost within the limits of (c) (1) and (f) (1), (2). If the discharge "was the result of willful negligence or willful misconduct", then the liability will be unlimited under (f) (1), (2). If the discharge results from an act of God, act of war, negligence on the part of the government, or an act of a third party then the discharger can recover the cost of cleanup under (g) & (i). § 1321 does not have any criminal penalties except for failure to report a discharge (p. 833).
In the case at hand, since it is stipulated that the discharge by the defendants occurred in violation of (b)(3), even though it was accidental, the government argues that penalties assessed are appropriate under (b)(6). The defendants counter that their prompt notification and cleanup of the oil spill should insulate them from liability under (b)(6). The government does not contest that the defendants performed these mitigating acts (p. 834). The only precedent that gives any support to the defendants’ position is United States v. General Motors Corp., 403 F. Supp. 1151 (D.Conn.1975). In that case, because the defendant was determined to be faultless, the court reduced the penalty to $1 but still determined that (b)(6) applied (p. 834). The statute in (b)(3) and (b)(6) states in plain language that a civil penalty should apply once a discharge occurs in harmful quantity, and Congress created exceptions only for acts of God, acts of war, acts or negligence of the U.S. government, or acts or omissions of third parties (p. 835). Because these four exceptions were clearly enumerated, it can be inferred that Congress did not mean to imply any other exceptions (p. 835). It is well established that when a statute is written in plain language, the court should follow plain language, with only the exception that the “court may look beyond the express language of a statute in order to give force to Congressional intent: where the statutory language is ambiguous, and where a literal interpretation would thwart the purpose of the overall statutory scheme or lead to an absurd result .” International Telephone and Telegraph Corp. v. General Telephone and Electronics Corp., 518 F.2d 913, at 917-918 (9th Cir. 1975). The defendants argue that the history and context of the Clean Water Act create ambiguities and that the imposition of a penalty on a party that reports promptly and cleans up their own spill would frustrate the purpose of the statute, leading to an absurd result. This assertion is overly simplistic, as it assumes the only purpose of the statute is to ensure that oil spills are promptly reported and cleaned up. In fact, the intent of the Clean Water Act is mostly preventative, in that the act seeks to provide an incentive for investment and maintenance that would avoid oil spills in the first place (p. 838). Considering all these factors, the defendants’ argument that accidental spills are not covered by (b)(3) does not stand. The statute clearly imposes strict liability for the discharger, and the government is not required to prove that the discharge was willful or the result of negligence.
The defendants argue that the immunity granted for criminal cases under (b)(5) should also apply to penalties under (b)(6), which are “criminal in nature” because they serve only a punitive purpose and no other statutory purpose (p. 834). The act states clearly in (b)(3), in plain language, that immunity is only for “criminal case[s]”, while the present case is civil (p. 832, 835-836). The defendants call attention to the Trop and Mendoza-Martinez cases, where courts have assumed responsibility for policing the distinction between the terms “civil” and “criminal” in statutes. They argue that no regulatory purpose would be served by the imposition of a civil penalty on a faultless discharger, and so the penalty is purely punitive in nature and thus should be considered criminal (p. 836-837). It is not true that no regulatory purpose could be served by fining a faultless discharger since, as already established, the primary purpose of the fine in (b)(6) is to deter spills. The Trop and Mendoza-Martinez argument also falls short, because in those cases the issue at hand was a constitutional abuse of power, which does not exist in the present case. Upon studying all the facts and the relevant statutory provisions, the defendants’ argument that the penalties in (b)(6) should be considered criminal in nature and so the penalties should not apply can be rejected (p. 836-838).
The defendants argue that whether the discharge is “harmful” under (b)(3) should be determined at a time after their clean-up effort has been completed rather than immediately upon occurrence of the spill (p. 834). If it was Congress’ intent to allow the determination of “harmful” to be made in this way, the statute would have stated so in plain language. In fact, the plain language of the statute uses the term “discharge”, which inherently refers to the time at which the oil exits the facility and enters the water (p. 832, 835). Congress most likely believed that once oil has been discharged into water, harm has already occurred because the oil will influence the environment even during the time period between discharge and clean-up. In addition, small amounts of oil that will later be undetectable will have already dissipated into the environment, causing harm. Therefore, the defendants’ argument that a discharge of harmful quantities of oil did not occur because they cleaned up the spill does not stand (p. 839).
Ruling: The court rejected both the statutory and constitutional arguments of the defendants and found in favor of the government. The court rejected the defendant’ request for summary dismissal and granted the government’s motion to enforce the civil penalties (p. 834, 843).
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The case below (City and Cnty. of San Francisco v. EPA, 145 S. Ct. 704 (2025)) specifically discusses the section of the act which speaks about the permits and compliance surrounding the discharge of pollutants established in 33 U.S.C. §1311. This subsection requires that pollutants permitted to be discharged must meet what they refer to as “effluent limitations” that were designed to meet water quality standards. As defined in the statute, an effluent limitation is, “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.” (33 U.S.C. § 1362(11)). While the EPA is within its mandate to assign stringent restrictions on water quality standards that permittees must comply with, the case below discusses what the EPA refers to as “end-result” provisions, which are the standards of water quality that are to be upheld after pollutants have been discharged. These provisions would make permittees responsible for the quality of the body of water which they discharged into, facilitating the incurrence of heavy fines if the quality were to fall below set standards. The case specifically deals with the meaning of each term in the subsection of the statute, arguing about what it means for the EPA to truly implement a limitation correctly.
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Heading: City and Cnty. of San Francisco v. EPA, 145 S. Ct. 704 (2025)
Plaintiff/Petitioner: City and County of San Francisco, California
Defendant: Environmental Protection Agency
Court: Supreme Court of the United States
Facts: Plaintiffs have filed a petition against the EPA after they introduced two new end-result requirements to discharge permit requirements in 2019. The plaintiffs allege that the EPA does not have the authority to include these end-result requirements in their compliance regulations, as ascribed by 33 U.S.C 1311 (b)(1)(C).
Under the Clean Water Act (CWA), the EPA is authorized to set in place requirements for those wishing to discharge pollutants into bodies of water. These permits are granted under the National Pollution Discharge Elimination system (NPDES) and include “effluent limitations” that were designed to specifically control the quantities, rates, and concentrations of pollutants being discharged. Parties with permits that comply with these requirements are within the legal boundaries of the “permit shield,” whereas those that do not comply will be subject to heavy fines and possibly criminal charges. San Francisco’s combined wastewater and stormwater treatment facilities in Oceanside have been compliant for years and have had no issue getting their permits renewed. The facilities current permit is a phase 2 permit, which stipulates 9 minimum controls and a long-term care plan for Combined Sewage Overflow (CSO) as designated by the CSO Control Policy in 33 U. S. C. §1342(q)(1). However, the EPA’s introduction of two new end-result requirements consider discharge that violates any applicable water quality standard and that creates pollution, contamination, or nuisance as defined by the California Water Code as permit non-compliance. This has placed the City and County of San Francisco in noncompliance and caused the incurrence of fines valued at $10 billion.
Procedural History: The case was first submitted as an appeal to the United States Environmental Protection Agency Environmental Appeals Board by the plaintiffs. Their appeal was denied, after which it was filed as an appeal with the United States Court of Appeals for the Ninth Circuit. Here, the court denied their petition again, ruling that EPA is within their authority on imposing all and any type of limitation on permit compliance under the CWA. They appealed once again, and writ of certiorari was granted by the US Supreme Court.
Legal Issue: Does the EPA have the authority to include end-result provisions to water quality standards in their discharge permit requirements as a part of “effluent limitations” as they are described in 33 U.S.C 1311 (b)(1)(C)?
Holding: No, the EPA’s inclusion of end-result provisions do not fall within their authority. While they are permitted to determine how a facility can protect water quality, the EPA does not have the authority to hold the permittee responsible for changes in water-quality under their standards if a plan and measures to prevent said changes was put in place and carried out.
Rationale: The Court reasoned that in 33 U. S. C. § 1311(1)(b)(C), the use of several terms and the direction at which their collective use point towards does not give the EPA permission to decide if a permittee is compliant with their NPDES permit based on the resulting water quality of the body of water they are discharging in. The breakdown of these terms starts with what a “limitation” means as intended for this subsection. A limitation must come “from without,” such as a provision that would allow a permittee to do specific things. However, based on thai definition, giving the permittee an expected end result with no concrete means or measures to enforce that result, is not a direct limitation. The limitation there, would be in the form of whatever plan the permittee formulates to reach this goal. Additionally, its meaning in previous subsections A and B indicate that a limitation is something that the EPA directly imposes, and hence this must be consistent in how the EPA interprets 33 U. S. C. §1311(1)(b)(C).
In examining the meanings of the words “meet” and “implement,” the Court affirms that the provision mentioned necessitates the concrete, actionable measures need to exist in order for them to be enforced. An end result as the EPA has provided in their new regulations are simply end results– they do not contain plans to “implement” or have tangible standards that the permittee can “meet” or satisfy. The existence of an end result and nothing to lead into its implementation is not what this provision suggests. Additionally, the provision’s use of the term “any” may be broad, but not broad enough to cover their new regulations as they are not classified as limitations as mentioned above. Hence, given the language of 33 U. S. C. §1311(1)(b)(C), the Court founds that the new regulations added to permits exceed the EPA’s authority in what consists of a stringent limitation they can enforce and thus should not be upheld and the plaintiffs not be held in noncompliance.
Dissenting Opinion: The dissenting opinion written by Justice Barrett disagrees with the Court’s interpretation of the meaning of “limitation” as it is applied by 33 U. S. C. §1311(1)(b)(C). The dissent argues that limitations often include end results with less concrete measures for how to include said results so as to allow flexibility for how something is achieved. The provision also does not make any mention of needing to have concrete plans or measures so as to be enforceable. The dissent also expands upon the definition of “any,” stating that these limitations are valid because they are supplemental regulations to ensure water quality standards when technology-based effluent limitations are insufficient. Hence, for the sake of maintaining these qualities in the absence of limitations obtained via technological devices, the EPA is within their authority to enforce these regulations. Hence, the language evaluated in the Court's main opinion is contrary to the intentions and implications of 33 U. S. C. §1311 (1)(b)(C).
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While this statute concerns the jurisdiction of a stat to submit to the Administrator any plans it has for the discharge o dredged and fill materials into navigable waters of the United States (defined as “waters of the United States,” in 33 USCS § 1362(7)0, it ls describes the waters subject to this provision as “those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward o their ordinary high water mark, including all water which are subject to the ebb and flow of the tides shoreward to their mean high water mark, or mea higher high water mark on the west coast, including wetlands adjacent thereto.”
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Link to case: https://supreme.justia.com/cases/federal/us/474/121/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title33/USCODE-2023-title33-chap26-subchapIV-sec1344
Please note that the following brief was prepared by a student.
Heading: United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)
Plaintiff (Petitioner): United States, representing the EPA and Army Corps of Engineers.
Defendant (Respondent): Riverside Bayview Homes, Inc.
Court: Supreme Court of the United States
Facts: The respondent, Riverside Bayview Homes, Inc., is a real-estate developer based in Michigan that has been sued by the United States, which represents the EPA and the Army Corps of Engineers in this case. The United States brought legal action against the respondent because of their dumping of fill materials in wetlands near heavily navigable waters, Lake St. Clair, without a permit administered by the Army Corps of Engineers, a clear breach of the Clean Water Act, more specifically, § 404, 33 U.S.C.S. § 1344. Riverside Bayview Homes, Inc., “owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan,” and started using fill materials on this property in 1976 to make the wetlands suitable for the construction of housing. The Army Corps of Engineers claimed the respondents’ marshy lands qualified as “waters of the United States,” under the Clean Water Act §404, even though the land was not navigable, which meant that the dumping of fill materials without a permit was a violation of federal law.
Procedural History: As stated above, the petitioners (namely, the Corps of Engineers) claimed the contested property that was being dumped on did fall into the category of “adjacent wetland” found in the 1975 regulation which expanded “waters of the United States” to include “freshwater wetlands” and “not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and non navigable intrastate waters whose use or misuse could affect interstate commerce.” Therefore, the petitioners first filed suit against Riverside Bayview Homes, Inc. in the United States District Court for the Eastern District of Michigan, with the goal of receiving an injunction that would stop Riverside from filling the contested land without a permit administered by the Corps.
The District Court ruled that Riverside's property sitting below 575.5 feet above sea level is considered wetland and, therefore, the respondent is enjoined from filling that land until it obtains authorization from the Corps. Riverside appealed this decision causing the Court of Appeals to remand consideration “of the effect of the intervening 1977 amendments to the regulation.” The 1977 amendments refer to the Corps’ re-definition of wetlands, removing a reference to “periodic inundation.” The 1977 definition states: "The term 'wetlands' means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." 33 CFR [****6] § 323.2(c) (1978).” The District Court then reaffirmed their initial holding stating that the contested property is considered wetlands given the Corps authority established in the Clean Water Act § 404.
Riverside appealed again, bringing the case to the Sixth Circuit Court of Appeals which then reversed the ruling of the District Court on the basis that adjacent wetlands do not have proficient standing as part of “waters of the United States” because the court believed that having this broader definition would lead to the confiscation of private property “without compensation,” resulting in a larger issue with the Fifth Amendment. Additionally, the Sixth Circuit believed that Congress did not intend to give full authority to the Corps in regulating the filling of wetlands unless these wetlands were impacted/ caused by flooding from navigable waters. Meaning, the court thought that the Corps did not have jurisdiction to regulate the respondents because their wetlands were not a result of flooding from adjacent navigable waters.
The case was then brought to the U.S. Supreme Court, which reversed and granted certiorari in order to further examine what the correct understanding of what the Corps’ regulatory jurisdiction is under the Clean Water Act, and how “waters of the United States” should be defined with the implication of wetlands in mind. The Supreme Court sided with the United States and the Corps’ interpretation of the Act and their fight for an injunction because the “language, policies, and history” of the Clean Water Act provides sufficient evidence that the Corps have holding to regulate via permit, the filling of wetlands adjacent to “waters of the United States” under §1344. The Supreme Court also noted that the Sixth Circuit’s claim to narrow the definition of wetlands and waters of the U.S. on the basis of a potential conflict with the Fifth Amendment, has no holding, especially because the Corps only requested an injunction, not a confiscation of private property.
Legal Issue: The relevant legal issue is: Although the marshy, contested land was not a result of flooding from navigable waters, should the court take a broader interpretation of §404, 33 U.S.C. §1344, of the Clean Water Act, as it relates to the legalities surrounding adjacent wetlands and “waters of the United States,” therefore affirming the Corps’ jurisdiction to regulate the respondent's land?
Holding: What the court decided: Yes, the respondents’ contested wetland near navigable waters is protected under a broader reading of §404, 33 U.S.C. §1344 of the Clean Water Act, giving the Corps the jurisdiction to enjoin and regulate the filling of the respondents land until they have obtained a permit.
Rationale: As stated above, the Supreme Court sided with petitioner, United States, in ordering an injunction of the respondents filling of “wetlands adjacent to waters of the United States.” This goes against the Sixth Circuit’s decree because the intent of the petitioner was not to “take” the property, but to merely oversee the filling and to hold the respondent to the requirement of obtaining a permit before such filling, as established in the Clean Water Act, specifically §1344. A broader interpretation of §1344 was taken by the Supreme Court on this point of protecting wetlands near navigable waters because of the ecological importance of wetlands. The Court wanted to set precedent with this case, and the overall interpretation of the Act because it firmly believed in the Act’s “purpose of restoring the ‘integrity of the Nation’s waters.”
The Sixth Circuit’s narrow reading of the Act out of the fear that there might be constitutional conflicts if a permit be denied, and/ or land becomes less “economically viable” undermines the purpose of the statute as a whole. It is not the job of the Corps to dictate profitability of land, it is the Corps responsibility to administer the law that is written in the Clean Water Act. It is clear that the Supreme Court made the correct decision when reversing the ruling and claims made by the Sixth Circuit related to the potential constitutional difficulties that might follow an injunction order. Given the precedent set by a similar case: “adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty” (Ashwander v. TVA, 297 U.S. 288, 341-356 (1936)). To solidify the err on behalf of the Sixth Circuit, there is a statute called the Tucker Act, 28 U.S.C. §1491, “which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute.” This includes potential compensation for enjoined wetlands, as proven in Ruckelshaus v. Monsanto Co., supra, at 1017. This evidence firmly strikes down any claims against not ordering an injunction.
On the issue of whether wetlands adjacent to navigable waters should be protected under the CWA, it is clearly written into law that the Corps have jurisdiction to regulate “discharges into actually navigable waters and waters subject to the ebb and flow of the tide, "including wetlands adjacent thereto” (33 U.S.C. §1344 (g)(1)).
Additionally, as stated in the Congressional Research Report, “Evolution of the Meaning of ‘Waters of the United States’ in the Clean Water Act,” the rationale for the Court’s decision also resided in the fact that: “Instead of applying a narrow approach to avoid constitutional implications, the Court gave deference to the Corps' position, and concluded that because "[w]ater moves in hydrological cycles" rather than along "artificial lines," it was reasonable for the Corps to conclude that "adjacent wetlands are inseparably bound up with the 'waters' of the United States . . . ." (Mulligan, 2019).
Finally, it is necessary to note a present-day update. In recent years, the definition of what includes, “waters of the United States,” has been narrowed, which now means that not all adjacent wetlands are protected. This comes after Sackett v. EPA (2023) which ruled in a 5-4 decision with Justice Alito presenting the majority opinion. This Supreme Court did not believe in a broad interpretation of the Act because of the worry that the federal government was overstepping into private property use and profitability.
Dissenting Opinion: None. Unanimous decision was reached.
Safe Drinking Water Act (SDWA) of 1974 (42 U.S. Code § 300j, et seq.)
The Safe Drinking Water Act authorizes the EPA to set standards for public drinking water quality and monitor state, local authorities, and enforce those standards. The Act protects public water supplies from harmful contaminants, applying to any contaminant that adversely affects the odor or appearance of such water, adverse effect on the health of persons. Regulations specify contaminants, and what the maximum contamination level is as well as the quality control and testing procedures to ensure compliance.
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The public water system is defined as a water system that is public for human consumption through pipes or other constructed conveyances which regularly serve at least twenty-five individuals. Regulations apply to water that is used for residential uses, drinking, bathing, and cooking. The EPA Administrator or the State exercises primary enforcement responsibility for public health equivalent level of protection provided by the applicable national primary drinking water regulations. The “Municipality” is defined as a city, town, or other public body created by or pursuant to State law, or an Indian tribe which means a Federally recognized Indian tribe recognized as a governing body carrying out substantial governmental duties and power over any area.
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Link to the case: https://casetext.com/case/hydro-resources-inc-v-us-epa
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap6A-subchapXII
Please note that the following brief was prepared by a student.
Heading: Hydro Res., Inc. v. United States EPA, 562 F.3d 1249
Plaintiff: Hydro Resources, Inc
Defendant: United States Environmental Protection Agency
Facts: HRI a non-Indian mining corporation, intends to operate a uranium mine in McKinley County, New Mexico. No one lives on the Section 8 land, but the Navajo town of Church Rock Chapter lies approximately 6 miles south of the land. Section 8 is located in the checkerboard area of northwestern New Mexico, where federal land grants created a “pattern of mixed Indian and non-Indian land title”. Church Rock Chapter where 97.7% of residents are Navajo and the federal. The government holds 92% of the land, primarily for the Navajo Nation. The neighboring three quadrants in Section 8 are held in trust for Navajo whose grazing permits there span multiple contiguous sections. 95 Section 8 also sits above the Westwater Canyon Aquifer, which provides potable water to approximately 12,000 people living in the eastern half of the reservation. The jurisdictional dispute over HRI's land began in 1988 when HRI applied to the State of New Mexico for a permit to begin uranium mining. 105 HRI assumed that because its proposed operation was on private land, it should seek an SDWA permit from the State of New Mexico 106 under the State's Underground Injection Control (UIC) program. 107 Because HRI's land was surrounded by trust lands, however, the EPA argued that the site fell within a "dependent Indian communit[y]." 108 Prior to HRI III, the Tenth Circuit held in HRI II, that Section 8 was part of a dependent Indian community.
The Safe Drinking Water Act nationwide minimum drinking water protection standards. As part of the SDWA, Congress instructed EPA to prescribe an underground injection control program for all lands in the United States, including Indian lands, in order “to prevent underground injection which endangers drinking water sources.
By statutory default, EPA typically has primary enforcement responsibilities for lands that fall within 40 C.F.R. § 144.3's definition of “Indian lands” until a tribe has secured “Treatment as a State (“TAS”) Status.
Procedural History: Petitioner a mining corporation challenging a land status determination made by the defendant U.S. Environmental Protection Agency that so-called “Section 8” land owned by the petitioner in the “checkerboard” area of northwestern New Mexico was “Indian country” which subjected petitioner's proposed uranium mine to EPA regulation under the Safe Drinking Water Act
Legal Issue: Does the EPA have discretion for land status determination under the Safe Drinking Water Act?
Holding: Yes
Reasoning: The EPA concluded that a nearby Navajo chapter which necessarily included Section 8 was a dependent Indian community, and consequently, the EPA concluded that proper authority under the SDWA was to regulate underground injection on the Section 8 land.
The court saw no reason to reject the EPAs conclusion that the appropriate community of reference was a nearby Navajo Chapter.
Dissenting Opinion: None The court affirmed the judgment of the district court.
References:
Chloe Bourne*. "Note & Comment: Environmental Jurisdiction in Indian Country: Why the EPA Should Change its Definition of Indian Agency Jurisdiction under the Safe Drinking Water Act." Colorado Natural Resources, Energy & Environmental Law Review, 27, 293 Summer, 2016. advance-lexis-com.ezproxy.cul.columbia.edu/api/document?collection=analytical-materials&id=urn:contentItem:5M46-YXX0-00CV-H067-00000-00&context=1516831. Accessed April 3, 2023.
Claire R. Newman * (December, 2011). NOTE & COMMENT: CREATING AN ENVIRONMENTAL NO-MAN'S LAND: THE TENTH CIRCUIT'S DEPARTURE FROM ENVIRONMENTAL AND INDIAN LAW PROTECTING A TRIBAL COMMUNITY'S HEALTH AND ENVIRONMENT. Washington Journal of Environmental Law & Policy, 1, 352. https://advance-lexis-com.ezproxy.cul.columbia.edu/api/document?collection=analytical-materials&id=urn:contentItem:5KKH-1C70-02D1-3004-00000-00&context=1516831.
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Initially enacted by the U.S. Congress in 1974, the Safe Drinking Water Act (SDWA) is the principal federal law that oversees the quality of America’s drinking water. The SDWA authorizes the EPA to establish nationwide standard of public drinking water. The SDWA provides protection against harmful contaminants—both naturally-occuring and man-made—that adversely affect the odor or appearance of drinking water. In order to ensure compliance and monitor quality control standards, the Act provides the EPA authority to collaborate with states, municipalities, and water suppliers.
Section 300f “Definitions” provides information essential to the understanding of what is, and is not, covered by the scope of the Act. Most crucially, the drinking water standards covered by the Act only apply to public water systems (PWSs), excluding individual private wells. A PWS, as outlined in section 4A of the SDWA, is defined as “a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals.” Currently, there are over 150,000 PWSs, serving more than 300 million people, or greater than 88 percent of our nation’s population. There are three primary types of PWSs, the first, and most common, being Community Water Systems, those that provide water to the same populations year-round. Non-Transient Non-Community Water Systems and Transient Non-Commiunity Water Systems are examples of other PWSs that provide water at inconsistent intervals, or to disparate populations. All of these systems are subject to the SDWA.
The SDWA contains a series of enforcement processes, which differ between contaminants that are regulated and unregulated. The Act mandates the EPA to compose a Contaminants Candidate List (CCL), a list of unregulated drinking water contaminants that is published every five years. The EPA is then responsible for regulating such contaminants and is required to establish criteria for a program to monitor a minimum of 30 unregulated contaminants every five years. However, not all contaminants can remain unregulated. The Act requires the EPA to decide whether to regulate a minimum of five CCL contaminants with a drinking water standard every five years. If the EPA decides to regulate a contaminant by such a regulatory determination process, it must do so by proposing a regulation within 24 months of determination and finalizing the regulation within 18 months from the proposal date.
The SDWA also enforces a six-year review procedure, which requires the EPA to review its standards every six years, accompanied by appropriate revisions, maintaining or improving public health protection. Any revision proposal must undergo the standard-setting process. The Act also requires the EPA to maintain a National Contaminant Occurance Database (NCOD), containing updated information on regulated and unregulated contaminants in public water systems.
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Link to the case: https://casetext.com/case/manu-housing-instit-v-us-epa
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap6A-subchapXII
Please note that the following brief was prepared by a student.
Petitioners: Manufactured Housing Institute
Respondents: United States Environmental Protection Agency
Court: United States Court of Appeals for the Fourth Circuit
Facts: Submetering is a practice by which property owners meter and bill tenants for the water that they have purchased and distributed. The EPA had historically banned submetering, considering it akin to selling water, which is strictly prohibited under the Act. Driven by water conservation efforts, this policy was overturned in 2003, allowing unregulated submetering by owners of residential properties to occur under the SWDA. However, manufactured housing, including mobile-home parks, was excluded from such changes. Prior to its approval, the EPA issued a request for public comment on the proposed change, examining whether the limitation of the approval should extend to other property types.
The petitioners, Manufactured Housing Institute, is a national trade organization with various interests in the manufactured housing industry, possessing two mobile home properties. They argued against the EPA’s exemption of mobile-home parks from the submetering policy. The petitioners believed the distinctions between apartment buildings—which are permitted to practice submetering—and mobile-home parks to be arbitrary and capricious, leading them to challenge the EPA’s procedures and conclusions regarding the submetering policy under the Act.
Procedural History: This case was previously argued on February 2, 2005, before Judge Niemeyer, Judge Michael, and Judge Duncan. The petitioners, Manufactured Housing Institute, challenged respondents and the court did not decide on the case. The case was reargued at the present court.
Legal Issue: Did the EPA’s exclusion of manufactured housing from its submetering policy violate 42 U.S.C.S. § 300f 4(A)?
Holding or Decision: No, the court ruled that the EPA’s exclusion of manufactured housing from its submetering policy did not violate 42 U.S.C.S. § 300f 4(A).
Reasoning: 42 U.S.C.S. § 300f 4(A) clearly states that the Act governs all public water systems, defined as a system with fifteen or more service connections or one serving twenty-five or more people. The court also acknowledged that the statute does not explicitly consider the nature of ownership, whether public or private, in its definition. The EPA also considers “consecutive water systems” whereby multiple water systems connect with other systems to provide further distribution or sales to end-users. By interpreting the 42 U.S.C.S. § 300f 4(A) in such a way, the court alludes to the variety of entities that could be considered as public water systems.
The court also recognizes that the Act gives states primary enforcement responsibility. As such, states are free to enact such measures more stringently if deemed necessary. On the basis that the definitions provided in 42 U.S.C.S. § 300f 4(A) did not contradict the exclusion of manufactured housing from their submetering policy, and the ability of states to enforce regulations more stringently than required, the court reasoned against petitioners.
Dissenting Opinion: N/A.
National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.)
The National Environmental Policy Act, a cornerstone of environmental legislation in the United States, was passed by Congress in 1969 and signed into law by President Nixon on January 1, 1970. It emerged during a time of heightened public concern, starting in the 1960s, regarding the negative impact of human activities on the environment.
This era signified a crucial shift of cultural awareness towards environmentalism. One pivotal moment in this transformation was American Marine Biologist Rachel Carson’s release of Silent Spring in 1962, detailing the poisonous effects of the pesticide DDT. This publication, alongside rising environmental activism, created momentum for tangible environmental legislation. Environmental advocates argued that without a concrete environmental policy by the U.S. government, federal agencies would continue to disregard the environmental effects of their actions. By 1969, numerous legislative proposals were being sent to Washington D.C., most notably the demand for a national environmental policy and an agency that oversaw the implementation of this policy. Through these efforts, NEPA and the Environmental Protection Agency were born.
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NEPA was the United States’ first major environmental law, which established a broad national policy for the environment. Its primary function requires that federal agencies consider the potential environmental effects of a proposed action, such as adverse environmental impacts, prior to proceeding with an action. Federal agencies must then develop an Environmental Impact Statement (EIS) detailing these impacts which must be made available to the public for review and comment. EIS statements ask agencies to assess and disclose any significant environmental consequences that may be produced by their intended action. This process is intended to democratize environmental decision-making and facilitate transparency between government agencies and the public.
One of the most impactful sections of NEPA is Section 102(2)(C), codified at 42 U.S.C. § 4332(2)(C), which outlines the procedural backbone of the law. This section directs all federal agencies to incorporate a systematic, interdisciplinary approach when making decisions that may affect the environment, combining natural sciences, social sciences, and environmental design. It requires agencies to not only evaluate measurable impacts, but also to give serious weight to environmental values that may not be easily quantified. Most notably, this section mandates the creation of a detailed Environmental Impact Statement (EIS) for all major federal actions that could significantly affect the environment. This includes analysis of unavoidable environmental damage, reasonable alternatives, and long-term resource consequences. Section 102(2)(C) is what puts NEPA’s values into action—it ensures that decisions are not made in a vacuum but instead fully consider environmental, social, and economic tradeoffs, with transparency and public accountability built into the process.
Works Cited:
NEPA. “NEPA | National Environmental Policy Act.” Doe.gov, 2009, https://ceq.doe.gov/.
Standing Rock Sioux Tribe v. United States Army Corps of Eng'rs, 985 F.3d 1032, 450 U.S. App. D.C. 503, 2021 U.S. App. LEXIS 2049, 51 ELR 20014, 2021 WL 244862 (United States Court of Appeals for the District of Columbia Circuit January 26, 2021, Decided).
https://advance-lexis-com.ezproxy.cul.columbia.edu/api/document?collection=cases&id=urn%3acontentItem%3a61VP-98Y1-JGBH-B03G-00000-00&context=1519360&identityprofileid=GZVX8R51690. Accessed May 2, 2025.Yost, Nicholas. The Background and History of NEPA. https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/215087/Chapter%201.pdf.
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Link to the case: https://supreme.justia.com/cases/federal/us/373/546/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title43/USCODE-2023-title43-chap12A
Please note that the following brief was prepared by a student.
Heading: Standing Rock Sioux Tribe v. United States Army Corps of Eng'rs, 985 F.3d 1032 (D.C. Cir. 2021)
a. Plaintiff: Standing Rock Sioux Tribe et al.
b. Defendant: United States Army Corps of Engineers
c. Court: United States Court of Appeals for the District of Columbia CircuitFacts: The Plaintiff is a federally recognized Tribe that relies on Lake Oahu for drinking water, agricultural practices, industry, sacred religious ceremonies, and medicinal purposes. The Defendant owns and operates the Dakota Access Pipeline, a 1,200-mile-long underground pipeline that transports crude oil. The Dakota Access Pipeline crosses Lake Oahu, a human-constructed reservoir in the Missouri River created by the Corps in 1958 when they built a dam and it flooded 56,000 acres of Standing Rock Reservation land.
Oil pipelines that wish to cross federally regulated bodies of water such as Lake Oahu require federal approval. In 2014, Dakota Access informed the Corps about their plan to construct the Dakota Access Pipeline, which would cross under a portion of Lake Oahu, situated a half-mile away from the Standing Rock Reservation.
In December 2015, the Corps released an Environmental Assessment draft to the public, establishing that the construction of the pipeline would have no significant environmental impact. Standing Rock Sioux, as well as other neighboring Tribes, raised several concerns, arguing that the Corps’ assessment of oil spill risks and consequences was inadequate.
Additionally, the Department of Interior requested that the Corps write an Environmental Impact Statement after "not adequately justify[ing] or otherwise support[ing] its conclusion that there would be no significant impacts upon the surrounding environment and community."
The EPA also voiced concerns about the potential impacts of oil leakage, asking for more information and mitigation in the Environmental Assessment.
On July 25, 2016, the Corps released a final EA stating that the human environment would not be significantly impacted by the pipeline, thus an EIS was not necessary. Soon after, the Standing Rock Sioux Tribe sued the Corps for declaratory and injunction relief under NEPA.
Procedural History: In September 2016, the district court denied a preliminary injunction and allowed construction of the pipeline to proceed. In December of that year, the Obama administration ordered the Corps to conduct an EIS for the Lake Oahu crossing; however, this was reversed in January 2017 by the Trump administration. In June 2017, Judge Boasberg of the District Court found that the Corps violated NEPA by failing to adequately consider environmental justice concerns and risks of oil spills.
In 2020, the district court found that a full EIS was necessary and ordered the pipeline to be shut down and emptied of oil during the EIS process. The Corps and Dakota Access appealed the shutdown and easement to the D.C. Circuit in January 2021. The opinion was drafted by Judge David S. Tatel.
Legal Issue: Did the Army Corps of Engineers violate § 4332(2)(C) of the National Environmental Policy Act by issuing an easement without preparing an Environmental Impact Statement despite substantial criticisms from the Standing Rock Sioux Tribe?
Holding: Yes, the court found that the Corps acted unlawfully by issuing an easement without preparing an Environmental Impact Statement, violating § 4332(2)(C) of the National Environmental Policy Act, despite significant concerns raised by the Standing Rock Sioux Tribe about the detrimental environmental impacts of the project, and the court affirmed the district court’s order to vacate the easement while the Corps prepared an Environmental Impact Statement.
Reasoning: The court utilizes a precedent established in National Parks Conservation Association v. Semonite, 916 F.3d 1075 (D.C. Cir. 2019), which states that “the agency must develop an environmental impact statement (EIS) that identifies and rigorously appraises the project's environmental effects, unless it finds that the project will have 'no significant impact.'" The court found that the Corps’ decision not to prepare an EIS, asserting that there was no significant impact on the human environment, was not supported by the administrative record, considering the multiple concerns raised by the Standing Rock Sioux Tribe, the Department of Interior, and the Environmental Protection Agency.
The Standing Rock Sioux Tribe raised specific concerns regarding the risk of an oil spill into the Tribe’s drinking water and sacred lands. These concerns highlight potential significant environmental impacts from the pipeline, demonstrating that the Corps failed to properly assess the environmental consequences of this project before granting an easement, which is a direct violation of § 4332(2)(C) of NEPA. Since the Corps did not justify its findings of no significant impact, the court concluded that the Corps must prepare an EIS and that the easement be vacated until the EIS is being prepared.
Dissenting Opinions: None.
Boulder Canyon Project Act (BCPA) of 1928 (43 U.S.C. § 617, et seq.)
The Boulder Canyon Project Act of 1928 authorized the construction of the Hoover Dam on the Colorado River and the All-American Canal to the Imperial Valley in California. In the 1920s, the Colorado River attracted attention for the flood damage caused to California’s Imperial Valley and its unpredictability. The Project Act was enacted to control floods, improve navigation, and regulation of River flow.
The Project Act created a framework for apportioning the Colorado River’s water to Arizona, California, Nevada, New Mexico, Utah, and Wyoming. The Act helped establish a stable water supply for three lower basin states, California, Arizona, and Nevada. Additionally, it made the Colorado River Pact of 1922 legally binding with the ratification of six of the seven states. This was eventually accomplished in 1944, despite Arizona’s refusal to sign on. Importantly, it appropriated 165,000,000 for the construction and authorized the Secretary of the Interior to construct, operate, and maintain a dam and reservoir.
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Link to the case: https://supreme.justia.com/cases/federal/us/373/546/
Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title43/USCODE-2023-title43-chap12A
Please note that the following brief was prepared by a student.
In 1963, the United States Supreme Court decided on a long-standing debate between Arizona and California concerning water allocation from the Colorado River. The case arose because of the development of water projects in California that diverted water from the Colorado River, which Arizona claimed was reducing the amount of water available for irrigation and other purposes. Arizona filed the lawsuit against California in the Supreme Court in 1930 against the Secretary of the Interior, Ray Lynn Wilbur, and the six other states over the construction of a dam on the Colorado River. Arizona argued that constructing the dam and reservoir would violate Arizona's rights and divert water from the state for consumptive use elsewhere. The complaint further alleges that the Boulder Canyon Project Act, which authorized the construction, is unconstitutional and attempts to enforce the Colorado River Compact of 1922 that Arizona has refused to ratify. Arizona sought to enjoin the defendants from carrying out the compact, the act, and any related contracts.
The decision in Arizona v. California established several important elements in allocating the Colorado River’s water, including determining that Congress, through the Boulder Canyon Project Act of 1928, created a plan to apportion water for the Lower Basin of the Colorado River. In the Project Act, Congress gave the Secretary of the Interior authority to divide the Lower Basin’s mainstream waters and “the power to make contracts for the delivery of water, and by providing that no person could have water without a contract.” Pp. 373 U. S. 546-590. The court also held that apportionment was not governed by the Colorado River Compact, which Arizona refused to ratify, or the doctrine of equitable apportionment. The court writes, “No matter what waters the Compact apportioned, the Project Act itself dealt only with water of the mainstream, and reserved to each State the exclusive use of the waters of her own tributaries.” Pp. 373 U. S. 567-575.
Using the Project Act, the Court ruled the Secretary of the Interior had the unconditional authority to decide which users within each State were entitled to the River’s water and that in the “distribution of waters to users, state law has no place.” Pp. 373 U. S. 580. The court ruled in favor of Arizona and found that Congress’ intent to allocate the water could be found in sections 4(a), 5, and 8(b) of the Project Act.