News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
April 27, 2020
Letter to WAGLACers:
The CWAG Annual Meeting and the WAGLAC Summer Meeting are being rescheduled to ensure the health and safety of our members. The CWAG Annual Meeting will be held July 23 rd  through the 26 th .   CWAG is working with Springhill Suites and the Montana Attorney General’s Office to identify an alternative date for the WAGLAC Meeting   in late July or early August .
On behalf of Karen White and CWAG, we hope that you and your families remain safe during these uncertain times. Thank you for your continued support. 
WAGLAC Summer Meeting
Springhill Suites
Bozeman, Montana

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Natural Resource Damages
-Field trip to Butte and Anaconda CERCLA sites
October 12-13, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Agenda to follow.
Supreme Court’s County of Maui Opinion Creates More Questions Than Answers
The question presented in County of Maui v. Hawai’i Wildlife Fund was whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by groundwater, a nonpoint source. The Hawai’i Wildlife Fund alleged the County is violating the CWA by discharging waste water from its treatment plant into groundwater that then carried the wastewater underground to the ocean. Whether discharges of pollutants through groundwater to navigable waters is subject to regulation has been a source of continuing controversy since enactment of the CWA.
Both parties argued for a bright-line test based upon the text of the CWA. In a departure from the Court’s current statutory interpretation method, the majority opinion rejected both textual interpretations as creating large and obvious loop holes “in one of the key regulatory innovations of the Clean Water Act.” The majority opinion instead relied on the purpose and legislative history of the CWA to hold that “the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” While the majority opinion acknowledged that nothing in the text of the statute provided for a “functional equivalent” test, the majority fund “phrase best captures, in broad terms, those circumstances in which Congress in­tended to require a federal permit.” 
Justice Breyer acknowledged the “difficulty” in determining what is a “functional equivalent of a direct discharge” but expressed confidence the lower courts could through “the traditional common-law method” provide examples that [would] in turn lead to ever more refined principles.”
Rather than providing a clear roadmap for regulators, the Maui opinion is harbinger of yet more litigation over the scope of the CWA. As Justice Samuel Alito states in his dissenting opinion “the majority adopted “a nebulous standard, enumerates a non-exclusive list of potentially relevant factors, and washes its hands of the problem.” He concluded the Court “should not require regulated parties to ‘feel their way on a case-by-case basis’ where the costs of uncertainty are so great.”

As an aside, Justice Kavanaugh wrote a concurring opinion in which he emphasized his support for the majority opinion was based on Justice Scalia’s reasoning in Rapanos v. United States. Some legal experts have opined that Justice Kavanaugh’s reliance on Rapanos is a signal on how he is likely to rule if the Trump Administration’s WOTUS rule reaches the Supreme Court.
No Consensus On Whether State Law Remedies Survive Atlantic Richfield
Last week the Supreme Court held, in Atlantic Richfield v. Christian, that Section 113(h) of CERCLA does not bar a state court from hearing landowner claims for damages under state law that go beyond EPA’s Superfund cleanup plan. The 7-2 majority opinion, however, held that Section 122(e)(6) of CERCLA requires landowners who are potentially responsible parties under Section 107 to seek EPA approval to undertake cleanup actions within a Superfund site. Chief Justice Roberts wrote, “Section 122(e)(6) is one of several tools in the Act that ensure the careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.”  Justice Gorsuch, joined by Justice Thomas, wrote in a sharply worded dissent that the majority's reading of Section 122 to bar nearly everyone from undertaking remedial efforts without federal permission renders CERCLA’s many and emphatic promises about protecting existing state law rights practically dead letters, " . . . Rather than supplementing state remedial efforts, CERCLA would rule them all.”  Not surprisingly, legal commentators are divided over whether landowners will be able to assert a viable state law remedy in the future.
Definition of "Waters of the United States" - Recodification of Pre-Existing Rules
Environmental Protection Agency

"On October 22, 2019, the Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) published a final rule to repeal the 2015 Clean Water Rule: Definition of “Waters of the United States” (“2015 Rule”), which amended portions of the Code of Federal Regulations (CFR), and to restore the regulatory text that existed prior to the 2015 Rule. The final rule became effective on December 23, 2019. The agencies are implementing the pre-2015 Rule regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice."
EPA Overhauls Mercury Pollution Rule, Despite Opposition From Industry and Activists Alike
The Washington Post
April 16, 2020

"The Environmental Protection Agency changed the way the federal government calculates the costs and benefits of dangerous air pollutants, a shift that could restrict the ability of regulators to control toxins in the future.

The move, one in a series of actions taken by the Trump administration that experts say will probably increase air pollution, comes as the nation is fighting a deadly respiratory virus."
Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency
Mandamus relief granted against EPA for 11-year delay in resolving administrative petition to cancel pesticide certification

NRDC filed an administrative petition in 2009 requesting EPA to cancel the registration of a pesticide (tetrachlorvinphos (TCVP)) used in the manufacture of products for household pets. TCVP is a subset of a class of pesticides that “pose recognized dangers to the neurodevelopment of children, causing reduced cognitive capacity, delays in motor development, and behavioral problems.” In 2014, NRDC sought mandamus in the D.C. Court of Appeals to compel a response to its cancellation petition. During the course of that proceeding, EPA denied the administrative petition, prompting the parties to stipulate to its dismissal and NRDC to seek judicial review of the administrative petition’s denial in the Ninth Circuit six weeks later. The latter circuit remanded the case to EPA in 2016, over NRDC’s objection, without a deadline for administrative action after “EPA filed a motion for voluntary remand, asserting that it was completing a new risk assessment which might change its response to NRDC’s petition.” In late 2016, “EPA issued a revised final risk assessment, which now recognized that children could be exposed to TCVP through contact with pets using TCVP products and that such exposure posed considerable risks to their health. ... Upon release of the risk assessment, the EPA repeated its intention to ‘issue a final revised response to NRDC’s 2009 petition . . . within 90 days,’ and issued a press release announcing that it had had ‘identified potential risks to people, including children, . . . which exceed the Agency’s level of concern.’” EPA did not act within the 90-day period but did “sen[d] NRDC a cursory letter in March 2017, stating that it intended to review pet-care uses of TCVP and issue a proposed decision in several months, between July and September 2017, alongside its scheduled review of all other TCVP uses.” The agency, however, failed to do so after an unsuccessful attempt to secure additional data from a manufacturer. NRDC filed the present mandamus proceeding in 2019 to compel a decision on its 2009 petition. Five days later, EPA sued the manufacturer to secure the data denied in 2017.
Judges Acknowledge Climate, Then Defer Action — Report
E&E News
April 24, 2020

"Judges are overwhelmingly supportive of climate science in the courts, but they seldom rule in favor of actual action, according to a recent review of climate-focused court battles.

A new Environmental Law Institute report released from author and lawyer Maria Banda took a sweeping look at climate in the courtroom to ascertain how the judical branch is treating science within climate litigation.

Without question, Banda wrote, judges shared "remarkable consistency" in accepting human-caused global warming forecasts. On the flip side, courts still aren't keen to take action on climate issues."
D.C. Circuit Hands Down 'Resounding Win For Science'
E&E News
April 21, 2020

"Former EPA science experts and nonprofit groups came one step closer to striking down a policy limiting membership on the agency's advisory committees.

A panel of judges for the U.S. Court of Appeals for the District of Columbia Circuit unanimously decided that a 2017 directive from former EPA Administrator Scott Pruitt blocking recipients of agency funding from sitting on its Science Advisory Board and other powerful panels is reviewable and sent the dispute back to a lower bench."
California Challenges Central Valley Biological Opinion
April 21, 2020

"California Attorney General Xavier Becerra, the California Natural Resources Agency, and the California Environmental Protection Agency, . . . filed a motion for a preliminary injunction in a lawsuit challenging the Trump Administration's unlawful expansion of federal water export operations in the Central Valley. [The] filing argues that the diversion of water in accordance with the Trump Administration’s revised biological opinions will cause imminent and irreparable harm to species protected under the California Endangered Species Act [CESA] and the federal Endangered Species Act."

In addition to federal environmental law claims, California argues “Reclamation’s operations . . . violate CESA because, despite clear Congressional direction to comply with state laws related to water use and with CESA in particular, Reclamation has neither sought nor obtained the required incidental take permit from the California Department of Fish and Wildlife (CDFW)."
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision.

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month
Indian Law Case Summaries
All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
Adams v. Elfo , ___ F. Supp. 3d ___, 2020 WL 1929375 (W.D. Wash. Apr. 21, 2020) Magistrate judge’s recommendation concerning dismissal of a suit under the habeas corpus provision of the Indian Civil Rights Act remanded for determination of whether the lack-of-jurisdiction exception to the exhaustion requirement applies.
Williams & Cochrane, LLP v. Rosette , ___ F. Supp. 3d ___, 2020 WL 1939065 (S.D. Cal. Apr. 22, 2020) Indian tribe is not a “person” under the California Unfair Competition Law.
United States v. Washington , ___ F. Supp. 3d ___, 2020 WL 1917037 (W.D. Wash. Apr. 20, 2020) Private Grower violated the revised shellfish implementation plan to enforce the Shellfish Proviso appearing in several Stevens Treaties by serving deficient notices of an intention to enhance an existing bed or create an artificial bed and by failing to provide affected Tribes adequate opportunities to inspect the proposed beds’ location or to conduct survey or population surveys. The Tribes failed to establish that the Grower violated the parties’ partial settlement agreement or that they were entitled to compensatory damages under the implementation plan or the agreement.
Cora G. v. State, Dept. of Health & Human Servs. , ___ P.3d ___, 2020 WL 1969400 (Alaska S. Ct. Apr. 24, 2020): The expert witness requirement under child in need of aid statutes can be established only through the witness’s affirmative acceptance by the trial court as an expert, and the failure to object to the witness’s status as an expert does preclude a parent from raising the issue on appeal.
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook  is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook  addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
Western Attorneys General Litigation Action Committee
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.
Contributions For WAGLAC Newsletter
We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to Clive Strong. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.