Environmental Law Series: Pollution, Clean Water & Clean Air

Episode Notes

Transcript

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LeRoy C. Paddock:  Beginning in 1969 with NEPA and then in 1970 with the Clean Air Act and 1972 with the Clean Water Act. Environmental law essentially became federalized and we’ve now have about 15 or 19 Federal Environmental Laws which are sort of the baseline for the country and how we deal with environmental problems.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

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J. Craig Williams:  Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I am Craig Williams coming to you from Southern California. I write a blog named “May It Please the Court,” and we have two books out titled ‘How to Get Sued’ and ‘The Sled.’

Today on Lawyer 2 Lawyer, we’re going to continue our series on Environmental Law. We’re going to cover the cradled grave treatment of chemicals throughout the year and our laws on environmental biology. But in this episode, we’re going to be discussing the Pollution Prevention Act, the Clean Water Act and the Clean Air Act and their intended impact on our environment and we will look ahead to the future for both legislation and cases coming up. To speak more on this topic, our Guest today is LeRoy Paddock, he is a former Associate Dean for Environmental Law Studies at George Washington University Law School. Dean Paddock is also a member of the ABA Section on Environmental, Energy and Resources Council. And prior to working at GW Law, he was a Director of Environmental Legal Studies at Pace University Law School from 2002 to 2007, and he’s also served as Senior Consultant for the National Academy of Public Administration on several projects since 1999. Welcome to the show Le.

LeRoy C. Paddock:  Thank you very much.

J. Craig Williams:  Well, how did you first become interested in the environmental area of law?

LeRoy C. Paddock:  Well, I probably became interested. While I was living in Connecticut in the Coast Guard in the early 1970s, a more community-based issues. So, I went to law school at the University of Iowa, specifically with the idea of going into environmental law and had the opportunity to work with dean of the law school there who was an environmental lawyer as his research assistant. And then went to the Minnesota Attorney General’s office in 1978 with the idea of doing environmental law and I spent 20 years representing the State Pollution Control Agency and also advising. The attorney general who at the time was Hubert Humphrey, III on Environmental Policy issues. So, it’s been my entire career.

J. Craig Williams:  You had such a long involvement environmental area of law. How did environmental law first get generated? How did it start?

LeRoy C. Paddock:  Well, it’s interesting that you ask that because I teach a course on the National Environmental Policy Act, which is the first of the major National Environmental Laws of course — before 1969, when NEPA was passed, a lot of states were doing environmental issues but the federal government was more involved in kind of urging the states on. And beginning in 1969 with NEPA and then in 1970 with the Clean Air Act, and 1972 with the Clean Water Act. Environmental Law Center essentially became federalized and we now have about 15 or 18 Federal Environmental Laws which are the sort of the baseline for the country and how we deal with environmental problems.

J. Craig Williams:  It’s an interesting background that you offer. I was in the Coast Guard Academy and New London Connecticut and also went to the University of Iowa, but a few years later than you.

LeRoy C. Paddock:  Just interestingly, I also spent four years at the Coast Guard Academy but I was enlisted there as a Damage Controlman and worked in the carpenter shop.

J. Craig Williams:  It’s a great place to learn about environmental law because that’s the direct application of our laws — some of our laws to the maritime issues that we face. Let’s talk a little bit about the Pollution Prevention Act. Generally, that was I think first enacted in 1990. What’s the design and what’s the reasoning behind PPA?

LeRoy C. Paddock:  Well, one of the things that Congress, I think began to realize, after about 20 years of trying to implement environmental laws and dealing with pollution.

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At the end of the pipe is that it’s expensive and time-consuming and difficult to deal with issues once they’ve reached the stage where you’re emitting pollutants. So, the Pollution Prevention Act was really designed to get in front of those issues and begin to identify ways of designing out pollution from industrial practices. So, it’s not a regulatory law,  it’s more of an assistance-based law and a law that provides guides to industry about how to deal with preventing pollution.

So, in Minnesota, we had Minnesota Technical Assistance Project which was designed at the University of Minnesota is a State Law but University of Minnesota implemented and they would send student engineers into facilities and I think they still do today to help them redesign their processes. So, they use fewer chemicals, produced less pollution, it’s probably the time when EPA developed its design for environment program, which was put together to try to help industry think about how we design products so there is less pollution generated in that in that process.

J. Craig Williams:  Generally, the idea is source reduction, is to eliminate as much pollution as possible from the beginning of the process, is that right?

LeRoy C. Paddock:  Yeah, that’s correct and it’s interesting that there’s a real renaissance in that idea today which I think has a deeper penetration into business. So, it’s sometimes referred to as circular economy with a lot of major companies now focusing on how to build their products differently. So, there is less pollution, how to make them so that they can be repurposed or reused or taken apart and being used for other purposes. So, circular economy is one way of talking about it. In other quarters, it is referred to as “materials conservation.”  So, we know with especially some of the minerals that are used on cellphones and computers that there are limited supplies. So, you want to try to conserve the hose and then recapture those materials if possible, at their end of life. And more recently, a number of states have adopted what’s a widespread practice in Europe of Extended Producer Responsibility Laws. States started that with electronic waste and I think 26 states now have electronic take back laws for televisions and computers and the more recent interesting development has been in main Oregon and California where those Extended Producer Responsibility Laws now, apply to packaging and plastics and they require manufacturers that use packaging and plastics to develop a collection system, usually a third party process to take back packaging and plastic so that they don’t end up in rivers and lakes or landfills.

J. Craig Williams:  Yes, it’s an interesting development here in California to see that. There have been some significant changes in the way that those things are handled.

LeRoy C. Paddock:  New York is also considering Similar Extended Producer Responsibility Law that has been supported by the New York Bar Association just in recent weeks.

J. Craig Williams:  Now, one of the things you talked about is that the Clean Air Act was enacted earlier than the Clean Water Act and it was intended I believe to reduce and control air pollution nationwide. It started out apparently 1963. What type of influence does the Clean Air Act have on our country in the way that our air is treated?

LeRoy C. Paddock:  Well, it’s a huge influence. Folks of my age will remember when Los Angeles was often smog bound from automobile emissions. We were exposed to lots of sulfur dioxide and nitrogen oxide emissions from cars around the country, from coal-fired power plants. So, the Clean Air Act I think is widely recognized as one of the most successful environmental laws from a public health protection standpoint because it’s really heavily focused on air-emission standards that will avoid serious public health exposure.

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More recently one of the bigger accomplishments has been around reducing diesel emissions. Diesel emissions, one study in Los Angeles called Multiple Air Toxic Study looked at the range of air toxic that communities were exposed to and found that diesel emissions, along highways and near the ports were an order of magnitude more damaging to public health than any other toxic including benzene. That study and other studies have really focused Clean Air Act on reducing, emissions from things like school buses where children have been exposed for years to diesel emissions.

J. Craig Williams:  How is it that California has had such an impact on the Clean Air Act, just from its own standpoint of being a separate state apart from the federal regulations?

LeRoy C. Paddock:  Yeah, so California because of the level of smog and other problems with — especially automobile emissions, had a very strong air quality program before the federal government. It’s continued to have a — kind of a special role under the Clean Air Act. So, California, is the one state that’s allowed to set automobile emission standards more stringent than the federal standards. And California has routinely done that over many, many years, it was precluded from doing that during the Trump Administration because the EPA, the US Environmental Protection Agency has to give a California a waiver to allow it to have more strict standards.

But during the Biden Administration, California is again taking that lead role because the Biden Administration has granted the waiver for California to have more strict standards and it’s not just California, there are several other states, especially in the northeast that have adapted the California stricter standard. So, California is the only state that can set stricter standards but other states can adopt the California standard, essentially making the California standard a nationwide standard for automobiles. We used to talk about California cars and 49 state cars. We rarely talk about that anymore, because there are enough states that adapt the California standard that car manufacturers really have to manufacture to the California standard.

J. Craig Williams:  Well, it’s time for us to take a quick break to hear a word from our sponsors, will be right back.

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J. Craig Williams:  And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Le Paddock; he is the Former Associate Dean for environmental law studies at George Washington University Law School. We’ve been talking about the Clean Air Act and California’s influence on it. You know, the 2022 amendments put $370 billion into the US EPA over the next decade to work on improving renewable energy and electrical vehicles. If I remember correctly, California has essentially outlawed gasoline-powered vehicles, in the next decade or some short period of time, and we’ll going to be totally turning toward electric. What’s your thought on that?

LeRoy C. Paddock:  Well, it’s certainly an interesting development and if you look at the new cars for 2023, you see many, many more electric vehicles on the market. This started in — of course, in the European Union, which now is often leader on environmental issues. I think England has adopted a phase out for the internal combustion engine, many of the automobile manufacturers now have embraced this idea.

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And of course, the electricity companies have embraced it because it’s a big new market. It’s going to be important for climate change that we electrify not only our automobiles but eventually all of our buildings. In fact, I’m just reading today about the schedule that New York is thinking about and requiring new billings to be entirely electric and the dates they’re talking about are 2024 or 2027 which is a pretty amazing development in the last few years.

One can worry a little bit about the reliability of the electric grid when all of these really large new loads come online. And of course, it doesn’t help to have an all-electric fleet if the electricity generated to supply those cars is still heavily dependent on natural gas. But kind of a chicken and egg situation, we need to decarbonize the grid quickly and also quickly decarbonize automobiles and buildings in order to meet the climate goals that are set in Paris(ph) and that the Biden Administration wants to meet.

J. Craig Williams:  Are we going to be able to achieve those standards?

LeRoy C. Paddock:  It’s a big challenge to meet those standards. If you would have asked me 10 years ago whether we would have — even now, 20 to 25 percent renewable energy grid, I would have not thought that to be possible and both technically and politically but that is where we’re at now and that pace is accelerating on the electric grid. So, I do think these remain very challenging goals and the biggest challenge among those probably is electricity transmission. Because so much of our wind and solar are generated in places where people don’t live and we need to have long-distance transmission lines to have an efficient renewable system.

So, citing electricity transmission lines, historically has been very difficult and time-consuming and you know, the National Environmental Policy Act which requires environmental impact statements takes time to complete. So, there are a lot of obstacles in the way, but we are remarkably farther along than I would have anticipated even a few years ago.

J. Craig Williams:  Right? So, Le, let’s switch subjects here to the Clean Water Act and talk a little bit about some of the litigation that has occurred that’s recently had a large influence on it.

LeRoy C. Paddock:  Yes, there’s one really big issue with the Clean Water Act and another interesting Supreme Court case that also affects the Clean Water Act. So as most people may recall the basic provision of the Clean Water Act is — no one can discharge a pollutant through a point source into navigable water of the United States without a permit. Anytime there is a discharge through a ditch or pipe, a permit either EPA or the state is required. So, I’ll take this kind of the narrower issue from the Supreme Court first, and that is a case involving, I think it’s County of Maui in Hawaii and Maui, the wastewater treatment operator was discharging their affluent near the Pacific Ocean, but into the ground water before it actually reached the Pacific Ocean.

Well, environmental group sued and said what Maui is doing is really discharging a pollutant through a point source into a navigable water, the Pacific Ocean. Maui argued? No, we’re discharging it into groundwater and the Clean Water Act doesn’t really address discharges into groundwater, it addresses navigable waters. The evidence in that case indicated that the pollutants from the wastewater discharge did reach the Pacific Ocean within a few weeks of the time they were discharged, maybe it’s a couple of months. But the Supreme Court said that practice was in fact a discharge of a pollutant into a navigable water of the United States through a point source, essentially opening the door to allowing or requiring permits for discharges near but not actually into a navigable — in fact, water.

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This was the result that I had always hoped would be the case because in Minnesota where I worked for many years, they have a lot of karst formations, which I —  Limestone that erodes very easily, and you can discharge into those karst formations and sometimes in hours, if not days, pollutants can reach waterways. So, if the Supreme Court hadn’t done that, I think a lot of pollutants would be reaching navigable waters without having a permit. So that was an important decision.

The other one that is a day-to-day controversy still today and it has been for the last five or six years is what constitutes a navigable water of the United States, especially as it applies to wetlands, tributaries and what are called ephemeral waters that is waterways that don’t run all year round. The Supreme Court has always been split on this issue with a four, four and one ruling which said that adjacent waters are subject to permitting, especially by the Corps of Engineers for Wetlands. The Obama Administration tried to adopt new rules that would clarify when wetlands were considered part of navigable waters. The Trump Administration, reversed those rules, the Supreme Court of stayed those rules. Then the Biden Administration has come back with a new rule, which they are proposing this year and there’s a case in the Supreme Court right now which would essentially invalidate the old Obama rules.

So, it’s a very confusing area but the kind of the core question is, what wetlands should be subject to the Clean Water Act? Which types of tributaries should be subject to that? And what kind of ephemeral water should be subject to the Clean Water Act? All of these are based on Commerce Clause because environmental laws are all based on the Commerce Clause of the US Constitution. So, one of the kinds of — key questions is, what is the extent of the Commerce Clause and might the Supreme Court actually narrow the definition of how far the Commerce Clause can be used to support environmental laws.

J. Craig Williams:  We were going to take another quick break to hear word from our sponsors, we’ll be right back.

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And welcome back to Lawyer 2 Lawyer on the Legal Talk Network. I’m joined by Le Paddock. Le, we were talking right before the break about waters of the United States and the Clean Water Act. If I remember correctly, the Federal Courts rejected the Trump rule that limited the application of the Clean Water Act to a number of waterways.

LeRoy C. Paddock:  I believe that’s right, there are multiple rules at play and multiple cases in the Supreme Court. I think the important point for the listeners is this is going to be a very important year for understanding exactly what the extent of the jurisdiction of the United States is over navigable waters. And that really is important for Corps of Engineers permitting for dredge and fill as well as for the extent of EPA’s Clean Water Act jurisdiction.

J. Craig Williams:  Right. Well, Le, we’ve just about reached the end of our program so I think it’s time to wrap up and get your final thoughts as well as your contact information.

LeRoy C. Paddock:  A few quick notes. I do think that the use of materials which implicates a lot of greenhouse gas emissions is going to be an important new issue to watch. Circular economy, Extended Producer Responsibility, the Clean Air Act, obviously the big issue watches — climate change and what kind of steps EPA takes and what authority they have in the Clean Water Act.

It’s going to clearly be what constitutes a navigable water of the United States. So those are — I think the important issues to keep track of — I can be reached at [email protected].

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Thank you for this opportunity to talk a little bit about environmental law and where it might be going?

J. Craig Williams:  Well, thank you, Dean Paddock, it’s been a pleasure having you on the show today. I think I’m squarely on the side of Environmental Compliance and expanding the definition of navigable waterways to certainly include groundwater contamination as le pointed out.

But California has long taken the lead in the Clean Air Act and as a consequence, Jimmy Buffett’s — you know, has spent day in brown LA Haze.  This is no longer the case. We rarely have those type of days in Los Angeles anymore largely, in fact due to this Clean Air Act and I know other states has cleaned up as well. So, there are large benefits to these statutes and it’s troublesome to see the steps that President Trump took; try and cut them to eliminate those protections but seems like we’re back on the right path.

Well, that’s it for Craig’s rant on this topic today. Let me know what you think. If you like what you heard in the podcast today, please rate us on Apple Podcast, or your favorite podcasting app.  You know, so visit us at legaltalknetwork.com where you can sign up for newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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