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Defining, Supporting, and Scoping an Impact-Based Approach to Maui’s “Functional Equivalence” Standard for Clean Water Act Permitting

In County of Maui v. Hawai’i Wildlife Fund, the Supreme Court held that “the statute requires a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.” The Court thus confirmed that some discharges traveling from point sources to navigable waters via intermediate nonnavigable and non-point- source “conduits” require permitting under the Clean Water Act. However, the meaning of “functional equivalence” was left ambiguous, and the Court’s proposed list of factors to determine functional equivalence was incomplete. This standard and its attendant factors, if applied incorrectly, risk undermining the purpose of the Clean Water Act. In this Note, I clarify that functional equivalence should be determined by the potential impact that an indirect point-source discharge can have on a navigable water. This is consistent with the Clean Water Act’s purpose and common-law origins and with judicial and regulatory history. The factors identified in County of Maui v. Hawai’i Wildlife Fund should be understood as indicia for determining an indirect discharge’s potential to impact navigable waters. Using the Clean Water Act’s public-nuisance and strict- liability roots, I also propose additional indicia that can determine whether functional equivalence holds for the purposes of permitting under different discharge scenarios.

Mar 15, 2022
Rafael Alberto Grillo Avila

The Environment Deserves Better: EPA and Questionable Pesticide Registration

It is no secret that the chemicals present in pesticides can damage environmental and human health. Preventing this damage is why the process of registering pesticides is so crucial. In National Family Farm Coalition v. U.S. Environmental Protection Agency, the Ninth Circuit Court upheld the U.S. Environmental Protection Agency’s (EPA) registration of the new pesticide Enlist Duo.

Mar 15, 2022
Annie Pinto

Amending the Federal Advisory Committee Act to Protect Independent Scientific Expertise

Advisory committees serve vital roles in the Environmental Protection Agency (EPA) and other federal agencies. At EPA, advisory committees review the scientific basis of the agency’s decision making, revise air quality standards, and advise the agency on its research program, among other functions. In 2017, EPA issued a directive titled “Strengthening and Improving Membership on EPA Federal Advisory Committees” (“Directive”). The Directive announced that EPA would no longer allow EPA grant recipients to serve on the agency’s advisory committees. This policy resulted in an apparent industry tilt on EPA scientific committees after grant-receiving academic scientists were removed and replaced with scientists with industry ties. The Directive was ultimately the subject of three separate lawsuits, all which resulted either in the Directive being struck down or in the reversal of a trial court decision in favor of EPA.

Mar 15, 2022
Amanda K. Rudat

Transition Critical: What Can and Should Be Done with the Congressional Review Act in the Post-Trump Era?

My decision to write about the Congressional Review Act (CRA) in the fall of 2020 launched the beginning of an academic journey marked by several unexpected twists and turns. I originally chose to write about the CRA because, like many political theorists at the time, I was curious whether a Democrat-controlled Congress and presidency might utilize the CRA to rescind Trump-era agency rules (just as the Republican-led 115th Congress did for Obama-era regulations in 2017). But while I was intrigued by the possibility of using the CRA to strengthen environmental protections in the short term, I was terrified by the long-term implications of reinstating what is essentially a legislative veto.

Mar 15, 2022
Samantha Murray