POLLUTION

American Electric Power Co. v. Connecticut

Issues

Whether a party can assert a federal common claim challenging a company’s carbon dioxide emissions as a public nuisance, or whether such efforts to curb emissions should be brought solely through the legislative process.

 

Several states brought suit against various power companies, arguing that the companies’ carbon emissions create a public nuisance – i.e. harm the public welfare – by contributing to global warming and damaging the environment. The district court dismissed the claim before trial, holding that disputes concerning global warming are “political questions” that should be resolved by the legislature, not the courts. However, the Second Circuit Court of Appeals held that courts are allowed to hear such cases, and that such disputes are not restricted to resolution in the political arena. Furthermore, the Second Circuit held that allowing such cases does not alleviate a plaintiff’s heavy burden of proving its side of the dispute in court. The decision will depend on whether the Supreme Court feels that the judiciary can properly handle such claims, or whether the complexity, controversy, and volume of such cases counsel in favor of dismissing this initial suit.

Questions as Framed for the Court by the Parties

1. Whether States and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources.

2. Whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency.

3. Whether claims seeking to cap defendants' carbon dioxide emissions at "reasonable" levels, based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct, would be governed by "judicially discoverable and manageable standards" or could be resolved without "initial policy determination[s] of a kind clearly for nonjudicial discretion." Baker v. Carr, 369 U.S. 186, 217 (1962).

In July 2004, the States of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin, and the City of New York (collectively “Connecticut”) filed a complaint against American Electric Power Company, Southern Company, the Tennessee Valley Authority, Xcel Energy, and Cinergy (c

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City and County of San Francisco v. Environmental Protection Agency

Issues

Does the Clean Water Act allow the Environmental Protection Agency to discipline permit-holders for violations of water quality standards without enumerating specific limits to which permit holders’ water discharges must conform?

This case asks the Supreme Court to determine if the Environmental Protection Agency (“EPA”) must impose specific limits in the permits it distributes under the Clean Water Act (“CWA”). The CWA empowers the EPA to issue National Pollutant Discharge Elimination System (“NPDES”) permits to cities and businesses that discharge waste. The City of San Francisco contends that the EPA can only establish limitations on effluent discharges under the permit, and that it lacks the authority to establish other generic requirements. The EPA counters that its authority reaches beyond effluent limitations and that it is permitted to enforce limitations on water receiving standards. The outcome of this case has profound implications on businesses’ ability to avoid legal liability, as well as the interests of local communities.

Questions as Framed for the Court by the Parties

Whether the Clean Water Act allows EPA (or an authorized state) to impose generic prohibitions in NPDES permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform.

Like most cities in the United States, San Francisco operates a combined sewer system that collects both sewage and stormwater runoff. City of San Francisco v. U.S. EPA (“Ninth Circuit”) at 7. During extreme weather, the system occasionally exceeds capacity causing a combined sewer overflow (“CSO”) that discharges pollutants into surrounding waterways.

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Decker, et al., v. Northwest Environmental Defense Center,Georgia-Pacific West, et al., v. Northwest Environmental Defense Center

Issues

Whether citizens can file a lawsuit to challenge the validity of the EPA granting an exception to the National Pollutant Discharge Elimination System permit requirement.

If a citizen's lawsuit is permissible, what level of deference, if any, should be given to the EPA’s interpretation of the Clean Water Act and the NPDES permit requirements with respect to the logging industry.

 

The Environmental Protection Agency ("EPA") has interpreted the Clean Water Act ("CWA") in such a way so that certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes are exempt from the permit process. Relying on §1365 of the CWA, the Northwest Environmental Defense Center ("NEDC") brought a citizen’s lawsuit in federal district court in an attempt to eliminate the exemption from the permit process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision. The ability of federal courts to review agency action as well as the scope of an agency’s authority are at stake in this case. Also, the Supreme Court’s decision can clarify the ability of citizens to bring an action to change the EPA’s course of action under the CWA. Finally, these procedural and administrative questions could ultimately have an effect on the environment and water quality as well as the procedures loggers must follow to ensure they comply with the CWA.

Questions as Framed for the Court by the Parties

DECKER, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s ("EPA") rules implementing the Clean Water Act’s ("CWA") National Pollutant Discharge Elimination System ("NPDES") permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding. 

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA?

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to the EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. The EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14).

Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater? 

GEORGIA-PACIFIC WEST, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER 

Since passage of the Clean Water Act, the Environmental Protection Agency ("EPA") has considered runoff of rain from forest roads--whether channeled or not--to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.

The EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.

The Ninth Circuit--in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to the EPA--rejected the EPA’s longstanding interpretation. Instead, it directed the EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is:

Whether the Ninth Circuit should have deferred to the EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that the EPA regulate such runoff as industrial stormwater subject to NPDES.

The Clean Water Act (“CWA”) prohibits the discharge of pollutants from a point source into the navigable waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit. The Act defines a “point source” as “any discernible, confined and discrete conveyance.” 33 U.S.C.

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