Environmental and Natural Resources Law Clinic
Town of Sturbridge Board of Health and Twenty-Eight 10-Citizen Groups, et al. vs. Town of Southbridge Board of Health et al.
In September 2011 the clinic filed an amicus curiae brief on behalf of the Toxics Action Center with the Massachusetts Supreme Judicial Court in Town of Sturbridge Board of Health and Twenty-Eight 10-Citizen Groups, et al. vs. Town of Southbridge Board of Health et al. The brief was submitted in support of the standing of environmental plaintiffs to appeal a town board of health site assignment decision to the Massachusetts state court system.
Plaintiffs include groups of residents who intervened in the public review process for defendant Southbridge Recycling and Disposal Park, Inc.'s application for a modification of the site assignment for its solid waste disposal facility in Southbridge, Massachusetts. The Southbridge Town Board of Health granted Plaintiffs status as interveners in the administrative hearings. Following the hearings, it granted the modification, subject to conditions.
Plaintiffs appealed the decision to the Massachusetts Superior Court. In the state court action, the solid waste disposal facility objected to the standing of Plaintiffs. The issue for the Supreme Judicial Court is whether interveners who fully participated in an administrative proceeding have standing to commence an action for judicial review pursuant to Massachusetts General Law 30A, Section 14.
The clinic's amicus brief was prepared by LLM Fellow Christopher Ahlers and student clinicians Nassy Avramidis and Molly Hann. They argued that the Court should afford judicial deference to the administrative finding that Plaintiffs were "specifically and substantively affected" by the proceeding, and that this provides a sufficient basis for a finding of standing in the state court action.
Oral arguments in the case were heard in October 2011, and a decision is expected in early 2012. The amicus brief can be downloaded from the Supreme Judicial Court's website: http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-10852.
In re Motion for Declaratory Ruling of Campaign for Ratepayers Rights, et al.
ENRLC and Toxics Action Center have joined forces in the Partnership for Justice program to help New England communities address toxic and harmful pollution sources in their neighborhoods. This week, on behalf of Toxics Action Center and a group of local residents, ENRLC filed an amicus brief in the New Hampshire Supreme Court concerning the Merrimack Generating Station, a large coal-fired power plant in Bow, New Hampshire. The amicus brief calls the Court's attention to the air, water, and greenhouse gas pollution emanating from the facility and the effect of this pollution on New Hampshire residents. The facility was recently expanded in connection with a planned future project to install a mercury scrubber. Despite the large-scale nature of the project, New Hampshire’s Site Evaluation Committee determined that the project did not constitute a “sizeable addition” and therefore did not trigger the need for the State’s environmental review process for energy projects. Our goal in participating as amici is to persuade the New Hampshire Supreme Court that it is important to remand the case to the SEC so that it can fully evaluate the environmental impacts of the project and impose conditions designed to protect the public and the environment from such impacts. In light of New Hampshire’s ozone nonattainment status, mercury impairment of the Merrimack River, and stated policy of maximizing greenhouse gas reductions, we are hopeful that the SEC will in fact impose additional requirements on the facility. The final brief sets forth a thorough analysis of a complex set of legal and technical issues. Kudos to LLM fellow Michelle Walker and student clinicians Skye Borden, Elizabeth Newbold, Jonathan Voegele, Henry Tashijian, and Anastasia Douglas for all their hard work!
In Re: Montpelier WWTP Discharge Permit
In December 2009, the Clinic filed an amicus brief with the Vermont Supreme Court on behalf of former Vermont environmental officials Tim Burke, Stephen Dycus, Jonathan Lash, John Kassel, and Patrick Parenteau. The case originated in the Vermont Environmental Court, where Conservation Law Foundation challenged a Clean Water Act permit issued to the Montpelier wastewater treatment plant by Vermont's Agency of Natural Resources. CLF argued, and the Environmental Court agreed, that the agency must set permit limits adequate to protect Lake Champlain's water quality, regardless of a pre-existing pollution budget ("TMDL") for the Lake.
In the amicus to the Supreme Court, the Clinic described the phosphorus pollution crisis in Lake Champlain (which is listed as "impaired" for phosphorus under the Clean Water Act), and explained why more stringent controls were both necessary as a practical matter, and also required by the Clean Water Act. Among other things, the brief noted that the State must consider current water quality conditions when setting permit limits and could not merely rely upon the prior TMDL, which had serious underlying problems. The brief concluded:
"Amici Curiae are proud of the State's longstanding efforts to protect the Lake but it is clear that past efforts have not been yet achieved the ultimate goal of a clean Lake. The State of Vermont and the Agency of Natural Resources must use all available tools to protect the crown jewel of our state's public trust water resources. This includes setting more stringent limits on phosphorus in wastewater discharge permits such as the City of Montpelier's as necessary to protect water quality in the Lake."
In October 2011, after the United States Environmental Protection Agency had reopened and disapproved the prior TMDL, the State withdrew its appeal from the Supreme Court. Pursuant to the Environmental Court's previous order, the permit has been remanded back to the Agency of Natural Resources for the establishment of appropriate phosphorus limits.
State of North Carolina v. Tennessee Valley Authority
The clinic filed an amici curiae brief in November 2009 in the U.S. Court of Appeals for the Fourth Circuit in North Carolina v. Tennessee Valley Authority on behalf of fourteen environmental law professors in support of North Carolina. Two of the fourteen professors are at Vermont Law School, William H. Rodgers Jr. is the Douglas Costle Chair Visiting Professor and John Greabe is an associate professor.
The State of North Carolina sued TVA in the federal court for the Western District of North Carolina alleging that air pollution from coal-fired power plants located in Alabama and Tennessee constituted a public nuisance that was harming public health and natural resources including The Great Smoky National Park. The lower court agreed and issued an injunction requiring TVA to install pollution controls costing upwards of $3 billion. TVA appealed arguing that the state of North Carolina lacked authority to bring a public nuisance action under the common law of those states. The clinic's amicus brief, authored by professor Patrick Parenteau with help from Associate Director Teresa Clemmer and several clinicians, argues that the Clean Air Act specifically preserves the rights of downwind states to abate interstate pollution through the exercise of their parens patriae authority by bringing common law nuisance actions in federal courts.
This is an important case that could set a precedent for using common law remedies to fill the gaps in conventional air pollution regulations which often fail to protect downwind states, and also lays the groundwork for tackling CO2 and other greenhouse gases in climate change cases. At least a dozen amicus briefs have been filed, including one signed by the State of Vermont.
South Florida Water Management District v. Miccosukee Tribe of Indians
In November 2003, student clinicians filed an amicus curiae brief in this case on behalf of the Association of State Wetland Managers and the Tropical Audubon Society. The case considered whether pumping polluted water from the urbanized areas of Broward County, Florida, into the Everglades requires a permit under the Clean Water Act. The water contains high levels of phosphorous that promote the growth of cattails that are rapidly crowding out the natural sawgrass vegetation and destroying the “river of grass” that has made the Everglades a unique ecosystem. In a victory for the clinic’s position, the court ultimately decided to send the case back to the trial court for further hearings on the impact of the pumping on the Everglades.
The Supreme Court’s decision can be found at 543 U.S. 805 (2004).
In Re Stormwater NPDES Petition
In April 2005, students filed an amicus curiae brief in this case on behalf of National Wildlife Federation, the Honorable Philip Henderson Hoff, former Governor of Vermont, and the Honorable George E. Little Jr., former Vermont Representative and Senator. In this case before the Vermont Supreme Court, the issue presented was whether the Vermont Agency of Natural Resources was obligated under the federal Clean Water Act to require storm water dischargers in areas with impaired water quality to obtain discharge permits. The issue is critical to the health of Lake Champlain and the rivers and tributaries that feed it due to the significant impact of storm water runoff on its ecological health. The Vermont Supreme Court ruled in favor of the position supported by the clinic and remanded to the agency for further consideration in a ruling issued in August 2006.
The Vermont Supreme Court’s decision can be found at 2006 VT 91.
United States v. Johnson
In August 2005, the ENRLC filed an amicus curiae brief with the United States Court of Appeals for the First Circuit on behalf of the National Wildlife Federation, Association of State Wetland Managers, Environmental League of Massachusetts, Massachusetts Public Interest Research Group, and the Sierra Club. The issue in the case was whether the United States had jurisdiction to enforce the Clean Water Act prohibition on filling wetlands against a cranberry farming corporation that filled a series of wetlands impacting the Buzzards Bay watershed in Massachusetts. The clinic argued for broad federal jurisdiction and the court issued a decision in favor of the United States that can be found at 437 F.3d 157 (1st Cir. 2006). Following the Rapanos decision by the U.S. Supreme Court, however, the First Circuit agreed to reconsider this case. The clinic filed a second amicus curiae brief arguing for the application of the test used by Justice Kennedy in Rapanos. The First Circuit then remanded the case to the district court for further review in light of Rapanos and requiring an analysis by the district court consistent with the test urged by the clinic.
S.D. Warren Company v. Maine Board of Environmental Protection
In January 2006, the ENRLC filed an amicus curiae brief with the U.S. Supreme Court on behalf of the National Wildlife Federation and 51 local, state, and national organizations with shared interests in protecting state authority to require Clean Water Act water quality certifications for hydropower dam licenses. Our brief examined the scientific evidence supporting a finding that major hydropower dams have a significant impact on water quality and was cited for that reason in the court’s opinion, which upheld the State of Maine’s authority to require a water quality certification under Section 401 of the Clean Water Act.
The Supreme Court’s decision can be found at 126 S.Ct. 1843 (2006).
John A. Rapanos et ux., et al. v. United States and June Carabell et al. v. United States Corps of Engineers, et al.
In January 2006, the ENRLC filed an amicus curiae brief with the U.S. Supreme Court on behalf of the Association of State Wetland Managers, Association of State Floodplain Managers, and New England Interstate Water Pollution Commission. The amicus brief addressed the question of the extent of Clean Water Act jurisdiction over wetlands and tributaries. The clinic’s brief argued for a broad scope of jurisdiction based upon the language, purpose, and history of the act and provided a discussion of the science supporting the significance of wetlands and tributaries to water quality. The Court issued a plurality decision with a concurrence by Justice Kennedy that is likely to be controlling in the lower courts and that cited the clinic’s brief.
The Supreme Court’s decision can be found at 126 S.Ct. 2208 (2006).
Massachusetts et al. v. U.S. Environmental Protection Agency
The ENRLC filed an amicus brief on behalf of a coalition of ocean and coastal conservation organizations in support of Petitioners in Massachusetts v. EPA. In this case, 12 states and several environmental organizations petitioned EPA to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act. EPA declined, arguing that it did not have authority to regulate the emissions and, even if it did, it would decline due to policy reasons. The U.S. Court of Appeals for the District of Columbia, in a split decision, upheld EPA’s decision and the U.S. Supreme Court granted review to settle the question. The court heard arguments on November 29, 2006. Much of the argument focused on whether the petitioners had standing to bring the case, raising fears that the court might not reach the merits of the case and deal a blow to other climate change cases that are pending in the lower courts.
The Supreme Court’s decision can be found at 127 S.Ct. 1438 (2007).
Natural Resources Defense Council, Inc. et al. v. Donald C. Winter, Secretary of the Navy et al.
The clinic filed an amicus brief with the United States Court of Appeals for the Ninth Circuit on October 1, 2007. The brief was filed on behalf of six law professors, including Vermont Law School Professor Stephen Dycus, in support of the merits of a National Environmental Policy Act (NEPA) claim filed by Natural Resources Defense Council and other conservation groups. The U.S. District Court for the Central District of California enjoined the U.S. Navy’s use of mid-range sonar as part of its training in Southern California, finding that use of this sonar presents the risk of significant harm to marine species. The Ninth Circuit initially stayed the injunction pending appeal based on the Navy’s arguments that the stay would harm national security interests but, after consideration of the merits briefs, the Ninth Circuit vacated the stay.