No Permit Necessary: How Decker is Expanding Pollution

From Massachusetts v. E.P.A.1 to Rapanos v. U.S.2, the Roberts Court has become somewhat unpredictable in its handling of environmental issues. However, the position of the Roberts Court toward the pollution of river and ocean ecosystems in particular has become very clear through a slew of recent cases. Starting with the decision put forth in Decker v. Northwest Environmental Defense Center, a dangerous precedent has been set with regard to Clean Water Act permitting requirements as they relate to the welfare of the navigable waters of the United States.3

Decker dealt with a fairly unique set of facts. In Decker, the issue before the U.S. Supreme Court was whether the Clean Water Act (CWA) required National Pollution Discharge Elimination System (NPDES) permits “before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States.”4  Logging roads are roads that “run through federal and state lands where logging activities occur.”5 The Court’s reasoning in this case primarily dealt with what it believed to be a permissible interpretation of the Industrial Stormwater Rule (ISR). The ISR was a 2006 EPA regulation that defined the sorts of industrial processes that required an NPDES permit.6 Essentially, the EPA argued that the runoff from logging roads was not to be included under the traditional definition of “industrial” as stated in the requirements under an early interpretation of the Industrial Stormwater Rule. The Court deferred to the Agency and upheld its interpretation.7

Ordinarily, this would be a run-of-the-mill environmental law case that would be largely limited to its facts. However, since this case involves the interpretation of the broad term “industrial” with respect to the potential pollution of navigable waters of the United States, it becomes important to see if this precedent is being used to justify similar actions of pollution in other cases.

Decker has already been used to support a generally narrow interpretation of the term “industrial” with regard to stormwater runoff. The case that most thoroughly examined the precedent put forth in Decker was Ecological Rights Found. v. Pacific Gas & Electricity Co., which was a Ninth Circuit case decided in April 2013.8 This case concerned utility poles containing wood preservative which produced runoff that eventually made its way into United States waters.9 The Court in this case held that the utility poles did not require NPDES permits for this runoff because, in accordance with the holding in Decker, the pollution was not coming from “relatively fixed facilities” in industrial operation.10 In addition, other cases such as Pac. Coast Fed’n of Fishermen’s Associations v. Glaser11 and PennEnvironment v. PPG Indus., Inc.12 have cited Decker to support holdings allowing various forms of polluted stormwater runoff to persist without NDPES permits as a result of deference to the EPA.

The policy implications of Decker and the subsequent cases that examine and discuss it are immense. While logging and similar runoff may be minor sources of pollution in and of themselves, the number of sources of pollution that would not require NDPES permits under Decker could increase dramatically. We have already seen the examples of logging roads and utility poles containing wood preservatives in Decker and Pacific Coast. But with the Ninth Circuit having already used the “relatively fixed facilities” provision put forth in Decker to allow other runoff sources to operate without NDPES permits, the potential for further navigable water pollution is staggering.13 By EPA’s own admission, stormwater runoff can “destroy aquatic habitats”, “create health hazards” and “affect drinking water sources.”14 This could happen with almost any set of facts on which Decker would control. In addition, companies now know that to pollute without having to go through the NDPES process, all they have to do is make sure that their facilities are not “relatively fixed” according to the descriptions that the Court used in Decker.15

There are several ways that this result could be averted. First, courts applying Decker could establish a tendency to limit Decker to its facts, or facts that are closely analogous. While this would not eliminate all of the issues, it would help to stop the problems that come along with interpreting the Supreme Court’s “relatively fixed facilities” provision in a loose manner. The Court did not make a more precise finding than this. As a result, lower courts should have a substantial amount of discretion in applying this legal principle. In addition, since Decker primarily dealt with deference to an EPA regulation, the EPA could issue another regulation that clarifies or does away with the interpretation of the ISR as interpreted in Decker. Either way, if Decker is left untamed, the Supreme Court will have sanctioned a great deal of additional pollution that could endanger wildlife and ecosystems in United States waters.

 

David Hopkins is a General Member on MJEAL. He can be reached at dmhopkin@umich.edu.

 


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

1 Massachusetts v. E.P.A., 549 U.S. 497, 497 (2007).

2 Rapanos v. United States, 547 U.S. 715, 715 (2006).

3 Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1326  (2013).

4 Id. at 1326.

5 National Association of Counties, Supreme Court Overturns Ruling on Logging Roads, (last visited Mar. 26, 2014), http://www.naco.org/newsroom/countynews/Current%20Issue/4-8-2013/Pages/Supreme-Court-overturns-ruling-on-logging-roads.aspx

6 Id. at 1332.

7 Id. at 1338.

8 Ecological Rights Found. v. Pacific Gas & Electricity Co, 713 F.3d 502 (9th Cir. 2013).

9 Id. at 502.

10 Id. at 512 (quoting Decker, 133 S. Ct. 1326, (2013).

11 Pac. Coast Fed’n of Fishermen’s Associations v. Glaser, CIV S-2:11-2980-KJM, 2013 WL 5230266 (E.D. Cal. Sept. 16, 2013).

12 CIV.A. 12-342, 2013 WL 4045794 (W.D. Pa. Aug. 8, 2013).

13 Decker, 133 S. Ct. at 1328 (2013).

14 United States Environmental Protection Agency, Water: After The Storm-Weather, EPA, (last visited Mar. 25, 2014), http://water.epa.gov/action/weatherchannel/stormwater.cfm

15 Id.

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