In Space We Trust: Regulate the Race

By: Hannah Payne, MJLST Staffer

In 1999, the UN General Assembly launched “World Space Week,” an annual celebration observed from October 4th (the date of Sputnik’s launch in 1957) to October 10th (the day The Outer Space Treaty entered into force in 1967). This year’s theme was “Space Unites the World.” The UN said the theme “celebrates the role of space in bringing the world closer together.” Unfortunately, the words ring hollow in light of the U.S.’s Space Force plans, as well as the recent escalation of inter-planetary militarization by China, Russia and the EU. Additionally, activities of SpaceX and others raise concerns about privatization, space pollution and the plans of the uber-wealthy to leave the world behind. These forces threaten to marginalize the awe-inspiring exploration of space into a scheme concerned only with war, profit, and advancing inequality. The dominance of such interests calls for a coherent system of global space regulation.

Some have observed that many recent activities violate the 1967 Outer Space Treaty, which declared: “The exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The treaty also states that space and all celestial bodies are unowned and open to exploration by all. The U.S. and over 100 countries signed and ratified it, and America did not reserve the right to alter its obligations, as it often does in agreements. However, with no real international enforcement mechanism and our ceaseless profit-seeking, countries have—and will continue to—disregard the goals of the 1967 agreement. Last year, Ted Cruz expressed excitement that “the first trillionaire will be made in space.” He proposed amending the treaty to foster commercialization – and correct its erroneous assumption that worthy goals exist besides wealth and power. His motive seems to be formalistic, as was Congress’ in 2015 when it declared in the Commercial Space Launch Competitiveness Act that “the United States does not, by enactment of this Act, assert sovereignty . . . exclusive rights . . . or ownership of, any celestial body[,]” but in the same act granted U.S. citizens the right to own and sell any “space resource.” Though the U.S. track record of treaty violations makes their disregard of the agreement perhaps unsurprising, the serious consequences of space militarization and privatization call for critical advancement in space regulation.

From an environmental law perspective, the language of the 1967 treaty evokes the seldom-used Public Trust Doctrine (PTD). Traced back to the Roman era, the Public Trust Doctrine is described as “requir[ing] government stewardship of the natural resources upon which society . . . depends for continued existence.” The PTD places the government/sovereign as the trustee, obligated to protect the rights of the public/beneficiary in the trust, which is comprised of things like navigable waterways. It has mostly been applied to water rights, and successfully reclaimed property for the “public good” in Illinois and California. However, in 2012 the Supreme Court suggested that the PTD is no stronger than state common law. Even so, the doctrine should be remembered by those who think the privileged cannot, by right, hoard or destroy resources – including those in space. In the 1970s, Joseph Sax argued for the PTD’s use as sweeping environmental common law. Some have since theorized about the extension of the PTD to space. These scholars identify issues such as the lack of a sovereign to act as trustee. That problem would not likely be solved by allowing every country to exert self-interested sovereignty in space. At least no one has been so bold as to outright claim the moon – yet.

The PTD is just one tool that may be useful in designing a peaceful move forward. The Expanse, a near-future science fiction series in which humanity has colonized the solar system, offers a thought-provoking look ahead. Earth and the moon are governed by the UN. Mars is a sovereign as well, and the asteroid belt a colonial structure with fractured governance. Space is highly commercialized and militarized, and personal opportunity is hard to come by – but humanity has avoided self-destruction. Their global governance allows for some cooperation between Earth and Mars in space. Depending on one’s dreams of the future, the situation represents an overpopulated, inefficiently run hellscape – or a less-bad option out of the possibilities that now seem likely. It begs the question – how do we expand while avoiding astronomical inequality and self-destruction?

Perhaps it is nearly impossible, but Earth needs real, global regulation of outer space. A weak U.N. cannot do it; private companies and wealthy countries should not be given free reign to try. Last month, the U.N. held the First United Nations Conference on Space Law and Policy.  It’s good to see the international community ramping up these discussions. Hopefully, the PTD’s underlying philosophy of equitable preservation will be central to the conversation. Done right, the exploration of space could be the most inspiring, community-building, and even profitable experience for humanity. If approached thoughtfully, inclusively, carefully –  we could have much more than just a Space Force.

The Great Minnesota Divide: Can a Solution to Address the Urban/Rural Split Over Copper-Nickel Mining Come from Conservation Efforts Abroad?

Allie Jo Mitchell, MJLST Staffer

Two different companies are attempting to undertake copper-nickel mining projects in the Superior National Forest on watersheds that feed Lake Superior and the Boundary Waters Canoe Area (the nation’s most popular national wilderness area). Copper-nickel mining would be new to the Iron Range, a region in Northeastern Minnesota that has long been mined for taconite, or iron ore. Support or opposition over copper-nickel sulfide mining in Minnesota tends to trend along the urban-rural divide.

For instance, a survey conducted by a pro-mining group found that 57% of voters in the Iron Range, support copper-nickel mining. Compare this with a poll paid for by Save the Boundary Waters that showed statewide 70% of Minnesota voters opposed this new type of mining in the state. This urban-rural divide is not an unheard of phenomenon. The New York Times published an in depth article in 2017 exploring the rift between the “working class” and “progressive activists” as played out in the fight over these new mining proposals in Northern Minnesota.

Both sides of the argument tend to paint in broad brush strokes. Advocates of the mines want the freedom to earn a steady income in a region where their family has– often– been living for generations. They see new mining projects as a way to provide economic development and stability to a region reeling from decades of job losses and a shrinking population. They also believe copper-nickel mining can be done without jeopardizing the environment. However, Minnesota’s regulations have not been updated since the 1990s and are not adequately adapted for this new type of mining. Furthermore, copper-nickel sulfide mines have been the cause of devastating environmental disasters in British Columbia and Chile.

Opponents, on the other hand, believe that the BWCA watershed, Lake Superior, and Superior National Forest contain some of Minnesota’s most pristine waters and wild areas. They fear that the destructive impacts of copper-nickel mining could destroy some of Minnesota’s greatest treasures. Opponents also contend that ecotourism and a growing market for outdoor recreation can revitalize the slumped region and replace an economy centered around mining. Despite these claims, ecotourism jobs tend to be seasonal and are unlikely to replace the high-wage jobs mining offers. As pointed out in the NYT article, there’s also a hypocrisy to “elitists” living in urban centers dictating what rural Northern Minnesotan’s can and cannot do with the land while benefiting from metals produced from mining.

Perhaps this harsh dichotomy doesn’t have to exist. Minnesota’s BWCA and Lake Superior offer some of the world’s most abundant and pristine fresh water resources. In an era rife with water shortages/crises, extreme heat, and rampaging wildfires, the immense value of these resources shouldn’t be taken for granted. The BWCA also provides an escape for many from a loud, noisy, and interconnected world.

One possible solution is to look outside the United State’s borders at successful programs centered around payments for environmental services (“PES”). These programs can “encourage projects that enhance restoration, production, and rural development.” An example is the UN REDD+ program which creates financial value for carbon stored in forests by offering incentives for developing countries to reduce carbon emissions from deforestation/degradation. The Guardian has compared PES programs to a public utility that generates electricity, “[j]ust as we pay for electricity services, and thus ensure their continuing provision, so . . . should [we] pay for the climate service that tropical forests provide.” In fact, carbon offset credit markets now exist where individuals can pay for carbon reduction/eliminating services to  offset their carbon footprint.

While the resources the BWCA, Lake Superior, and the Superior National Forest offer are distinct from carbon sequestration services of forests in tropical regions, the fundamental principles behind PES can still be applied. Because the proposed mines would sit on public lands, payments for land preservation would need to be returned to communities with a focus on economic stimulation of the region. While direct payments have worked in other contexts (e.g. giving money directly to residents of neighboring communities that would be harmed by a moratorium on mining), this would not negate the social/cultural need many have to work a steady job. Furthermore, if the state attempted to transfer payments to Iron Range residents through the tax system, it could face equal protection challenges. See Zobel v. Williams, 457 U.S. 55 (1982) (holding that a taxation scheme wherein residents were paid a graduated rebate based on how many years they had lived in-state violated the equal protection clause).

Ultimately, a PES program in Minnesota would raise significant legal and cultural implications. But if 70% of Minnesotan’s oppose copper-nickel mining in Northern Minnesota, maybe they’d be willing to pay to keep that wilderness wild.

California’s Sport Venue Boom: A Weakening of CEQA?

By: Gabe Branco, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

The Los Angeles Rams, Sacramento Kings, Golden State Warriors, Los Angeles Clippers, and Oakland A’s are all seeking to build new stadiums in compliance with the California Environmental Quality Act (“CEQA”). CEQA subjects public and private agencies to a process focused on determining any significant environmental impact the proposed project may have and whether any suitable alternatives exist that may mitigate those significant impacts. The process takes some time, as the agency must complete several environmental impact reports (“EIR”), allow for adequate public notice and comment, and provide a period of time for environmental based claims to be litigated.

The Golden State Warriors have been successful in their CEQA process, but have been subjected to high costs in preparing the EIRs and combating lawsuits from environmental groups. The Los Angeles Rams have taken a different approach. CEQA allows for agencies to file for project “statutory exemptions” in order to cut down on the lengthy procedural process. One exemption of CEQA is the voter-sponsored ballot initiatives. In California, it is the right of the people to make changes to the law through these initiatives, which have the same effect as legislation. Land use decisions are subject to these initiatives, and thus projects that are approved through the initiative are not subject to CEQA. The Los Angeles Rams collected signatures from 15% of the population in Inglewood to qualify the development project for special election. The development project was then supposed to be placed on the ballot initiative, but the Inglewood City Council unanimously approved the project. The Los Angeles Rams do not need to complete an EIR, provide time for notice and comment, and are shielded from litigation. The Los Angeles Clippers, Sacramento Kings, and Oakland A’s have received or are in the process of receiving legislative exemptions with varying CEQA procedures somewhere in between the Golden State Warriors’ and the Los Angeles Rams’ processes. While the afore-mentioned franchises must still complete an EIR, they have considerably reduced (or eliminated) litigation and notice and comment periods.

The question becomes whether these exemptions given so willingly to sports teams weaken CEQA’s ability to force agencies to be more considerate of a project’s environmental impacts and alternatives. Sport stadiums do have a significant impact on the environment. Shortening or doing away with judicial review and notice and comment limits the number of alternatives an agency could be made aware of and limits public recourse for legitimate claims, leading to a less than efficient plan for limiting significant environmental impacts.

So far, the courts have held that past projects with CEQA exemptions do not conflict with CEQA’s purpose. Saltonstall v. City of Sacramento, 234 Cal.App.4th 449 (2015). The rationale may well be rooted in the desire for the Courts to limit the amount of environmental litigation on the Court’s docket, and push through stadium projects that may vitalize a California city’s economy. While state legislators have introduced a bill that would prevent future sports teams from gaining the exemption the Los Angeles Rams received, teams may still limit the procedures enforced by CEQA through legislative exemptions. Clearly, that as long as sports have a strong economic foothold in American culture, sports stadiums will continue to be built at the expense of the environment.

Big Houses with Big Energy Demands

Bethany Anderson, MJLST Staffer 

A recent Aspen Times article says Pitkin County, home of the popular Aspen ski resort and numerous mountain mansions, will target larger homes as it heightens energy efficiency requirements and raises energy prices. The proposed change would increase a per-square-foot energy consumption fee from $1 to $45 for homes over 5,750 square feet and to $60 for homes over 8,250 square feet. While some argue changing these requirements is the best way to reduce energy demand on strained resources, others say the consumption fees don’t address key aspects of large home construction: the resources used in construction, the waste of resources in demolition, and the energy demand from pools, hot tubs, and snow-melting driveways

The U.S. isn’t alone in balancing growing (in various senses) housing demands and energy consumption constraints. Similar home size concerns arise in Australia, where housing units have increased in size while the number of residents per unit has decreased. That means energy usage per unit increases.

On the other hand, in an era of innovation and new technologies, smaller doesn’t necessarily mean more efficient. One Virginia man doubled the size of the house on his lot but cut energy bills. He says it’s not about being “eco-friendly” or about building a smaller home; rather, it’s about taking the time and effort – and shouldering the cost – needed to construct a sound, well-insulated home.

All of this poses legal and technological challenges. Technologically, how can (some) people get what they want – a big, “American-dream” house – without overconsuming energy? More investigation into construction techniques and materials – as professed by that Virginia man – could prove fruitful. Legally, can residences be regulated in the manner Pitkin County wants to regulate? Homes have not historically been regulated as products under the EPCA, a 1975 statute concerned primarily with energy supply, demand, and efficiency. Perhaps more comprehensive regulation, or including homes under the EPCA, would solve the energy demand and efficiency problems Pitkin County faces in a more equitable way than slapping on fees for large homes. New Jersey offers a rebate for homes that meet energy efficiency standards – maybe rewards are better than penalties. Australia proposes adding embodied energy, or the energy used in each step of production of a certain thing, to the cost calculus. And, though Pitkin County is considering increased fees, it has thus far not supported square footage limits for snow-melt driveways, pools, hot tubs, or patios. These might be good starting points for striking a balance between big demand for big things against limited energy resources.


Perpetuating Inequality and Illness Through Environmental Injustice

Nick Redmond, MJLST Staffer

In Sidney D. Watson’s Lessons from Ferguson and Beyond, published in issue 1 of MJLST’s 18th volume, the author focuses on issues of inherent racial bias in access to health care for African Americans, and how the Affordable Care Act may be able to help. The author “explores the structural, institutional, and interpersonal biases that operate in the health care system and that exacerbate Black/white health disparities.” The article’s focus on health care in particular is a critical component of inequality in the U.S., but it also only briefly touches on another important piece of the disparity puzzle: environmental justice. Conversations about environmental justice have taken place in multiple contexts, and in many ways serve to emphasize the multiple facets of racial disparity in the U.S., including police violence, access to health care, access to education, and other issues which are all influenced by the accessibility and the dangers of our built environment.

Such systemic inequalities can include access to public transportation and competitive employment, but they can also be problems of proximity to coal plants or petroleum refineries or even a lack of proximity to public natural spaces for healthy recreation. Lack of access to safe, clean, and enjoyable public parks, for instance, can serve to exacerbate the prevalence of diabetes and obesity, and even take a toll on the mental health of residents trapped in concrete jungles (which the article refers to as “social determinants” of poor health). Though there is some indication that environmental factors can harm neighborhoods regardless of income, industrial zones and polluted environments tend to lie just around the corner from low-income neighborhoods and disproportionately affect those who live there, primarily communities of color.

Often the result of urban development plans, housing prices, and even exclusionary zoning, issues of environmental justice are an insidious form of inequality that are often on the periphery of our national political conversations, if addressed at all. Indeed, the U.S. Environmental Protection Agency’s Office of Civil rights (established in 1993) has not once made a formal finding of discrimination, despite President Bill Clinton’s executive order which made it the duty of federal agencies to consider environmental justice in their actions. When the primary federal agency tasked with ensuring access to environmental justice appears to be asleep at the wheel, what recourse do communities have? The answer, it seems, is depressingly little.

A high profile example in our current discourse, environmental justice appears to have failed Flint, Michigan, and it seems likely that the issue won’t be resolved any time soon. Other examples like Columbus, Mississippi and Anniston, Alabama, are becoming more and more prevalent at a disturbingly high rate. Impoverished people with little political or legal recourse struggle against the might of the booming natural gas industry and new advances in hydraulic fracturing, and as water runs out these communities will be the first to feel the squeeze of rising food prices and access to the most essential resource on the planet.

At risk of sounding apocalyptic, there is some hope. National groups like the NRDC or the ACLU have long litigated these issues with success, and more local or regional groups like the Minnesota Center for Environmental Advocacy or the Southern Environmental Law Center have made enormous impacts for communities of color and the public at large. But as Sidney Watson states at the end of her article: “[w]e need to talk about race, health, and health care. We need to take action to reduce and eliminate racial inequities in health care.” These same sentiments apply to our built environment and the communities that we have pushed to the periphery to take the brunt of the harmful effects of our dirty technologies and waste. Few people would choose to live near a coal plant; those who are forced to do so are often trapped in an endless cycle of illness, poverty, and segregation.

Drinking the Kool-Aid? Why We Might Want to Talk About Our Road Salt

Nick Redmond, MJLST Staffer

Winter is coming. Or—at least according to the 2017 Farmer’s Almanac“winter is back” after an exceptionally mild 2015–2016 season, and with it comes all of the shoveling, the snow-blowing, and the white walkers de-icing of slippery roads that we missed last year. So what does the most overused Game of Thrones quote and everyone’s least favorite season have to do with Kool-Aid (actually, Flavor-Aid)? Just like the origins of the phrase “drinking the Kool-Aid,” this post has to do with cyanide. More specifically, the ferrocyanide compounds that we use to coat our road salt and that are potentially contaminating our groundwater.

De-icing chemicals are commonly regarded as the most efficient and effective means of keeping our roads safe and free from ice in the winter. De-icing compounds come in many forms, from solids to slurries to sticky beet juice- or cheese brine-based liquids. The most common de-icing chemical is salt, with cities like Minneapolis spending millions of dollars to purchase upwards of 15,000 tons of treated and untreated salt to spray on their roads. In order to keep the solid salt from clumping or “caking” and becoming unusable as it sits around it’s usually treated with chemicals to ensure that it can be spread evenly on roads. Ferrocyanide (a/k/a hexacyanoferrate(II)) and the compounds sodium ferrocyanide and potassium ferrocyanide are yellow chemicals commonly used as anti-caking additives for road salt in Minnesota and other parts of the country, and they can be found in varying concentrations depending on the product, from 0.0003 ppm to 0.33 ppm. To put those numbers in perspective, the CDC warns that cyanide starts to produce harmful effects on humans at 0.05 mg/dL, or 0.5 ppm.

But why are chemicals on our road salt troubling? Road salt keeps ice from forming a bond with the pavement by lowering the freezing point of snow as it falls on the ground. As the salt gets wet it dissolves; it and the chemicals that may be attached to it have to go somewhere, which may be our surface and ground waters or the air if the liquids evaporate. The introduction of these chemicals into groundwater is of particular concern for the 75% of Minnesotans and people like them who rely on groundwater sources for drinking water. The potential for harm arises when ferrocyanide compounds are exposed to light and rapidly decompose, yielding free cyanide (CN and HCN). Further, as waters contaminated with cyanide are chlorinated and introduced to acids they may produce the harmful compound cyanogen chloride, a highly toxic gas that was once considered for use in chemical warfare. Taking into account the enormous amount of salt used and stored each year, even small concentrations may add up over time. And although the EPA has placed cyanide on the Clean Water Act’s list of toxic substances, the fact that road salt is a non-point source means that it’s entirely up to states and municipalities to decide how they want to regulate it.

The good news is that ferrocyanides are among the least toxic cyanide salts, and tend not to release toxic free cyanide. What’s more, the concentrations of ferrocyanide on road salt are generally quite low, are spread out over large areas, and are even further diluted by precipitation, evaporation, and existing ground and surface water. In order to really affect drinking water the ferrocyanide has to (1) not evaporate into the air, (2) make its way through soil and into aquifers, and (3) in large enough concentrations to actually harm humans, something that can be difficult for a large molecule. Despite all of this, however, the fact that Minneapolis alone is dumping more than 15,000 tons of road salt each year, some of it laced with ferrocyanide, should give us pause. That’s the same weight as 15,000 polar bears being released in the city streets every year! Most importantly, these compounds seep into our garden soil, stick to our car tires and our boots, and soak the fur of our pets and wild animals. While cyanide on road salt certainly isn’t a significant public health risk right now, being a part of local conversations to explore and encourage alternatives (and there are a number of alternatives) to prevent future harm might be something to consider.

At the very least think twice about eating snow off the ground (if you weren’t already). Especially the yellow stuff.

Bottom-Up Approach to Climate Change

Allison Kvien, MJLST Managing Editor

Most often, climate change is discussed on the global, top-down level: what changes may happen all around the world as a result of increasing global temperatures and greater fluctuations in weather events. There are very interesting maps that can show you just how much coastline will be underwater depending on different levels of sea level rise. To see just how much sea level rise it would take to put any city in the world underwater, you can use this mapping tool. There are also plenty of articles discussing hundreds of other effects of global climate change, such as food production, human health, endangered species, and the global economy.

We talk about climate change from a bottom-up perspective far less often, but it is a perspective that really does deserve our attention. Myanna Dellinger, in a recent article published in 2013 by the Minnesota Journal of Law, Science, and Technology, discusses and analyzes “bottom-up, polycentric developments within national and international environmental and human rights law in general.” This approach to viewing the large issue of climate change could be very beneficial because, as Dellinger points out, “waiting for national- and supranational-level actors to reach a broadly based and substantively effective agreement on climate change mitigation is like waiting for Godot—unlikely to happen, at least at a substantively early enough point in time.” Dellinger’s article argues that bottom-up approaches could be very viable alternatives to waiting for the unlikely global, top-down action to occur. Read her interesting and novel article here.

Renewable Energy Accounts for Majority of New Energy Technology Installed in 2015 but Remains a Minority Producer Overall

John Biglow, MJLST Staffer

According to a United Nations Environment Programme report titled “Global Trends in Renewable Energy Investment 2016,” 2015 was a record setting year for global investment in renewable energy. A record $286 Billion dollars was invested in renewable energy technology in 2015. Furthermore, for the first time in history, renewable energy technologies made up more than half of the total gigawatt capacity of all newly installed energy technologies. Significantly, it was developing countries that led the way, with China, South Africa, Mexico, India, and Chile all showing an increase in investment. China itself accounted for over 1/3 of the total global investment with $102.9 billion invested.

According to a UNEP publication concerning this report, these developments are indicative of a structural change happening in the global energy system in the article Complexity in Global Energy-Environment Governance, Andrew Long discusses and describes the global energy system and the ways it reacts to change. Long argues that viewing the global energy system in the same manner that we study other complex systems will allow for a better understanding of how the system works and how it could be changed.

In his article, Long argues that the current global energy system shows both resilience and adaptation. By adaptation, he is referring to the system’s ability to incorporate new aspects into itself without experiencing an entire overhaul and shift in trajectory. The UNEP’s report which indicates the increasing role of renewable energy in the global energy system is demonstrative of this adaptation. By resilience, Long is referring to the entrenched nature and dominance of fossil fuels in the global energy system. Despite the major, and indeed record setting, strides made in 2015 in regards to renewable energy investment, it still only accounts for around 10% of total global energy production, as stated in UNEP’s recent report.

It is unclear what to make of the UNEP report at this juncture; on the one hand, if our goal is to increase the use of environmentally friendly energy sources, as it undoubtedly should be, then it appears we are on track. However, questions remain as to whether we are moving fast enough down that track. In his article, Long stated that in complex systems, occasionally small scale changes to the system can cause a system-wide shift and alteration, though he stressed that the occurrence of this is rare. Whether or not the increase of renewable energy use is indicative of a trend which will eventually de-trench the entrenched fossil fuel energy production is unclear at this point. Overall, the UNEP report seems to indicate a promising trend towards increased renewable energy usage, but if the global energy system is to undergo any drastic shifts, it seems that more countries will have to follow China’s example and invest heavily in new eco-friendly energy technologies.

Five-Year Extension May “Put the Falls Back in River Falls”

Katie Cumming, MJLST Lead Note & Comment Editor

A March 17, 2016 decision by the Federal Energy Reserve Commission (FERC) may “put the falls back in River Falls.” This is good news for community groups and environmental stewards, as this decision overturns FERC’s December 9, 2015 decision originally denying a five-year extension for the continued operation of the River Falls two hydroelectric dams (the River Falls Project). After the initial denial, the City released a letter stating that it would “pursue the extension through whatever means” available. FERC heard and ultimately granted the City’s extension because it “found that the unique circumstances in this case, such as the unanimous stakeholder support for the extension, the river corridor plan, and the size of the project, all demonstrate that a five-year extension of the license is in the public interest.” As a result of the recent decision the City effectively ended its relicensing efforts and is refocusing its resources on planning for the Kinnickinnic River Corridor. The five-year extension gives the City and stakeholders “breathing room to decide about the fate of the two dams.” City Management Analyst, Ray French, said “The benefit is that the five-year (license) extension pushes back the regulatory filing and process deadline in order to give the community time to engage in a river corridor planning process that will provide a vision for this central area and beyond. . . .” Re-evaluating the use of rivers as a resource is not unique to the Kinnickinnic River. As many dams age and become obsolete, communities are re-evaluating the economic and environmental costs of these dams. Kinnickinnic stakeholders have created a movement to “put the falls back in River Falls.” On April 5, 2016, River Falls will hold an election for City Council and Mayor. With the river’s fate to be determined, the result of this election will undoubtedly have an effect on whether the falls are put back in River Falls.

The Path of Pollutants Under the Clean Water Act

Ted Harrington, MJLST Staffer

In 1972, the Clean Water Act set forth a lofty goal—to “[r]estore and maintain the chemical, physical, and biological integrity of the nation’s waters.” (33 U.S.C. §1251(a)). Yet, the Clean Water Act only regulates point sources that discharge pollutants into navigable waters (33 U.S.C. §1251(a)(1)). As a result, many forms of water pollution escape federal jurisdiction, most notably, groundwater. This is because CWA regulation depends on how a pollutant reaches navigable water, instead of focusing on the end result. This added constraint is hardly logical when juxtaposed against the stated goal.

For example, if a pollutant is discharged into groundwater, and eventually reaches navigable Water Body B, the CWA does not have the ability to regulate the groundwater. In other terms, if the polluted effluent passes through groundwater, considered a “nonpoint source,” before it reaches Water Body B, no CWA regulation occurs.

To combat this issue, Federal District Courts in Hawai’i, North Carolina, and Pennsylvania have begun adopting the “Conduit Theory” (See Allison Kvien note Volume 16). The conduit theory states that if a body of water (groundwater) simply acts as a conduit, it should be viewed as an extension of the point source from which it is receiving the pollutant. This theory directs its attention to the ultimate result—the pollution of Water Body B. It is only logical that if Water Body B is being polluted, the source should fall under CWA jurisdiction. Why should we leave a source of pollution unregulated simply because the effluent isn’t being directly discharged into a navigable water? As the Court in Rapanos v. United States noted, “The [Clean Water] Act does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’”

The issue of groundwater as a pollutant is receiving increasing attention in the courts. In the Northern District of Iowa, a case concerning the discharge of groundwater through tile drains is currently in litigation‑ Board of Water Works v. Sac County Board of Supervisors. This could be an opportunity for Iowa to take one of the first stances on the conduit theory in the 8th Circuit. Stay tuned!