UPCOMING MEETINGS

EPA Considers Adding PFAS to Toxics Release Inventory

Legally Speaking

December 5, 2019

"The EPA announced on November 25 that it was seeking public comment on whether it should require companies and government agencies that use PFAS (per- and polyfluoroalkyl substances) to report to the agency through the Toxics Release Inventory (TRI) how they use the chemicals and when they are released in the environment. Currently, no PFAS chemicals are subject to reporting requirements despite having been shown to cause cancer and other adverse health effects. The addition of PFAS to the TRI would enable the public to identify where the chemicals are used, and how much is being released into the environment. More than 100 million Americans are potentially exposed to PFAS through 1,500 drinking water systems that are contaminated with the chemicals. State attorneys general have pushed the EPA to update screening levels and preliminary remediation goals, establish a drinking water standard for PFAS chemicals, and designate PFAS chemicals as “hazardous substances” to facilitate their cleanup."

"Ambient Air" Guidance

Environmental Protection Agency

December 2, 2019

"EPA is issuing final guidance titled, Revised Policy on Exclusions from “Ambient Air” that revises the Agency’s 1980 policy on the exclusion of certain areas from the scope of “ambient air” under the Clean Air Act and EPA’s regulations. This guidance, while maintaining the same level of public health protection, updates EPA’s policy to recognize that an industrial facility owner or operator may use a variety of effective measures to keep the public off facility property. These measures which account for advances in surveillance and monitoring, depend on site-specific circumstances but continue to include but are not limited to fences or other physical barriers. The regulatory definition of ambient air, in 40 CFR §50.1(e), remains unchanged as “that portion of the atmosphere, external to buildings, to which the general public has access.”

Massachusetts Federal District Court Upholds EPA’s 2019 WOTUS Rule

 

United States Federal District Court Judge William Young for the District of Massachusetts, relying on EPA’s 2019 WOTUS interpretive statement held that “discharges into groundwater are categorically excluded from the CWA’s regulatory regime, irrespective of any hydrological connection to navigable waters.” In Conservation Law Foundation (CLF) v. Longwood Venues & Destinations, Inc., et al., Judge Young found the CWA “is shot through with irreconcilable ambiguity, . . . and the “congressional instructions on regulating groundwater discharges are simply garbled.” Judge Young found that EPA’s interpretation of WOTUS “is a permissible construction of the CWA and is entitled to Chevron deference.

 

CLF is the first decision addressing EPA’s 2019 interpretation of WOTUS. The United States Supreme Court is expected to determine whether the CWA extends to discharges into groundwater in County of Maui this term.

Supreme Court Considers Fight Over Superfund Site in Montana

The New York Times

December 3, 2019

"For nearly a century, a copper smelter near Butte, Mont., processed ore and released lethal chemicals into the environment, including, according to court records, as much as 62 tons of arsenic and 10 tons of lead each day.

The Supreme Court heard arguments about whether the company must do more in response to a lawsuit filed by about 100 local residents in state court in Montana. The basic question in the case, Atlantic Richfield Company v. Christian, No. 17-1498, was whether the E.P.A. has to approve the additional remediation efforts sought by the landowners.

At the United States Supreme Court, most of the justices seemed to contemplate that the agency should have a decisive role. The alternative, several justices suggested, was administrative chaos with the potential to create additional environmental problems."

The Water Wars that Defined the American West Are Heading East

The Wall Street Journal

December 2, 2019

"Water stress, a hallmark of the American West, is spreading east.

Increasing competition for water is playing out across the Eastern U.S., a region more commonly associated with floods and hurricanes and one that was mostly a stranger, until recently, to the type of bitter interstate water dispute long seen in the West.

Eastern farmers’ rising thirst for water, together with urban growth and climate change, now is taxing water supplies and fueling legal fights that pit states against each other. The shift has exposed the region to changes in water supply occurring globally as swelling populations, surging industrial demand and warmer temperatures turn a resource seen as a natural right into a contested one."

Congress Debates Bureau of Land Management Move to Grand Junction

The Denver Post

September 10, 2019

"The acting director of the Bureau of Land Management defended his agency’s decision to move its headquarters to Grand Junction in the face of criticisms that it will cause career employees to depart, will needlessly cost federal coffers and will harm tribal interests.

In mid-July, it was announced that BLM will move its headquarters and 27 top staffers to Grand Junction. Supporters of the plan, led by Republican Sen. Cory Gardner of Yuma, say it moves decision-making closer to the federal lands that BLM oversees. Critics say the real goal is to cut the size of BLM, effectively weakening the public lands agency."

Three AGs File Amicus Brief Supporting Michigan’s Authority Over Public Trust Waters

Legally Speaking

December 5, 2019

"Minnesota Attorney General Keith Ellison, Wisconsin Attorney General Josh Kaul and California Attorney General Xavier Becerra filed an amicus brief on November 13 in support of Michigan Attorney General Dana Nessel’s lawsuit seeking to permanently decommission an aging oil pipeline that runs along the bottom of the Straits of Mackinac between Lakes Michigan and Huron. In the lawsuit against the pipeline’s owner, Enbridge Inc., AG Nessel argues that the pipeline violates the public trust doctrine, is a common law public nuisance, and violates state environmental laws because it is likely to pollute the lakes. A central issue of the case is whether the public trust doctrine can be preempted by either the Pipeline Safety Act or the U.S. Coast Guard’s general authority over navigable waters. In their brief, the AGs say that “it is beyond dispute that the doctrine universally applies to submerged lands beneath navigable waters, and confers upon the states permanent and un-diminishable authority over those lands.” AG Nessel added in a statement that “it is rare to have the amicus support of other state attorneys general in a state case but the attorneys general for two of our fellow Great Lakes states and the state with one of the longest coastlines in the country clearly recognize the severity and the magnitude of this issue and the important role states play in protecting the public trust.”

County May Charge A Franchise Fee for Use Of Its Rights-of-Way 

King County Washington adopted an ordinance that requires electric, gas, water and sewer utilities to pay a franchise fee for the use of the county's rights-of-way.  The franchise fee is based on an estimate of "the land value of right-of-way within the applicant's service area; the approximate amount of area within the right-of-way that will be needed to accommodate the applicant's use; a reasonable rate of return to King County for the applicant's use of the right-of-way; the business opportunity made available to the applicant; density of households served; a reasonable annual adjustment; and other factors that are reasonably related to the value of the franchise or the cost to King County of negotiating the franchise."  This estimate is provided the utility, at which time the utility can make a counteroffer.  If the County and the utility are unable to agree on the amount of the franchise fee, the county will not allow the utility to use the right-of-way. 

King County Superior Court found held that the county  "lacks authority to impose 'franchise compensation' or 'rent'" and "lacks the authority to require the utility defendants to pay, or to agree to pay, 'franchise compensation' or' rent.'"  The Washington Supreme Court reversed, holding that the county could impose a franchise tax for use of its rights-of-way, and that utilities had no general right to use the rights-of-way without a franchise.

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

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.

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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.

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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.