Environmental Law - W. Scott Laseter and Chintan K. Amin

JurisdictionUnited States,Federal
Publication year2000
CitationVol. 51 No. 4

Environmental Lawby W. Scott Laseter* and Chintan K. Amin**

I. Introduction

Perhaps following broader legal trends, the Eleventh Circuit's environmental law decisions in this survey period suggest a rise in the importance of state law, both as it might impact enforcement of federal environmental programs and as a source of independent environmental remedies. As an example of the former, the court narrowed the extent to which the absence of a state-level program to implement the federal Clean Water Act's permit requirement shields a member of the regulated community from the obligation to obtain a permit. As an example of the latter, the court affirmed an award of $4,350,000 in punitive damages on a common-law nuisance theory in a case in which the actual damages totaled only $47,000 and the administrative penalties under the state-enforced clean water regulations totaled only $10,000.

As with earlier environmental law survey articles,1 this Article will not review basic statutory schemes unless the Eleventh Circuit has not previously interpreted the statute in question. For readers seeking background on the law, a brief overview of those statutes can be found in earlier survey articles.

II. Discussion

A. Clean Water Act: The Zero-Discharge Rule

Under the Clean Water Act ("CWA"),2 the discharge of any pollutant into waters of the United States is prohibited unless allowed by a permit under the National Pollutate Discharge Elimination System ("NPDES").3 "Pollutant" is denned broadly and includes "rock, sand, cellar dirt and industrial . . . waste."4 This strict-liability scheme is known as the "zero-discharge" rule.

1. The Hughey Exception Re-Examined: Driscoll v. Adams.

The Eleventh Circuit had occasion to address several CWA issues in 1999. In Driscoll v. Adams,5 the court took the opportunity to revisit its 1996 decision in Hughey v. JMS Development Corp.,6 which exempted from the permit requirement discharges of stormwater runoff generated by construction activities when no approved program for issuing the applicable permit exists and the discharger makes a good-faith effort to comply with all other regulations.7

In Driscoll plaintiffs sued their adjoining property owner under the CWA's citizen suit provision, alleging that during timber-harvesting and road-building operations defendant allowed sediment-laden stormwater to flow across his property and wash into ponds and waterways on plaintiffs' properties. As part of his operation, defendant built culverts, check dams, and other devices to channel stormwater runoff from his property and divided his property for development. Defendant conceded, however, that these efforts did not prevent erosion of mud, sand, and other debris from his property onto his neighbors' property.8

Defendant also failed to obtain any federal, state, or local permits or other approvals before starting his development activities.9 In fact, he first filed for a required state permit a year after commencement of his operation and first obtained a county development permit two years after commencement.10 Moreover, defendant never sought a NPDES permit, which is the only means of authorizing discharges of pollution into waters of the United States under the CWA, and he violated the CWA's prohibition on "'the discharge of any pollutant by any person'" into the waters of the United States without a permit.11 However, as in Hughey, the State of Georgia had neither issued a general permit nor developed a program providing for individual permits.12 In following Hughey, the district court held that compliance with the CWA's requirements was impossible and granted defendant's motion for summary judgment.13

On appeal, the Eleventh Circuit reversed the trial court, holding that the district judge had read the opinion in Hughey too broadly.14 In Hughey a plaintiff living downstream from a construction project sued a developer to enjoin it from discharging stormwater runoff into a tributary of the Yellow River, which ran adjacent to plaintiff's property.15 As in Driscoll, no general stormwater permit for construction activities was available to defendant in Hughey.16 Unlike defendant in Driscoll, however, defendant in Hughey did "everything possible to comply with the legal requirements of building a small residential subdivision."17 Defendant hired consulting engineers, installed state-of-the-art sedimentation control devices that exceeded Gwinnett County's requirements, and complied with Georgia's Soil Erosion and Sedimentation Control Act of 1975 ("SESCA").18

In Hughey the Eleventh Circuit rejected plaintiff's citizen-suit claim because "Congress could not have intended a strict application of the zero discharge standard in Section 1311(a) when compliance is factually impossible."19 Stating that "whenever it rained in Gwinnett County some discharge was going to occur; nothing [defendant] could do would prevent all rain water discharge," the court refused to penalize a developer that "made every good-faith effort to comply with the Clean Water Act and all other relevant pollution control standards."20 The court relied heavily on the fact that defendant had complied with SESCA's requirements and that the proposed Georgia general NPDES stormwater permit required "permitees to perform certain erosion and sedimentation control practices" identical to those then required by SESCA.21 Thus, under Hughey, if (1) compliance with a zero-discharge standard under the CWA is factually impossible, such as in the context of stormwater runoff; (2) no NPDES permit exists to cover such discharge; (3) the discharger was in good-faith compliance with local requirements that are substantially similar to the proposed NPDES standards; and (4) the discharges are minimal, then the discharger is not subject to a citizen suit under the CWA.22

In contrast to the defendant in Hughey, the court in Driscoll found that defendant had failed make a good-faith effort to comply with the CWA or relevant pollution control standards.23 Moreover, plaintiffs proved that the discharges from defendant's property were not minimal by showing the operation resulted in the deposit of approximately sixty-four tons of sediment into plaintiffs' ponds.24 Because the facts in Driscoll did not square with the facts in Hughey, the court refused to relax the CWA's zero-discharge rule any further.25

While the court preserved the narrow Hughey exception to the general rule of no discharge without a permit, it noted that its decision was consistent with the Fifth Circuit's decision in Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.26 The court in Cedar Point held that when the issuing authority has not issued a NPDES permit, the CWA prohibits all discharges of pollutants.27 In that case, the Sierra Club sued an oil producer for unlawful discharge of "produced water" into Galveston Bay.28 Because the EPA had not issued an applicable permit under the NPDES, Cedar Point argued that it could not have violated an effluent limitation or permit condition under the CWA.29 The Fifth Circuit rejected this argument because it found that Congress had built in a grace period for noncompliance with effluent standards or permits, which had expired on July 1, 1973, so that the EPA would have time to issue permits.30 The court interpreted Congress's failure to extend the grace period beyond July 1, 1973, even in light of the EPA's failure to issue certain permits, as evidence of Congress's intent to apply the strict zero-discharge standard.31

Thus, the Fifth Circuit determined that the CWA allows no exception to its prohibition on unpermitted discharge of pollutants into the waters of the United States, even when the EPA has not issued an NPDES permit.32 The Eleventh Circuit in Hughey was ambiguous as to whether the exception it carved out should be applied to nonstormwater permits.33 However, by citing Cedar Point in Driscoll, it is possible that the Eleventh Circuit opened the door to an argument that the Hughey exception can be applied in nonstormwater cases when the Hughey factors are satisfied. Thus, in Driscoll the Eleventh Circuit reinforced the general rule that, except under facts that closely align with those in Hughey, the lack of an applicable NPDES permit is no defense to a citizen suit under the CWA.34

2. Sierra Club v. Georgia Power Co.: A Public Policy Limitation on Remedies for Violation of Effluent Limitations. While the decision in Driscoll might be read as narrowing the potential breadth of the Hughey exception, the Eleventh Circuit's decision in Sierra Club v. Georgia Power Co.35 may have created another modest exception to the zero-discharge limitation. In Georgia Power the court affirmed the district court's denial of a preliminary injunction mandating an immediate end to violations of the CWA against the operator of a power plant.36 Georgia Power operated a plant on the banks of Lake Sinclair that was authorized to discharge heated wastewater into the lake under the conditions of a NPDES permit. During a particularly hot summer, the plant exceeded this effluent limitation and the Sierra Club brought suit to enjoin further violations.37

The Sierra Club contended that this thermal loading resulted in fish kills and undermined lakeside residents' enjoyment of the lake. Georgia Power responded that it simply could not achieve the permit requirements without impacting the level of power generated throughout its entire system.38 The district court agreed with Georgia Power following an evidentiary hearing, concluding "that the potential harm to the general public from a reduction of electrical power or thermal loading into the lake, outweighed the potential injury to lakeside residents if the plant continued to operate at its current output pendente lite."39

In affirming the trial court, the Eleventh Circuit noted that an appellate court should disturb the district court's findings "only if the district court abused its discretion"...

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