Summer Issue 2020

WHERE IS THE POLLUTION COMING FROM? 

EXTENDING CLEAN WATER ACT LIABILITY UNDER THE HYDROLOGICAL CONNECTION THEORY

BY: ISAAC Z. TREADAWAY

In 1972, Congress passed sweeping amendments to the Federal Water Pollution Control Act of 1948. Those amendments created what is known today as the Clean Water Act (CWA) which has fundamentally altered the way the United States protects federal waters. Importantly, the CWA mandates an absolute prohibition against the addition of any pollution to navigable waters from a point source. 

However, recent litigation over what constitutes “from” a point source has caused confusion. For example, if a polluter backs a point source away from a river so that the pollution first hits the ground before reaching the river—does the pollution come “from” that point source or “from” the ground? What if a polluter discharges their pollution from a point source into groundwater that is hydrologically connected to navigable waters—does the pollution come “from” that point source in the context of the CWA? Afterall, the regulation of groundwater is typically left to the individual States. 

This Paper addresses these tough questions by analyzing a recent circuit court split struggling to interpret the CWA. Ultimately, the answer lies in the CWA’s simple and zero-tolerance ban against any addition of pollutants. Water is one of our most precious natural resource and Congress acted intentionally when it drafted and passed the Clean Water Act in 1972. On its face, the CWA protects federal waters from any pollution—even when such pollution first travels through an intermediary.

PROTECTING WETLANDS: 

ENVIRONMENTAL FEDERALISM AND GRASSROOTS CONSERVATION IN THE PRAIRIE POTHOLE REGION 


BY: HENRY HOLMES

Wetlands provide a multitude of benefits including flood protection, clean water, carbon sequestration, and critical species habitat. Given that wetlands are valuable natural resources, it is important to better understand the extent to which federal regulation impacts optimal wetlands conservation. Where federal regulation under the 2015 Clean Water Rule abrogated the ability of the states to make certain regulatory decisions over their waters, the recently promulgated Navigable Waters Protection Rule—that narrows the definition of “waters of the United States” (WOTUS)—may create new opportunities for alternative wetlands conservation strategies.

 

This Article examines five states in the Prairie Pothole Region to evaluate the integral roles the federal government, state governments, and private organizations have in wetlands conservation. Environmental federalism considers the optimal balance of federal and state regulation in achieving complementary environmental protection. Insofar as scaling back federal regulation over isolated wetlands reduces conflict between federal regulators and private landowners, private organizations can more effectively align economic incentives with voluntary conservation objectives. This Article concludes with an examination of Ducks Unlimited, the world’s largest waterfowl and wetlands conservation organization, as a case study for private conservation and public-private action in the region.

Siting Natural Gas Pipelines Post-Penn East: The New Power of State-Held Conservation Easements

BY: ZACHARY J.H. WRIGHT

The Natural Gas Act (“NGA”) governs the siting of interstate natural gas pipelines. There is not a federal body that sites pipelines—instead, the NGA delegates federal eminent domain to private actors to site pipelines through a certificate of need. Private actors have condemned private and state land to site pipelines through NGA-delegated federal eminent domain power for approximately eighty years. In 2019, in a case called In re PennEast Pipeline Company, LLC, the Third Circuit held that a private actor with an NGA certificate could not condemn land in which the state of New Jersey had a property interest because the NGA only delegated the federal eminent domain power and did not delegate the federal government’s exemption to a state’s Eleventh Amendment immunity from suit.

 

This Note argues that every state in the nation can utilize the reasoning in PennEast to prevent the siting of an interstate natural gas pipeline within its borders because every state has conservation easement laws that allow the conveyance of such an easement to a state governmental body that satisfies the “arm-of-the-state” test for the purposes of Eleventh Amendment immunity. Thus, any state can halt a natural gas pipeline in two steps: first, obtain a conservation easement in the way of the proposed pipeline and, second, invoke Eleventh Amendment immunity to prevent a private actor holding a federally approved NGA certificate from condemning the land in question. Whether states act to utilize this power remains to be seen.

Myopic Madness: Breaking the Stranglehold of Shareholder Short-Termism to Address Climate Change and Build a Sustainable Economy

BY: JOSEPH MANNING

This paper analyzes the impact of short-term shareholder profit maximization on environmental issues. The obsessive focus on quarterly returns at the expense of long-term investments produces perverse outcomes. These negative outcomes include often discussed economic issues such as increased income inequality and a lack of investment in research and development. Short-termism, however, also drives negative environmental externalities and prevents companies from adequately investing in reducing their environmental footprints. Finding that short- termism constitutes one of the primary impediments to building a sustainable economy, the author recommends three reforms to corporate and securities law: (1) require all businesses to become social benefit corporations, (2) mandate climate stress testing, and (3) allow new classes of shares that reward long-term investors.

Offering a Mulligan On Conservation Easement Tax Law: Ensuring Public Access On Conserved Land

BY: DEEPTI BANSAL GAGE

Conservation easements have long served as a private land conservation tool by allowing landowners to keep their land while forgoing certain rights, like the right to develop their land. Congress created federal income tax deductions for conservation easements to provide an income tax benefit to private landowners with conservation easements meeting Internal Revenue Code requirements. These deductions benefit the government, the public, and private landowners by encouraging conservation easements to keep land beautiful and wild.

Large real estate investors are misusing this tool to gain hefty tax deductions on outdoor recreational areas like golf courses and resorts with limited public access. The Internal Revenue Code and the relevant Treasury regulations controlling conservation easement deductions require recreational areas be usable by the general public but fail to explain what constitutes general public access. This ambiguity creates uncertainty over whether a deduction is appropriate for recreational areas that may restrict public access physically or financially. Modifying the relevant regulations is essential to resolve such ambiguity and to ensure deductions for conservation easements serve their intended purpose of encouraging conservation and the preservation of American heritage. This Article offers a mulligan on the Treasury regulations to fulfill the hope of conservation by: (1) defining “general public” as “public at large,” (2) preventing limitations on access unless a limitation is for the health and safety of the general public, and (3) including an example of a recreational property where access is limited with an interpretation of whether the property qualifies for a deduction.

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