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mm* 24 The Altamont Enterprise - Thursday, March 9, 2006 Hilltown lawyer goes to Washington Will the U.S. Supreme Court reshape the Clean Water Act? By Peter Henner It is the dream of many law- yers, including myself, to some- day argue a case before the United States Supreme Court. It is not only the majesty of the court, the elegance of the sur- roundings, and the realization that a lawyer is arguing before one of the most hallowed institutions in the United States of America, it is the fact that the Supreme Court is the final arbiter on constitutional ques- tions, as well as any interpre- tation of federal law. Argument before ; the Rehnquist Court Four years ago, I went to Washington, D.C. to observe an argument of the Supreme Court in a case that was of vital importance to a client. My client had won a decision against the United States Postal Service from an intermediate appellate court (Fitzgerald v. Henderson), reinstating her claim of sexual harassment against her super- visor, and the Postal Service had appealed to the United States Supreme Court. The Court had \held\ the Postal Service appeal in abeyance, pending its resolu- tion of another case, arising in California, which involved the same issue pertaining to the interpretation of the statute of limitations for hostile work en- vironment. | The argument was fascin- ating. Then-Chief Justice Wil- liam H. Rehnquist asked a few questions, Justice Antonin Scalia vigorously questioned both par- ties, Justice Ruth Bkder Gins- burg threw a few Softball ques- tions to the attorney represent- ing the employee, so that the attorney could make a strong argument, Justice Stephen G. Breyer asked a number of pointed questions to both sides, and Justice Clarence Thomas was characteristically silent. Ultimately, the Supreme Court ruled in favor of the employee plaintiff, (National Passenger Railroad v. Morgan), the Supreme Court denied certiorari in the case of my client, based upon its holding in the California case, and we were able to negotiate a settlement with the Postal Service. Hydroelectric facilities under the Clean Water Act I am currently involved in several cases involving a fairly arcane area of the law: the licensing of hydroelectric power plants. Hydroelectric facilities must obtain a license from the Federal Energy Regulatory Commission (FERC). An applicant for any federal license must obtain a Water Quality Certificate under section 401 of the federal Clean Water Act from the state environ- mental agency (in New York, the Department of Environmental Conservation). In S.D. Warren v. Maine Board of Environmental Protection, a hydroelectric faci- lity (Warren) seeks to avoid the imposition of environmental conditions by the state of Maine by appealing to the Supreme Court on the grounds that sec- tion 401 does not apply to hydroelectric facilities. If the hydroelectric facility is successful in this appeal, every state in the country will lose the power to impose any conditions upon hydroelectric facilities. Be- cause of the importance of the Maine case to a significant num- ber of my clients, I wanted to see the argument before the high court. I had believed that the Warren case, involving a hypertechnical interpretation of a relatively ob- scure statute, would not attract much attention. However, the date of the argument, Feb. 21, was the first date on the bench for the new Supreme Court Jus- tice, Samuel Alito. Furthermore, the first case on the docket, Rapanos v. United States, in- volved a high profile frontal assault upon the Federal Clean Water Act itself. By the time I arrived at the court, the line for the general public to observe the case was two blocks long, and even the much shorter line for members between the term \discharge\ and \discharge into\ and whether the diversion of water to a turbine for a hydroelectric facility constituted a \point source\ or a \non-point source,\ the ideological split on the court was readily apparent. The attorney for Warren acknowledged, in response to initial questioning by Chief Justice John Roberts Jr., that the water that is put back into the river downstream of a hydro- electric facility is qualitatively different than the water that is taken out upstream, as a result of Justice Stevens pointed out that the water going through a turbine contained dead fish, while the fish were alive upstream of the turbine. of the Bar of the Supreme Court had almost 100 lawyers. I was given a card, indicating that I was number 72 on the waiting list to get in to see the argument and was only able to hear it broadcast into the lawyer's lounge of the Court. Possible judicial repeal of the Clean Water Act Rapanos involves the Army Corps of Engineers' efforts to enforce its requirements per- taining to the filling of a wetland. The developer, supported by the conservative Pacific Legal Foun- dation, argued that the federal government does not have the authority to regulate waterways that are not \navigable in fact\ or, iri other words, waters where you can not actually float a boat. • According to this argument, water bodies, such as small streams that are only tributaries to navigable waterways, canals, ditches, as well as wetlands, could be removed from regula- tion under the federal Clean Water Act. Such a theory is a radical departure from more than 30 years of established jurisprudence under the Clean Water Act, which has been com- monly interpreted to authorize regulation on any discharge into any water that ultimately feeds into a navigable waterway. If the developer is successful, more than half of the nation's waterways will be exempted from regulation under federal law; with enormous conse- quences for the environment. The developer's lawyer vigor- ously argued that Congress in- tended only to regulate actually navigable waterways. He was questioned sharply by liberal judges on the bench, including justices Ginsburg, John Paul Stevens, and Breyer. In contrast, the lawyer for the United States, who argued that discharges of pollutants into non-navigable tributaries would ultimately flow into navigable waters, was sharply questioned by the con- servative justices, including Justice Scalia, who kept insisting that discharges into drainage pipes had no effect upon the navigable waters. Argument of the hydroelectric facility case Warren, the case that I had traveled so far to see, also in- volved an interpretation of the Clean Water Act. Although I had thought that the case turned upon fairly technical definitions of law, such as the distinction its passage through the dam. Furthermore, as noted in a ques- tion by Justice David H. Souter, the water is not placed back into a river, but is instead placed back into a completely de-watered riverbed. .Nevertheless, while the attor- ney for Warren acknowledged that the water was different, he alleged that it was not covered by the definition of a discharge in the Clean Water Act because that definition exempts \non- point\ source discharges, and he claimed that the turbine and government's theory, the an- swer would be yes. Steven Rowe, the attorney general for the state of Maine, argued for the Maine Board of Environmental Protection. His argument was almost imme- diately interrupted by Chief Justice Roberts, who inquired whether a water wheel placed in a river would create a \dis- charge.\ Rowe responded by saying it would depend upon the circum- stances, and noted that a Water Quality Certificate would only be necessary in circumstances where someone was applying for a federal license; in other words, it would not apply to a trivial use of the river. Rowe was then subject to a series of progressively hostile questions by Justice Scalia. Justice Scalia argued that, even though a pollutant might have been added, there was no discharge because the river was a \unitary\ body of water, in the same way that the Supreme . Court had recently held that a transfer of water from two parts of a connected water body did not constitute a discharge (South Florida Water Management District v. Miccosukee Tribe). This drew a response from a Justice Souter, who offered a different interpretation of the 2004 decision of Miccosukee, noting that there had been pollu - tion on both sides of the water body in that case. Justice Alito asked whether Congress intended to give the power to states to deny a hydro- electric facility the right to operate by imposing strict Justice Scalia argued that, even though a pollutant might have been added, there was no discharge because the river was a \unitary\ body of water. tailrace from the hydroelectric facility constituted a non-point source. Justice Stevens pointed out that the water going through a turbine contained dead fish, while the fish were alive up- stream of the turbine. However, while Warren's attorney ac- knowledged that FERC could impose conditions on the facility, he argued that neither Environ- mental Protection Agency, the federal agency responsible for enforcing the Clean Water Act, nor states, under section 401, had the authority to regulate hydroelectric facilities because the water was not being \dis- charged.\ The attorney also acknow- ledged that a 1994 decision of the Supreme Court, (PUD No. 1 of Jefferson County v. Washing- ton Dept. of Ecology, had granted a \robust power\ to the states with respect to section 401. Justice Breyer, in a pointed series of questions, asked whether water flowing over the Hoover Dam constituted a dis- charge and whether or not, under the Warren attorney's theory, the Missouri River \dis- charged\ into the Mississippi. Justice Souter then asked a series of questions including whether water flowing around a post placed in the river consti- tuted a discharge. The Warren attorney claimed that, under the water-quality standards. Attor- ney General Rowe tried to avoid the question by stating that it would not happen in Maine, because Maine, by state law, protected hydroelectric facilities. However, under follow-up questioning from Justice Souter, Rowe acknowledged that the state could, if it so chose, impose conditions that would deny a hydroelectric facility the ability to operate. Rowe then attempted to respond to Justice Scalia's earlier argumentative state- ments. This led to a heated ex- change regarding the hypotheti- cal situation offered by Justice Souter pertaining to the place- ment of a post in the river. Finally, the attorney for the United States Department of Justice argued in support of the state of Maine. His argument was marked by a series of duel- ing questions from justices Scalia and Souter regarding the distinction between a discharge of a pollutant and the addition of a pollutant, and by Justice Scalia asking why the Federal Energy Regulatory Commission did not sign on as a party to the govern- ment brief. The Justice Department attor- ney noted the concern of Con- gress with respect to discharges into navigable waterways, and noted that Congress had speci- fically given the authority to states to enforce water-quality standards, in accordance with the general legislative intentions in the Clean Water Act to give primary responsibility over water quality to the states. Debriefing After the arguments, I had lunch with the lawyers who represent one of my clients before the Federal Energy Regu- latory Commission. They were anxious to grill me as to which way I thought the court was likely to go with respect to both of these cases. Although it will be several months before we know, it seems that the Supreme Court might, given this opportunity, radically reshape the Clean Water Act in one or both of these cases. In Rapanos, the Supreme Court now has the power to decide that the Clean Water Act does not authorize regulation of pollutants in possibly as many as half of the nation's waterways. This may effectively end the regulation of water pollution under federal law throughout the country. In contrast, the decision in Warren will only impact the regulation of hydroelectric faci- lities, but may end such regula- tion by the states altogether. This is what the Supreme Court is all about: The nine justices, based upon their argu- ments on very technical inter- pretations of arcane legal pre- cedents, and their own subjec- tive policy values, have the authority to create changes far beyond the cases before them; changes that will affect the entire country. That is why it is so exciting to argue before this court, or even to observe its deliberations. Editor's note: Peter Henner, of counsel to the firm of O'Connell and Aronowitz, has been prac- ticing law in New York State since 1980, and in Clarksville since 1996. He is a member of the bar of the United States Suvreme Court. cut and send to us Do You have a subscription? T? No - Why not? It is easy - just fill out coupon below and mail to us I7wSnt«npHM The Enterprise P. O. BQX 654, ALTAMONT, NY 12009 O Albany County Address — $28.00 per year • Out-of-County Address — $30.00 per year (Please send check or money^order) Your Name Address. 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