Environmental Law

Renewable Energy vs. National Parks

February 6, 2019
Energy Law, Environment, Environmental Law, Property Law, Solar Energy

By: Bethany Anderson

That’s what happened in Animal Welfare Institute v. Beech Ridge Energy LLC, where a wind energy facility was curtailed because it stood in the migration pathway of an endangered species—Indiana bats. The court allowed the facility to operate, but with significant constraints. For instance, though construction on those turbines already under construction could continue, Beech Ridge could operate only after it applied for and obtained an Incidental Take Permit (“ITP”), which would immunize Beech Ridge from certain ESA penalties for killing and injuring bats. Moreover, construction of additional turbines was conditioned on obtaining an ITP. Additionally, the Court ordered the Fish and Wildlife Service (“FWS”) to determine when Beech Ridge could actually operate after Beech Ridge obtained an ITP, taking into account the migration and hibernation patterns of the bats (see this report for a brief discussion on the aftermath of the Beech Ridge case).

In a similar energy against nature context, significant outcry (see this article) over oil and gas drilling in and around national parks arose in the last year. The Trump Administration opened up more public lands for mineral leasing, and directed agencies to revise or rescind rules that burden domestic energy development. Environmental groups lamented the endangerment of pristine public lands, darkness of wilderness night skies, quiet of natural soundscapes, and tech- and industry-free experiences many visitors crave. These are all legitimate concerns because the experiences, sounds, and sights preserved in our national parklands are preserved relatively unspoiled only in these limited corners of the country. The groups’ sentiment seems to be “let’s just drill somewhere else, okay? It’s a big country. Preservation uses claim few acres in the scheme of things.”

The recent outcry misses, however, concern over greener energy projects that also threaten wilderness and nature values. Like in Beech Ridge, there are two sometimes competing goals here. Renewables serve climate change goals, displacing carbon-emitting energy sources like coal, natural gas, and oil. National parklands preserve land and culture in their natural and historical state. What happens when green energy development requires a huge expanse of flat land exposed to sun year round? A solar facility one mile from Mojave National Preserve presents an example. Is such a land use plan any less invasive than drilling? Maybe it’s quieter and lower to the ground, and maybe it serves a goal that those in the nature fight can get behind better than oil and gas drilling. In this instance, the solar facility still a mile away and does not in any way reach into the park through something comparable to directional drilling. But the facility uses land that was previously untouched and is still potentially visible from parks. As another example, what happens when the only way to get offshore wind online is to construct a high-voltage transmission line across a historic park? Developers say alternative energy sources that replace closing coal plants require a transmission line crossing a historic trail. Opponents say the line undermines the historic atmosphere of the trail and surrounding park area, and may open the floodgates to more industrialization in historic and pristine areas. In the same way as oil and gas drilling, these developments undermine some of the wilderness and historic values park advocates fight for.

So how do we balance these seemingly competing values? National parks are to be preserved unimpaired for the enjoyment of present and future generations. That mandate may conflict with climate change-combatting green energy tech seeking the most effective locations for new facilities.

The 9B regulations (“regulations”) that govern nonfederal oil and gas rights in and around national parks are a framework from which to balance renewables with the preservation mandate. The regulations require a plan of operations, plans in case of spills or other emergencies, a security bond in case of harm to park resources, and eventual restoration of the land, returning it as close to its original status as possible after operations conclude. Renewables are likely more permanent than an oil or gas well, so space and distance restrictions will need to be stricter. But a similar plan of operations, with mitigation strategies and emergency contingencies, is a good start, especially since the regulations are already in place in one piece of the energy sector. As energy technology develops, it constantly brings novel challenges into the existing legal context. The 9B regulations provide a starting point for the ever-growing green energy versus preservation debate.

In Space We Trust: Regulate the Race

October 28, 2018
Corporate Ethics, Environment, Environmental Law, International Law, Social Welfare, Space Law

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.

Sulfur-Ore Mining in Minnesota: Are Near-Term Economic Gains Worth Long-Term Losses?

October 15, 2018
Economics, Environmental Law

Sam Duggan, MJLST Staffer 

Mining copper and nickel from sulfur-ore in Northern Minnesota is different than mining iron from taconite, and the environmental consequences are orders of magnitude greater. Unfortunately, the public discourse around developing copper and nickel reserves largely fails to consider this. As a result, the public is not armed with information needed to rationally debate whether sulfur-ore mining is a good choice for Minnesota.   

Taconite is a relatively unreactive iron-containing mineral. Although miners exposed to asbestos-like compounds from taconite dust are likely at increased risk of mesothelioma, proper dust mitigation practices and sound environmental planning/reclamation can limit long-term consequences to a scarred landscape. However, as with other types of mining, there are consequences associated with boom-or-bust economics.   

In stark contrast to taconite, sulfur-ore is highly reactive and has a particularly insidious property. A decommissioned mine slowly fills with rain, snowmelt and ground water. Sulfur reacts with water and oxygen to produce sulfuric acid, which dissolves metals contained in the sulfur-ore. Like a liquid miner, this acid liberates geologically sequestered metals into a dissolved, bioavailable and toxic form. As metals dissolve from the mine walls, more sulfur is exposed to oxygen and water. This produces more sulfuric acid which dissolves more metals. Through this chain reaction, the mine “mines” itself for centuries or more after its decommission. Importantly, mining target metals (i.e., copper, nickel) never occur alone. They co-occur with non-targets (i.e., lead, cadmium, manganese, arsenic, sulfate) that also dissolve from mine walls. Over time, concentrations of toxic compounds grow higher. Once the mine fills, acidic and metal-rich water (acid mine drainage) leach down-gradient and poison the watershed. Similar processes also occur in tailings piles stored outside the mine.

Sulfur-ore mines are responsible for numerous Superfund sites, including the infamous Berkley Pit copper mine. In 2016, thousands of snow geese landed in Berkley Pit’s toxic water and died en masse. Consider also the 2015 Gold King mine spill. At Gold King, a mine entrance cap was accidentally ruptured during routine monitoring and 3 million gallons of acidic, metal-rich water poured into the Animas River in Southwest Colorado. Related lawsuits seek many millions in damages. The history of mining in the Western U.S. is replete with other examples of sulfur-ore mines contaminating watersheds.

Methods exist for mitigating sulfur-ore mine pollution including capping, chemical neutralization, and constructing water treatment facilities specifically dedicated to the mine. However, these options cost millions and must be perpetually maintained, as it is nearly impossible to prevent water and oxygen from entering a mine. The chain reaction can linger for millennia, continually dissolving metals from rock and leaching toxins into the watershed.

Notably, the mining corporations who reap the lion’s share of a mine’s economic benefit escape long-term environmental liability because bankruptcy law and parent-subsidiary corporate structure often shield parent corporations from their mining subsidiaries’ environmental liabilities. For precisely this reason, the mine permitting process often requires corporations to offer financial assurances for potential environmental damages. However, financial assurances underestimate damages, and taxpayers are left with the bulk of sulfur-ore mine cleanup costs for generations.

The long-term consequences of sulfur-ore mines were recognized by the Obama Administration, particularly regarding mining in Minnesota’s Boundary Waters watershed. In 2016, the Obama Administration instituted a 2-year moratorium on mining permits near the Boundary Waters to study effects of sulfur-ore mining. That study could have led to a 20-year permitting moratorium. However, in 2018, after only 15 months, the Trump Administration decided that the study did not reveal new information and lifted the moratorium. Now, parent companies such as Chile’s Antofagasta can apply for mining permits within the Boundary Waters watershed via their subsidiary company Twin Metals. The permitting process is already underway for Polymet — an open pit, sulfur-ore copper mine just outside the Boundary Waters watershed. Importantly, Minnesota’s sulfur-ore resources could support dozens of mines.  

Given that sulfur-ore mines are economically viable for a few decades and an environmental scourge for centuries or more, decision makers should consider whether near-term economic gains are worth long-term losses.

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

October 6, 2018
Environment, Environmental Law, Uncategorized

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.

Farm Drainage Revisited: Will Tile-Drain Effluent Be Considered a Point Source and Fall Under Clean Water Act Regulation?

January 26, 2017
Agriculture, Environmental Law

Theodore Harrington, MJLST Managing Editor

For years, nutrients from farming operations have been leaking into the Raccoon and Des Moines Rivers, and ultimately arriving at the mouth of the Mighty Mississippi. These nutrients, most notably nitrate and phosphorus, are the result of both fertilizers and natural crop growth and have deleterious effects on humans and the environment. As these nutrients mix with groundwater just below the surface, a polluted effluent is created. This effluent is then drained through a grid of plastic piping a few feet below the soil.

Nearly two years ago, Des Moines Water Works (DMWW), a public water utility, sued the Drainage Districts in Sac, Buena Vista, and Calhoun Counties to recover monies spent treating the polluted effluent to make it safe for public consumption. Defendants contend that the polluted effluent does not fall under the jurisdiction of the Clean Water Act, and therefore DMWW is the appropriate entity to bear these costs, which approach $7,000 per day!

Where it stands: Summary Judgment briefs were traded in May and June of last year. Since then, oral arguments have been heard by the Iowa Supreme Court since September 14, 2016. (Click HERE to see John Lande arguing for the Board of Water Works and Michael Reck arguing for the counties.) A federal trial in front of Judge Leonard Strand is set for this coming June in the Northern District of Iowa. The trial will come two and a half years after the original filing, and lengthy appeals, possibly to the Supreme Court, are likely to follow. Though it will be years before we have an answer to the question titling this post, the judgment’s consequences will reach beyond individual farms to the heart of the industry.

Solar Climate Engineering and Intellectual Property

April 27, 2016
Climate Change, Data, Environmental Law, Intellectual Property

Jesse L. Reynolds 

Postdoctoral researcher, and Research funding coordinator, sustainability and climate
Department of European and International Public Law, Tilburg Law School

Climate change has been the focus of much legal and policy activity in the last year: the Paris Agreement, the Urgenda ruling in the Netherlands, aggressive climate targets in China’s latest five year plan, the release of the final US Clean Power Plan, and the legal challenge to it. Not surprisingly, these each concern controlling greenhouse gas emissions, the approach that has long dominated efforts to reduce climate change risks.

Yet last week, an alternative approach received a major—but little noticed—boost. For the first time, a federal budget bill included an allocation specifically for so-called “solar climate engineering.” This set of radical proposed technologies would address climate change by reducing the amount of incoming solar radiation. These would globally cool the planet, counteracting global warming. For example, humans might be able to mimic the well-known cooling caused by large volcanos via injecting a reflective aerosol into the upper atmosphere. Research thus far – which has been limited to modeling – indicates that solar climate engineering (SCE) would be effective at reducing climate change, rapidly felt, reversible in its direct climatic effects, and remarkably inexpensive. It would also pose risks that are both environmental – such as difficult-to-predict changes to rainfall patterns – and social – such as the potential for international disagreement regarding its implementation.

The potential role of private actors in SCE is unclear. On the one hand, decisions regarding whether and how to intentionally alter the planet’s climate should be made through legitimate state-based processes. On the other hand, the private sector has long been the site of great innovation, which SCE technology development requires. Such private innovation is both stimulated and governed through governmental intellectual property (IP) policies. Notably, SCE is not a typical emerging technology and might warrant novel IP policies. For example, some observers have argued that SCE should be a patent-free endeavor.

In order to clarify the potential role of IP in SCE (focusing on patents, trade secrets, and research data), Jorge Contreras of the University of Utah, Joshua Sarnoff of DePaul University, and I wrote an article that was recently accepted and scheduled for publication by the Minnesota Journal of Law, Science & Technology. The article explains the need for coordinated and open licensing and data sharing policies in the SCE technology space.

SCE research today is occurring primarily at universities and other traditional research institutions, largely through public funding. However, we predict that private actors are likely to play a growing role in developing products and services to serve large scale SCE research and implementation, most likely through public procurement arrangements. The prospect of such future innovation should be not stifled through restrictive IP policies. At the same time, we identify several potential challenges for SCE technology research, development, and deployment that are related to rights in IP and data for such technologies. Some of these challenges have been seen in regard to other emerging technologies, such as the risk that excessive early patenting would lead to a patent thicket with attendant anti-commons effects. Others are more particular to SCE, such as oft-expressed concerns that holders of valuable patents might unduly attempt to influence public policy regarding SCE implementation. Fortunately, a review of existing patents, policies, and practices reveals a current opportunity that may soon be lost. There are presently only a handful of SCE-specific patents; research is being undertaken transparently and at traditional institutions; and SCE researchers are generally sharing their data.

After reviewing various options and proposals, we make tentative suggestions to manage SCE IP and data. First, an open technical framework for SCE data sharing should be established. Second, SCE researchers and their institutions should develop and join an IP pledge community. They would pledge, among other things, to not assert SCE patents to block legitimate SCE research and development activities, to share their data, to publish in peer reviewed scientific journals, and to not retain valuable technical information as trade secrets. Third, an international panel—ideally with representatives from relevant national and regional patent offices—should monitor and assess SCE patenting activity and make policy recommendations. We believe that such policies could head off potential problems regarding SCE IP rights and data sharing, yet could feasibly be implemented within a relatively short time span.

Our article, “Solar Climate Engineering and Intellectual Property: Toward a Research Commons,” is available online as a preliminary version. We welcome comments, especially in the next couple months as we revise it for publication later this year.

Bottom-Up Approach to Climate Change

April 6, 2016
Energy Law, Environment, Environmental Law

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

April 6, 2016
Energy Law, Environment, Environmental Law

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.

The Path of Pollutants Under the Clean Water Act

March 19, 2016
Environment, Environmental Law, EPA

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!

Circumventing EPA Regulations Through Computer Programs

December 16, 2015
Data, Environment, Environmental Law, EPA

Ted Harrington, MJLST Staffer

In September of 2015, it was Volkswagen Group (VW). This December, it was the General Electric Company (GE) finalizing a settlement in the United States District Court in Albany. The use of computer programs or other technology to override, or “cheat,” some type of Environmental Protection Agency (EPA) regulation has become seemingly commonplace.

GE uses silicone as part of its manufacturing process, which results in volatile organic compounds and chlorinated hydrocarbons, both hazardous byproducts. The disposal of hazardous materials is closely regulated by the Resource Conservation and Recovery Act (RCRA). Under this act, the EPA has delegated permitting authority to the New York State Department of Environmental Conservation (DEC). This permitting authority allows the DEC to grant permits for the disposal of hazardous wastes in the form of an NYS Part 373 Permit.

The permit allowed GE to store hazardous waste, operate a landfill, and use two incinerators on-site at its Waterford, NY plant. The permit was originally issued in 1989, and was renewed in 1999. The two incinerators included an “automatic waste feed cutoff system” designed to keep the GE facility in compliance with RCRA and the NYS Part 373 Permit. If the incinerator reached a certain limit, the cutoff system would simply stop feeding more waste.

Between September 2006 and February 2007, the cutoff system was overridden by computer technology, or manually by GE employees, on nearly 2,000 occasions. This resulted in hazardous waste being disposed of in amounts grossly above the limits of the issued permits. In early December, GE quickly settled the claim by paying $2.25 million in civil penalties.

Beyond the extra pollution caused by GE, a broader problem is emerging—in an increasingly technological world, what can be done to prevent companies from skirting regulations using savvy computer programs? With more opportunities than ever to get around regulation using technology, is it even feasible to monitor these companies? It is virtually certain that similar instances will continue to surface, and agencies such as the EPA must be on the forefront of developing preventative technology to slow this trend.

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