It’s Getting Hot in Here: Fighting Fires with Legislation

California’s wildfire outbreaks threaten the safety of the state and the environment.[1]  Four factors have been cited for fueling wildfires in California: (1) California’s climate, (2) people, (3) fire suppression, and (4) winds from the Santa Ana.[2]  In 2019, 6,872 fires burned over 253,321 acres and destroyed or damaged 732 structures.[3]  While the destruction of property is an immediate consequence of the wildfires, environmental concerns also arise.[4]

Climate conditions directly affect the severity of wildfires.[5]  Specifically, it is predicted that warmer and drier climates lead to frequent and more intense wildfires in areas with high populations.[6]  As wildfires burn, carbon dioxide, black carbon, brown carbon, and ozone precursors are emitted into the atmosphere affecting the regional climate.[7]  The western portion of the United States has the highest risk of fires in the nation due to the warm, dry climate.[8]

In response to California’s dilemma, California governor Gavin Newsom signed twenty-two laws into effect designed to prevent and fight wildfires.[9]  The various laws include standards for making homes and communities more fire resistant, shutting off utilities to ease sparks from electric lines, and assisting low-income residents in gaining access to power if they rely on life support.[10]  Governor Newsome blamed global warming for the wildfire season, which now is described as “virtually year-round.”[11]  In addition to legislation, there are other ways to reduce the risk of wildfires.[12]  In particular, it is advised that public awareness about the risk of fires be increased in order to manage practices that affect climate change, reduce populations in high risk areas, and reduce heat-trapping emissions.[13]

[1]  See generally Stats and Events, Cal Fire, https://www.fire.ca.gov/stats-events/ (providing statistics of California wildfires).  The total number of fires in California from January 1, 2020 through February 9, 2020 doubled when compared to January 1, 2019 to February 9, 2019.  Id.  (comparing total fires during time period).

[2] See generally Kendra Pierre-Louis, Why Does California Have So Many Wildfires?, N.Y. Times (Nov. 9, 2018), https://www.nytimes.com/2018/11/09/climate/why-california-fires.html  (noting reasons why California’s wildfires are so destructive).

[3] 2019 California Wildfires, Center for Disaster Philanthropy (Oct. 10, 2019), https://disasterphilanthropy.org/disaster/2019-california-wildfires/ (noting fire statistics for 2019).  Six fires were listed as “significant.”  Id.  (detailing specific information about worst fires).

[4] See generally The Impact of Wildfires on Climate and Air Quality, National Oceanic and Atmospheric Administration, https://www.esrl.noaa.gov/csd/factsheets/csdWildfiresFIREX.pdf (discussing wildfire impact on climate and air quality).

[5] Id. (stating climate factors’ impact on wildfire).

[6] Id. (specifying climate conditions and relationship to wildfires).

[7] Id. (detailing elements of wildfires with strong effect on climate).

[8] Id. (mapping relative risk of fire in United States).

[9] Don Thompson, California Adopts 22 New Laws Taking Aim at Wildfire Danger, U.S. News & World Report, (Oct. 2, 2019), https://www.usnews.com/news/best-states/california/articles/2019-10-02/california-adopts-22-new-laws-addressing-wildfire-danger (discussing California wildfire prevention legislation).

[10] Id. (summarizing benefits of enacted bills).

[11] Id. (blaming environmental issues for wildfire intensity and frequency).

[12] See Playing with Fire, Union of Concerned Scientists, https://www.ucsusa.org/resources/playing-fire (explaining solutions to wildfires).

[13] Id. (suggesting ways to fight wildfires).

-Manuel L. Colon Jr, Staff Writer

Considering Climate Change: The D.C. Circuit’s Recent Decisions Requiring Consideration of Climate Change in NEPA Analyses

In a recent opinion, the D.C. Circuit reaffirmed its interpretation of National Environmental Protection Act (NEPA) as requiring federal agencies to consider the future effects on climate change when evaluating the environmental impact of a proposed project.[1]  In Birckhead v. Federal Energy Regulatory Commission (Birckhead) the D.C. Circuit echoed and expanded its earlier ruling inSierra Club v. Federal Energy Regulatory Commission[2] (Sierra Club), holding NEPA analyses for proposed projects should consider the project’s indirect effects on climate change from increased greenhouse gas (GHG) emissions.[3]  These opinions illustrate a significant departure from previous circuit opinions which exempted most federal agencies from considering the impact of increased GHG emission before granting project approval.[4]

NEPA directs federal agencies to assess the environmental impacts of proposed projects before approving their permits.[5]  These assessments include the Environmental Impact Statement (EIS) and the less comprehensive Environmental Assessment (EA), which determines whether an EIS is necessary.[6]  Since 2010, the Council on Environmental Quality (CEQ) has advised federal agencies to consider climate change when completing EAs.[7]  Federal agencies have since struggled to calculate the impact of projects’ increased GHG emissions and were typically only required to determine potential impact when this impact was reasonably foreseeable.[8]  The D.C. Circuit agreed with this sentiment in Sierra Club v. United States Department of Energy[9], where it found the consideration of increased GHG emissions unnecessary because they were not reasonably foreseeable.[10]

With the Sierra Club and Birckhead opinions, however, the D.C. Circuit appears to have changed its approach, finding the impact of increased GHG emissions foreseeable in both cases.[11]  Though the impact of these decisions is not immediately evident, it is likely natural gas companies will now need to invest more time and money into the already expensive and time-consuming permit application process or risk being denied a permit.[12]  While significant time and cost delays are expected in the permitting process, the heightened consideration of climate change will hopefully create a positive impact on the environment.[13]

[1] Birckhead v. Fed. Energy Regulatory Comm’n, 925 F.3d 510, 517-18 (D.C. Cir. 2019) (finding NEPA requires consideration of increased GHG emissions from proposed projects).

[2] 867 F.3d 1357 (D.C. Cir. 2017) (analyzing required environmental impact assessments for proposed projects).

[3] Id. at 1374 (holding Federal Energy Regulatory Commission (FERC) should have considered GHG emissions in its NEPA analysis of proposed pipeline project).

[4] See Viktoriia De Las Casas, D.C. Circuit Suggests FERC Should Try to Quantify Indirect Environmental Impacts of Pipeline Projects, Troutman Sanders (July 19, 2019), https://www.pipelaws.com/2019/07/dc-circuit-suggests-ferc-should-try-to-quantify-indirect-environmental-impacts-of-pipeline-projects/ (explaining potential impact of Birckhead decision on natural gas industry).

[5] 42 U.S.C. § 4332(C) (2012) (describing duties of federal agencies under NEPA).

[6] See 40 C.F.R. §§ 1508.9, 1508.11 (2019) (explaining distinction between EAs and EISs and how federal agencies should decide which to utilize).

[7] See Nicole Rushovich, Climate Change and Environmental Policy: An Analyses of the Final Guidance on Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 27 B.U. Pub. Int. L.J. 327, 347 (2018) (detailing CEQ’s 2010 draft guidance and subsequent draft guidance).

[8] See Neal McAliley, NEPA and Assessment of Greenhouse Gas Emissions, 41 Envtl. L. Rep. News & Analysis 10197, 10201 (2011) (explaining intricacies and complexities associated with GHG emission calculations); see also id. at 347-48 (explaining level of GHG emission consideration CEQ traditionally advised).

[9] 867 F.3d 189 (D.C. Cir. 2017) (analyzing foreseeability of GHG emissions).

[10] Id. at 199-200 (holding Department of Energy could not foresee indirect effects of increased GHG emissions).

[11] See Birckhead v. Fed. Energy Regulatory Comm’n, 925 F.3d 510, 517-18 (D.C. Cir. 2019) (requiring FERC to consider indirect effects of increased GHG emissions both upstream and downstream of proposed pipeline project); Sierra Club, 867 F.3d 1357, 1373-74 (D.C. Cir. 2017) (finding FERC should have considered impact of increased GHG emissions in EA).

[12] See De Las Casas supra note 4 (explaining potential impact of recent D.C. Circuit decisions on natural gas projects).

[13] See Julia Michel, Through the Looking Glass: How Review of Natural Gas Exports Hides Environmental Effects in Plain Sight, 8 Wash. J. Envtl. L. & Pol’y298, 308 (2018).

-Juliana Clifton, Staff Writer

Do We Really Need The Newest Phone? The E-Waste Problem

Consumers rarely analyze the potential consequences of their technological upgrades.[1]  Many people across the world are mesmerized by sleeker designs, upgraded cameras, or faster operating systems but neglect to consider what happens when they toss out the old for the new.[2]  With more and more people owning electronic devices each year, there is a critical threat to the environment as a result of the alarming amount of e-waste that will exist in the future.[3]

E-waste includes a large range of products that many people come in contact with on a regular basis.[4]  There are generally six categories of e-waste.[5] The first is temperature exchange equipment, which includes refrigerators, freezers, air conditioners, and heaters.[6]  The second is screens and monitors, which includes televisions, monitors, laptops, and tablets.[7]  Third, lamps and light fixtures make up another category.[8]  Large equipment, including washers and dryers, dishwashers, electric stoves, and large printers/copiers, constitute a fourth category.[9]  Fifth, small equipment, including vacuum cleaners, microwaves, toasters, scales, calculators, radio sets, video cameras, small electronic toys, and electronic tools are yet another category.[10]  The final category consists of small IT and telecommunication equipment, including mobile phones, GPS, pocket calculators, routers, and personal computers.[11]

The global e-waste problem is growing at an exponential rate.[12]  If current trends continue, global e-waste is on track to reach 120 million tons per year by 2050.[13]  Half of all e-waste comes from personal devices such as computers, screens, smartphones, tablets, and televisions.[14]  Only about twenty percent of the waste produced is formally recycled; the other eighty percent is either informally recycled or ends up in landfills.[15]  The United States is the second-largest producer of e-waste in the world.[16]  In the United States, only a small percentage of all e-waste is properly recorded, let alone recycled.[17]  Further, the United States is the only developed country that has not ratified the Basel Convention, a multilateral treaty governing hazardous waste.[18]  These high amounts of improperly-discarded e-waste result in air pollution when scrappers burn the waste to retrieve the precious metals.[19]  Additionally, toxins from these products seep out and pollute soil and ground water.[20]

E-waste is becoming a major issue, but each person across the world can take steps to address this global problem.[21]  There are several things that can be done to help minimize e-waste globally.[22]  Legislatures can put the responsibility on electronic producers and manufacturers to establish an end-of-life process for e-waste.[23]  Social movements have proven to be an effective method of changing societal views on important views, so starting a social movement to educate the public on the gravity of the e-waste problem could also be effective.[24]  Social movements can also encourage individuals to donate used electronics to social programs, sell to refurbishing centers, and bring old electronics to specific e-waste recycling bins.[25]  Lastly, the international community can encourage the public to purchase electronic products less frequently.[26]  There are many ways that the e-waste problem can be tackled, and if each person does their part the global community can help create a better environment for the future.[27]

-Tamarrin Johnson, Staff Writer

[1] See Brook Larmer, E-Waste Offers and Economic Opportunity as Well as Toxicity, N.Y. Times (July 5, 2018) https://www.nytimes.com/2018/07/05/magazine/e-waste-offers-an-economic-opportunity-as-well-as-toxicity.html (explaining why global e-waste problem is growing so rapidly).

[2] See id. (highlighting many people opt for newer devices on regular basis).

[3] Id. (noting global e-waste has more than doubled in last decade).

[4] Balde et al., The Global E-waste Monitor – 2014 11 (2015), https://i.unu.edu/media/unu.edu/news/52624/UNU-1stGlobal-E-Waste-Monitor-2014-small.pdf (defining e-waste).

[5] Id. at 12 (breaking down e-waste classifications).

[6] Id. (identifying temperature exchange equipment).

[7] Id. (noting most common types of display screens).

[8] Id. (naming different types of lamp equipment).

[9] Balde et al., supra note 4, at 12 (explaining what qualifies under large equipment category).

[10] Id. (categorizing small equipment).

[11] Id. (distinguishing small equipment from small IT and telecommunication equipment).

[12] See Larmer, supra note 1 (explaining e-waste has become world’s fastest growing trash stream).

[13] UN Report: Time to Seize Opportunity, Tackle Challenge of E-waste, U.N. Env’t Programme (Jan. 24, 2019), https://www.unenvironment.org/news-and-stories/press-release/un-report-time-seize-opportunity-tackle-challenge-e-waste (explaining how quickly global e-waste is growing).

[14] Platform for Accelerating the Circular Economy and UN E-Waste Coalition, A New Circular Vision for Electronics 9 (2019) (pinpointing origin of approximately half of e-waste).

[15] Id. at 12 (expounding on what happens to e-waste).

[16] Larmer, supra note 1 (noting China recently took number one spot).

[17] See id. (noting United States’ insufficient laws regulating e-waste).

[18] Id. (mentioning United States has failed to ratify Basel Convention on hazardous waste).

[19] See id. (highlighting unsafe e-waste recycling practices happening in developing countries).

[20] See id. (explaining environmental effects of failure to recycle e-waste and material scrapping in India and Indonesia).

[21] See UN report, supra note 13 (stating possible solutions researchers have devised to solve e-waste problems).

[22] See id. (naming several international groups supporting reduction of e-waste).

[23] See Feng Hao, China to release plan for tackling e-waste by end of year, Chinadialouge (May 6, 2017), https://www.chinadialogue.net/article/show/single/en/9841-China-to-release-plan-for-tackling-e-waste-by-end-of-year- (explaining China’s extended producer responsibility system).  The increased responsibility included “environmentally-friendly designs, using recycled materials, standardizing waste management and recycling processes, and disclosing data on recycling.”  Id.

[24] Madeline Schwartz and Erica Sanchez, Social Movements That Changes Our World For The Better, Global Citizen (June 30, 2016), https://www.globalcitizen.org/en/content/movements-social-change-apartheid-civil-rights-suf/ (highlighting social movements such as women’s right to vote and civil rights).

[25] See Larmer, supra note 1 (noting United States’ insufficient laws surrounding e-waste).

[26] See Renee Cho, What Can We Do About the Growing E-waste Problem?, Earth Institute, Colum. U. (Aug. 27, 2018), https://blogs.ei.columbia.edu/2018/08/27/growing-e-waste-problem/ (stating best way to stop this problem is to limit customer purchases).

[27] See id. (explaining it will take multiple approaches to fix e-waste problem).

If Not Them, Then Who? Children’s Climate Change Lawsuit, Juliana v. United States, Dismissed

On August 12, 2015, twenty-one children, ages eight to nineteen, filed a lawsuit in the District of Oregon against the United States for allegedly violating their Fifth Amendment rights to life and liberty.[1]  More specifically, the children argued they have a constitutional right to a “climate system capable of sustaining human life.”[2]  After nearly four and a half years of litigation, the Ninth Circuit dismissed the case on January 17,2020 for a lack of Article III standing.[3]

The Ninth Circuit first addressed how important the climate change issue is and that plaintiffs brought considerable evidence to demonstrate the federal government encouraged fossil fuel use, knowing the dangers it posed to the environment.[4]  It then moved to the government’s two main arguments that 1) the plaintiffs solely had a claim under the Administrative Procedure Act (“APA”); and 2) plaintiffs lacked standing.[5]  The court immediately refuted the first argument, noting constitutional challenges cannot proceed under the APA because APA claims relate only to “discrete agency decisions.”[6]  The second issue, however, is what the Ninth Circuit found warranted dismissal of the case.[7]  Though plaintiffs established injury in fact and causation, the Ninth Circuit held they failed to establish redressability.[8]  Ultimately, the court found that a declaration of the government’s constitutional violations and injunction from pushing the use of and subsidizing fossil fuel would not be enough to properly redress plaintiffs’ aim, to halt climate change.[9]

Though the dissent makes an excellent point as to how even small changes to harmful emissions would redress plaintiffs, the majority’s eventual holding – that this matter is not for the judicial branch to decide – is consistent with precedent.[10]  The dissent’s call for action, however, was not appropriate for this three judge panel to decide.[11]  The majority correctly recognized this by holding that precedent required the court to only decide political issues when a standard authorizes it to do so.[12]  Here, no such standard existed.[13]

Perhaps the dissent’s cry for help will be useful to plaintiffs’ argument if the Ninth Circuit grants their petition to rehear the case en banc.[14]  Unless the en banc Ninth Circuit decides to overturn the case, it is likely it will take a greater power to find Article III standing in this case.[15]  The gravity of the climate change situation continues to be a major topic of litigation, evidenced by global suits.[16]  As the other two political branches continue to remain silent on the issue, the time is coming for the judiciary to step in and provide checks and balances the Constitution grants each branch to do.[17]  The greatest question will remain otherwise: if not them, then who?[18]

[1] Complaint at 84, Juliana v. U.S., 339 F. Supp. 3d 1062 (D. Or. 2018) (No. 6:15-cv-1517) (detailing filing information).

[2] Juliana v. U.S., 947 F.3d 1159, 1164 (9th Cir. 2020) (stating Plaintiffs’ claims); see also id. (initiating complaint against federal government).

[3] See Juliana, 947 F.3d at 1175 (reversing district court’s decision).

[4] Id. at 1164-65 (analogizing climate change to “Eve of Destruction”).

[5] Id. at 1167-68 (detailing defendant’s arguments).

[6] See id. at 1167 (finding remedy under APA improper for plaintiffs’ claims).

[7] Id. at 1165 (concluding claims better suited for political branches).

[8] Juliana, 947 F.3d at 1168-1173 (analyzing elements of standing as applied to this case).  To establish Article III redressability, a plaintiff must demonstrate their request for relief is “(1) substantially likely to redress their injuries; and (2) within the district court’s power to award.” Id. at 1170 (setting forth elements of redressability).

[9] Id. at 1170 (explaining why Court does not have standing). Moreover, the Ninth Circuit found this issue is better suited for the legislative and executive branches. Id. at 173 (holding consistent with Supreme Court precedent).

[10] Id. at 1182 (explaining impact of relief case would have on environment); compare Rucho v. Common Cause, 139 S. Ct. 2484, 2498-2500 (2019) (holding judiciary must have clear standard to interfere with political branch) with Vieth v. Jubelirer, 541 U.S. 267, 278-79 (2004) (finding courts may act in political question matters only when clear standard available).

[11] See Fed. R. App. P. 35(a)(2) (declaring en banc should only be considered for questions of “exceptional importance”); see also id. at 1175-91 (reprimanding majority for dismissing case).

[12] Juliana, 947 F.3d at 1173 (reaffirming Supreme Court’s rationale).

[13] See id. (finding no standard for judiciary regarding climate change).

[14] Petition for Rehearing En Banc at 5, Juliana v. U.S., No-18-36082 (9th Cir. March 2, 2020) (asking Ninth Circuit to rehear case).

[15] See Juliana, 947 F.3d at 1174 (implying Supreme Court must ultimately decide issue).

[16] Umair Irfan, Pay Attention to the Growing Wave of Climate Change Lawsuits, Vox (June 4, 2019, 11:13 AM), https://www.vox.com/energy-and-environment/2019/2/22/17140166/climate-change-lawsuit-exxon-juliana-liability-kids (detailing struggles and perseverance of climate change lawsuits).

[17] See The Judicial Branch, The White House President Barack Obama, https://obamawhitehouse.archives.gov/1600/judicial-branch (last visited March 13, 2020) (explaining role of judicial branch).

[18] See Juliana, 947 F.3d at 1191 (questioning where hope lies after majority’s holding).

-Samantha P. Martin, Staff Writer

Did the FCC Violate NEPA When Approving Elon Musk’s Starlink?

SpaceX is a private company run by famous billionaire Elon Musk that “designs, manufactures and launches advanced rockets and spacecraft.”[1]  SpaceX aims to “revolutionize space technology, with the ultimate goal of enabling people to live on other planets.”[2]  In March 2018, the Federal Communications Commission (FCC) gave SpaceX permission to launch internet-equipped satellites into space.[3]  This was the beginning of Starlink, a project using a “satellite constellation” in outer space to provide accessible internet across the globe.[4]  Providing internet to remote places is important, but astronomers quickly prepared a report explaining how the satellites could affect ground-based astronomy.[5]

In particular, scholars and astronomers claim the FCC violated the National Environmental Policy Act (NEPA) by approving the satellites without considering its effects on the celestial environment.[6]  Section 102 of NEPA requires federal agencies to prepare a detailed report assessing the environmental impact of any major federal action affecting the environment.[7]  Scholars argue the FCC should not have approved the satellite launch without analyzing its environmental impact, violating Section 102(2).[8]  The FCC believes they were not required to assess the impact because of a categorical exclusion “for certain activities and basic tasks that don’t affect the environment”.[9]

Yet launching light-polluting objects into orbit will obscure an astronomer’s view of the greater universe.[10]  Providing internet to areas that need it is a noble goal, but it is important to make sure the satellites are not going to affect the study of outer space.[11]  Even in the face of the Coronavirus pandemic, the FCC is allowing SpaceX to continue to add satellites to Starlink without considering the environmental effects of the satellites.[12]  Other private companies have plans to launch their own internet-equipped constellations, so it is critical the FCC considers Starlink’s environmental impact.[13]

[1] About SpaceX, SpaceX, https://www.spacex.com/about (last visited Mar. 21, 2020) (explaining what SpaceX does).

[2] Id. (elaborating on SpaceX’s goals).

[3] Space Expl. Holdings, LLC, 33 FCCR 3391 (2016) (authorizing SpaceX to launch and construct satellite system to provide internet access to United States and abroad).

[4] See Adam Mann, Starlink: SpaceX’s Satellite Internet Project, Space.com (Jan. 17, 2020), https://www.space.com/spacex-starlink-satellites.html (describing Starlink and its history).

[5] See Shannon Hall, As SpaceX Launches 60 Starlink Satellites, Scientists See Threat to ‘Astronomy Itself’, The New York Times (Nov. 11, 2019), https://www.nytimes.com/2019/11/11/science/spacex-starlink-satellites.html (noting astronomers concerns about SpaceX’s effects on the study of astronomy). “If there are lots and lots of bright moving objects in the sky, it tremendously complicates our job . . . [i]t potentially threatens the science of astronomy itself.”  Id. (describing how satellites can affect astronomy).

[6] See Morgan McFall-Johnsen, SpaceX’s license to launch hundreds of internet satellites may have violated the law, experts say. Astronomers could sue the FCC, Business Insider (Jan. 22, 2020), https://www.businessinsider.com/spacex-starlink-satellite-license-fcc-environmental-law-2020-1 (discussing how launch without environmental impact study may have violated law).

[7] See 42 U.S.C. § 4332(2)(c) (noting procedural requirements for agency action affecting environment).

[8] See McFall-Johnsen, supra note 6 (discussing potential claims against FCC for Starlink approval).

[9] Id. (noting FCC only has to conduct NEPA reviews “for projects that involve ‘high-intensity lighting,’ expose humans to unsafe levels of radiofrequency radiation, or involve facilities on protected land.”)

[10] See id. (suggesting increase in satellites could cause light pollution and create observational difficulties when analyzing interstellar objects).

[11] See id. (noting astronomer concerns regarding Starlink).

[12] See Eric Mack, Historic SpaceX Launch Postponed After Last-Second Abort, CNET (Mar. 16, 2020, 12:16 PM), https://www.cnet.com/how-to/spacex-falcon-9-rocket-launch-postponed-after-last-second-abort/ (noting SpaceX continues to schedule launches despite Coronavirus pandemic).

[13] See McFall-Johnsen, supra note 6 (discussing other companies’ plans to launch satellite constellations).

-Marisa Pescatore, Staff Writer

Mariner East 2 Pipeline Faces Legal Hurdles

The Mariner East 2 Pipeline (“Pipeline”) is a natural gas liquid pipeline being constructed in Pennsylvania.[1]  The pipeline, which is expected to span three states and 350 miles, will transport natural gas liquids from Ohio and Western Pennsylvania to a refinery in Marcus Hook, Pennsylvania, where it will be distributed domestically and abroad.[2]  Sunoco Logistics, who owns the pipeline, estimates that once completed, the pipeline will “sustain 300-400 permanent jobs and contribute at least $100 million annually to the Pennsylvania economy.”[3]  Controversy still surrounds the construction of the pipeline.[4]

In early 2018, the Pennsylvania Department of Environmental Protection (“DEP”) issued a fine of $12.6 million to Sunoco, one of its largest fines ever, and suspended the company’s permit to construct over its mishandling of the construction of the pipeline.[5]  DEP levied the fine because drilling fluids were spilling into the state’s waterways, conduct that the DEP found “willful and egregious”.[6] Sunoco resumed construction in February 2018 after explaining how it would remedy the fluid spills.[7]

Now, over a year after construction resumed, Sunoco faces yet another legal battle, this time, from Chester County, a county adjacent to Marcus Hook.[8]  The county’s interest rests on the fact that part of the drilling is to be done on county owned land.[9]  The county seeks a permanent injunction against the construction of the pipeline due to Sunoco’s use of an open trench construction method.[10]  Chester County contends that the open trench method of construction will put the safety and welfare of its citizens at risk.[11]  Additionally, the county asserts that by planning on using the open trench method, Sunoco is violating an agreement between the parties that stated Sunoco would only use a bore drilling method of construction on certain lands belonging to the county.[12]  The county believes that the bore method is a safer alternative to open trench, and Sunoco could potentially cause adverse impacts to the county and its citizens.  The Chester County Common Pleas Court, a seemingly favorable venue for the county, will adjudicate the case, however, the issue could become moot if Sunoco finds alternative lands to construct the rest of the pipeline.[13]

[1] Sunoco Pipeline – Mariner East, Chesco Planning (last visited Apr.14, 2019), http://www.chescoplanning.org/pic/ProjectsMariner.cfm.

[2] Id.

[3] Mariner East Projects, Chesco Planning (last visited Apr. 14, 2019), http://www.chescoplanning.org/pic/pdf/meFactsheet011717.pdf.

[4] See John Hurdle, Mariner East 2: Sunoco’s incidents, fines and shutdowns fuel residents’ safety concerns, State Impact Pennsylvania (Sept. 25, 2018), https://stateimpact.npr.org/pennsylvania/2018/09/25/mariner-east-2s-incidents-fines-and-shutdowns-fuel-residents-safety-concerns/.

[5] Marie Cusick, Sunoco to resume work, pay $12.6 million for Mariner East 2 pipeline violations, State Impact Pennsylvania (Feb. 8, 2018), https://stateimpact.npr.org/pennsylvania/2018/02/08/sunoco-to-resume-work-pay-12-6-million-for-mariner-east-2-pipeline-violations/.

[6] Id.

[7] Id.

[8] Michael P. Rellahan, Chesco files lawsuit to halt Sunoco pipeline construction, Daily Local News (Apr. 11, 2019), https://www.dailylocal.com/news/chesco-files-lawsuit-to-halt-sunoco-pipeline-construction/article_3aab555c-5b9f-11e9-9520-a31e877ab36c.html.

[9] Id.

[10] Id.

[11] Michael P. Rellahan, Chesco files lawsuit to halt Sunoco pipeline construction, Daily Local News (Apr. 11, 2019), https://www.dailylocal.com/news/chesco-files-lawsuit-to-halt-sunoco-pipeline-construction/article_3aab555c-5b9f-11e9-9520-a31e877ab36c.html.

[12] Id.

[13] Id.

-Rohan Mohanty

“Waters of the United States”

The Trump Administration is attempting to revise the 2015 definition of “waters of the United States” under the Clean Water Act (“CWA”).[i] The 2015 definition was published by the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”).[ii] The 2015 definition defines the scope of waters that fall under the jurisdiction of the CWA.[iii] This rule is in effect in twenty-two states, the District of Columbia, and the U.S. territories.[iv]

According to 40 CFR 230.3(s), the term “waters of the United States” means:

1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
4. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
5. (From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
6. Which are used or could be used for industrial purposes by industries in interstate commerce;
7. All impoundments of waters otherwise defined as waters of the United States under this definition;
8. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
9. The territorial sea;
10. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.[v]

 

The Supreme Court, in the 2007 and 2006 cases, Rapanos v. United States and Carabell v. United States, interpreted the CWA’s jurisdiction over the waters of the United States.[vi] Although Rapanos was a plurality decision, the Court interpreted “waters of the United States” as a term containing water bodies beyond those that are traditionally considered navigable.[vii] It extends to “relatively permanent, standing or continuously flowing bodies of water” and “wetlands with a continuous surface connection to” such relatively permanent waters.[viii]

President Trump issued an executive order on February 28, 2017 directing EPA and Corps to review and rescind the 2015 rule.[ix] On December 11, 2018, the Administration gave a  proposed definition to clarify the federal authority under the CWA.[x] The proposed rule is open to 60-day public comment, which closes on April 15, 2019.[xi] The proposal limits the federal authority over local land use decisions, giving more power to states, who have their own state regulations for bodies of water.[xii] Additionally, no ephemeral features are considered jurisdictional under the proposal, fewer ditches will be jurisdictional, and fewer lakes and ponds will be found as adjacent waters.[xiii]

[i] EPA and Army Propose New “Waters of the United States” Definition, United States Environmental Protection Agency, (Dec. 11, 2018), https://www.epa.gov/newsreleases/epa-and-army-propose-new-waters-united-states-definition

[ii] Waters of the United States (WOTUS) Rulemaking, United States Environmental Protection Agency,  https://www.epa.gov/wotus-rule/about-waters-united-states

[iii] Id.

[iv] Id.

[v] Clean Water Rule: Definition of “Waters of the United States, Federal Register, https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states

[vi] Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, United States Environmental Protection Agency,  https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf

United States Environmental Protection Agency, supra note i, at 2-3.

[vii] Id. at 4-5.

[viii] Id. at 12.

[ix] Revised Definition of “Waters of the United States”, Federal Register, Vol. 84 No. 31, https://www.epa.gov/sites/production/files/2019-02/documents/revised_definition_of_waters_of_the_united_states.pdf

[x] Id.

[xi] Id. at 4154.

[xii] Id. at 4155 – 56.

[xiii] Proposed Revised Definition of “Waters of the United States” Key Proposed Changes, United States Environmental Protection Agency, https://www.epa.gov/sites/production/files/2018-12/documents/factsheet_-_key_changes_12.10.18.pdf

-Katy Luchansky