The following guest post is by Melissa Scanlan, one of the leading public interest environmental attorneys in the Midwest. After graduating from the University of California-Berkeley in 1999, Melissa returned to her native Wisconsin and founded Midwest Environmental Advocates, which she led as Executive Director for almost a decade. In June of this year Melissa started a new environmental consulting firm where she is teaching, writing, and promoting social enterprises engaged in water policy, sustainability, and environmental justice. Melissa continues to serve of the board of Midwest Environmental Advocates, and she is also writing a blog, Dreamers and Doers. On a personal level, I have tremendous respect for Melissa and what she accomplished in launching and running Midwest Environmental Advocates, filling a much needed role in Wisconsin. Melissa has a long list of litigation, public advocacy, and legal scholarship accomplishments, and she is scheduled to teach a course about the Clean Water Act at Marquette University Law School in the spring 2011 semester.
Last week I attended oral arguments in the Curt Andersen, et al v. DNR case before the Wisconsin Supreme Court. While an observer in this final round of the litigation, I had previously worked on the initial challenge to the water pollution permit that has, over the past five years, made its long journey towards a final disposition on a deceptively simple legal issue involving the system of cooperative federalism established by the Clean Water Act: In a state administrative law forum, can one challenge terms of a Wisconsin Pollution Discharge Elimination System (WPDES) permit, in a state in which the EPA has delegated authority to the state DNR to carry out the Clean Water Act, on the basis that the terms fail to comply with the federal Clean Water Act?
While the Wisconsin Supreme Court has lots of experience with the statutory interpretation and agency deference issues this case raises, it was in unfamiliar territory addressing the federal Clean Water Act. However, the questions the justices asked, struck at the heart of the Clean Water Act’s system of cooperative federalism and access to justice by challengers of water pollution permits.
To get some background on the case, you can watch one of the conservationists who has litigated this case in an effort to reduce toxic mercury and excessive phosphorus pollution into the Fox River, Bay of Green Bay, and ultimately Lake Michigan. (Link to video on YouTube.)
Under Wisconsin statutes, section 283.31(3)(d), the DNR must issue WPDES permits with conditions needed to meet state and federal standards. Conservationists challenged Ft. James paper company’s WPDES permit terms in an effort to reduce mercury and phosphorus water pollution. The conservationists did not challenge the state law on its face, but as applied to this particular permit in which the DNR did not undertake a reasonable potential or an antidegradation analysis, as required by the Clean Water Act. The conservationists believe that had the DNR undertaken those analyses, it would have allowed less pollution to be sent into the Fox River.
The DNR argued that the only basis by which to judge the adequacy of a WPDES permit is state law, and that further, the DNR did not have the authority to determine the meaning of the Clean Water Act. Siding with the conservationists, the Wisconsin Court of Appeals held that "the DNR has authority to determine whether discharge permit provisions authorized by state regulations comply with federal law." Curt Andersen, et. al. v. DNR, 2010 WI APP at 20.
Citing potential chaos at the agency, the DNR appealed to the Wisconsin Supreme Court, claiming the outcome could impact over 1,000 companies and municipalities that send polluted wastewater into Wisconsin’s waterways. DNR Petition for Review Brief, at 3.
In essence, the DNR argued before the Supreme Court that because state rules are required to comply with federal law and the EPA approved the state rules, any permit issued in accordance with the state rules automatically complies with federal law. DNR Petition for Review Brief, at 6. (I should note that approval of the rules by EPA is in dispute.) The DNR further argued that a challenge to a permit term is automatically a challenge to the state rule, and the proper forum for challenging a state rule is to either go through a new rulemaking or ask the EPA to declare the rule violates federal law. Several justices took issue with this logic and expressed discomfort with the automatic pass the DNR wanted to give to its application of rules as being consistent with federal law, which would deny any challenger the ability to have a judge review the veracity of the claim. Some justices also expressed concern that the DNR was equating rules with permit terms.
The conservationists focused their oral arguments on clarifying that they have no problem with the state rules and are not challenging them on their face, but only as applied to the terms of Ft. James’ particular permit. The conservationists also showed the fool’s errand the DNR was trying to send them on by directing them to the EPA to resolve the matter; the 7th Circuit in American Paper v. EPA foreclosed that option in 1989 when it determined that if the EPA fails to object to a state-issued permit, the conservationists would have no recourse to challenge the decision in federal court (see the Conservationists' Petition for Review Brief).
The case raises interesting issues of the relationship between the federal and state governments in administering a delegated program like the Clean Water Act. Although EPA retains an oversight role and may withdraw approval of Wisconsin's WPDES program, that oversight role does not absolve DNR of its state statutory obligation to ensure compliance with the federal law – or does it? Is the EPA the exclusive arbiter of whether a state law or state issued permit complies with the federal Clean Water Act such that it deprives an administrative law judge or state court of authority to find that a permit fails to comply with applicable federal laws?
The DNR’s position, of course, would cut both ways: impacting permit holders who claim the state is regulating beyond that required by the federal law as much as it would impact the immediate litigants who resort to federal law to claim lack of protection of the state’s waters.
You can watch the oral arguments on Wisconsin Eye. We expect a decision from the Court some time within the next six months. I’m hopeful that the Court will not interpret the facts and law in a way that nullifies a fundamental Clean Water Act right: the right to challenge through state proceedings a state's issuance of a permit that fails to comply with applicable federal law and regulations.
Update: See Melissa's op-ed in the Milwaukee Journal Sentinel for more on the case.
Update March 23, 2011: The Wisconsin Supreme Court has released its opinion. Bottom line: The DNR won.
