Water Quality: Aren't They All Waters Of The United States?

Clean Water,  Messy Language

Welcome back everyone, after a short July break I am ready to get back to it and continue the discussion. As promised, we are starting on a series that will give us a platform from which we can discuss topics of water quality, environmental protection, and governmental intervention in business. 

A great starting point for a discussion about modern water quality, begins in the 1970's. It was the age of Nixon, Viet Nam, and the beginning of the Environmental Protection Agency. The modern day environmental movement was already alive and thriving, thanks in large part to our own native Pittsburgher Rachel Carson. Carson had published her book Silent Spring in 1962, amid a fierce outcry from pesticide manufacturers who were directly in the crosshairs of the book. The effect of the book's central demand for ecological awareness and protection still rings out today on a variety of environmental campaigns. The tone of change across the country, and the political need to update the existing structure of environmental protection laws lead to the creation of a suite of statutes. These laws address distinct problems including air pollution, water quality, toxic chemicals restrictions, and clean-up of contaminated lands across the country. 

Of course I'd be overjoyed to talk about all of them, but sadly today I'll have to narrow it down to just the Clean Water Act.  

Clean Water Act

To set the stage for future conversations, lets begin with a quick and dirty outline of the most essential bits of this large body of law. In just 3 simple sentences, the Clean Water Act makes a whole lot of activity illegal, and then turns around and tells us how we can get around being considered a criminal. Section 301 of the act breaks down to prohibit the (1) discharge of a (2) pollutant (3) from a point source (4) into a navigable water as unlawful activity, unless done within certain limitations. Sections 402(k) and 404(p) then compliments section 301(a) by establishing that these activities can be made legal under authority of a permit issued by an appropriate governmental agency. In these 3 simple sentences we have the statutory basis for the Environmental Protection Agency's (EPA) entire water quality scheme, as well as every state and regional program to regulate water quality.  

Of course it seems far too good to be true that we can boil down water quality protection into 3 simple sentences. If there's one thing that lawyers love to take advantage of it's the inherent ambiguity in simple sentences of law. Each of the 4 points, or elements as attorneys would refer to them, I've numbered from Section 301 has its own legal ambiguity that has been exploded out into years of court battles. Following each court ruling, revisions by the EPA are released to illustrate how the agency interprets the language in making decisions. Lets take a quick look at one recent interpretation of just a single element from Section 301(a). 

Waters of the United States

On June 29, 2015 the EPA published in the Federal Register a rule more commonly known as The Clean Water Rule: Definition of "Waters of the United States." This rule establishes the EPA's position on the definition of the phrase "Waters of the United States" for the dual purposes of making the Clean Water Act (CWA) more effective, and to help interested parties more easily understand the CWA's effect on their activity. Why is it necessary to explicitly define such a phrase that seems fairly simple, you ask. Leave it to the ambiguity of language to start some interesting legal battles. 

To understand the confusion, we have to step back two steps to get to this point. The predecessor to the CWA, known as The Rivers and Harbors Act, was the first environmental protection statute passed by Congress. The statute outlawed obstruction or pollution of navigable waters or tributaries. Of course, legal battles established a means to define "navigable waters," and we ended up with the "Daniel Ball" test.  Essentially the test states that a water is "navigable" if it can be used for normal commercial shipping purposes, if it is actually navigable, or if it is connected to commercial activity in some way. This created some obvious holes in waters that were not covered by the pollution protections. Along comes the environmental movement and the CWA.

The CWA was meant to compliment other statutes like the Rivers and Harbors act in what it protects and how it defines terms like this. In it's definitions section, the CWA defines "navigable waters" as "waters of the United States, including the territorial seas." Quite the helpful drafting by Congress on that one; that really makes everything totally clear. For the average person the response to "What is a Water of the United States" might seem fairly simple: any water body in the United States. Of course, the simple answer isn't always the correct one. In the decades that followed, a whole series of cases were decided on the question of defining those simple words. Most recently, the whole question was thrown for a loop with the U.S. Supreme Court decision in U.S. v. Rapanos. This case asked the question of whether wetlands not connected to surface waters or commercial activity can be considered "Waters of the United States." The Court's decision was not conclusive and left environmental organizations, corporations, and the attorneys they hire with several ways to define the word depending on which judge you listened to. The Clean Water Rule is designed to simplify the whole mess of definitions and tests, without changing any of the exclusions from the rule that already exist (such as agricultural runoff). I'll spare you the details it takes to explain the full rule, but if you're interested in understanding how terms like this are interpreted, check out the EPA's website on the rule.

For the average person, none of this has much effect on your life or how you spend your time by the river. For those organizations who focus on environmental protection and the businesses they monitor, it is an essential component of their work and risk management. For all involved, regardless of their interest, the Clean Water Rule adds a higher degree of dependability to the decision-making process.

Social Justice Moments: Same-Sex Marriage

I know at the end of my last post I said we would be jumping into an ongoing series on water law and water quality, but I’m going to put that on hold until next time, and discuss something a little more timely. This will be the first post in a series I’ll call “Social Justice Moments,” where I’ll take a brief break from environmental law and discuss an important and timely social justice legal story. This is also also as an opportunity to discuss the work that the talented attorneys in my law firm do every day, and how we are reacting to this decision. I’m aware that this doesn’t quite fit the theme of environmental law either, but this is also a forum to discuss social justice and commerce more generally. Therefore, if you’re coming purely for the environmental law discussions, you should check back next time.

Obergefell v. Hodges

On Friday June 26, 2015, the United States Supreme Court released its decision in the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. In the controversial ruling, the Court found that the right to marry in the United States is a fundamental right protected for all people by the Constitution. Let’s unpack very quickly what the Court is actually saying here and why this is an important principle for commerce law in the U.S.

Everyone learns in high school social studies classes that the Constitution consists of two distinct parts. The first is the general body of the Constitution, which consists of seven “Articles”. Among the functions of the Articles is to outline the basic format and function of the 3 branches of government, and how they should interact with and restrain each other. The other portion of the Constitution is what we know as the Bill of Rights, being the first 10 amendments to the Constitution, and then all of the amendments made subsequent to 1787. The rights that are discussed in the Bill of Rights and its amendments are not rights given by the Constitution, but are rights that the government acknowledges that it cannot take away from the people.

This is an important legal principle because it puts the responsibility on the people to argue what the bounds of those protected “fundamental” rights are. A whole area of Supreme Court precedent deals with interpretation of the 14th Amendment. The 14th Amendment is seen as legally protecting these fundamental due process rights for all U.S. citizens. Among the fundamental rights that have been successfully recognized through the language of the Constitution are the right to travel between states, the right to use contraception, and the right to marry persons of other races. If it’s becoming clear how the Court found in Obergefell that such a fundamental right also exists for same-sex couples, then a gold star for you; you’re practically a Constitutional law scholar.

Perhaps one of the most famous recognitions of marriage as a fundamental right by the U.S. Supreme Court came in the case of Loving v. Virginia. In Loving, the Court was asked to rule on the Constitutionality of a Virginia ban on interracial marriages. The mere fact that a white man married a black woman placed the two in danger of a one-year jail sentence, which was reduced to a Court-Ordered exile from Virginia for 25 years. The Court reiterated earlier case law that found marriage to be one of the “basic civil rights of man,” and found that the “freedom to marry, or not marry, a person of another race resides within the individual.” The modern Supreme Court used these same principles as applied to interracial marriage bans, and found that same-sex couples are no less protected in their fundamental right to marry and have their unions recognized under the law. Of course there are those who criticize the decision on and off the Supreme Court, but that is the nature of our democratic system. At each phase of our national development there has been a series of cases which, when the decisions are released, polarize and divide the country. Each time the parties sympathetic to the dissent complain and protest. But, each time the smoke clears and the nation continues moving forward stronger and more united than before. I don’t foresee this time being any different. If anything, I think that this decision will be more of a minor hiccup, in it’s negative backlash, compared to some of the other major decisions of the past 100 years.

Beyond my mere support for the decision, I would like to point out how this type of decision will come to affect the populations of people who can now validly marry, or simply have their valid marriages recognized at home. When a couple marries there are many implications for their finances, property, and respective futures. Married couples in this country are given many benefits simply for this status, including the ability to cover spouses on health insurance, recognition of inheritance, and in some states, the automatic co-ownership of property. In Pennsylvania for instance, all property acquired during the course of a marriage is automatically transferred into the ownership of both spouses, unless they both show an intention to keep the property separate. This implication is important if the couple chooses to divorce or if one of them dies without a valid will in place. This is just one example where legal planning for your future would be an important consideration for all couples, regardless of gender or sexual orientation.

At the Commerce Law Group, LLC, we are proud of the decision of SCOTUS, and continue to support clients past, current, and future, regardless of sexual orientation. I for one am excited to work with same-sex couples through any of the legal issues discussed above and to work to ensure that the rights of all people are protected and recognized under the laws of this great country.