The Clean Water Rule was the latest attempt by the Environmental Protection Agency and the Army Corps of Engineers to define “waters of the United States” under the Clean Water Act. While both politics and scholarship around this issue have typically centered on the jurisdictional status of rural waters, like ephemeral streams and vernal pools, the final Rule raised a less discussed issue of the jurisdictional status of urban waters.
In Sierra Club v. ICG Hazard, the Sixth Circuit held that a general permit holder is only liable for discharges expressly prohibited by his/her permit terms as long as 1) he/she adequately disclosed other discharges and 2) the permitting agency reasonably contemplated those discharges at the time the permit was issued. ICG Hazard was the first time that a court of appeals had ever considered how the permit shield provision should apply in the general permit context.
The United States leads the world in natural gas production, and by the end of 2014, domestic oil production had reached its highest rate in thirty years. While this U.S. natural gas production occurred on both private and public property, this In Brief focuses specifically on public lands managed by the Bureau of Land Management (BLM). The BLM oversees more than one hundred thousand onshore oil and natural gas wells on federal land. In 2008, the Montana Environmental Information Center (MEIC) challenged a series of BLM oil and gas leases in Montana. MEIC alleged that the BLM violated the National Environmental Policy Act (NEPA) by failing to consider methane emission reduction strategies in its leases.
After the Deepwater Horizon oil spill of 2010, one of the worst environmental man-made disasters and the largest ever oil spill in the United States, scholars and government investigators analyzed the offshore regulatory regime and its implementation in search of failures that led to the accident and possible solutions. Relatively few critiques of the regulatory regime discussed strict liability for environmental damages from oil spills. Enacted in the Oil Pollution Act of 1990, this regime is a part of the solution, but is not a complete answer. One issue not addressed by this liability regime is the judgment-proof problem—some injurers are unable to pay the full amount for which they have been found legally liable because they simply do not have the economic assets.