Monday, June 29, 2015, was a big day for the Environmental Protection Agency. On that day, EPA published its final (and long time coming) rule clarifying what constitutes a “waters of the United States” subject to the Clean Water Act, and the Supreme Court issued its decision in Michigan v. EPA striking down another (and also long time coming) rule regulating mercury and other toxic pollutants emitted from coal fired power plants. Much has been written about both of these actions, but much of the media discussion has been about how EPA will ruin farmers with the CWA rule (it won’t) or how the Supreme Court is reigning in EPA’s expansive reach. The Supreme Court decision is interesting in that it parses out whether and when EPA needs to consider costs in regulating the power plant emissions. The entire focus is on whether and when EPA considers a power plant’s costs verses the benefit to the public of imposing those costs. There seems to be an implied assumption that a power plant has a right to emit toxic emissions into the public domain. The Supreme Court appears to support this assumption as it could easily have viewed EPA’s rule in the context of the overall purpose of the Clean Air Act to protect the public commons from pollution. The debate over EPA’s CWA rule is similar: is there an implied right for someone to do something to their property that may adversely affect the downstream public? Both the CWA and CAA issues seem to swirl around the question of what degree of public harm needs to be shown before a private unregulated activity transitions into something that should be regulated. While the tests are different [the CWA rule focuses on whether there is a significant nexus between a stream reach and a navigable waterway; whereas the CAA rule issue is whether EPA needed to consider regulation impact costs upfront, before it even develops the regulations] the overarching issue is similar. In the CWA rule, and while there are numerous loopholes, EPA is taking a more environmentally conservative/protective view in essentially saying that there is no implied right to conduct your private business on your property if it has a potential to impact downstream users or the public. The Supreme Court, in the CAA matter, appears to be coming down on the other side of this question, and more in line with the balancing-of-interests test historically used in common law nuisance actions. In those situations, it is OK to pollute the public commons as long as the activity creates a greater benefit.
Hikers, backpackers, and campers – including the Boy Scouts - in our national parks, forests, and wilderness generally have an ethic of “leave no trace.” What you bring in, you pack out and don’t leave your residue for others to find. How would the above discussion play out if we had a national ethic of “leave no trace”?
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