Environmental Law - Travis M. Trimble

• Publication year: 2008

Environmental Lawby Travis M. Trimble^*

In 2007 the Eleventh Circuit interpreted the United States Supreme Court's decision in Rapanos v. United States,¹ regarding the federal government's jurisdiction over waters under the Clean Water Act ("CWA"),² and held that in order for federal jurisdiction to exist over a water that is not navigable in fact, the water must have a "significant nexus" with a water that is navigable in fact.³ Also under the CWA, the court partially reversed a granting of summary judgment to the Florida Department of Environmental Protection, holding that the department had improperly excluded some types of evidence in approving Florida's 2002 list of impaired waters.⁴ In a case concerning the Endangered Species Act,⁵ the Eleventh Circuit held that (1) the United States Fish and Wildlife Service had reasonably concluded that the Alabama sturgeon was a separate species and (2) listing the fish, a noncommercial species found only in Alabama, did not violate the Commerce Clause of the United States Constitution.⁶ The court also held that the agency's failure to designate the critical habitat for the sturgeon, as required by the Endangered Species Act, was not fatal to the listing procedure.⁷ The Eleventh Circuit also decided two cases concerning the Clean Air Act.⁸ One case arose out of the Tennessee Valley Authority's alleged failure to comply with the Clean Air Act's New Source programs regarding a boiler that it modified in 1982-1983.⁹ The court there held that two of the plaintiffs' claims were time-barred and a third failed due to insufficient pre-suit notice.¹⁰ In the other case, the court held (1) that the Environmental Protection Agency's interpretation of a Georgia state regulation, promulgated as part of its state implementation plan under the Clean Air Act, was entitled to deference and (2) that the agency's interpretation was reasonable.¹¹

I. CLEAN WATER ACT

In United States v. Robison,¹² the Eleventh Circuit interpreted the United States Supreme Court's plurality decision in Rapanos v. United States¹³ that defined "navigable waters" under the CWA.¹⁴ The court adopted the definition set out by Justice Kennedy in his concurrence in Rapanos and held that a district court's jury charge that was based on pre-Rapanos Eleventh Circuit precedent was erroneous.¹⁵

In Robison the United States brought criminal charges against a Birmingham, Alabama manufacturer of cast iron products and several of its managers, alleging unauthorized discharges of pollutants into Avondale Creek, a perennial stream that flows through another perennial stream, which then flows into a lake, which in turn flows through a fork of the Black Warrior River, and finally into the Black Warrior River itself.¹⁶ The evidence at trial clearly showed that the defendants had discharged process wastewater from the plant into Avondale Creek from discharge points other than the one authorized by the plant's National Pollutant Discharge Elimination Systems ("NPD-ES") permit; process wastewater also regularly overflowed into the plant's stormwater discharge system, which flowed into Avondale Creek.¹⁷

The CWA prohibits the discharge of pollutants into "navigable waters," except in accordance with a permit issued pursuant to the CWA.¹⁸ Thus, for the federal government to have jurisdiction under the CWA, there must be an unpermitted discharge into a navigable water.¹⁹ With respect to the jurisdictional question, the district court charged the jury, in accordance with the Eleventh Circuit's decision in United States v. Eidson,²⁰ that to qualify as a navigable water, "'[t]he stream into which the discharge is made may be a natural or manmade [stream] and may flow continuously or only intermittently, as long as it may eventually flow directly or indirectly into a navigable stream or river whose use affects interstate commerce.'"²¹ In accordance with this definition, the United States established that Avondale Creek eventually flowed into the Black Warrior River, a navigable water, but presented no other evidence to establish jurisdiction.²² Specifically, the court noted that the United States presented "no evidence ... of the chemical, physical, or biological effect that Avondale Creek's waters had or might have had on the Black Warrior River" or of "any actual harm or injury to the Black Warrior River" caused by the defendants' violations.²³

Following the defendants' convictions, the United States Supreme Court decided Rapanos, a wetlands case in which the court set out to define "navigable waters" for CWA jurisdictional purposes.²⁴ According to the court in Robison, "[t]he entire Supreme Court agreed that the term 'navigable waters' encompasses something more than traditionally 'navigable-in-fact' waters," but while a five-member majority remanded the consolidated cases for further consideration of whether the wetlands at issue constituted navigable waters, the majority disagreed about the appropriate definition to be applied.²⁵ As noted by the court in Robison, Justice Scalia, writing for a four-member plurality, stated that navigable waters include only "'relatively permanent, standing or continuously flowing bodies of water.'"²⁶ Furthermore, because wetlands only fall within the jurisdictional scope of navigable waters if they are "adjacent to" such waters, the plurality held that "'only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands, are "adjacent to" such waters and covered by the Act.'"²⁷ Thus, the court in Robison stated that two findings are required to meet the plurality's test for establishing that wetlands are covered by the Act: (1) the channel adjacent to the wetland must contain " "a water of the United States,"'" which is " a relatively permanent body of water connected to traditional interstate navigable waters'" and (2) the wetland must have " a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins.'"²⁸

In his concurring opinion in Rapanos, Justice Kennedy stuck with the Supreme Court's earlier definition of navigable waters from the Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers-?²⁹ the "significant nexus" test.³⁰ The court in Robison noted that under this test, "a water or wetland' can only be 'navigable' under the CWA if it possesses a '"significant nexus" to waters that are or were navigable in fact or that could reasonably be so made.'"³¹ The court also noted that under Justice Kennedy's test, in order for a wetland to have a significant nexus to a navigable-in-fact water, it must,

"either alone or in combination with similarly situated lands in the region, . . . significantly affect[] the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.' When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term 'navigable waters.'"³²

Justice Kennedy further noted in his concurrence that a " mere hydrologic connection'" between a wetland and a navigable water " may be too insubstantial'" to establish such a nexus.³³ Finally, the court in Robison observed that the four Justices dissenting in Rapanos would uphold jurisdiction when either the plurality's or Justice Kennedy's test was met.³⁴

In Robison the court held that the Eleventh Circuit would adopt Justice Kennedy's significant nexus test as the prevailing definition of navigable waters from Rapanos.³⁵ The court noted that under Marks v. United States,³⁶ "when a majority of the Supreme Court agrees only on the result of a case, lower courts 'are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose.'"³⁷ The court explained that the "narrowest ground" is more clearly stated as the "'less far-reaching' common ground."³⁸ The court, unlike the United States Court of Appeals for the First Circuit, also disregarded the dissenting Justices' opinion on the proper definition because "Marks does not direct lower courts interpreting fractured Supreme Court decisions to consider the positions of those who dissented."³⁹ As such, the court held that the remaining issue to be decided was which of the concurring opinions in Rapanos put forth the least far-reaching position.⁴⁰ Specifically, the issue hinged on which definition of navigable waters, found within either the plurality opinion authored by Justice Scalia or Justice Kennedy's concurrence, was less far-reaching, that is, less-restrictive of CWA jurisdiction.⁴¹ The court concluded that in wetlands cases, waters would more often be classified as navigable under Justice Kennedy's significant nexus test than under Justice Scalia's test, and thus Justice Kennedy's test was less-restric-tive.⁴² The court explained that Justice Scalia's test contained two limitations rejected by Justice Kennedy's test: (1) that navigable waters "must be 'relatively permanent, standing or flowing bodies of water'" and (2) that there must be a " continuous surface connection'" between the bodies of water.⁴³ The court acknowledged that if the circumstances were different from Rapanos, Justice Scalia's test may allow for broader CWA jurisdiction, but it also recognized that it could not merely ignore the facts underlying Rapanos when determining which of its various opinions is narrowest.⁴⁴

The court in Robison then determined that the district court's charge was erroneous and that the error was harmful because the United States failed to present any evidence to establish a significant nexus between Avondale Creek and the Black Warrior River.⁴⁵ Specifically, the court noted that the United States presented no evidence to show that Avondale Creek had any chemical, physical, or...