TEAM 31
IN THE UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
APPEAL NO.:
BIRDWATCHERS OF GROVETON, INC., and
UNITED STATES,
Appellants,
v.
SUAVE REAL PROPERTIES, INC.,
Appellee.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF NEW UNION
BRIEF FOR APPELLEE
SUAVE REAL PROPERTIES, INC.
ORAL ARGUMENT REQUESTED
Attorneys for Appellee,
Suave Real Properties, Inc.
QUESTIONS PRESENTED
I.
A.
DID THE LOWER COURT CORRECTLY HOLD THAT SUAVE REAL
PROPERTIES, INC. DID NOT VIOLATE THE CLEAN WATER ACT (CWA)
BECAUSE SHELDRAKE POND IS NOT A NAVIGABLE WATER UNDER THE
CWA, 33 U.S.C. SECTIONS 1311(a), 1362(7), AND 1362(12)?
B.
DID THE LOWER COURT CORRECTLY DETERMINE THAT THE 2001
AMENDMENT TO THE CWA, 33 U.S.C. SECTION 1362(7), MADE AFTER THE
DATE THIS CASE WAS FILED, DOES NOT GOVERN THIS CASE AND DOES
NOT EXTEND JURISDICTION OF THE CWA OVER SHELDRAKE POND?
II.
DID THE LOWER COURT CORRECTLY HOLD THAT NEITHER THE
COMMERCE CLAUSE NOR THE TREATY CLAUSE OF THE
CONSTITUTION ALLOW FEDERAL REGULATION OF WATER
POLLUTION IN SHELDRAKE POND?
III.
DID THE LOWER COURT CORRECTLY HOLD THAT SHOT AND SKEET
PARTS DO NOT CONSTITUTE SOLID WASTE UNDER THE
ENVIRONMENTAL PROTECTION AGENCY’S DEFINITION LOCATED AT
40 CFR SECTION 261.2?
IV.
DID THE LOWER COURT CORRECTLY DETERMINE THAT SHOT AND
SKEET PARTS DO NOT CONSTITUTE IMMINENT AND SUBSTANTIAL
ENDANGERMENTS UNDER THE RESOURCE CONSERVATION AND
RECOVERY ACT SECTION 6972(a)(1)(B)?
ii
TABLE OF CONTENTS
QUESTIONSPRESENTED………………………………………………………………
…….....i
TABLE OF CONTENTS………………………………………………………………………....ii
TABLE OF AUTHORITIES……………………………………………………………………..iv
STATUTES AND CONSTITUTIONAL
PROVISIONS………………………………………..ix
OPINION
BELOW…………………………………………………………………………….....ix
STATEMENT OF
JURISDICTION..............................................................................................ix
STATEMENT OF THE
CASE………………………………………………………………........1
SUMMARY OF
ARGUMENT…………………………………………………………………...4
ARGUMENT………………………………………………………………………………
…...... 7
I.
SHELDRAKE POND, A VERNAL POOL, IS NOT
NAVIGABLE IN FACT……..………………………………………………........7
II.
NEITHER THE CORPS NOR THE EPA HAS AUTHORITY
UNDER THE CLEAN WATER ACT TO REGULATE
SHELDRAKE POND, AN INTRASTATE, ISOLATED
WATER, SOLELY BECAUSE IT PROVIDES HABITAT
FOR MIGRATORY BIRDS…………………………………………………........9
A.
The plain language of the CWA does not grant
jurisdiction over Sheldrake Pond solely
because it provides habitat for migratory birds……………………..........10
B.
The legislative history surrounding the CWA
indicates that the CWA does not regulate intrastate,
isolated waters providing habitat for migratory
iii
birds……………………………………………….……………...........…12
C.
The rules of statutory construction do not permit
the Corps to expand the jurisdiction of the CWA
to include regulation over isolated, intrastate
waters because these waters provide habitat for
migratory
birds……………………………………………………...........14
D.
III.
The Corps’s decision to expand its power to
govern intrastate, isolated waters merely because
they are habitats for migratory birds is not entitled
to deference…………………………………………………………........15
THE 2001 AMENDMENT TO THE CWA, 33 U.S.C.
SECTION 1362(7), MADE AFTER THE DATE THIS
CASE WAS FILED, DOES NOT GOVERN THIS CASE
AND DOES NOT EXTEND JURISDICTION OF THE
CWA OVER SHELDRAKE POND…………………………………..................17
B. THE FEDERAL GOVERNMENT MAY NOT
CONSTITUTIONALLY REGULATE SHELDRAKE
POND UNDER THE POWERS OF THE COMMERCE
CLAUSE……………………………………………………………....................19
A.
Although migratory birds stopover at
Sheldrake Pond, the pond is not part of
a highway of interstate commerce…………………………….................19
B.
Migratory birds are not instrumentalities of
interstate commerce…………………………………………...................21
C.
The operation of Suave Real Properties, Inc.’s skeet
and rifle ranges does not substantially affect any
interstate commerce related to migratory birds……………….................22
IV.
THE TREATY CLAUSE OF THE CONSTITUTION DOES
NOT JUSTIFY FEDERAL REGULATION OF SHELDRAKE
POND………………………………………………………………….................26
V.
BOG CANNOT MAINTAIN A CITIZEN SUIT UNDER 42 U.S.C. 6972(a)(1)(A)
BECAUSE THE FIRED SHOT AND SKEET PARTS
ARE NOT SUBJECT TO THE PERMITTING AND REGULATION REQUIREMENTS
OF RCRA...............................................................................27
VI.
A.
Fired shot and skeet parts do not constitute solid
waste under the EPA’s regulatory definition.............................................28
B.
The EPA's interpretation of its own regulatory
definition is entitled to great deference......................................................29
BOG CANNOT MAINTAIN A CITIZEN SUIT UNDER 42 U.S.C. 6972(a)(1)(B)
BECASUE BOG HAS NOT ESTABLISHED THAT
FIRED SHOT AND SKEET PARTS CONSTITUTE AN IMMINENT
iv
AND SUBSTANTIAL ENDANGERMENT........................................................31
A.
Fired shot and skeet parts do not constitute solid
waste under the RCRA statutory definition...............................................32
B.
The EPA's interpretation of the statutory definition
is not entitled to deference.........................................................................32
TABLE OF AUTHORITIES
CASES:
PAGE(S):
American Petroleum Inst. v. EPA,
906 F.2d 729 (D.C. Cir.
1990)…………………………………………………...............30
Barcelo v. Brown,
478 F. Supp. 646 (D. P.R.
1979)........................................................................................30
Beazer East, Inc. v. EPA,
963 F.2d 603 (3d Cir.
1992)...............................................................................................29
Borden Ranch P’ship v. U. S. Army Corps of Eng’rs,
261 F.3d 810 (9th Cir.
2001).………………………………………………….............7, 8
Buttrey v. United States,
573 F. Supp. 283 (E.D. La.
1983).……………………………………………...................9
Cargill, Inc. v. United States,
516 U.S. 955
(1995)…………………………………………………………...................19
California Coastal Comm’n v. Granite Rock Co.,
480 U.S. 572
(1987)…………………………………………………………...................20
Chemical Waste Mgmt. v. EPA,
869 F.2d 1526 (D.C. Cir.
1989).........................................................................................29
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837
(1984)…………………………………………………………............passim
v
Comite Pro Rescate De La Salud v. P.R. Aqueduct and Sewer Auth.,
888 F.2d 180 (1st Cir.
1989)…………………………………………………............31, 32
Connecticut Coastal Fisherman's Assc. v. Remington Arms Co., Inc.,
989 F.2d 1305 (2d Cir.
1993)………………………………………………….........passim
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council,
485 U.S. 568
(1988)….………………………………………………………..................14
FEC v. Democratic Senatorial Campaign Committee,
454 U.S. 27
(1981).............................................................................................................30
Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1
(1824)……………………………………………….......................23
Gibbs v. Babbitt,
214 F.3d 483 (4th Cir.
2000)……………………………………………….....................22
Ginsburg, Feldman & Bress v. Fed. Energy Admin.,
591 F.2d 717
(1978)……………………………………………………….......................25
Hagen v. Utah,
510 U.S. 399
(1994)…………………………………………………………...................13
Hess v. Port Authority Trans-Hudson Corp.,
513 U.S. 30
(1994)….……………………………………………………….............passim
Hodel v. Virginia Surface Mining & Reclamation Ass’n,
452 U.S. 264
(1981)……………………………………………………….......................25
Jones v. United States,
529 U.S 848
(2000)…………………………………………………………....................14
Katzenbach v. McClung,
vi
379 U.S. 294
(1964)……………………………………………………….................22, 23
Landgraf v. U.S.I. Film Prods.,
511 U.S. 244 (1994)..………………………………………………………....................17
Long Island Soundkeeper Fund, Inc. v. N. Y. Athletic Club,
No. 94 Civ. 0436, 1996 U.S. Dist. LEXIS 3383 (S.D. N.Y. 1996).............................28, 29
Lykes Bros. v. U.S. Army Corps of Eng’rs,
821 F. Supp. 1457 (M.D. Fla. 1993).……………………………………….......................9
Mertens v. Hewitt Assocs.,
508 U.S. 248 (1993).………………..………………………………………....................11
Miami Valley Conservancy Dist. v. Alexander,
507 F. Supp. 924 (S.D. Ohio
1981)………………………………………….....................9
Miami Valley Conservancy Dist. v. Alexander,
692 F.2d 447 (6th Cir. 1982)
…………………………………………………..................8
Missouri v. Holland,
252 U.S. 416
(1919)…………………………………………………………...................22
National Ass’n of Home Builders v. Babbitt,
130 F.3d 1041
(D.C.Cir.1997)………………………………………………...............7, 22
North Dakota v. United States,
460 U.S. 300
(1986)…………………………………………………………...................26
Perez v. United States,
402 U.S. 146
(1971)…………………………………………………………...................23
Skidmore v. Swift & Co.,
323 U.S. 134
(1944)...........................................................................................................33
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs,
531 U.S. 159
(2001)…………………………………………………………............passim
Oklahoma v. Texas,
258 U.S. 574 (1922)………………………………………………………….....................9
vii
The Daniel Ball,
77 U.S. (10 Wall.) 557(1870)..………………………………………………..................11
United States v. Appalachian Elec. Power Co.,
311 U.S. 377 (1940)…………………………………………………………...................11
United States v. Cranch,
3 Cranch (7 U.S.) 399 (1806)….……………………………………………....................17
United States v. Darby,
312 U.S. 100 (1941)……………………………………………………….......................23
United States v. Lopez,
514 U.S. 549 (1995)………………………………………………………................passim
United States v. Mead Corp.,
121 S. Ct. 2164 (2001)…………………………………………………….................32, 33
United States v. Morrison,
120 S. Ct. 1740 (2000).….…………………………………………………..............passim
United States v. Nordic Village, Inc.,
503 U.S. 30 (1992)….………………………………………………………....................10
United States v. Rio Grande Dam & Irrigation Co.,
174 U.S. 690 (1899)………………………………………………………….....................9
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985)..………………………………………………………...............10, 13
United Technologies Corp. v. EPA,
821 F.2d 714 (D.C. Cir. 1987)...........................................................................................27
Wickard v. Filburn,
317 U.S. 111 (1942)…………………………………………………………...................23
CONSTITIUTIONS, STATUTES, and REGULATIONS:
PAGE(S):
U.S. CONST. art. I, § 8……………………………………………………………................19, 26
U.S. CONST. art. II, § 2……………………………………………………………....................26
U.S. CONST., amend.
10………………………………………………………….......................20
16 U.S.C. § 703............………………………………………………………………..................27
33 U.S.C. § 1251(a)...........…………………………………………………………....................11
33 U.S.C. § 1251(b)............….………………………………………………………............11, 15
33 U.S.C. § 1311(a)...........….…………………………………………………….....................4, 7
viii
33 U.S.C. § 1342..............................................................................................................................2
33 U.S.C. § 1344.....................................................................................................................passim
33 U.S.C. § 1362(7)............….………………………………………………………...........passim
33 U.S.C. § 1362(12)............…………………………………………………………...............4, 7
33 U.S.C. § 1365..............................................................................................................................1
42 U.S.C. § 6903(27)......................................................................................................... 30, 31, 32
42 U.S.C. § 6912............................................................................................................................33
42 U.S.C. § 6972(a)(1)(A)......................................................................................................passim
42 U.S.C. § 6972(a)(1)(B)......................................................................................................passim
33 C.F.R. §
209.120(d)(1)………..…..………………………………………………..................12
33 C.F.R. §
209.260(e)(1)……………………………………………………………..................12
33 C.F.R. §
323.2(a)(5)………………………………………………………………..................13
33 C.F.R. §
328.3………..…………………………………………………………...............7, 8, 9
40 C.F.R. §
122.2…………………………………………………………………….............7, 8, 9
40 C.F.R. §
261.2...............................................................................................................27, 28, 33
40 C.F.R. §
261.2(a)(1)..................................................................................................................28
40 C.F.R. §
261.2(a)(2)..................................................................................................................28
ix
40 C.F.R. §
261.2(b)......................................................................................................................28
40 C.F.R. §
261.2(2)......................................................................................................................32
40 C.F.R. §
261.33.........................................................................................................................29
40 C.F.R. §
261.4(a).......................................................................................................................28
51 Fed. Reg.
41217………….………………………………………………………...............9, 24
58 Fed. Reg.
45008……………………………………………………………............................24
MISCELLANEOUS:
PAGE(S):
Brief for the United States as Amicus Curiae,
Connecticut Coastal, 989 F.2d 1305 (2d Cir. 1993) (No. 927191L)...............................28, 29, 31
Colburn, Betsy A., Small Pools Close Up: Examining
Vernal Pools of the Northeast, National Wetlands
Newsletter; Vol. 23 No.1; (Jan-Feb
2001).…………………………………......................7
EPA, Definition of Playa Lake, available at
http://www.epa.gov/owow/wetlands/
types/playa.html..………………….........................8
EPA, Definition of Vernal Pool, available at
http://www.epa.gov/owow/ wetlands/types/vernal.html…………………..........................7
K. Davis, Administrative Law Treatise §3A-31 (1970 Supp.)……………………......................25
Multipurpose Modification of Playa Lakes, available at
http://www.lib.ttu.edu/playa/ text/ playa13.html………………………….........................8
x
Pruenda, Polly M., The Lautenberg Amendment: Congress
Hit the Mark by Banning Firearms from Domestic
Violence Offenders, 30 St. Mary’s L.J. 801
(1999)…………………………...................20
S. Conf. Rep. No. 92-1236 (1972)………………………………………………….....................12
xi
OPINION BELOW
The unreported opinion of the United States District Court for the District of New Union is referred to in
detail in the subsequent brief and is attached hereto as Exhibit 1.
STATEMENT OF JURISDICTION
Rule IV(B)(3) of the Official Rules for the 2002 National Environmental Law Moot
Court Competition expressly waives the jurisdiction requirement of Supreme Court Rule 24.1(e).
STATUTES AND CONSTITUTIONAL PROVISIONS
All applicable statutes and constitutional provisions used in this brief are cited in the text
and excerpted in relevant portion.
xii
STATEMENT OF THE CASE
This is a case involving whether a non-profit group can bring an action against a corporation under
the citizen suit provisions of both the Clean Water Act (CWA), 33 U.S.C. § 1365 and the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(A) and § 6972(a)(1)(B). Birdwatchers of
Groveton, Inc. (BOG) argues that it should be permitted to bring a citizen suit under the CWA because
Suave Real Properties, Inc. (Suave) has violated § 1311(a) of the CWA by filling a portion of Sheldrake
Pond (Pond) and by ejecting skeet and shot into the Pond. (R.4). Suave argues that these actions do not
fall under the jurisdiction of the CWA and therefore, the CWA counts should be dismissed. Id. BOG
further claims that it should be permitted to bring a citizen suit under RCRA because Suave is disposing of
the skeet and shot without a RCRA § 6935(a) permit and because this disposal constitutes an imminent and
substantial endangerment under RCRA § 6972(a)(1)(B). Id. Suave argues that the skeet and shot do not
constitute solid waste and thus do not fall within the jurisdiction of RCRA. Id.
The facts in this case are undisputed. Suave opened and began operating the Groveton Rifle and
Pistol Association (GRAPA) gun range on land that Suave owned in 2000, and continues that operation
today. (R.3). The facility consists of a skeet shooting portion and a firing range area. Id. The skeet
shooting area is located at the western end of Suave’s property and contains a pad on which sportsmen
patron’s stand to shoot at the skeet, and a device that propels the skeet into the air. Id. The firing range is
located at the eastern end of Suave’s property and consists of a berm that catches the shot as the bullets are
fired from the patron’s guns. (R.4). The Pond is located partially on the western part of Suave’s property
and extends onto land owned by the County to the east. (R.3). In order to build a firing pad for the
sportsmen to stand on, it was necessary for Suave to fill a portion of the Pond. Id. As the skeet is propelled
into the air, the sportsmen standing on the pad fire at the skeet and the fragments from the skeet and the
spent shot fall onto Suave’s property, including the Pond, and sometimes onto the County owned property
beyond. (R.4). Likewise, on the firing range, bullets occasionally overshoot the berm and fall onto
Suave’s and the County’s property. Id.
On December 20, 2000 BOG filed a complaint against Suave, alleging that the filling of a portion
of the Pond in order to build the pad constitutes the discharge of fill material into a navigable water and
thus violates CWA § 1311(a), since Suave does not have the requisite fill permit under CWA § 1344. Id.
xiii
BOG also contends that the skeet and shot fragments that fall into the Pond constitute either the discharge
of fill material into a navigable water or the discharge of pollutants into a navigable water without either a
CWA § 1344 or a § 1342 permit. Id. BOG is seeking civil penalties and an injunction against Suave. Id.
The United States Environmental Protection Agency (EPA) has intervened and supports BOG on these
claims. Id. However, Suave argues that it is not required to hold either a CWA § 1344 or a § 1342 permit
because the Pond is not a navigable water, neither in fact, nor based on the statutory definition. Id. Suave
alleges that since the Pond is not navigable, jurisdiction under the CWA does not extend to it, and the CWA
counts should therefore be dismissed. Id.
BOG also alleges in its complaint that Suave is violating RCRA because the skeet and shot
fragments that fall to the ground constitute hazardous or solid waste under both the EPA’s definition and
the definition in RCRA and that the fragments create an imminent and substantial endangerment under
RCRA § 6972(a)(1)(B). Id. The EPA supports BOG’s contention for purposes of RCRA but disagrees that
the fragments constitute solid waste under the EPA’s own promulgated definition. Id. Suave argues that
the skeet and shot fragments are a result of the skeet and shot being used for their intended purposes, and
thus do not fall under either definition of solid waste. Id. Suave maintains that since the fragments do not
constitute solid waste, RCRA’s jurisdiction does not extend to them, and the RCRA counts should likewise
be dismissed. Id.
The United States District Court for the District of New Union agreed with Suave regarding all of
BOG’s allegations and dismissed BOG’s claims in their entirety pursuant to Suave’s motion for summary
judgment. (R.1). The court held that 1) the Pond is not a navigable water in neither the statutory nor
constitutional sense; and 2) the skeet and shot fragments do not constitute solid waste because they were
used for their intended purpose. (R.4).
The appellee, Suave, respectfully requests that this Court uphold the lower court’s granting of
Suave’s summary judgment on the grounds that the Pond is not a navigable water and that the skeet and
shot fragments do not constitute solid waste.
xiv
SUMMARY OF ARGUMENT
The lower court correctly held that Suave Real Properties, Inc. did not violate the
CWA because Sheldrake Pond is not a navigable waterway under the CWA, 33 U.S.C. sections 1311(a),
1362(7), and 1362(12). Sheldrake Pond is a vernal pool, and because there are no allegations that
Sheldrake Pond is navigable and because Sheldrake Pond is dry part of the year, it is not navigable in fact.
Thus, the only way Sheldrake Pond may be within the CWA’s jurisdiction is if its use, degradation or
destruction would or could affect interstate or foreign commerce. However, the CWA does not grant
jurisdiction over any water at all merely because a migratory bird may opt to stop there. The United States
Supreme Court has ruled that the Corps has no authority under the CWA to regulate activities occurring in
nonnavigable, isolated, intrastate waters, such as vernal pools, merely because they provide habitat for
migratory birds. Nothing in the plain text or in the legislative history of the CWA grants the Corps or the
EPA such broad jurisdiction over nonnavigable, intrastate, isolated waters, like Sheldrake Pond. In
addition, traditional rules of statutory construction do not permit the Corps or the EPA such broad
xv
jurisdiction. Finally, the Corps’ interpretation of CWA section 404 to include nonnavigable, isolated,
intrastate waters merely because they are used as habitat by migratory birds is not entitled to the judicial
deference generally granted to reasonable agency interpretations of ambiguous statutory language.
Therefore, the lower court correctly found that there is no jurisdiction under the CWA to regulate Suave’s
activities occurring in Sheldrake Pond.
The lower court correctly held that the 2001 amendment to the CWA is irrelevant to this case.
The conduct at issue in this case occurred before December 20, 2000, the day on which BOG filed its
complaint, and thus occurred before August 15, 2001, the day on which Congress passed its amendment.
Under the pre-amendment version of the CWA, the version which controls this case, the Court has ruled
that the CWA does not cover insignificant and isolated waters such as Sheldrake Pond.
The lower court correctly held that the migratory bird rule is unconstitutional, as
the rule is beyond Congress’ commerce clause power. Under the Commerce Clause,
Congress may regulate the use of the highways of interstate commerce, the
instrumentalities of interstate commerce, and those activities substantially relating to
interstate commerce. However, none of these three areas of regulation exist in the instant
case as a migratory bird flyway is not a highway of interstate commerce, migratory birds
are not instrumentalities of interstate commerce, and Suave’s purely intrastate, noneconomic activities do not substantially relate to interstate commerce.
The lower court also correctly held that the Treaty Clause of the Constitution does
not justify federal regulation of Sheldrake Pond. Although the Migratory Bird Treaties
obligate the United States to protect migratory birds, only Congress may create laws
which implement the purpose of such a treaty. Congress did not enact the CWA pursuant
to Congress’ Treaty Clause power. Thus, the migratory bird rule, which was
promulgated by the Corps, cannot be upheld under Congress’ Treaty Clause power
xvi
because the Corps can not utilize the power that Congress did not use in creating
legislation.
The opinion of the lower court in regards to BOG’s claims under RCRA should
likewise be upheld. BOG cannot maintain a citizen suit under RCRA §6972(a)(1)(A)
because the definition of solid waste that applies to violators under that provision does
not encompass fired shot and skeet parts. The regulatory definition of solid waste that
applies to §6972(a)(1)(A) does not encompass materials, like fired shot and skeet parts,
that are commercial products being used for their intended purpose. The EPA has
interpreted its own regulation in this regard and that interpretation should be granted
deference. However, the EPA’s interpretation that products being used for their intended
purpose still constitute solid waste under the statutory definition found at § 6903(27)
should not be granted deference or even relative respect. This interpretation was not
embodied in a rule and is unreasonable and inconsistent with its other interpretations.
Without the EPA’s interpretation that the normal use exception does not apply to the
statutory definition of “solid waste,” BOG cannot maintain a suit under § 6972(a)(1)(B)
either. Therefore the opinion of the lower court should be affirmed and these claims
dismissed.
xvii
ARGUMENT
I.
SHELDRAKE POND, A VERNAL POOL, IS NOT NAVIGABLE IN FACT.
The CWA prohibits the addition of fill material or a pollutant to navigable waters
from a point source without a CWA permit. 33 U.S.C. §§ 1311(a), 1362(12).
“Navigable water” is defined in the CWA to be “waters of the United States.” 33 U.S.C.
§ 1362(7). The EPA, which administers most of the CWA, and the Army Corps of
Engineers (Corps), which has jurisdiction under the CWA to regulate the fill permitting
program, have both defined “waters of the United States” to include “intrastate lakes,
rivers, . . . playa lakes, or natural ponds the use, degradation, or destruction of which
would . . . or could affect interstate or foreign commerce . . .” 40 C.F.R. § 122.2; 33
C.F.R. § 328.3.
Both the Corps’ and the EPA’s definitions of “waters of the United States” do not include vernal
pools. The EPA explains that vernal pools are covered by shallow water for variable periods during the
rainy season from winter to spring, but may be completely dry for most of the summer and fall. EPA,
Definition of Vernal Pool, available at http://www.epa.gov/owow/ wetlands/types/vernal.html. During
years of drought, some vernal pools remain dry. Id. Vernal pools range in size from small puddles to
shallow lakes. Id. They range from 30 feet in diameter to expanses covering five acres or more and attain
maximum depths of about 3 feet.
Colburn, Betsy A., Small Pools Close Up: Examining Vernal Pools of
the Northeast, National Wetlands Newsletter; Vol. 23 No.1; (Jan-Feb 2001). In Borden Ranch Partnership
v. U. S. Army Corps of Eng’rs, 261 F.3d 810, 816 (9th Cir. 2001), the Ninth Circuit reversed the district
court’s findings of CWA violations in a vernal pool. Because the Supreme Court ruled that the Corps’
definition of “navigable waters” under the CWA to include intrastate waters used as habitat for migratory
birds exceeds the Corps’ authority under the CWA, vernal pools are not within the CWA’s jurisdiction. Id.
In fact, the government in Borden Ranch conceded it was precluded from asserting jurisdiction over the
vernal pool and formally withdrew its enforcement claim. Id.
xviii
Sheldrake Pond is a “long, narrow, shallow pond, running east to west, that is dry part of the year
and never more than four feet deep and twenty-five acres in extent during the wet part of the year.” (R.3).
Sheldrake Pond fits the definition of a vernal pool because its water levels range from complete dryness to
a shallow lake. Just like the vernal pool in Borden Ranch, Sheldrake Pond is dry part of the year. Thus,
because Sheldrake Pond is a vernal pool, neither the Corps nor the EPA has authority under the CWA to
regulate activities occurring therein.
BOG contends that Sheldrake Pond is a playa lake. (R.5). Playa lakes are
included in both the EPA’s and the Corps’ definition of “waters of the United States.” 40
C.F.R. §122.2; 33 C.F.R. § 328.3. A playa lake is a round hollow in the ground and is
only present at certain times of the year. EPA, Definition of Playa Lake, available at
http://www.epa.gov/owow/wetlands/ types/playa.html. Most playa lakes only fill with
water after spring rainstorms, and because of the intermittent nature of the water, the
playa lake is not generally suited for fish or wildlife use. Id.; Multipurpose Modification
of Playa Lakes, available at http://www.lib.ttu.edu/playa/ text/ playa13.htm. When an
average playa lake is at a depth of 3 feet, 20 to 30 acres are covered with water; at a depth
of four feet, the range in area of a playa lake may be 30 to 160 acres. Id. Even if this
Court considers Sheldrake Pond to be a playa lake, it still is not covered under the
jurisdiction of the CWA because it is an isolated, intrastate water which is not adjacent to
any navigable waterway. (R.5); See Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC).
Furthermore, there are no allegations that Sheldrake Pond “had ever been or could
ever be used for traditional navigation purposes or that it is connected in any way with
such waters.” (R.5). While navigability has been defined in numerous ways, its elements
have remained constant: “a navigable waterway of the United States must (1) be or have
xix
been (2) used or susceptible of use (3) in the customary modes of trade and travel on
water (4) as a highway for interstate commerce.” Miami Valley Conservancy Dist. v.
Alexander, 692 F.2d 447, 450 (6th Cir. 1982). A waterway is “not navigable in fact when
its use [is] sporadic, irregular and confined to downstream use during short periods of
temporary high water.” Miami Valley Conservancy Dist. v. Alexander, 507 F. Supp. 924,
931 (S.D. Ohio 1981); See also Oklahoma v. Texas, 258 U.S. 574 (1922); United States v.
Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899). Courts have found a waterway
to be non-navigable based on its sporadic use and dryness at times. See Buttrey v. U.S.,
573 F. Supp. 283, 296 (E.D. La. 1983); Lykes Bros. v. U.S. Army Corps of Eng’rs, 821 F.
Supp. 1457, 1463 (M.D. Fla. 1993). Because there are no allegations that Sheldrake
Pond is navigable and because Sheldrake Pond is dry part of the year, it is not navigable
in fact. Thus, the only way Sheldrake Pond may be within the CWA’s jurisdiction is if
its use, degradation or destruction would or could affect interstate or foreign commerce.
II.
NEITHER THE CORPS NOR THE EPA HAS AUTHORITY UNDER THE
CLEAN WATER ACT TO REGULATE SHELDRAKE POND, AN
INTRASTATE, ISOLATED WATER, SOLELY BECAUSE IT PROVIDES
HABITAT FOR MIGRATORY BIRDS.
Both the Corps and the EPA interpreted the CWA’s definition of navigable waters as “waters of
the United States” to include “other waters such as intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce . . . ” 33
C.F.R. § 328.3(a)(3); 40 C.F.R. § 122.2. In 1986, the Corps promulgated the migratory bird rule which
specified that section 1344 of the CWA extends to intrastate waters “which are or would be used as habitat
by birds protected by Migratory Bird Treaties or . . . by other migratory birds which cross state lines.” 51
Fed. Reg. 41217. However, the CWA does not grant the Corps jurisdiction over any water at all merely
because a migratory bird may opt to stop there. Nothing in the plain text or in the legislative history of the
xx
CWA grants the Corps such broad jurisdiction over intrastate, isolated waters. Furthermore, rules of
statutory construction do not permit the Corps such broad jurisdiction.
A. The plain language of the CWA does not grant jurisdiction over Sheldrake Pond solely
because it provides habitat for migratory birds.
Nothing in the plain text of the CWA grants jurisdiction over intrastate, isolated
waters, such as Sheldrake Pond, simply because they provide habitat for migratory birds.
Indeed, the Supreme Court in SWANCC refused to extend the Corps’ jurisdiction to
ponds that are not adjacent to open water because the text of the CWA would not permit
it. SWANCC, 531 U.S. at 585. The CWA uses the phrase “waters of the United States”
to define “navigable waters.” 33 U.S.C. § 1362(7) (2001). Because the word
“navigable” is in the CWA, it must be given meaning. See United States v. Nordic
Village, Inc., 503 U.S. 30, 36 (1992) (stating that statutes “must, if possible, be construed
in such a fashion that every word has operative effect.”) The Court could not agree that
“Congress’ separate definitional use of the phrase ‘waters of the United States’
constitutes a basis for reading the term ‘navigable waters’ out of the statute.” SWANCC,
531 U.S. at 588.
The Court also interpreted the plain text of the CWA in United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 135 (1985). The Court held that the Corps’
extension of its permit-granting authority in section 1344 of the CWA to wetlands
adjacent to “navigable waters” was not an unreasonable interpretation of the CWA. Id.
The Court stated that the CWA’s definition of “navigable waters” as “the waters of the
United States” “makes it clear that the term ‘navigable’ as used in the [CWA] is of
limited import” in order to uphold a limited extension of Corps’ regulatory jurisdiction to
reach wetlands that are inseparably bound with waters of the United States. Id. at 133-4.
Yet the Court in Riverside Bayview refused to address the issue whether the Corps or the
xxi
EPA has jurisdiction to regulate discharges of fill material into wetlands, like Sheldrake
Pond, that are not adjacent to navigable waterways. Id. at 131, nt. 8.
In SWANCC the Court explained that “the term ‘navigable’ has at least the import
of showing us what Congress had in mind as its authority for enacting the CWA: its
traditional jurisdiction over waters that were or had been navigable in fact or which could
reasonably be so made.” SWANCC, 531 U.S. at 588; See also The Daniel Ball, 77 U.S.
(10 Wall.) 557, 563 (1870) (holding that “navigable waters” are waters which are
navigable in fact, meaning waters which are susceptible of being used in their ordinary
condition as highways for commerce in which trade or travel are or may be conducted”);
United States v. Appalachian Elec. Power Co., 311 U.S. 377, 409 (1940) (finding that a
river is navigable if it can be made useful through reasonable improvements). Again,
there are no factual allegations that Sheldrake Pond has ever been or could be used for
traditional navigational purposes or that it is adjacent to such waters. (R.5)
It is true that the plain text of the CWA defines the Act’s objective as “to restore
and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33
U.S.C. § 1251(a) (2001). While this goal is stated expansively in that it purports to reach
the “Nation’s waters,” the jurisdiction of the CWA is restricted by the definition
Congress chose for “navigable waters.” Thus, a statute’s objective stated in general
terms may not defeat the Act’s jurisdictional restrictions. See Mertens v. Hewitt Assocs.,
508 U.S. 248, 261 (1993) (stating that “vague notions of a statute’s basic purpose are
inadequate to overcome the words of its text regarding the specific issue under
consideration.”) Furthermore, section 1251(b) of the CWA states that “it is the policy of
Congress to recognize, preserve, and protect the primary responsibilities and rights of the
xxii
States to . . . plan the development and use of land and water resources.” 33 U.S.C. §
1251(b) (2001). The Corps’ expansion of its jurisdiction to reach large numbers of
isolated, intrastate waterways, like Sheldrake Pond, is contradictory to the Act’s
preservation of State rights to use and develop State land and water resources. Indeed, as
the Court stated in SWANCC, “permitting [the Corps] to claim federal jurisdiction over
ponds and mudflats falling within the ‘Migratory Bird Rule’ would result in a significant
impingement of the States’ traditional and primary power over land and water use.”
SWANCC, 531 U.S. at 176, (citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S.
30, 44 (1994) (“Regulation of land use is a function traditionally performed by local
governments”). Thus, the plain language of the CWA does not permit jurisdiction over
intrastate, isolated waters used by migratory birds.
B. The legislative history surrounding the CWA indicates that the CWA does not
regulate intrastate, isolated waters providing habitat for migratory birds.
The legislative history of the CWA does not support the Corps’ adoption of the
migratory
bird rule. After the original Senate and House bills proposed two different definitions
for the term, “navigable waters,” the Conference Committee adopted the current
definition, “waters of the United States, including the territorial seas.” Accompanying
this definition, the Conference Report included an explanation that the conferees “intend
that the term ‘navigable waters’ be given the broadest possible constitutional
interpretation.” S. Conf. Rep. No. 92-1236, p. 144 (1972). However, as the Court
pointed out in SWANCC, “neither this [explanation] nor anything else in the legislative
history . . . signifies that Congress intended to exert more than its commerce power over
xxiii
navigation.” SWANCC, 531 U.S. at 168, nt 3. After all, Congress chose to use the term
“navigable” in the CWA and chose to limit the CWA’s jurisdiction to “navigable waters.”
Even the Corps’ original interpretation of the CWA, promulgated two years after
its enactment exhibits this jurisdictional limitation. Id. at 168. The Corps’ 1974
regulations defined § 404(a)’s “navigable waters” to be “those waters of the United States
which are subject to the ebb and flow of the tide, and/or are presently, or have been in the
past, or may be in the future susceptible for use for purposes of interstate or foreign
commerce.” Id.; 33 C.F.R. § 209.120(d)(1). The Corps explained that “it is the water
body’s capability of use by the public for purposes of transportation or commerce which
is the determinative factor.” SWANCC, 531 U.S. at 168; 33 C.F.R. § 209.260(e)(1).
Five years later in 1977, the Corps approved the more expansive definition of
“navigable waters” as “waters of the United States” to include “isolated wetlands and
lakes, intermittent streams, prairie potholes, and other waters that are not part of a
tributary system to interstate waters or to navigable waters of the United States, the
degradation or destruction of which could affect interstate or foreign commerce.”
SWANCC, 531 U.S. at 168-9; 33 C.F.R. § 323.2(a)(5) (1978). Merely because Congress
did not pass legislation that would have overturned this regulation extending the Corps’
regulatory jurisdiction to waters other than traditional navigable waters, does not mean
Congress “recognized and accepted a broad definition of ‘navigable waters’ to include
non-navigable, isolated intrastate waters.” SWANCC, 531 U.S at 169. It is difficult to
ascertain Congressional intent merely by examining what actions Congress did not take.
The Court recognized that “failed legislative proposals are ‘a particularly dangerous
ground on which to rest an interpretation of a prior statute.’” Id. at 170. Additionally, the
xxiv
Court acknowledged that relationship between the actions and omissions of the “95th
Congress and the intent of the 92d Congress in passing § 404(a) is also considerably
attenuated.” Id. Subsequent legislative history is “less illuminating than the
contemporaneous evidence.” Id.; Hagen v. Utah, 510 U.S. 399, 420 (1994).
In Riverside Bayview, the Court upheld the Corps’ interpretation of “navigable
waters” as authorizing Corps jurisdiction to regulate wetlands that were adjacent to
navigable waters. Riverside Bayview, 474 U.S. at 136. The Court found relevant that
“the scope of the Corps’ asserted jurisdiction over wetlands was specifically brought to
Congress’ attention, and Congress
rejected measures designed to curb the Corps’ jurisdiction.” Id. at 137. The Court
explained that “in both Chambers, debate on the proposals to narrow the definition of
navigable waters was centered largely on the issue of wetlands preservation.” Id. at 136.
However, in SWANCC, the Court refused to hold that seasonal, isolated ponds, wholly
located within one state, “fall under § 404(a)’s definition of ‘navigable waters’ because
they serve as habitat for migratory birds.” SWANCC, 531 U.S. at 171-2. Nothing in the
legislative history of the CWA indicates a Congressional intent to regulate intrastate,
isolated water bodies, such as Sheldrake Pond, with no connection to navigable waters.
C. The rules of statutory construction do not permit the Corps to expand the
jurisdiction
of the CWA to include regulation over isolated, intrastate
waters because these waters provide habitat for migratory birds.
Even if the plain language and the legislative history of the CWA did not clearly
convince this Court that neither the Corps nor the EPA may assert jurisdiction over
Suave’s isolated, intrastate vernal pool based on its use by migratory birds, the rules of
statutory construction mandate that such a broad expansion of CWA jurisdiction is not
authorized.
xxv
The Supreme Court put forth the guiding principle that “where a statute is
susceptible of two constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are avoided, our duty is to adopt
the latter.” Jones v. U.S., 529 U.S 848, 857 (2000); See also DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) (stating a cardinal
principle of statutory construction that “where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly contrary to the intent of
Congress”). The Court specified, “the rule is that every reasonable construction must be
resorted to, in order to save a statute from unconstitutionality.” DeBartolo, 485 U.S. at
575. This rule applies similarly to administrative regulations and where an
“administrative interpretation of a statute invokes the outer limits of Congress’ power,”
Congress must provide a clear indication that it intended that result. Id.; SWANCC, 531
U.S. at 172.
It will be shown in part IV(C) that the Corps’ assertion of jurisdiction over
isolated, intrastate waters with no connection to navigable waters based on the migratory
bird rule violates the Commerce Clause. Again, there is nothing in the legislative history
indicating a desire on behalf of Congress to regulate isolated, intrastate waterways merely
because they may be used by migratory birds. Nor is there anything in the legislative
history providing a clear indication of Congressional intent to expand the CWA
jurisdiction in a way that would challenge the Commerce Clause. Thus, because the
migratory bird rule violates the Commerce Clause, the Court should not uphold the
Corps’ extension of CWA jurisdiction on the basis of the migratory bird rule.
xxvi
Furthermore, a secondary rule of statutory construction requires that “unless
Congress conveys its purpose clearly, it will not be deemed to have significantly changed
the federal-state balance.” SWANCC, 531 U.S. at 173. This rule does not permit the
Corps to expand its jurisdiction to cover isolated, intrastate waters that would
traditionally be regulated by the states merely because migratory birds may opt to use
such waters. Indeed, the CWA clearly states that “it is the policy of the Congress to
recognize, preserve, and protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water resources.” 33 U.S.C. §
1251(b) (2001). Thus, while the CWA has jurisdiction to regulate the “navigable
waters” of the United States, the CWA expressly preserves the rights of the states to
“plan the development and use of land and water resources.” Id.; 33 U.S.C. § 1362(7).
Again, land use regulation is a function that local governments traditionally perform.
Hess, 513 U.S. at 44. Allowing the Corps or the EPA to regulate waterways that are
isolated and confined within the boundaries of a single state and that are not navigable in
fact, waters like Sheldrake Pond, merely because the waters are used by migratory birds,
would offset the balance between state and federal regulatory authority. Thus, rules of
statutory construction do not permit the Corps’ expansive interpretation of its jurisdiction
to reach isolated, intrastate waters used by migratory birds.
D. The Corps’s decision to expand its power to govern intrastate, isolated waters merely because
they are habitats for migratory birds is not entitled to deference.
The Corps’ interpretation of CWA section 404 to include non-navigable, isolated,
intrastate waters used as habitat by migratory birds, like Sheldrake Pond, is not entitled to the judicial
deference generally granted to reasonable agency interpretations of ambiguous statutory language.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865 (1984). In SWANCC,
xxvii
the proponent of the migratory bird rule argued that the rule should be given judicial deference because
Congress did not address the precise question of “404(a)’s scope with regard to non-navigable, isolated,
intrastate waters.” SWANCC, 531 U.S. at 172. Yet the Court found that section 404 was not ambiguous
and refused to extend deference to the migratory bird rule. Id.
The SWANCC decision and rationale are dispositive of the instant case. The Court explained that
“where an administrative interpretation of a statute invokes the outer limits of Congress’ power, [the Court]
expects a clear indication that Congress intended that result.” Id. Additionally, the Court presumes that
“congress does not casually authorize administrative agencies to interpret a statute to push the limit of
congressional authority.” Id. at 172-3. Thus, the Court refused to extend judicial deference to the Corps in
its promulgation of the migratory bird rule due to the rule’s “serious constitutional problems.” Id. at 173.
For example, to find that the migratory bird rule “falls within Congress’ power to regulate intrastate
activities that ‘substantially affect’ interstate commerce,” the Court would have “to evaluate the precise
object or activity that, in the aggregate, substantially affects interstate commerce.” Id. The Court in
SWANCC refused to make this determination, and reaffirmed that the CWA extends only to its statutory
terms, “navigable waters” and “waters of the United States.” Id. Because Congress did not furnish a clear
statement that it intended section 404 to reach non-navigable, intrastate, isolated waters, the Court refused
to address the significant constitutional questions put forth by the migratory bird rule and refused to grant
deference to the Corps in its promulgation of the rule. Id. at 174.
The instant case presents precisely the same issue, where the Corps is attempting to use the
migratory bird rule to extend CWA jurisdiction to reach a non-navigable, isolated, intrastate water,
Sheldrake Pond. Like the Court in SWANCC, this Court should read the CWA as written to avoid the
constitutional and federalism questions and find that the Corps’ migratory bird rule is not entitled to
deference.
III.
THE 2001 AMENDMENT TO THE CWA, 33 U.S.C. SECTION 1362(7), MADE AFTER THE
DATE THIS CASE WAS FILED, DOES NOT GOVERN THIS CASE AND DOES NOT
EXTEND JURISDICTION OF THE CWA TO INCLUDE SHELDRAKE POND.
The lower court correctly held that the 2001 amendment to the CWA is irrelevant to this
case. (R.6). The conduct at issue in this case occurred before December 20, 2000, the day on
which BOG filed its complaint, and thus occurred before August 15, 2001, the day on which
xxviii
Congress passed its amendment. (R.3, 5). Under the pre-amendment version of the CWA, the
version which controls this case, the Court has ruled that the CWA does not cover insignificant
and isolated waters such as Sheldrake Pond. (R.5).
In examining the 2001 amendment, nothing indicates that Congress intended that the
CWA’s new definition for “navigable waters” extend to actions based on conduct occurring
before August 15, 2001. (R.5) Indeed, the amendment is silent on the issue of retroactivity. (R.5). Thus,
under basic canons of statutory construction, the amendment should not be applied
retroactively in lawsuits challenging pre-amendment conduct. “Words in a statute ought not to have a
retrospective operation, unless they are so clear, strong, and imperative, that no other meaning can be
annexed to them, or unless the intention of the legislature cannot be otherwise satisfied.” United States v.
Cranch, 3 Cranch (7 U.S.) 399, 413 (1806). The Court declared that “prospectivity remains the
appropriate default rule,” and a statute will not be given retroactive effect without clear intent by Congress.
Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 265-71 (1994). When beginning a retroactivity analysis, the
court “must determine whether the new statute would have retroactive effect.” Id. at 280. In so doing, the
court must determine if the statute would “impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to transactions already completed.” Id. The
central inquiry is “whether the new provision attaches new legal consequences to events completed before
its enactment.” Id. at 270.
The 2001 amendment attaches new legal consequences to anyone attempting to comply with the
CWA’s requirements prior to 2001. The amendment seeks to expand the jurisdictional reach of the CWA
by including more waters within the definition of “navigable waters.” Thus, potentially, a waterway that
was not covered under the Act prior to the 2001 amendment may be so covered after the passage of the
amendment. By subjecting an increased number of waters to the CWA’s jurisdiction, the amendment
mandates that individuals who were not previously subject to CWA requirements now comply with these
requirements or face harsh penalties. This is why it is inappropriate to construe a statute subjecting more
bodies of water to the Act’s jurisdiction retroactively to past conduct. The effect would be to bring many
who complied with the CWA’s previous requirements into non-compliance. Thus, the provisions that
xxix
govern the instant case are those that were in effect at the time Suave’s conduct occurred—those CWA
provisions in effect before BOG filed its complaint on December 20, 2000. (R.3).
Although the commentary in the Senate Report accompanying the amendment expressed
an intent to apply the amendment retroactively, the court below pointed out that neither the
Conference Committee Report nor the House Committee report addressed the issue of
retroactivity. (R.6). Furthermore, though the Senate Report attempts to explain what Congress
intended when it first enacted the CWA in 1972, the lower court recognized that “few, if any, of
the members of Congress in 1972 were still members of Congress in 2001.” (R.6). Again, as the
Court expressed in SWANCC, the relationship between the actions of Congress in 2001 and
Congress in 1972, when Congress passed the CWA, is “considerably attenuated.” SWANCC,
531 U.S. at 170. Thus, the CWA provisions which govern this case are those that were in effect
at the time of Suave’s conduct prior to December 20, 2000.
IV.
THE FEDERAL GOVERNMENT MAY NOT CONSTITUTIONALLY
REGULATE SHELDRAKE POND UNDER THE POWERS OF THE
COMMERCE CLAUSE.
As previously argued in Section II of this brief, the CWA does not authorize the
Corps to regulate Sheldrake Pond. See infra p. 9. However, should this Court hold that
the CWA does authorize the Corps to regulate Sheldrake Pond, the constitutionality of
the migratory bird rule must be decided. We argue that the migratory bird rule is
unconstitutional, as the rule is beyond Congress’ Commerce Clause power, and thus, the
Corps may not permissibly regulate Sheldrake Pond on the basis that migratory birds
stopover at the pond.
Under Article I, Section 8 of the United States Constitution, Congress is granted
the
authority to regulate commerce between states. Congress’ power to regulate such commerce is limited to
three general categories of activities. United States v. Morrison, 120 S. Ct. 1740, 1749 (2000). Congress
may regulate: 1) the use of the highways of interstate commerce, 2) the instrumentalities of interstate
xxx
commerce, and 3) those activities substantially relating to interstate commerce. Id. (citing United States v.
Lopez, 514 U.S. 549, 558-559 (1995)). In the present case, none of these three categories of congressional
regulation exist, and thus the migratory bird rule is unconstitutional, and does not allow federal regulation
of Sheldrake Pond.
A. Although migratory birds stopover at Sheldrake Pond, the pond is not part
of a highway of interstate commerce.
BOG incorrectly argues that Sheldrake Pond is part of a migratory bird flyway,
and thus part of a highway of interstate commerce. Apparently, the argument is that the
“self-propelled flight of birds across state lines creates a sufficient nexus [with interstate
commerce] to justify the Corps’ assertion of jurisdiction” over any land or water where a
migratory bird may land. Cargill, Inc. v. U.S. 516 U.S. 955, 966 (1995). Such an
argument distorts the traditional definition of a “highway of interstate commerce,” which
includes “tangible items that facilitate commerce, such as motels and highways.” Polly
M. Pruenda, The Lautenberg Amendment: Congress Hit the Mark by Banning Firearms
from Domestic Violence Offenders 30 St. Mary’s L.J. 801, 824 (1999). A migratory bird
flyway is merely a path through the sky that migratory birds follow during their annual
migrations, and is not a “tangible item that facilitates commerce.” Id.
As the lower court in the instant case held, the contention that the natural
migration of animals is part of a highway of interstate commerce is too broad and would
subject all water and lands in the United States to regulation by the federal government.
(R.7). The contention implicates the ideas of federalism currently employed by the
Supreme Court of the United States, and disturbs the balance “between what is truly
national and what is truly local.” Morrison, 120 S. Ct. at 1754.
“The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.” U.S.
xxxi
CONST., amend. 10. Traditionally, a state has the reserved power to regulate land and
water uses within its borders. Hess, 513 U.S. at 44. If a migratory bird flyway was
deemed a highway of interstate commerce, the federal government would be able to
usurp this traditional power of a state by regulating land and water uses solely within that
state. For instance, if a migratory bird flyway was deemed such a highway, the federal
government could regulate an individual’s home or yard merely because a migratory bird
stopped on the individual’s property before flying on to another state. Every piece of
land or place of water where a bird stopped could be regulated by the federal government.
Such a result would be unconscionable.
It must be noted that states do not retain power over lands and waters within their
borders when a federal environmental regulation mandates that uses of the lands or
waters do not damage the environment. California Coastal Comm’n v. Granite Rock Co.,
480 U.S. 572, 587 (1987). However, as already argued in section I of this brief, the
waters in the instant case are not navigable, and thus do not fall under the purview of the
CWA. Regardless of the navigability issue, a finding that a migratory bird flyway is a
highway of interstate commerce would allow federal usurpation of all other land and
water use rights retained by the states. See Hess, 513 U.S. 30 at 44.
In similar cases, the argument that a migratory bird flyway is considered a
highway of interstate commerce is not advanced because of the weaknesses in the
argument and the repercussions of such a holding. In SWANCC, the Supreme Court held
that the statute in question did not assert jurisdiction over the isolated water, and thus the
Court did not have to reach the issue of whether the migratory bird rule was a valid
exercise of Congress’ Commerce Clause power. SWANCC, 531 U.S. at 183. In addition
xxxii
to the federal usurpation of states’ rights issues, such a holding would essentially nullify
the jurisdictional requirements in all federal regulations. Since migratory birds travel in
all states, all federal regulations could be upheld, regardless of jurisdictional clauses, if
migratory bird flyways are considered channels of interstate commerce.
B. Migratory birds are not instrumentalities of interstate commerce.
Congress has the power to “regulate and protect the instrumentalities of interstate
commerce, or [the] persons or things in interstate commerce.” Lopez, 514 U.S. at 558.
These instrumentalities are viewed as the “means” by which interstate commerce is
carried out, and thus, the regulation of such instrumentalities is justifiable under
Congress’ Commerce Clause power. See Id. at 558-59.
In the instant case, BOG incorrectly argues that migratory birds are
instrumentalities of interstate commerce. (R.7). However, such a contention is
unwarranted because migratory birds do not contribute to interstate commerce when the
birds fly across state lines during their annual migrations. While courts have affirmed
Congress’ use of this power to regulate people who “contribute to interstate commerce
when they cross state lines,” the courts have never held that animals traveling across state
borders during their migrations are instrumentalities or things in interstate commerce.
See Katzenbach v. McClung, 379 U.S. 294, 297 (1964) (noting that Congress can regulate
people under Congress’ Commerce Clause power).
In National Association of Home Builders v. Babbitt, 130 F.3d 1041, 1046
(D.C.Cir.1997), the court flatly rejected the argument that the Delhi Sands FlowerLoving Fly was a “thing” or instrumentality in interstate commerce. In another “animal”
case, the court held that although “red wolves [were transported] interstate . . . this [was]
xxxiii
not sufficient to make the red wolf a “thing” in interstate commerce.” Gibbs v. Babbit,
214 F.3d 483, 491 (4th Cir. 2000). In Gibbs, the animals were not crossing state borders
during their natural migrations, but were rather being transported by people. Id. Thus, if
an animal is not deemed an instrumentality or thing in interstate commerce when the
animal is being transported for testing purposes, it is unrealistic to deem an animal
naturally migrating from state to state, to be an instrumentality or thing in interstate
commerce.
In incorrectly arguing that migratory birds fit within the second Lopez factor,
BOG cites Missouri v. Holland, 252 U.S. 416 (1919). In Holland, the Court held that
“[w]ild birds are not in the possession of anyone; and possession is the beginning of
ownership.” Id. at 434. However, in no way did the Court hold that migratory birds were
instrumentalities of interstate commerce. The court was merely saying that migratory
birds are not owned by individual states or by the United States. Id. In Holland, the
statute and federal regulations dealt with the protection of migratory birds from being
captured or killed. Id. at 431. In the instant case, the applicable statute is the CWA,
which does not protect migratory birds, but rather protects waters from being polluted.
Thus, Holland does not support the contention that migratory birds are instrumentalities
or things in interstate commerce.
C. The operation of Suave Real Properties, Inc.’s skeet and rifle ranges does not
substantially affect any interstate commerce related to migratory birds.
Under the Commerce Clause, Congress also has the power to regulate activities that
substantially affect interstate commerce. Lopez, 514 U.S. at 558-559. BOG argues that the migratory bird
rule is a valid exercise of Congress’ power to regulate such activities. However, as the lower court noted,
there is no evidence of any human interstate activity at Suave’s skeet and rifle ranges. (R.7). It has long
been recognized that “the completely internal commerce of a State . . . must be considered as reserved for
xxxiv
the State itself.” Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 195 (1824). Thus, Suave’s purely intrastate
activity can not be deemed to substantially affect the interstate commerce of hunting and observing
migratory birds unless the aggregate effect of such an activity causes a substantial affect on interstate
commerce. See Perez v. U.S., 402 U.S. 146, 154 (1971); Katzenbach, 379 U.S. at 301; Wickard v. Filburn,
317 U.S. 111, 127-129 (1942); United States v. Darby, 312 U.S. 100, 123 (1941).
In two recent Supreme Court cases, the “aggregate effects” argument has been made by parties
trying to argue that purely intrastate activities, in the aggregate, substantially affect interstate commerce.
See Morrison, 120 S. Ct. at 1750; Lopez, 514 U.S. at 580. In Lopez, the Court held that the Gun-Free
School Zones Act (“GFSZA”) was outside of Congress’ Commerce Clause power. Lopez, U.S. at 561.
The Supreme Court noted that the GFSZA was “a criminal statute that by its terms ha[d] nothing to do with
"commerce" or any sort of economic enterprise, however broadly one might define those terms.” Id. In
Morrison, the Supreme Court also held that the Violence Against Women Act (“VAWA”) prohibited
purely non-economic activities. Morrison, 120 S. Ct. at 1754. The Supreme Court also “reject[ed] the
argument that Congress may regulate non-economic, violent criminal conduct based solely on that
conduct's aggregate effect on interstate commerce.” Id. In both Morrison and Lopez, the Court also noted
the significance that the laws in question attempted to regulate areas of local interest traditionally entrusted
to the States. Id.; Lopez, U.S. at 561. Thus, in analyzing the aggregate effects of Suave’s activities on the
interstate commerce of hunting and watching migratory birds, the purpose of the migratory bird rule must
be ascertained and it must be determined whether that purpose is national or local in nature.
The migratory bird rule prohibits the adding, without a permit, of any pollutant into any navigable
water that is or could be a habitat for migratory birds. 51 Fed. Reg. 41217. By the admission of the Corps,
the rule covers several non-economic activities. 58 Fed. Reg. 45008, 45020 (Aug. 25, 1993). The Corps
asserts that the migratory bird rule regulates intrastate activities such as an individual walking through a
wetland. Id. Thus, this rule regulates purely intrastate, non-economic activities and is outside of Congress’
Commerce Clause power if the rule governs an area of traditional state control or if the regulated activity’s
effect on interstate commerce is too attenuated. Lopez, 524 U.S. at 560-563. We argue that the migratory
bird rule, if found to be constitutional, would usurp states’ powers to control intrastate lands and waters,
xxxv
and that the relationship between the migratory bird rule and interstate commerce is too attenuated to allow
federal regulation of Sheldrake Pond.
BOG may argue that the migratory bird rule’s purpose of protecting migratory birds is a sufficient
basis for federal regulation. The Supreme Court has noted that “[t]he protection of birds” is of “national
interest.” Holland, 252 U.S. at 435. However, such a contention is not a basis for federal regulation of
migratory birds. There are numerous areas of national concern that are still traditionally regulated by the
States instead of the federal government. See Hess, 513 U.S. at 44 (noting that land and water use
regulations are state controlled). The maintenance and cleanliness of intrastate lands and waters is of
“national interest,” however, the federal government does not have the ability to usurp the power of the
States to regulate such lands and waters. Also, violence against women is an area of great “national
concern,” but the Supreme Court held that the VAWA was not within Congress’ Commerce Clause powers.
Morrison, 120 S. Ct. at 1754. Accordingly, the purpose of the migratory bird rule does not mandate federal
regulation.
It must also be noted that the Supreme Court has held that the connection to interstate commerce
can not be so causal as to allow Congress to regulate all activities that may lead to a particular result. See
Lopez, 514 U.S. at 564 (noting that if the GFSZA was within Congress’ Commerce Clause powers, then
Congress would be able to regulate all activities that might lead to violent crime). As previously discussed
in relation to the channels of interstate commerce, the migratory bird rule, if found to be a valid use of
Congress’ Commerce Clause power, would effect land and water uses, which are areas of the law that have
been traditionally within the power of the States. The migratory bird rule’s connection to interstate
commerce is too attenuated and would allow Congress to regulate every parcel of land or area of water
upon which a migratory bird may land.
The only means left for finding the migratory bird rule within Congress’ Commerce power is if
there are congressional findings that evidence Congress’ belief that there is a significant connection
between migratory birds and interstate commerce. In Lopez, the Court noted the significance of the lack of
any congressional findings pertaining to how guns in school zones affected interstate commerce. Lopez,
514 U.S. at 562. In the instant case, BOG relies on the Senate Report for the 2001 amendment to the CWA
as evidencing an appropriate connection between migratory birds and interstate commerce. (R.7). The
xxxvi
reliance on this Senate Report is misplaced. Any contention that the Senate Report should be considered
the intent of Congress “misapprehends normal congressional procedures.” Ginsburg, Feldman & Bress v.
Fed. Energy Admin., 591 F.2d 717, 727 (1978). The basic principle for realizing Congressional intent is
that “the content of the law must depend upon the intent of both Houses, not of just one.” K. Davis,
Administrative Law Treatise, § 3A-31, at 175-76 (1970 Supp.).
However, even if the Senate Report alone contains valid Congressional findings, the fact that
Congress concludes that “a particular activity substantially affects interstate commerce does not necessarily
make it so.” Lopez, 514 U.S. at 557 (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
452 U.S. at 311 (Justice Rehnquist, concurring in judgment). For instance, as previously argued in Sections
IV(A) and (B) of this brief, migratory bird flyways are not highways of interstate commerce and migratory
birds are not instrumentalities of interstate commerce. See infra pp.19-22. However, the Senate Report
specifically states otherwise. (R.6). The Senate Report is not law, and the Senate cannot make such judicial
determinations. Once again, Congress’ belief that migratory birds substantially affect interstate commerce,
as evidenced in the Senate Report, is too attenuated and should not be dispositive of the issue of whether
Congress may regulate intrastate, non-economic activities under Congress’ Commerce Clause power.
V.
THE TREATY CLAUSE OF THE CONSTITUTION DOES NOT JUSTIFY FEDERAL
REGULATION OF SHELDRAKE POND
Under Article II, Section 2 of the United States Constitution, the President, with the advice and
consent of the Senate, is granted the authority to make treaties. Congress is granted the power, under
Article I, Section 8 of the United States Constitution, to make all laws “necessary and proper” in the
execution of the Constitutional powers granted the federal government. The Necessary and Proper Clause
allows Congress to enact legislation in conformity with the purpose of any treaty. Holland, 252 U.S. at
432. Therefore, when Congress enacts legislation in order to enforce the purposes of a specific treaty,
Congress is utilizing the treaty power specifically granted to Congress alone.
The Migratory Bird Treaties are a series of treaties that obligate “the United States to preserve and
protect migratory birds through the regulation of hunting, the establishment of refuges, and the protection
of bird habitats.” North Dakota v. U.S., 460 U.S. 300, 309-310 (1986). According to the Necessary and
Proper Clause of the Constitution, only Congress has the power to create laws which implement the
purposes of such treaties. Holland, 252 U.S. at 432. However, there is no evidence to suggest that
xxxvii
Congress was acting pursuant to the Treaty Clause when Congress enacted the CWA. See 16 U.S.C. § 703
(2001). Seeing that Congress did not enact the CWA on the basis of any treaty, the migratory bird rule can
not be upheld under Congress’ treaty power. To hold otherwise, would allow the Corps to utilize the treaty
power granted only to Congress. Thus, the Treaty Clause of the Constitution does not justify federal
regulation of Sheldrake Pond.
VI.
BOG CANNOT MAINTAIN A CITIZEN SUIT UNDER 42 U.S.C. 6972(a)(1)(A) BECAUSE
SUAVE IS NOT SUBJECT TO THE PERMITTING AND REGULATION REQUIREMENTS
OF RCRA.
BOG has filed a citizen suit under RCRA § 6972(a)(1)(A) alleging that Suave has been disposing
of shot and skeet parts, hazardous wastes without the proper RCRA permits. This provision provides that a
citizen may bring suit against any person “alleged to be in violation of any permit, standard, regulation,
condition, requirement, prohibition, or order which has become effective pursuant to this chapter.” 42
U.S.C. § 6972(a)(1)(A). Therefore, in order for BOG to maintain a suit against Suave under this provision,
Suave must first be found to be subject to RCRA’s permitting scheme. Id. Since RCRA governs the
disposal of solid and hazardous waste, to be subject to the requirements of RCRA, a person must be
disposing of materials that constitute such waste. Connecticut Coastal, 989 F.2d at 1316. In order for the
fired shot and skeet parts to be considered hazardous wastes, they must first be deemed to be solid wastes
under RCRA. Connecticut Coastal Fishermen’s Assc. v. Remington, 989 F.2d 1305,1313 (citing United
Technologies Corp. v. EPA, 821 F.2d 714, 716 n.1 (D.C. Cir. 1987)). In determining whether fired shot
and skeet parts constitute "solid waste" two definitions of "solid waste" must be considered. First, the EPA
has defined "solid waste" in its regulations at 40 C.F.R. 261.2. The EPA and courts have long held that the
regulatory definition applies for purposes of enforcing the permitting and regulatory requirements of
RCRA, which include a citizen's right to bring suit under § 6972(a)(1)(A). See Connecticut Coastal, 989
F.2d at 1314-15. The second definition, found in the RCRA statute itself, applies to facilities that have been
found to have created an "imminent and substantial endangerment,” and will be addressed in section VII of
this brief.
A. Fired shot and skeet parts do not constitute solid waste under the EPA’s regulatory
definition.
xxxviii
The EPA’s regulatory definition of “solid waste” is located at 40 C.F.R. § 261.2.
It states in pertinent part that a “solid waste” is “any discarded material that is not
excluded by § 261.4(a).” 40 C.F.R. § 261.2(a)(1). The regulations further define a
“discarded material” as “any material which is abandoned . . . [r]ecycled . . .or
[c]onsidered inherently waste-like.” 40 C.F.R. § 261.2(a)(2). The regulations then state
that materials are considered solid waste if “they are abandoned by being [d]isposed of,
[b]urned or incinerated, or [a]ccumulated, stored, or treated (but not recycled) before or
in lieu of being abandoned by being disposed of, burned, or incinerated.” 40 C.F.R. §
261.2(b). Therefore, in order for a material to be considered a “solid waste” that material
must be deemed to have been “discarded” under the EPA’s definition. Long Island
Soundkeeper Fund v. N.Y. Athletic Club, No. 94 Civ. 0436, 1996 U.S. Dist. LEXIS 3383
at *25 (S.D.N.Y. 1996). The EPA has consistently held that fired shot and skeet parts are
not “discarded” materials within the regulatory definition. Id. at *25-26. The EPA
explained its reasoning in an amicus curiae brief for the court in Connecticut Coastal.
The court in Connecticut Coastal relied on the EPA’s position that fired shot and skeet
parts are commercial products being used in their normal manner, and this normal
manner of use necessarily entails the products to be deposited on the land. Brief for the
United States as Amicus Curiae at 11, Connecticut Coastal, 989 F.2d 1305 (2d Cir. 1993)
(No. 92-7191L). The EPA further reasons that when a product is being used for its
intended purpose, it is not being “discarded” within the meaning of the word under the
regulatory definition. Id. at 12. This interpretation is reflected in the plain wording of
the stated regulatory exceptions to the definition of “solid waste.” Id. at 13. One stated
exception is for discarded chemical products which are only considered hazardous
xxxix
wastes “when they are otherwise applied to the land in lieu of their original intended use
or when they are contained in products that are applied to the land in lieu of their original
intended use.” 40 C.F.R. § 261.33; Amicus Brief at 13, Connecticut Coastal (No. 927191L). Thus, these products are not considered hazardous waste when they are applied
to the land in their original intended use. Amicus Brief at 13, Connecticut Coastal (No.
92-7191L). Based on their interpretation of their own regulation, the EPA has
determined that fired shot and skeet parts are not regulated under RCRA as “solid
wastes” because they are products being used in their normal manner and therefore, are
not “discarded” within the regulatory definition. Id. at 12. This interpretation, because of
its consistency, reasonableness and because of the EPA’s authority to promulgate
definitions, is entitled to great deference.
B. The EPA’s interpretation of its own regulatory definition is entitled to great
deference.
The EPA has interpreted its own regulatory definition of “solid waste” to not
encompass fired shot and skeet parts, or any other materials that are deposited on land
incident to the material’s normal and intended use. Long Island Soundkeeper, 1996 U.S.
Dist. LEXIS 3383 at *25. Because the EPA is interpreting its own regulation and
because the interpretation is reasonable, it should be granted deference.
Courts have consistently held that an agency’s interpretation of its own regulation
is entitled to deference. Beazer East, Inc. v. EPA, 963 F.2d 603, 606-07 (3d Cir. 1992)
(deference should be granted to an agency’s interpretation of its own regulation unless
that interpretation is clearly wrong or inconsistent with the purpose of the regulation);
Chemical Waste Mgmt. v. EPA, 869 F.2d 1526, 1539 (D.C. Cir. 1989) (the EPA’s
interpretation of its own regulations should be accepted unless it is clearly wrong). There
xl
is nothing to indicate that the EPA’s interpretation of the breadth of the definition of
“solid waste” is clearly wrong, in fact, courts have held just the opposite. The court in
Long Island Soundkeeper, accepted the EPA’s interpretation of “solid waste” as
reasonable and granted the EPA deference. 1996 U.S. Dist. LEXIS 3383 at *26.
Similarly, in Barcelo v. Brown, 478 F. Supp. 646, 669 (D. P.R. 1979), the court held that
even though the discharge of ordnance caused incidental depositing on the land, it was
“obvious” that this did not constitute the discarding of material. Surely, if a district court
considered this to be an “obvious” proposition, then it should not be deemed “clearly
wrong” for the EPA to advance the same position. Furthermore, the EPA is entitled to
deference because the RCRA statute itself does not address the issue of what constitutes a
“discarded” material.
As stated earlier, the well settled procedure for determining whether deference
should be granted to an agency’s determination is located in Chevron v. NRDC, 467 U.S.
at 842-43. In applying the first prong, it is clear that Congress has not spoken on the
issue of the breadth of the term “discarded.” See id. Nowhere in RCRA does Congress
address the definition of “discarded.” 42 U.S.C. § 6903(27). In fact, the court in
American Petroleum Inst. v. EPA, 906 F.2d 729, 740-41 (D.C. Cir. 1990) specifically
held that the term “discarded” as used in RCRA was ambiguous and needed resolution by
the EPA. Therefore, since Congress has not spoken directly to the issue at hand, it is
necessary to move on to the second prong of Chevron and address whether the EPA’s
interpretation is “based on a permissible construction of the statute.” Chevron, 467 U.S.
at 843.
xli
The EPA’s interpretation is clearly a reasonable one. The Court has held that “the
court need not conclude that the agency construction was the only one it permissibly
could have adopted to uphold the construction, or even the reading the court would have
reached if the question initially had risen in a judicial proceeding.” Id. at 843 n. 11
(citing FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39 (1981)). It
has already been addressed above why the EPA’s interpretation of the term “discarded” is
not clearly wrong, and the EPA has advanced its position on why its interpretation of the
statute is a reasonable one. The EPA has stated that if fired shot and skeet parts were
considered “solid waste” then they could be classified as “hazardous waste” under
RCRA, and as such, target ranges would be considered hazardous waste disposal
facilities. Amicus Brief at 17, Connecticut Coastal, (No. 92-7191L). This would subject
the ranges to all of the obligations under RCRA, including permitting requirements, and
the requirements to contain certain safeguards like double liners, leachate collection
systems, monitoring of groundwater, and pretreatment of the fired shot and skeet parts
before the parts land on the ground. Id. at 18. The EPA has stated that subjecting the
ranges to these types of requirements would effectively put the ranges out of business.
Id. The EPA never intended its regulations to have that effect and its position was upheld
in Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct and Sewer Authority
(PRASA), 888 F.2d 180, 187 (1st Cir. 1989) (it is reasonable to construe the regulatory
definition of “solid waste” narrowly to avoid certain facilities being subject to hazardous
waste requirements of RCRA). Since Congress has not spoken directly on the issue of
the breadth of the term “discarded” as it applies to “solid waste,” and since the EPA has
advanced a reasonable interpretation of the term, the EPA should be granted deference
xlii
and the regulatory definition “solid waste” should not be read to encompass fired shot
and skeet parts.
VII.
BOG CANNOT MAINTAIN A CITIZEN SUIT UNDER 42 U.S.C. 6972(a)(1)(B) BECASUE
BOG HAS NOT ESTABLISHED THAT FIRED SHOT AND SKEET PARTS CONSTITUTE
AN IMMINENT AND SUBSTANTIAL ENDANGERMENT.
As previously stated, there are two definitions of “solid waste” that must be considered in this
case. The second definition is located in the RCRA statute itself. 42 U.S.C. § 6903(27). The statutory
definition of “solid waste” is the definition that is applicable in RCRA’s second citizen suit provision,
located at § 6972(a)(1)(B). Connecticut Coastal, 989 F.2d at 1314-15. Section 6972(a)(1)(B) provides that
a citizen may “commence a civil action on his own behalf . . . against any person . . . who is contributing to
the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste
which may present an imminent and substantial endangerment to health or the environment.” Just as in the
first citizen suit provision, if the material being disposed of does not constitute “solid waste” then a person
cannot be held liable under this provision.
A. Fired shot and skeet parts do not constitute solid waste under the RCRA statutory definition.
RCRA defines “solid waste” as “any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control facility and other
discarded material.” 42 U.S.C. § 6903(27). The very same language, “discarded
material,” that the EPA addressed in its regulations at 40 C.F.R. § 261.2(2), is used here.
Yet despite the parallel, the EPA has asserted that the statutory definition is broader than
its regulatory definition and does not exempt materials that are being discarded incident
to their normal use. Connecticut Coastal, 989 F.2d at 1316. Courts have granted the
EPA Chevron deference and held that it is reasonable to have two separate definitions of
“solid waste” applying to different portions of RCRA. Id. at 1315; PRASA, 888 F.2d at
187. The courts reasoned that is it practical to have a narrower definition for purposes of
regulation and a broader definition for purposes of remediation. Connecticut Coastal,
xliii
989 F.2d at 1315; PRASA, 888 F.2d at 187. However, these courts made the
determination that the EPA should be granted Chevron deference before the Supreme
Court decided the case of United States v. Mead Corp., 121 S. Ct. 2164, 2171 (2001),
which limited Chevron deference to agency interpretations that are embodied in
rulemaking. It is true that the EPA’s definition of “solid waste” was promulgated
pursuant to the EPA’s congressionally delegated authority and should be granted
Chevron deference. Connecticut Coastal, 989 F.2d at 1315. However, the EPA’s
position that the term “discarded material” in the statutory definition does not exempt
normal use materials was not adopted through any such process and therefore, should not
be granted the same deference.
B. The EPA's interpretation of the statutory definition is not entitled to deference.
The Court in Mead limited traditional Chevron deference to agencies by holding that
“administrative implementation of a particular statutory provision qualifies for Chevron deference when it
appears that Congress delegated authority to the agency generally to make rules carrying the force of law,
and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”
Mead, 121 S. Ct. at 2171. The Count went on to explain that an agency determination may still be entitled
to respect according to how persuasive the interpretation is. Id. at 2168 (citing Skidmore v. Swift & Co.,
323 U.S. 134 (1944)). Since the EPA’s interpretation of whether the normal use exception applies to the
statutory definition of “solid waste” was not promulgated pursuant to the EPA’s rulemaking authority and
because the interpretation is unreasonable and unpersuasive, it is not entitled to deference or relative
respect.
Suave does not dispute that Congress granted the EPA the authority to implement regulations to
aid in the enforcement of RCRA. 42 U.S.C. § 6912. In fact, Suave has already asserted that the EPA’s
interpretation of its own regulations is entitled to great deference. See infra pp. 28-30. The EPA’s
interpretation that “discarded material” does not encompass materials that are deposited on land incidental
to their normal use is a reasonable interpretation of the meaning of the term. Connecticut Coastal, 989 F.2d
xliv
1315. However, the EPA’s interpretation that this same exception does not apply to the statutory definition
of “solid waste” is not found in the regulations. 40 C.F.R. § 261.2. Therefore, the EPA’s interpretation of
the normal use exception as it applies to the statutory definition of “solid waste” is not entitled to Chevron
deference. Moreover, this interpretation is not even entitled to relative respect under Mead. It is
completely inconsistent for the EPA to promulgate an extensive definition for the meaning of “discarded
material” as it applies to solid waste but then assert that it only applies to one definition of “solid waste.”
While it may be reasonable, as the court in Connecticut Coastal held, for the EPA to recognize two
different definitions for “solid waste,” it is not reasonable to assert that the term “discarded material,” even
though it appears in both definitions, only really applies to the regulatory definition. Because the EPA is
trying to advance a position that is unreasonable and inconsistent with its previous position regarding the
normal use exception, the EPA’s latter interpretation is not entitled to deference or relative respect.
Without the EPA’s interpretation that the normal use exception does not apply to
the statutory definition of “solid waste,” BOG cannot maintain a citizen suit under §
6972(a)(1)(B). BOG has advanced no reasonable assertion for why the normal use
exception should not apply to the statutory definition of “solid waste.” As such, it is only
reasonable to apply the EPA’s interpretation of “discarded material” as not encompassing
normal use materials in either the regulatory or statutory definition.
CONCLUSION
For the foregoing reasons, the district court’s ruling on the defendant/respondent’s
motion for summary judgment should be affirmed in total.
xlv
Team #32
C. RELEVANT STATUTES AND REGULATIONS
The federal statutes relevant to the determination of this case consist of the Clean
Water Act, 33 U.S.C. §§ 1251-1387 (2000), and the Resource Conservation and
Recovery Act, 42 U.S.C. §§ 6901-6992(k) (2000). Appendix A includes reprints of
relevant sections. The Commerce and Treaty Clauses of the United States Constitution
also pertain to the determination of the case at bar. Appendix B includes reprints of
relevant sections.
STATEMENT OF THE CASE
Procedural History
This is an appeal from an order entered by Judge Romulus in the United States
District Court for the District of New Union, entered September 1, 2001, on the
defendant’s motion for summary judgment. The district court dismissed an action
initiated by Appellant Birdwatchers of Groveton, Inc. (“BOG”) against Appellee Suave
Real Properties, Inc. (“Suave”), seeking civil penalties and injunctive relief under the
citizen suit provision of the Clean Water Act (“CWA”) and the Resource Conservation
and Recovery Act (“RCRA”). (R. at 1). The district court justified dismissal of BOG’s
suit on two grounds. First, the district court opined that Sheldrake Pond does not
constitute ‘navigable waters’ under the CWA. The district determined that the CWA’s
statutory definition did not apply to Sheldrake Pond because Congress had exceeded its
constitutional powers regarding the Commerce and Treaty Clauses. (R. at 6). Second, the
district court opined that a consumer use exception applied to both the statutory and
regulatory interpretations of ‘solid waste’ under RCRA. (R. at 11).
The district court previously granted the Environmental Protection Agency’s
(“EPA”) motion for permissive intervention, and EPA now acts as an Appellant in the
present case. EPA challenges the district court’s denial of statutory and constitutional
application of the CWA authority. However, EPA supports the decision reached by the
district court in holding fired shot and skeet parts do not constitute solid waste under 40
CFR§ 261.2. EPA properly differentiated its position from BOG regarding
interpretations of statutory and regulatory solid waste definitions. (R. at 1, R. at 4)
Statement of the Facts
BOG is a non-profit corporation organized under the laws of New Union, whose
members live and watch birds in Groveton County, New Union. (R. at 3). BOG observed
over two hundred species of birds on Sheldrake Pond or its banks, when many of those
species used Sheldrake Pond as a stop over during their annual migration between the
United States, Canada, and Mexico. (R. at 3). Sheldrake Pond constitutes an important
stopover for migratory birds during their annual migrations. Sheldrake Pond is
approximately four feet deep and twenty-five acres in size; considered a playa lake, it is
dry part of the year. (R. at 3). BOG watched migratory birds on Sheldrake Pond from an
adjacent county road for at least two decades, until Suave began using the area as a
firearms and skeet shooting range in 2000. (R. at 3). Suave’s activities have adversely
impacted the migratory bird population at Sheldrake Pond. (R. at 3).
In 2000, Suave began operation of a facility near Sheldrake Pond known as the
Groveton Rifle and Pistol Association (“GRAPA”). (R. at 3). GRAPA consists of a
firing range and a pad for skeet shooters with an apparatus that ejects skeet into the air at
xlvi
and around Sheldrake Pond. (R. at 3). Skeet parts and spent lead shot fall into and
around Sheldrake Pond, both on Suave and county-owned land. (R. at 3- 4).
BOG filed suit pursuant to 33 U.S.C. § 1365(a)(1) (2000) alleging Suave violated
CWA section 1311(a), by discharging pollutants into navigable waters. First, the ejection
of skeet and the firing of lead shot constitute the discharge of pollutants into navigable
waters without a section 1342 permit. Furthermore, the skeet and lead shot constitute fill
material, which requires Suave to obtain a section 1344 permit. Second, Suave filled and
maintains the fill in the Pond for the skeet ejection platform absent a section 1344 permit.
BOG asked the district court to assess civil penalties for these violations, as well as issue
an injunction against further violations.
BOG also filed suit pursuant to 42 U.S.C. § 6972(a)(1)(A) (2000), alleging Suave
violated RCRA by disposing of hazardous waste in violation of 42 U.S.C. § 6925(a)
(2000). BOG further alleged Suave violated 42 U.S.C. § 6972(a)(1)(B) (2000) by
creating an imminent and substantial harm by depositing solid waste materials into the
environment. BOG asked the district court to assess civil penalties for these violations,
as well as issue an injunction against further violations.
SUMMARY OF THE ARGUMENT
This Court should reverse those portions of the district court’s holding that found
Sheldrake Pond outside the CWA jurisdiction and beyond the scope of the Commerce
and Treaty Clauses of the United States Constitution. See 33 U.S.C. §§ 1251-1387
(2000). This Court should affirm that a consumer use exception applies to the regulatory
definition of solid waste under 40 C.F.R. § 261.2 (2000). But, this Court should reverse
those portions of the district court’s holding that a consumer use exception exists under
the statutory definition of solid waste. See 42 U.S.C. § 6903(27) (2000).
The Ninth Circuit has addressed cases involving both the Clean Water Act and the Resource
Conservation and Recovery Act and found,
[t]he resolution of this issue requires an interpretation of the CWA . . . and the
RCRA . . . We review issues of statutory interpretation de novo. "We must read the
statutes to give effect to each if we can do so while preserving their sense and purpose.
"When two statutes are capable of co-existence, it is the duty of the courts . . . to regard
each as effective." Although an agency's construction of a statute it is charged with
enforcing is normally entitled to deference if it is reasonable and not in conflict with the
expressed intent of Congress, . . . this deference does not extend to "agency litigating
positions that are wholly unsupported by regulations, rulings, or administrative practice.”
Resource Invs. v. United States Army Corps of Eng'rs., 151 F.3d 1162, 1166 (9th Cir. 1998)
(internal citations omitted).
The CWA has a sufficiently broad scope to cover stopovers for migratory
birds because the Commerce and Treaty Clauses grant broad Congressional
authority. U.S. Const. art. I, § 8, cl. 3. Congress may exercise Commerce Clause
power if there exists: (1) a highway of interstate commerce; (2) instrumentalities of
interstate commerce; or (3) activities that have a substantial relationship to
xlvii
interstate commerce. See United States v. Morrison, 529 U.S. 598, 608-9, 120 S. Ct.
1740, 1749, 146 L. Ed. 2d 658 (2000). Sheldrake Pond constitutes an interstate
commerce highway; migratory birds constitute instrumentalities of commerce; and
Suave’s activities at and around Sheldrake Pond have a substantial relation to
interstate commerce.
The Treaty Clause pronounces treaties the “supreme law of the land.” U.S. Const.
art. I § 8, cl. 3. Treaties do not allow the federal government to usurp power from the
states, but the federal government does have power to regulate wildlife. See generally
Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641 (1919); See Palila v.
Hawaii Dep't of Land & Natural Resources, 471 F. Supp. 985, 992 (D. Haw. 1979).
Congress acted pursuant to the Treaty Clause when it enacted CWA. Section 1251(c)
makes this evident by acknowledging the need for international agreements, as well as
Senate Report 106-528, which clarifies the scope of the CWA. See 33 U.S.C. § 1251(c)
(2000); S. Rep. No. 107-106-528, at 23 (2001).
CWA authority extends to Sheldrake Pond. Any pollutant discharge into ‘navigable waters’
constitutes a CWA violation. 33 U.S.C. § 1311(a) (2000). Congress broadly defined ‘navigable waters’
under EPA enforcement authority as “the waters of the United States.” 33 U.S.C. § 1362(7) (2000).
Suave’s actions at and around Sheldrake Pond constitute the ‘discharge of a pollutant’ into ‘navigable
waters’ because “any addition of a pollutant to navigable waters from any point source” constitutes a CWA
violation. 33 U.S.C. § 1362(12) (2000). Whether under the Migratory Bird Rule or an earlier definition of
‘navigable waters’, Sheldrake Pond is in the intended class of water bodies entitled to protection due to its
effect on interstate commerce. But see Solid Waste Agency of N. Cook County v. United States Army Corps
of Eng’rs., 531 U.S. 159, 121 S. Ct. 675, 148 L. Ed. 2d 576 (2001) (“SWANCC”). Suave has violated
CWA by filling Sheldrake Pond with fill and by discharging pollutants. See 33 U.S.C. § 1342, §1344
(2000).
SWANCC does not apply to the present case because the facts in SWANCC merely
suggested an effect on interstate commerce opposed to the present case that proves
Sheldrake Pond affects interstate commerce. This Court should view SWANCC as highly
suspect since Congress said the Court had misinterpreted the CWA. See S. Rep. No. 107106-528, at 23 (2001). SWANCC stressed Congressional intent and found that Congress
had not intended such a water body (an abandoned gravel pit) to come within the
authority of the CWA. 531 U.S. at 170-71. Congress has adopted an amendment
defining ‘navigable waters’ in the exact terms the Court found Congress did not intend.
Pub. Law 106-720, August 15, 2001 (“the 2001 Amendment”). Congress adopted the
xlviii
amendment to clarify what ‘navigable waters’ means and illustrate that CWA should
reach to the outer limits of Congressional authority. 531 U.S. at 172.
Lead shot and skeet parts are not solid waste under the regulatory definition of
solid waste defined at 40 C.F.R. § 261.2. The regulatory solid waste definition is
narrowly tailored and is not applicable to the present case. Furthermore, a consumer use
exception applies to the regulatory definition of solid waste. The regulations are aimed at
permit compliance. Requiring permits for consumers to use everyday products abrogates
RCRA goals. However, Congress broadly tailored the statutory definition of solid waste
to prevent imminent and substantial harm to the environment. 42 U.S.C. § 6972(a)(1)(B)
(2000). A consumer use exception does not apply to the statutory definition of solid
waste because it would circumvent the imminent and substantial harm element of RCRA.
ARGUMENT
I. THE CONSTITUTIONAL SCOPE OF THE CWA WARRANTS PROTECTION
OF SHELDRAKE POND.
A. The Commerce Clause Justifies Federal Regulation Of Waters Visited By Migratory Birds
Congress has the power to regulate commerce among the states, but courts have been left to
interpret how far that power extends. U.S. Const. art. I, § 8, cl. 3. The Army Corps of Engineers (“the
Corps”) interpreted the CWA to include birds protected under Migratory Bird Treaties. 51 Fed. Reg.
41206, 41217 (1986) (“Migratory Bird Rule”). Although the Migratory Bird Rule may invoke “the outer
limits of Congress’ power,” it does not exceed Commerce Clause power. 531 U.S. at 172.
Courts have illustrated three categories of activity Congress may regulate under the Commerce
Clause: 1) highways of interstate commerce; 2) instrumentalities of interstate commerce; and 3) activities
having a substantial relation to interstate commerce. Morrison, 529 U.S. at 608-09 (holding gender
motivated violence did not affect interstate commerce); United States v. Lopez, 514 U.S. 549, 558, 115 S.
Ct. 1624, 1629, 13 L. Ed. 2d 626 (1995) (holding firearms near schools did not affect interstate commerce);
Heart of Atlanta Motel v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 357, 13 L. Ed. 2d 258 (1964)
(holding racial discrimination in hotels did affect interstate commerce); Groome Resources, Ltd. v. Parish
of Jefferson, 234 F.3d 192, 203 (5th Cir. 2000) (holding the Fair Housing Act requirements of ‘reasonable
accommodation’ affected interstate commerce).
1.
Sheldrake Pond constitutes a highway of interstate commerce
Sheldrake Pond constitutes a ‘highway of interstate commerce’ because migratory birds use it as a
flyway. The district court was reluctant to conclude the pond was a ‘highway of interstate commerce’
xlix
because it would allow broad federal regulation over any lands or waters where birds could stopover. (R. at
7). However, even if these lands and waters are considered ‘highways of interstate commerce’, the
activities that occur there must still substantially affect interstate commerce in the aggregate. SWANCC,
531 U.S. at 173. Federal regulation would be limited only to those lands and waters in which an aggregate
of migratory birds would substantially affect interstate commerce. Given that over two hundred species use
Sheldrake Pond as a stopover, proof exists that an aggregate of migratory birds substantially affect
interstate commerce, making Sheldrake Pond a ‘highway of interstate commerce’.
2.
Migratory birds constitute instrumentalities of interstate commerce
Sheldrake Pond constitutes a ‘highway of interstate commerce’ and the Supreme Court has found
migratory birds to be ‘instrumentalities of interstate commerce’. See generally Holland, 252 U.S. 416
(holding that the Migratory Bird Treaty did not infringe upon state sovereignty. The district court rejects
migratory birds as ‘instrumentalities of interstate commerce’ for two reasons. The district court does not
interpret Holland as holding migratory birds are ‘instrumentalities of interstate commerce’. Rather, the
district court interprets Holland as holding migratory birds are not immune from federal control. (R. at 7).
Given that states do not own migratory birds, the federal government may regulate migratory birds
as ‘instrumentalities of interstate commerce’. While Holland never explicitly stated migratory birds
constitute ‘instrumentalities of interstate commerce’, this Court can conclude federal authority arises under
the Commerce Clause. See U.S. Const. art. I, § 8, cl. 3. First, Holland notes migratory birds are “only
transitorily within the State and [have] no permanent habitat therein.” Holland, 252 U.S. at 435. The Court
recognizes that migratory birds are an entity of interstate nature, not able to be regulated by one state.
Second, it would be inconsistent to hold states do not own migratory birds, but also hold migratory birds
are not ‘instrumentalities of interstate commerce’. If states cannot own migratory birds, then they must be
property of the states as a whole, and thus constitute an interstate entity. If individual states cannot fully
protect migratory birds on their own, it is up to the federal government to offer effective protection.
Following the Holland case it is reasonable to conclude migratory birds are ‘instrumentalities of interstate
commerce’ and thus subject to regulation under the commerce clause.
The district court distinguished Holland from the present case. Holland addressed statutes and
regulations concerning migratory birds being killed, captured or sold, while an issue in the present case
l
addresses a water pollution statute. See Holland, 252 U.S. at 431. However, Holland’s rationale for
allowing federal regulation is comparable to the present case because Holland found the protection of
migratory birds was a matter of national interest and could only be accomplished through “national action.”
Holland, 252 U.S. at 435. Similarly, protecting migratory birds from polluted waters constitutes a matter of
national interest. Migratory birds constitute ‘instrumentalities of interstate commerce’ and are thus subject
to federal regulation.
3. Suave’s activities have a substantial relation to interstate commerce
Suave’s polluting activities at and around Sheldrake Pond warrant federal
regulation. Those activities bear a substantial relation to interstate commerce
regarding the observation and hunting of migratory birds. The district court rejected
this argument, finding that BOG failed to allege human interstate activity at
Sheldrake Pond. (R. at 7). However, the district court confused the scope of the
Commerce Clause. The Clause does not require a nexus between interstate
commerce and human activity. See Morrison at 598, Lopez at 558. Rather, the
nature of the activity is irrelevant, so long as the regulated activity has a “substantial
relation to interstate commerce.” Morrison, 529 U.S.at 609; Lopez, 514 U.S. at 558.
Therefore, this Court should examine whether Suave’s activities substantially affect
interstate commerce.
Suave’s activities adversely affect the aggregate of interstate commerce. The destruction of
migratory bird habitat at Sheldrake Pond affects multi-billion dollar industries. For instance, in 1996
approximately 3.1 million people hunted migratory birds, spending $1.3 billion in the process. Fish and
Wildlife Serv., U.S. Dep’t of the Interior, 1996 National Survey of Fishing, Hunting, and WildlifeAssociated Recreation 25 (1998) (“the Wildlife Report”). Furthermore, 62.9 million Americans spent $29
billion on wildlife-watching activities, including bird watching. Id. at 91. Of the 17.7 million bird
watchers in the United States, 14.3 million took trips specifically to observe, feed, or photograph waterfowl
and more than 6 million crossed state lines to engage in bird watching. Id. at 90. Courts have also
li
acknowledged migratory bird preservation is vital to interstate commerce. For example in, Hoffman Homes
the Seventh Circuit recognized the loss of migratory bird wetlands affects bird watching, hunting, and
trapping. Hoffman Homes v. EPA, 999 F.2d 256, 261 (7th Cir. 1993); See also Palila, 471 F. Supp. at 99495 (“[A] national program to protect and improve the natural habitats of endangered species preserves the
possibilities of interstate commerce.”).
Courts have set forth four considerations in determining whether the regulated
activity substantially affects interstate commerce:
(1) Whether the statute regulates ‘commerce,’ or an activity that
might be deemed an ‘economic activity,’ broadly defined;
(2) whether the statute has an ‘express jurisdictional element’ that
restricts its application to activities that have ‘an explicit
connection with or effect on interstate commerce’;
(3) whether congressional findings support the judgment that the
activity in question has a substantial effect on interstate
commerce; and
(4) whether the Act made an offense has an attenuated relationship to
that substantial effect on interstate commerce.
GDF Realty Investments, Ltd. v. Norton, No. A 00 CA 369 SS, 2001 U.S. Dist. LEXIS
16445, at *23 (W.D. Tex. August 30, 2001); United States v. Kallestad, 236 F.3d 225,
227-28 (5th Cir. 2000) (quoting Morrison 529 U.S. at 610-13).
First, a fairly low standard has been used to determine whether a statute regulates ‘commerce,’ or
an activity that might be deemed an ‘economic activity.” See Morrison, 529 U.S. 611(stating regulated
activities need only be “some sort of economic activity.”); Groome 234 F.3d at 208 (“[A] broad reading of
"economic" has been accepted in other circuits that have addressed the Commerce Clause after Morrison”);
GDF Realty Invs., Ltd., 2001 U.S. Dist. LEXIS 16445 at *31 (interpreting Morrison to have a “low hurdle”
in establishing economic activity). The Supreme Court will only consider an activity non-economic if it
has “nothing to do with commerce or any sort of economic enterprise, however broadly one might define
those terms.” Morrison, 529 U.S. at 610. Suave’s activities are economic since they purchase skeet and
lead shot and presumably charge a fee to have members use GRAPA.
lii
Second, the CWA has no ‘express jurisdictional element’ that restricts its
application to activities that have “an explicit connection with or effect on interstate
commerce.” See 33 U.S.C. §§ 1251-1387. The CWA does not require an explicit
connection to interstate commerce, thus its effects reaches interstate commerce by an
implicit connection. See Kallestad, 236 F.3d at 227-28 (quoting Morrison, at 610-13);
GDF Realty Invs., Ltd., 2001 U.S. Dist. LEXIS 16445 at *31. The present case does
not facially challenge the CWA; therefore, a jurisdictional element is not required,
nor is it applicable. United States v. Bird, 124 F. 3d 667, 676 n.8 (5th Cir. 1997), cert.
denied 523 U.S. 1006 (1998) (“In any event, jurisdictional elements do not necessarily
preclude ‘as-applied’ Commerce Clause challenges.”); GDF Realty Invs., Ltd., 2001
U.S. Dist. LEXIS 16445 at *33.
Third, congressional findings support the judgment that Suave’s activities
substantially affect interstate commerce. Congress recently concluded federal water
pollution regulation extends to ponds serving as stopovers for migratory birds. S.
Rep. No. 107-106-528, at 23 (finding migratory birds constitute ‘instrumentalities of
commerce’). Congress asserts that pollution to our Nation’s waters has a substantial
effect on interstate commerce regarding migratory bird activities. See S. Rep. No.
107-106-528, at 23. However, the district court erred when it believed that the
judiciary, rather than Congress should make determinations of how activities affect
interstate commerce. See Lopez, 514 U.S. at 557; Morrison, 529 U.S. at 614.
The district court relied on concurring opinions in Lopez and Morrison, rather than the majority
opinion, which gave deference to congressional findings on the effect of activities to interstate commerce.
Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S 264, 276, 101 S. Ct. 2352, 2360, 69 L. Ed.
2d 1(1981) (“The court must defer to a congressional finding that a regulated activity affects interstate
liii
commerce, if there is any rational basis for such a finding.”); Heart of Atlanta, 379 U.S. at 258 (deferring to
a congressional finding of whether racial discrimination affects motels as long as the basis is rational, and
the means of regulation reasonable). Other courts have emphasized deference to congressional findings
and “uph[eld] application of the law if there [was] a ‘rational basis’ for the congressional determination that
the regulated activity ‘affect[ed] interstate commerce,’ and if the means chosen to regulate the activity
[were] reasonable.” United States v. Pozsgai, 999 F.2d 719, 733 (3d Cir. 1993) cert. denied, 510 U.S. 1110
(1994). In the present case a rational basis exists that the regulated activity adversely affects interstate
commerce. Bird watching and hunting are interstate enterprises and will be adversely affected if migratory
bird stopovers are polluted. The CWA constitutes reasonable means of pollution regulation because it does
not impose undue burdens and does exempt certain polluting activities. 33 USC § 1311(a).
The district court suggested SWANCC obliterated Pozsgai. (R. at 7). However, SWANCC did not
address whether a court should give deference to Congress on findings of effect on interstate commerce.
The issue before SWANCC was specifically focused on a gravel pit used as a commercial landfill, and did
not address other water bodies such as playa lakes. SWANCC, 531 U.S. at 173. This Court can look to
Senate Report 106-528 for guidance to conclude that Suave’s activities relate to the interstate commerce
activity of bird watching. See S. Rep. No. 107-106-528, at 23. Finding that Suave’s activities relate to
interstate commerce enables this Court to “evaluate the legislative judgment that the activity in question
substantially affects interstate commerce.” See Morrison, 529 U.S. at 612.
In both Lopez and Morrison the Court rejected Congress’ suggested findings
as the basis for regulation because the justifications would obliterate the federal-local
dichotomy. See Lopez, 514 U.S. at 564; Morrison, 529 U.S. at 615. However, the
present case preserves the federal-local dichotomy given the scope of federal
regulation is limited to lands and waters used as stopovers by migratory birds. The
ejection of skeet and firing of lead shot at and around Sheldrake Pond substantially
affects the interstate commerce by contaminating the migratory birds’ stopover and
thus necessitates federal regulation under the Commerce Clause.
liv
Fourth, a direct link exists between Suave’s activities and interstate
commerce. The Court struck down regulations in Lopez and Morrison because those
activities required several links to establish a connection to interstate commerce.
GDF Realty Invs, Ltd. v. Norton, 2001 U.S. Dist. LEXIS 16445, at *38. However, the
present case has a direct link between the polluting activity and interstate commerce.
As illustrated by the Wildlife Report, pollution of Sheldrake Pond by Suave’s spent
lead shot and skeet parts contaminate the water and directly cause a decline in the
number of migratory birds enjoyed by bird watchers and hunters at Sheldrake Pond.
See generally Fish and Wildlife Serv., U.S. Dep’t of the Interior, 1996 National
Survey of Fishing, Hunting, and Wildlife-Associated Recreation.
B. The Treaty Clause Allows Federal Regulation of Waters Visited By Migratory Birds
1.
Treaties are the equivalent of Acts of the Legislature
The Treaty Clause pronounces treaties the “supreme law of the land.” U.S. Const. art. I, § 8, cl. 3.
Moreover, the Supreme Court recognizes their stature as being equivalent to acts of Congress. U.S. Const.,
art. VI, cl. 2; Holland, 252 U.S. at 432 (“[T]reaties made under the authority of the United States, along
with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme
law of the land.”); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196, 23 L. Ed. 846 (1876)
(quoting Foster and Elam v. Neilson, 2 Pet. 253, 314 (1829)) (“[A] treaty is to be regarded, in courts of
justice, as equivalent to an act of the legislature.”). The district court held the Treaty Clause did not enable
the federal government to usurp power from states. (R. at 7). Some power is reserved to the states for
regulating wildlife, but the states’ powers may not infringe upon the powers vested upon the federal
government. Palila, 471 F. Supp. at 992 (“[A] state's control over wildlife within its borders must yield to
the federal commerce power.”); See Hughes v. Oklahoma, 441 U.S. 322, 99 S. Ct. 1727, 60 L. Ed. 2d 250
(1979) (recognizing state prohibition of out-of-state shipments of minnows is superseded by federal laws);
Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S. Ct. 1740, 52 L. Ed. 2d 304 (1977) (determining
federal licensing laws superceded state power to disperse fishing licenses); See also U.S. Const. amend. X.
lv
Contrary to the district court’s belief, the federal government did not wrest power from the states. Rather,
the federal government’s regulations affecting migratory bird constituted an exercise of powers it already
possessed.
2. Congress acted pursuant to the Treaty Clause when it enacted the Clean
Water Act
The CWA has several indications that support Congress acted pursuant to
the Treaty Clause, contrary to the district court holding. (R. at 7). Section 1251(c)
reads:
It is further the policy of Congress that the President, acting through the
Secretary of State and such national and international organizations as he determines
appropriate, shall take such action as may be necessary to insure that to the fullest extent
possible all foreign countries shall take meaningful action for the prevention, reduction,
and elimination of pollution in their waters and in international waters and for the
achievement of goals regarding the elimination of discharge of pollutants and the
improvement of water quality to at least the same extent as the United States does under
its laws.
33 U.S.C.S. 1251(c).
Congress recognized water pollution as an international problem and
intended treaties to ensure countries maintain clean waters. By maintaining clean
waters, countries protect migratory bird populations and preserve the bird watching
and hunting industries. Fish and Wildlife Serv., U.S. Dep’t of the Interior, 1996
National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 25 (1998).
SWANCC erroneously interpreted congressional intent regarding the CWA.
See S. Rep. No. 107-528, at 23. The Senate Report found the CWA has jurisdiction
from both the Commerce and Treaty Clauses. Id. While the 2001 amendment does
not apply retroactively, it clarifies CWA’s preexisting power. It would be
incongruous for Congress to enact the CWA, yet not extend its powers to the full
extent possible under the Commerce and Treaty Clauses. Without broad powers, the
CWA would be limited to waters traversing state lines. Congress did not expect
lvi
migratory birds to stop on only clean, federally regulated interstate waters. The
CWA must reach to isolated waters on which migratory birds stop to achieve the
goals of the CWA.
II. THE DISTRICT COURT ERRED IN HOLDING SUAVE DID NOT VIOLATE THE
CWA AND THAT SHELDRAKE POND IS NOT ‘NAVIGABLE WATERS’ UNDER
33 U.S.C. § 1311(a), § 1362(7), § 1362(12).
Suave violated the CWA because it discharged pollutants into the waters of the
United States in violation of 33 U.S.C. § 1311(a). EPA has authority over Sheldrake
Pond because 33 U.S.C. § 1362(7) defines ‘navigable waters’ as “waters of the United
States” and defines ‘pollutant’ as “any addition of a pollutant to navigable waters from
any point source.” 33 U.S.C. § 1362(12). Sheldrake Pond fits under the definition of
‘navigable waters’ and both spent lead shot and skeet under the definition of ‘pollutants’.
Sheldrake Pond warrants CWA protection to achieve the goals of CWA—protecting and
restoring the quality of the Nation’s waters. See 33 U.S.C. § 1251(a) (2000). The Corps
and EPA share responsibility for enforcing CWA and either entity may determine
whether Sheldrake Pond constitutes ‘navigable waters’. See Bersani v. Robichaud, 850
F.2d 36, 40 (2d Cir. 1988), cert. denied 489 U.S. 1089 (1989).
A. Congressional Intent Supports An Expansive Definition Of ‘Navigable Waters’
Congress intended CWA to cover as many water bodies as possible in order to achieve its goals.
Congress enacted CWA "to restore and maintain the chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). CWA aims to eliminate pollutant discharges into navigable waters,
33 U.S.C. § 1251(a)(1), by prohibiting the discharge of any pollutant, except in compliance with law, 33
U.S.C. § 1311(a). Congress defined pollutant discharges to include “any addition of any pollutant to
navigable waters from any point source.” 33 U.S.C. § 1362(12). CWA’s purpose is to make a “marked
improvement in the quality of the total water resources of the United States, regardless of whether that
water [is] at the point of pollution a part of a navigable stream.” See United States v. Ashland Oil &
Transp. Co., 504 F.2d 1317, 1323 (6th Cir. 1974). The crux of CWA is to protect our Nation’s waters. The
legislative history of CWA indicates that Congress intended the term ‘navigable waters’ to be interpreted to
exercise the full extent of congressional authority possible. Conf. Rep. 92-1236, reprinted in 1972
U.S.C.C.A.N. 3776, 3822.
lvii
Congress broadly defined the waters covered by the CWA to achieve the goals of the Act. See
United States v. Riverside Bayview Homes, 474 U.S. 121, 133, 106 S. Ct. 455, 462, 88 L. Ed. 2d 419
(1985). “[T]he term ‘navigable waters’ should be given an extremely broad construction.” Ashland, 504
F.2d at 1325 (quoting comments made by Representative Dingell). Congress broadly defined ‘navigable
waters’ under EPA enforcement authority as “the waters of the United States.” 33 U.S.C. § 1362(7).
Congress intended to protect as many water bodies as possible under CWA, otherwise the statute would
have no hope of reaching its goals of restoring and maintaining the integrity of the Nation's waters. 33
U.S.C. § 1251(a). CWA’s legislative history indicates the significance and broad meaning of the term
‘navigable waters’. Congress defined the term ‘navigable waters’ to mean "the waters of the United
States", which asserted federal jurisdiction over the Nation's waters to the maximum extent allowed under
the Commerce Clause. Given this clear mandate, the court in Natural Res. Def. Counsel, Inc. v. Callaway,
392 F. Supp. 685, 686 (D.C. Cir. 1975), ordered the Corps to amend its definition of navigable waters and
recognize "the full regulatory mandate of the Water Act".
Enacting the CWA, members of Congress intended an expansive definition.
‘Navigable waters’ under the CWA was not intended to provide a traditionally technical
definition as seen in other acts. Rather, the Congressional Record states that ‘navigable
waters’ are broadly defined under the CWA to ensure water quality in a geographical
sense. 118 Cong Rec. 33756 (1972). By enacting the broader definition, Congress
attempted to legislate a “substantially expanded view” of navigability. Id. CWA’s broad
definition “makes it clear that the term ‘navigable’ as used in CWA is of little import”,
Riverside Bayview Homes, 474 U.S. at 133, and that EPA’s authority extends to waters
beyond the traditional scope of ‘navigable waters’. Ashland, 504 F.2d at 1325. The
legislative history of CWA establishes the importance Congress placed on EPA having
broad regulatory power. Congress intended to regulate the discharge of pollutants into
waters that may eventually affect overall water quality. Moreover, Congress recognized
the impact of water on the whole nation. 118 Cong Rec. 33749 (1972). Congress
intended the definition of ‘navigable waters’ under CWA "to reach [ ]the full extent
permissible under the Constitution." See Ashland , 504 F.2d at 1323; United States v.
Lambert, 695 F.2d 536, 538 (11th Cir. 1983). The CWA was Congress’ attempt to
establish the importance of “sav[ing] our priceless waters from the degradation that is fast
destroying them.” 118 Cong. Rec. 33749. The congressionally-declared objective of the
CWA was to “restore and preserve for the future the integrity of our Nation’s waters.”
Id. Congress’ broad definition of United States waters attempted to “repudiate limits that
had been placed on federal regulation by earlier water pollution control statutes.” See
United States v. TRG Corp., 171 F.3d 762, 764 (2d Cir. 1999). The expansive definition
of water included waters that would not be considered navigable under a more traditional
framework.
lviii
B. SWANCC Does Not Answer The Present Case And This Court May Find Sheldrake
Pond A ‘Navigable Waters’
SWANCC does not apply to Sheldrake Pond because it did not address the issue of whether a playa
lake falls under the definition of ‘navigable waters’. See United States v. Interstate Gen. Co., 152 F. Supp.
2d 843, 845 (D. Md. 2001). SWANCC believed CWA jurisdiction extended to a non-navigable wetland
directly adjacent to a navigable water body, but would not extend jurisdiction simply because migratory
birds visit a water body. See SWANCC, 121 S. Ct. at 682-83 (citing Riverside Bayview Homes, 474 U.S.
121). SWANCC did not address instances where non-navigable bodies of water, such as playa lakes like
Sheldrake Pond fall within CWA’s authority. Therefore, this Court may find that Sheldrake Pond is under
CWA’s definition of ‘navigable waters’. See United States v. Krilich, 152 F. Supp. 2d 983, 988 (N.D. Ill.
2001). However, EPA agrees with SWANCC’s determination that a substantial connection to interstate
commerce or navigable waters should exist for CWA to apply to water bodies. Krilich, 152 F. Supp. 2d at
988. While Sheldrake Pond may contain water only intermittently, its degradation negatively affects the
aquatic ecosystem and has a damaging effect on interstate commerce. The term ‘navigable waters’ limits
EPA authority over isolated water bodies with little or no effect on interstate commerce and the aquatic
ecosystem, not playa lakes serving as a migratory bird stopovers on both interstate and international
migration paths. (R. at 3); Krilich, 152 F. Supp. 2d at 988.
SWANCC interpreted 33 C.F.R. § 328.3(a)(3) (2000) as beyond Congress’ Commerce Clause
power because it grants CWA protection to water bodies “[w]hich are used or could be used for industrial
purpose by industries in interstate commerce.” But even under the more constrained 1974 SWANCC
suggested definition, CWA authority exists over Sheldrake Pond. The 1974 definition of ‘navigable
waters’ includes "those waters of the United States which are subject to the ebb and flow of the tide, and/or
are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate
or foreign commerce." 33 C.F.R. § 209.120(d)(1) (1974). Congress defined the term ‘navigable waters’ to
mean "the waters of the United States" to assert federal jurisdiction over the Nation's waters to the
maximum extent allowed under the Commerce and Treaty Clauses. Whether that mandate exists under
language from 33 U.S.C. § 328.3(a)(3) or 33 CFR § 209.120(d)(1) is of little import; jurisdiction exists to
lix
recognize "the full regulatory mandate of the Water Act". Callaway, 392 F. Supp. at 686. The present case
centers on the water bodies effect on interstate commerce.
The nature of activities at and around Sheldrake Pond affects interstate commerce. Suave’s own
actions—for instance, buying and selling products and facility space—as well as BOG’s bird watching
activities affect interstate commerce. Furthermore, CWA generally defines ‘navigable waters’ as “those
waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the
past, or may be susceptible for use to transport interstate or foreign commerce.” 33 C.F.R § 329.4 (2000).
This general definition solidifies EPA’s authority over waters affecting interstate commerce. Section
328.3(a)(3) merely offered guidance by fleshing out a more workable definition for courts and interested
parties.
Even if non-navigable in the traditional sense, Sheldrake Pond still affects interstate commerce
and deserves CWA protection “to the extent necessary to protect the use or potential use of ‘navigable
waters’ as channels or instrumentalities of interstate commerce.” United States v. Wilson, 133 F.3d 251,
256 (4th Cir. 1997). Sheldrake Pond can be likened to other isolated waters or non-navigable tributaries
that fall under CWA protection. See e.g., United States v. Eidson, 108 F.3d 1336, 1341-42 (1st Cir. 1997),
cert. denied 522 U.S. 899 (1997) (extending CWA authority to man-made tributary); United States v. Texas
Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979) (granting CWA authority to small unnamed tributary);
Ashland, 504 F.2d at 1325 (extending CWA authority to an unnamed tributary even though its waters
flowed through at least three other waterways before reaching a navigable river). Also, the expansive
definition of ‘navigable waters’ as "waters of the United States" encompasses "intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sandflats, 'wetlands,' sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce" present elsewhere under similar environmental protection legislation.
40 C.F.R. § 122.2 (2000). This language supports Congress’ intended definition of ‘navigable waters’.
EPA’s interpretation of both statutes and EPA-promulgated regulations are
entitled to deference. A court should “defer to any reasonable EPA construction of its
enabling statutes.” Texas Mun. Power Agency v. EPA, 836 F.2d 1482, 1488 (5th Cir.
1988). When a regulatory construction is at issue, “deference is even more clearly in
order.” Id. Courts must not substitute their own interpretation of a statutory or
regulatory construction for that of the entrusted executive agency because the agency
lx
administering the statute or regulatory provision should be afforded a great deal of
deference. Chevron, U.S.A., Inc. v. United States, 467 U.S. 837, 844, 104 S. Ct. 2778,
2782, 81 L.Ed.2d 694 (1984). This Court should defer to EPA’s interpretation of
‘navigable waters’, which includes playa lakes like Sheldrake Pond.
C. Suave Violated 33 U.S.C. § 1342 By Failing To Have A Permit Before Discharging Pollutants Into
‘Navigable Waters’
The CWA prohibits discharges of pollutants into navigable waters from a point
source without a permit. 33 U.S.C. § 1311(a). The CWA authorizes permits "for the
discharge of any pollutant”, but only if the discharge meets any CWA-applicable
requirements. 33 U.S.C. § 1342(a). Section 1342 permit constitutes an exception to the
CWA’s ban on discharges. See 33 U.S.C. §1311(a). In order for EPA to have a claim
against Suave, it must prove that (1) Suave discharged, (2) a pollutant, (3) into navigable
waters, (4) from a point source, (5) without a permit.
(1) Suave’s discharge of lead shot and clay skeet into Sheldrake Pond constitute
the ‘discharge of a pollutant’ because “any addition of a pollutant to navigable waters
from any point source” is a violation. See 33 U.S.C. § 1362(12). Suave must obtain a
permit before the individual range users discharge into Sheldrake Pond, so EPA can
monitor discharges and ensure water quality compliance. American Iron & Steel Inst. v.
EPA, 115 F.3d 979, 994 (D.C. Cir. 1997). The Tenth Circuit found that the “ touchstone
of the regulatory scheme is that those needing to use the waters for waste distribution
must seek and obtain a permit to discharge that waste, with the quantity and quality of the
discharge regulated.” United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.
1979). The Tenth Circuit went on to find that, “[t]he concept of a point source was
designed to further this scheme by embracing the broadest possible definition of any
identifiable conveyance from which pollutants might enter the waters of the United
States.” Id.
(2) Spent lead shot and clay fragments are pollutants under CWA. CWA defines
“pollutant” as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.” 33 U.S.C. § 1362(6). Spent lead shot and clay
fragments constitute pollutants under CWA because they qualify as solid waste. CWA’s
broad statutory definition of ‘pollutant’ applies to substances emitted into United States
waters, regardless of whether they have been put to beneficial use or to their intended
use. See Hudson River Fishermen's Ass'n. v. City of New York, 751 F. Supp. 1088, 1101
(S.D.N.Y. 1990). Furthermore, CWA requires no showing of environmental damage to
enforce the permit requirement. Kitlutsisti v. Arco Alaska, Inc., 592 F. Supp. 832, 839
(D. Alaska 1984) (holding that the “requirement that all discharges covered by the statute
must have a NPDES permit [§ 1342 permit] is unconditional and absolute. Any discharge
except pursuant to a permit is illegal.") In Connecticut Coastal Fishermen's Association
v. Remington Arms Co., 989 F.2d 1305, 1313 (2d Cir. 1993), a factually similar case, the
Second Circuit held spent lead or steel ammunition constitutes a pollutant when it lands
in ‘navigable waters’.
(3) Sheldrake Pond constitutes ‘navigable waters’. To best effectuate the
objective of “restor[ing] and maintain[ing] the chemical, physical and biological integrity
of the nation’s waters,” CWA broadly defines its waters. See 33 U.S.C. § 1251(a). CWA
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defines ‘navigable waters’ as “the waters of the United States.” 33 U.S.C. § 1362(7).
The broad meaning of ‘navigable waters’ includes virtually all surface waters, even under
the 1974 definition, which includes "those waters of the United States which are subject
to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in
the future susceptible for use for purposes of interstate or foreign commerce." See
Riverside Bayview Homes, 474 U.S. at 124; 33 CFR § 209.120(d)(1). Therefore,
Sheldrake Pond constitutes a CWA-covered water body because it affects interstate
commerce. Sheldrake Pond only has water intermittently—a fact that does not abolish
EPA authority because the CWA extends to intermittent water bodies. Eidson, 108 F.3d
at 1342. Seasonally-filled ponds may still play an essential role in the local aquatic
environment because these ponds “serve significant natural biological functions,
including food chain production, general habitat, and nesting, spawning, rearing and
resting sites for aquatic species,” and assist in preventing flooding and erosion, just as
bodies not directly adjacent to a navigable water bodies. See Leslie Salt Co. v. United
States, 55 F.3d 1388, 1394-95 (9th Cir. 1995), cert. denied 498 U.S. 1126 (1991)
(quoting Riverside Bayview Homes, 474 U.S at 135).
(4) GRAPA constitutes a point source. Point sources include “any discernable,
confined and discrete conveyance,” 33 U.S.C. 1362(14). A point source includes any
readily identifiable sources from which pollutants are emitted, such as GRAPA. In Stone
v. Naperville Park District, 38 F.Supp. 2d 651, 655 (N.D. Ill. 1999), the court found “the
trap shooting range, as well as each firing station” constituted a ‘point source’ as defined
by CWA. Stone found “the whole purpose of the facility is to ‘discharge pollutants’ in
the form of lead shot and shattered clay targets.” Stone, 38 F. Supp. at 655. A firing
range allows individuals to pollute waters by providing them with an area specifically set
aside to channel discharges. Id. GRAPA constitutes a point source. Congress
recognized the need to protect aquatic ecosystems and to control water quality “it is
essential that discharge[s] of pollutants be controlled at the source.” See S. Rep. No. 921236, at 3776, 3822 (1972).
Courts acknowledge CWA authority over a wide range of polluting activities
where people’s actions actually generate the pollutants that affect the water, such as the
range users at GRAPA. See, e.g., Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d
897, 923 (5th Cir. 1983) (finding that use of bulldozers and backhoes constitute point
sources); Sierra Club v. Abston Const. Co., Inc., 620 F.2d 41, 45 (5th Cir. 1980) (finding
that sump pits which sometimes overflowed into navigable waters constituted point
sources). GRAPA concentrates lead shot and clay skeet shooting activities from a few
specific points, whereby the debris (spent lead shot and clay fragments) is conveyed into
Sheldrake Pond, one of the waters of the United States.
(5) Suave violated CWA because it does not have a § 1342 permit. Suave admits
it does not have a permit, nor has it ever applied for a permit to discharge into Sheldrake
Pond. CWA imposes strict liability; therefore, any discharge without a permit constitutes
a violation. See Friends of the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149,
162 (4th Cir. 2000). Gaston found the centerpiece of CWA was that, "[e]xcept as in
compliance with this section and [other sections of the Act], the discharge of any
pollutant by any person shall be unlawful." Gaston, 204 F. 3d at 151 (quoting 33 U.S.C.
1311(a)). Without such a permit, Suave violated CWA.
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D. Suave Violated 33 U.S.C. § 1344 By Failing To Have A Permit Before Filling
Materials Into ‘Navigable Waters’
Suave also violated CWA provision, § 1344. CWA authorizes permits "for the
discharge of dredged or fill material into the navigable waters at specified disposal sites."
33 U.S.C. 1344(a). The 1344 permit program constitutes a central “enforcement tool of
the Clean Water Act . . . . Unpermitted discharge is the archetypical Clean Water Act
violation, and subjects the discharger to strict liability." Pozsgai, 999 F.2d at 724-25;
United States v. Brace, 41 F.3d 117,122 (3d Cir. 1994), cert. denied 515 U.S. 1158
(1995). In order to show a violation, EPA must prove that (1) Suave filled, (2) material,
(3) into navigable waters, (4) without a permit. EPA does not contend all discharges of
dredged or fill material are violations of § 1344, rather it contends that any discharge of
dredged or fill material not explicitly exempted from coverage violates § 1344. 33
U.S.C. § 1344(f).
(1) Suave’s activities constitute the filling of Sheldrake Pond. Suave does not
deny filling a portion of Sheldrake Pond to accommodate a platform, nor does it deny
lead shot and clay fragments land in the water. CWA’s definition of ‘pollutant’
encompasses rock, sand, and any other biological materials Suave used in filling
Sheldrake Pond for the platform, as well as solid waste from lead shot and clay skeet. 33
U.S.C. § 1362(6). Suave could have secured a permit prior to filling Sheldrake Pond, as
is “the prudent course for any developer” to do, before filling a water body. See Rueth v.
EPA, 13 F. 3d 227, 231 (7th Cir. 1993). Similar to Suave’s actions in the present case,
the Seventh Circuit found a CWA violation when a developer “filled and graded parts of
its site” without a § 1344 permit. Hoffman Homes, 999 F.2d at 257.
(2) The material used to fill portions of Sheldrake Pond as well as the spent lead
shot and clay fragments constitute fill material. Regulations promulgated by the Corps
define ‘fill materials’ as “any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom elevation of a[ ] waterbody.” 33
C.F.R. § 323.2(e) (2000). The phrase ‘discharge of dredged material’ is defined as "any
addition of dredged material into, including any redeposit of dredged material within, the
waters of the United States." 33 C.F.R. § 323.2(d)(1). Suave’s filling of Sheldrake Pond
to accommodate the firing range platform constitutes a violation. The term ‘discharge of
fill material’ means the addition of fill material into waters of the United States and
generally includes without limitation, the following activities:
Placement of fill that is necessary for the construction of any structure in a
water of the United States; the building of any structure or impoundment
requiring rock, sand, dirt, or other material for its construction; sitedevelopment fills for recreational, industrial, commercial, residential, and
other uses; causeways or road fills; dams and dikes; artificial islands;
property protection and/or reclamation devices such as riprap, groins,
seawalls, breakwaters, and revetments; beach nourishment; levees; fill for
structures such as sewage treatment facilities, intake and outfall pipes
associated with power plants and subaqueous utility lines; and artificial
reefs.
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See 33 C.F.R § 323.2(f); Resource Invs., 151 F.3d at 1166. Suave admittedly filled
Sheldrake Pond for construction purposes. (R. at 3). Also, the firing of lead shot and clay
targets constitute fill because those materials add to the bottom elevation of ‘navigable
waters’. See Avoyelles, 715 F.2d at 924-25.
(3) Sheldrake Pond constitutes ‘navigable waters’ under the 1974 definition of
‘navigable waters’ as discussed above. Sheldrake Pond affects interstate commerce and
warrants CWA protection. Also, ‘navigable waters’ have “been construed to cover
waters that are not navigable in the traditional sense.” International Paper Co. v.
Ouellette, 479 U.S. 481, 486 n. 6, 107 S. Ct. 805, 808, 93 L. Ed. 2d 883 (1987).
Congress understands the Corp must “regulate all waters—from the smallest to the
largest, including isolated wetlands and lakes [and] intermittent streams” to effectuate
CWA’s purpose. 123 Cong. Rec. 34852 (1977).
(4) Suave violated the CWA by not having a § 1344 permit. Suave admits to
lacking a permit to fill Sheldrake Pond for construction of the platform or to fill with
spent lead shot and clay target fragments. (R. at 3-4). Unpermitted discharge constitutes
a CWA violation, which subjects Suave to strict liability. 33 U.S.C. 1344(a) ("except as
in compliance with [a permit], the discharge of any pollutant by any person shall be
unlawful"). Pozsgai, 999 F.2d at 725.
E. The 2001 Amendment Clarifies Congress’ Intended Meaning of ‘Navigable Waters’
The amendment adopted on August 15, 2001 clarifies the intended meaning of
‘navigable waters’, but cannot be retroactively applied to the present case because
Congress made no express mention of retroactivity. Congress, conceivably in the interest
of judicial efficiency, did not apply a retroactivity clause. Congress’ adoption of the
amendment specifies SWANCC too narrowly construed the CWA-given power afforded
to EPA and the Corps. The Senate Report supporting the 2001 amendment states the
Supreme Court “misinterpreted congressional intent.” S. Rep. No. 107-106-528, at 23.
Congress intended CWA to reach the outer limits of Congressional authority; otherwise,
little improvement could be made to the integrity of the Nation’s waters. Congress
stressed the interconnectedness and integral link of migratory birds as instrumentalities of
interstate commerce.
SWANCC does not answer the question at bar; therefore, this Court may take guidance from
Congress in the meaning of ‘navigable waters’ and consider a broad meaning of the 1974 definition.
Moreover, this Court may look to CWA’s definition of ‘navigable waters’— the waters of the United
States— for guidance in making its decision. 33 U.S.C. 1362(7). SWANCC stated “[w]here an
administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear
indication that Congress intended that result.” SWANCC , 531 U.S. at 172. The adoption of the regulatory
definition as the statutory definition of ‘navigable waters’ indicated Congress’ intended to extend the CWA
to its fullest extent under the Commerce and Treaty Clauses. In adopting CWA, Congress recognized that
the “Constitution contains no mention of navigable waters. The Congress’ authority over ‘navigable
lxiv
waters’ is based on the Constitution’s grant to Congress of ‘Power to regulate commerce with Foreign
Nations and among the several states (art I, sec 8, clause 3).” 118 Cong Rec. 33757 (1972).
III. THE FIRED SHOT AND SKEET PARTS ARE NOT SOLID WASTE UNDER 40
C.F.R. § 261.2, THE REGULATORY DEFINITION OF SOLID WASTE.
RCRA allows citizen suits for two causes of action. First, 42 U.S.C.
§6972(a)(1)(A) allows citizens to enforce EPA’s hazardous waste regulations, utilizing
the narrow regulatory definition of solid waste. Connecticut, 989 F.2d at 1315.
Second, 42 U.S.C. §6972(a)(1)(B) allows citizen enforcement when there is “an
imminent and substantial endangerment to health or the environment.” Connecticut,
989 F.2d at 1315 (citing 42 U.S.C. §6972(a)(1)(B)). EPA recognizes that this Court
must acknowledge two definitions for “solid waste” if they are to agree with the EPA.
While such a finding may seem at first glance counter-intuitive, EPA is confident the
court will agree with the its logical conclusion. See generally Military Toxics Project v.
EPA, 146 F.3d 948, 951 (D.C. Cir. 1998).
A dual interpretation of solid waste is evidenced because two definitions exist
for solid waste. See 42 U.S.C. § (27); 40 C.F.R. § 261.2. “RCRA distinguishes
between nonhazardous solid waste and hazardous waste, each of which is subject to a
different regulatory program.” Fredrick R. Anderson & Robert L. Glicksman,
Environmental Protection: Law and Policy 894 (Aspen Law & Business 3d ed.)
(1999). “The regulations governing the identification and listing of hazardous waste
… include a definition of ‘solid waste’ that ‘applies only to wastes that are also
hazardous for purposes of the regulations implementing subtitle C of RCRA.’”
Military Toxics Project v. EPA, 146 F.3d 948, 951 (D.C. Cir. 1998) (citing 40 C.F.R. §
lxv
261.1(b)(1)). The regulatory definition of solid waste specifically intends a narrow
application; therefore, its scope of the solid waste definition is intended to be tightly
controlled so as to prevent misapplication. In contrast, the statutory definition of
solid waste was broadly defined under 42 U.S.C. § 6972(a)(1)(B) (2000) to allow for
widespread application.
A. The Regulatory Structure Calls For A Narrow Definition
The regulatory definition of solid waste does not apply to the facts of the
present case because the solid waste regulations promulgated by EPA contain a
bifurcated structure. The regulation’s purpose and scope is to “[identify] those solid
wastes subject to regulation as hazardous wastes.” 40 C.F.R. § 261.1(a).
Accordingly, the regulatory definition of solid waste “applies only to wastes that also
are hazardous for purposes of the regulations implementing subtitle C of RCRA.” 40
C.F.R. § 261.1(b)(1). Subtitle C contains the characteristics of hazardous waste,
including: (1) ignitability; (2) corrosivity; (3) reactivity; and (4) toxicity. 40 C.F.R. §
261.20-24. A two-part analysis determines whether the regulations promulgated
under RCRA apply. The waste must meet both the definition of solid waste and
hazardous waste to allow for regulatory control. See Connecticut Coastal
Fishermen's Ass'n, 989 F.2d at 1313.
First, the regulation defines solid waste as, “any discarded material that is not
excluded by § 261.4(a) or that is not excluded by variance granted under §§ 260.30
and 260.31.” 40 C.F.R. § 261.2(a)(1). ‘Discarded material’ means a material which
is: (1) abandoned; (2) recycled; (3) considered inherently waste-like; or (4) a military
munition. 40 C.F.R. § 261.2(a)(2). An abandoned material is: (1) disposed of; (2)
lxvi
burned or incinerated; or (3) accumulated, stored, or treated as if disposed of before
recycling. 40 C.F.R. § 261.2(b). Disposal occurs when a material is injected into the
environment. 40 C.F.R. § 260.10.
Second, once a material meets the solid waste definition it must next meet the
definition of hazardous waste for regulations to apply. 40 C.F.R. § 261.3 Materials
classified as solid waste under the narrow regulatory definition trigger 42 U.S.C. §
6925, which requires a permit for the treatment, storage, or disposal of hazardous
waste. See 40 C.F.R. §261.1 (b)(1) (“The definition of solid waste contained in this
part applies only to wastes that also are hazardous for purposes of the regulations
implementing subtitle C of RCRA”); see also Connecticut, at 1314. Permits can then
be enforced under the citizen suit provisions available under 42 U.S.C. §
6972(a)(1)(A). This Court should note Connecticut held the regulatory definition of
solid waste was narrower than its statutory counterpart, but the court never
determined whether lead shot and skeet parts fell under the regulatory definition.
See Connecticut Coastal Fishermen's Ass'n, 989 F.2d at 1315. EPA contends this
Court should not construe the regulatory definition of solid waste to include lead shot
and skeet parts.
B. Administrative Efficiency Demands A Consumer Use Exception For The
Regulatory Definition
Even if this Court finds the solid waste regulatory definition encompasses lead
shot and skeet parts, administrative efficiency requires a consumer use exception.
EPA agrees with the district court holding that a consumer use exception under the
regulatory definition of solid waste exists. A broad interpretation of the solid waste
lxvii
definition creates administrative difficulties; thereby, making enforcement nearly
impossible. Without a consumer use exception, the public would be forced to engage
in burdensome and unnecessary record keeping. See generally 40 C.F.R § 262.40
(2000). Those products used by the public, not specifically enumerated as ‘household
waste’ under 40 C.F.R. § 261.4(b)(1), would be subject to EPA regulation. Ignoring
the consumer use exception would require consumers to obtain a permit for
“treatment, storage, or disposal of [ ] hazardous waste”. 42 U.S.C. § 6925(a) (2000).
If this Court should find a consumer use exception does not apply EPA
contends § 6972(a)(1)(A) does not apply to the present case. Section 6972(a)(1)(A)
allows citizen suits if a facility does not obtain a permit for the treatment, storage, or
disposal of hazardous waste, according to 42 U.S.C. § 6925(a). Congress included the
term ‘facility’ as an element under the statute, but did not define the term. Instead,
Congress allowed EPA to define the term by its regulations promulgated under
RCRA. ‘Facility’ is defined as “[a]ll contiguous land, and structures, other
appurtenances, and improvements on the land, used for treating, storing, or
disposing of hazardous waste.” 40 C.F.R. 260.10 (2000). In 1990, The United States
District Court of Connecticut opined that “the object of RCRA’s regulations are [to
target] those facilities designed explicitly for the purpose of treating, storing, or
disposing of hazardous waste.” Vernon Village, Inc. v. Gottier, 755 F. Supp. 1142,
1154 (D. Conn. 1990) (holding that a system of wells, pipes, and distribution tanks
designed to deliver drinking water did not constitute a ‘facility’). GRAPA does not
qualify as a facility; therefore, application of Section 6972(a)(1)(A) does not pertain.
IV. THE FIRED SHOT AND SKEET PARTS CONSTITUTE SOLID WASTE UNDER
42 U.S.C. § 6972(a)(1)(B), THE STATUTORY DEFINITION OF SOLID WASTE.
lxviii
EPA narrowly interprets the solid waste regulatory definition for purposes of
Subtitle C. However, the statutory definition of solid waste provides a broader definition
and a different cause of action, which allows citizens to bring actions for imminent and
substantial harm to the environment. 42 U.S.C. § 6972(a)(1)(B); See also 40 C.F.R. §
261.1(b)(2) (“[M]aterial that is not solid waste for purposes of Subtitle C is a solid waste
if it meets the statutory elements.”). RCRA allows any person to bring a civil action
against any other person who has contributed in the past or currently to solid or
hazardous waste in a manner that creates an imminent and substantial danger to the
environment. 42 U.S.C. § 6972(a)(1)(B (2000). EPA disagrees with the district court’s
conclusion that a consumer use exception applies to the statutory definition of solid
waste.
A. The Statutory Definition Of Solid Waste Has Widespread Applicability
Subchapter IV §§6941-49(a) regulates solid waste, whereas Subchapter III
§§6921-39(b) regulates hazardous wastes under stricter guidelines. Connecticut, 989
F.2d at 1313 (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1201 (2d Cir. 1992).
Unlike the regulatory definition of solid waste, the statutory definition of solid waste
need not constitute hazardous waste to fall within the bounds of federal control. See 40
C.F.R. § 261.1(b)(1); 42 U.S.C. § (27) (2000). The absence of a bifurcated structure
under the statutory definition of solid waste indicates that solid waste and solid hazardous
waste have independent definitional freedom.
RCRA defines solid waste as, “any garbage, refuse, sludge…and other discarded material,
including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community activities.” 42 U.S.C. § 6903(27) (2001). It is
clear the statutory definition of ‘solid waste’ was intended to have widespread applicability. Owen Elec.
Steel Co. of South Carolina v. Browner, 37 F.3d 146, 148 n.3 (4th Cir. 1994) (recognizing that slag
produced as a by-product of steel production was ‘discarded’ and thus solid waste); Connecticut Coastal
Fisherman v. Remington Arms Co. Inc., 989 F.2d 1305, 1316 (2d Cir. 1993) (finding lead shot and clay
targets constitute solid waste under the statutory definition); See generally Comite Pro Rescate De La Salud
v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 185 (1st Cir. 1989) (holding Congress intended to
give EPA considerable authority to interpret statutory language); L.E.A.D. (Local Environmental
Awareness Development) Group of Berks v.Exide Corp., No. 96-3030, 1999 U.S. Dist. LEXIS 2672, at *20
(E.D. Pa. Feb. 19, 1999) (finding that spent lead-acid batteries constituted solid waste).
L.E.A.D. correctly interpreted the definition of solid waste by concentrating on the term
“discarded material”. See L.E.A.D., 1999 U.S. Dist. LEXIS 2672, at *19. RCRA does not contain a
definition for “discarded material”. See 42 U.S.C. et. seq. Turning to the dictionary as the Second Circuit
did in Connecticut “discard” generally means to throw something away after it has become useless, despite
lxix
the fact it may still have some value. Webster’s Ninth New Collegiate Dictionary 360 (9th ed. 1991). EPA
points to L.E.A.D. in which the court stated, “[a]s to useful products, courts have broadly interpreted ‘solid
wastes’ to include material that could be useful”. L.E.A.D., 1999 U.S. Dist. LEXIS 2672, at *19.
Connecticut determined lead shot and clay targets that had landed in the water and surrounding
land had accumulated long enough to constitute solid waste. Connecticut, 989 F.2d. at 1317 (declining to
decide how long the shot and skeet parts must remain before they are considered solid waste). A similar
finding by this Court would be consistent with other courts holding once a material is “indisputably
‘discarded’… it has become part of the waste disposal problem.” See American Petroleum Inst. v. EPA,
906 F.2d 729, 741 (D.C. Cir. 1990); American Mining Congress v. EPA, 824 F.2d, 1177, 1193(D.C. Cir.
1987).
B. Allowing A Consumer Use Exception Under The Statutory Definition Of Solid Waste
Disregards Imminent and Substantial Harm To The Environment
The district court erred in determining the consumer use exception applies to both the statutory
and regulatory definitions of solid waste. A consumer use exception under the statutory definition of solid
waste defeats the purpose of RCRA. In 1999, this Court determined the statutory definition of solid waste
did not include a consumer use exception. See Neighborhood Against Golf, Inc. v. Recreation Enterprises,
Inc., 150 F.3d 1029 (12th Cir. 1999) (“NAG”). NAG involved golf balls being used on a golf course for
their intended purpose. Regardless of being used for their intended purpose, the golf balls leached toxins
into the neighborhood’s drinking water supply. NAG held the golf balls leaching toxins into groundwater
created an imminent and substantial harm, despite being used for their intended purpose. See NAG, 150
F.3d 1029. If this Court had recognized a consumer use exception in NAG, the neighborhood’s drinking
water would remain contaminated by leaching toxins, posing an imminent and substantial harm to both
resident health and the environment.
The district court discounted this Court’s ruling in NAG because NAG applied Chevron deference
to an EPA statutory interpretation. (R. at 10). Chevron recognized “that considerable weight should be
accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and
the principle of deference to administrative interpretations.” Chevron, 467 U.S. 837 at 844. Furthermore,
the dual solid waste definition is consistent with EPA discretion to define terms over which it exerts
lxx
authority. The district court rejected Chevron deference and instead applied Mead. (R. at 9-10). If this
Court should choose to apply Mead deference, EPA contends it is still entitled deference in its statutory
interpretation of solid waste. United States v. Mead, 533 U.S. ---, 121 S.Ct. 2164, 2175, 150 L.Ed.2d 292
(2001). Mead held a court should respect an agency interpretation, but must not default to an agency
interpretation, for instance, if it imposes undue burdens or exceeds authority. However, the EPA’s dual
interpretations are entitled to “respect proportional to [their] ‘power to persuade’” because the dual
interpretations acknowledge the differences between regulating solid waste and solid hazardous waste. See
42 U.S.C. § 6903(27); 40 C.F.R. § 261.3. Under Mead, a court is to give respect to an agency
interpretation according to Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed.124
(1944).
We consider that the rulings, interpretations and opinions of the
Administrator under this Act, while not controlling upon the courts by
reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.
The weight of such a judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control.
323 U.S. at 140.
This Court will find a consumer use exception does not exist under either Mead or
Chevron deference. Even if EPA held no formal interpretation hearings, ignoring its
expert opinion would be inconsistent with Mead which stated, “[t]his does not mean,
however, that the [interpretations] are due no deference. Chevron did not eliminate
Skidmore's holding that an agency's interpretation may merit some deference whatever its
form.” Mead, 121 S.Ct. at 2175. Mead opined that the “specialized experience and
broader investigations and information” of the agency are valuable tools which should be
utilized in the decision making process. Id. (citing Skidmore, 323 U.S. at 139).
EPA agrees these products will not normally constitute hazardous waste;
however, there will be times when such products come within the purview of RCRA due
lxxi
to their imminent and substantial effects on the environment. A consumer use exception
defeats the purposes of RCRA—to reduce or eliminate the generation of hazardous waste
as quickly as possible and to manage waste in a manner that minimizes threats to health
and environment. 42 U.S.C. § 6902(b). EPA acknowledges an inconsistency in its
application of the consumer use exception when it applies exception to the regulatory, but
not the statutory definition of solid waste. While uniformity seems convenient, in this
instance it has no practical application. By requiring a uniform consumer use exception,
this Court would effectively defeat RCRA’s goal of preventing environmental harm. The
benefits of protecting the environment outweigh any confusion a non-uniform consumer
use exception may have on the public.
CONCLUSION
For the reasons stated in this brief, EPA respectfully requests that this Court
affirm in part and reverse in part the district court’s grant of summary judgment in favor
of Suave. With respect to the citizen suit under the statutory interpretation of RCRA the
EPA encourages affirmance and dismissal of the suit initiated by BOG. With respect to
the district court’s refusal to find EPA jurisdiction over Sheldrake Pond under the CWA,
the EPA encourages reversal. Additionally, with respect to the district court’s refusal to
find EPA jurisdiction over Sheldrake Pond under RCRA’s regulatory interpretation, the
EPA encourages reversal.
lxxii
#33
________________________________________________________________________
D. IN THE
E. UNITED STATES COURT OF APPEALS
F. FOR THE TWELFTH CIRCUIT
________________________________________________________________________
BIRDWATCHERS OF GROVETON, INC.,
Appellants
AND
UNITED STATES OF AMERICA,
Intervenor
v.
SUAVE REAL PROPERTIES, INC.,
Appellee
________________________________________________________________________
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW UNION
________________________________________________________________________
Brief for the Appellant
BIRDWATCHERS OF GROVETON, INC.
ATTORNEYS FOR THE
APPELLANT
BIRDWATCHERS OF GROVETON, INC.
lxxiii
QUESTIONS PRESENTED
1.
Whether the court below erred in holding that Suave did not violate the CWA because Sheldrake Pond
is not a navigable water under the CWA, 33 U.S.C. §§ 1311(a), 1362(7) and 1362(12)? Whether this
case is governed by the 2001 amendment made to § 1362(7), and if so, does this amendment extend the
jurisdiction of the CWA over Sheldrake Pond?
2.
Whether the court below erred in holding that neither the Commerce Clause nor the Treaty Clause of
he Constitution justified federal regulation of water pollution in Sheldrake Pond?
3.
Whether the court below erred in holding that fired shot and skeet parts are not solid waste when they
fall to the ground under EPA’s definition of solid waste in 40 CFR § 261.2?
4.
Whether the court below erred in holding that fired shot and skeet parts are not solid waste when they
fall to the ground under 42 U.S.C. § 6972(a)(1)(B)?
lxxiv
TABLE OF CONTENTS
QUESTIONS PRESENTED ..............................................................................................
TABLE OF AUTHORITIES ............................................................
i
iv
STATEMENT OF THE CASE ........................................................................................
1
SUMMARY OF THE ARGUMENT ...............................................................................
4
ARGUMENT
I.
6
THE DISTRICT COURT ERRED WHEN IT RULED THAT
NEITHER THE COMMERCE CLAUSE NOR THE TREATY
PROVISION OF THE CONSTITUTION JUSTIFY FEDERAL
REGULATION OF WATER POLLUTION IN SHELDRAKE
POND. .................................
6
A.
The Trial Court’s Decision is reviewable de
novo .............................
6
B.
Federal regulation of water pollution in
Sheldrake
Pond is within Congress’s power under the
Commerce
Clause. ...........................
7
1. Federal regulation of water pollution
of
Sheldrake Pond would be within
Congress’s
power under the Commerce Clause of the
Constitution as interpreted by the
Supreme
Court prior to Lopez and Morrison .
7
2. Even in light of Lopez and Morrison,
federal
regulation of water pollution in
Sheldrake Pond
is within the Congress’s Commerce
Clause
power. ......................
9
3. Federal regulation of the discharge of
fill into
Sheldrake Pond is justified under the
commerce
clause because SWANCC did not narrow
Congressional power under the Commerce
Clause beyond the ruling in Morrison and
Lopez. ......................
12
lxxv
C.
Federal regulation of water pollution in
Sheldrake
Pond is justified under the Treaty
Provision of the
Constitution. …………………………………….
14
II.
THE COURT BELOW ERRED IN HOLDING THAT SUAVE
DID NOT VIOLATE THE CLEAN WATER ACT BECAUSE SHELDRAKE
POND IS A NAVIGABLE WATER UNDER
SECTIONS 1311(a), 1362(7), AND 1362(12). ................................. 15
A.
Suave violated §1344 by failing to obtain a permit
for filling the pond in order to construct a skeet
ejection platform ............................................... 18
B.
Suave failed to obtain a permit for discharging fill
material and pollutants into navigable waters, in
violation of §1344 and §1342, respectively ..... 19
C.
This case is governed by the 2001 Amendment to
§1362(7) and this amendment merely clarifies that
jurisdiction of the CWA extends to Sheldrake
Pond. ................................................................... 21
III.
THE DISTRICT COURT ERRED IN HOLDING THAT
FIRED SHOT AND SKEET PARTS ARE NOT SOLID
WASTE UNDER 42 U.S.C. § 6972(a)(1)(B) BECAUSE THERE
IS NO “CONSUMER USE” EXCEPTION UNDER THE
STATUTORY DEFINITION AND THE DISTRICT COURT
SHOULD HAVE FOLLOWED 12TH CIRCUIT
PRECEDENT. ...............................
23
A.
There is no “consumer use” exception under
the
broad statutory definition of
solid waste. .............................
23
B.
The District Court should have followed the
Twelfth
Circuit’s decision in NAG under principles
of Stare
Decisis.
.....................
30
IV. THE DISTRICT COURT ERRED IN HOLDING THAT FIRED
SHOT AND SKEET PARTS ARE NOT SOLID WASTE WHEN
THEY FALL TO THE GROUND UNDER EPA’S DEFINITION
OF SOLID WASTE IN 40 CFR § 261.2 BECAUSE THE COURT
INCORRECTLY CLASSIFIED THE MATERIALS AS
“CONSUMER PRODUCTS.” .......................
33
CONCLUSION ......................................
lxxvi
36
TABLE OF AUTHORITIES
United States Constitution
Art. IV, §2 .....................................
Art I, §8 .......................................
10
Art VI, §2 ......................................
9
United States Supreme Court Cases
Arizona v. Rumsey, 467 U.S. 203, 212 (1984) .....
31
Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 241
(1970) ...........................................
31
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)
30
Chevron USA v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) ..............................
passim
Hodel v. U.S., 452 U.S. 264, 277 (1981) .........
8, 14
McNary v. Haitian Refugee Ctr., 498 U.S. 479, 480 (1991)
7
Missouri v. Holland, 252 U.S. 416, 435 (1920) ...
4, 14
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)
.................................................
8
Patterson v. McLean Credit Union, 491 US 164 (1989)
30, 31
Pierce v. Underwood, 487 U.S. 552, 558 (1998) ...
6
Skidmore v. Swift & Co., 323 US 134 (1944) ......
29
Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159, 192 (2001)
passim
U.S. v. Darby, 312 U.S. 100, 118 (1941) .........
lxxvii
8, 9
United States v. Lopez, 514 U.S. 549, 566 (1995) .
passim
United States v. Mead Corp, 2001 WL 672258 (U.S.) (2001)
23, 27, 29, 30
United States v. Morrison, 529 U.S. 598, 609 (2000)
passim
United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 137 (1985)
16
U.S. v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)
7, 8
Vasquez v. Hillary, 474 U.S. 254, 265 (1986) .....
31
30,
Welsch v. Texas Dept. of Highways and Pub. Trans.,
483 U.S. 468 (1987) ..............................
30
Wickard v. Filburn, 317 U.S. 111, 125 (1942) .....
7, 9
United States Court of Appeals Cases
American Mining Congress v. Environmental Protection Agency
(“AMI I”).
824 F.2d 1177 (D.C. Circ. 1987) ..................
26
Baily v. Holland, 126 F.2d 317, 323 (4th Cir. 1942)
6
Connecticut Coastal Fisherman’s Association v. Remington
Arms Co., Inc.,
989 F.2d 1305 (2nd Circ. 1993) ....................
24, 27,
33, 35
Feikema v. Texaco, Inc., 16 F.3d 1408 (4th Circ. 1994)
24
Headwaters, Inc. v. Talent Irrigation District,
243 F.3d 526, 532-33 (9th Circ. 2001) .............
20
Hillman v. Internal Revenue Service, 263 F.3d 338, 342 (4th
Cir. 2001) .......................................
17
Long Island Soundkeepers Fund v. New York Athletic Club,
lxxviii
1996 WL 131863 (2nd Circ. 1993) ...................
35
Neighborhood Against Golf, Inc. v. Recreation Enterprises,
Inc.,
150 F.3d 1029 (12th Circ. 1999) ...................
31,
32
United States v. Ashland Oil & Transp Co., 504 F.2d 1317 (6th
Cir. 1974) .......................................
19
U.S. v. Dorris, 236 F.3d 582, 586 (10th Cir. 2000)
13
United Technologies Corp. v. EPA, 821 F2d 714, 716 (D.C.
Circ. 1987) ......................................
24
United States District Court Cases
Craig Lyle, Ltd. v. Land O’ Lakes, Inc., 877 F. Supp 476
(D. Minn. 1995) ..................................
24
GDF Realty v. Norton, 2001 WL 1223519 (S.D. Tex. 2001)
13, 14
Jones v. Inmont Corp., 584 F. Supp. 1425 (S.D. Ohio 1984)
24
United States of America v. Buday, 138 F.Supp 2d 1282 (D.
MT. 2001) ........................................
18,
19
United States v. Interstate General Company,
152 F.Supp.2d 843 (D. MD. 2001) ..................
21
Viejo v. Norton 2001 WL 1223502 (D.D.C. 2001) ....
14
State Court Cases
Mordadi-Shalal v. Fireman’s Fund Ins. Companies,
46 Cal.3d 287, 296 (Cal. 1988) ...................
31
Statutes and Regulations
33 U.S.C. 1251 et seq. ..........................
33 U.S.C. 1362(7) ...............................
16, 21
lxxix
16
4, 15,
33 U.S.C. 1311(a) ...............................
18, 19
4, 15,
33 U.S.C. 1362(12) ..............................
15, 18
4,
33 U.S.C. 1362(6) ...............................
18
33 U.S.C. 1344 ..................................
18, 19
3, 4,
33 U.S.C. 1344(a) ...............................
18
42 U.S.C. 6903(27) ..............................
33
24,
42 U.S.C. 6972(a)(1)(B) .........................
passim
42 U.S.C. 6903(5) ...............................
23
42 U.S.C. 6973 ..................................
24
42 U.S.C. 6912(a)(1) ............................
29
44 U.S.C. 1342(a) ...............................
20
19,
33 C.F.R. 328.3 .................................
17
40 C.F.R. 122.2 .................................
17
10,
40 C.F.R. 261.2 .................................
5, 33
1, 4,
40 C.F.R. 261.2(a)(1) ...........................
33
40 C.F.R. 261.2(a)(2) ...........................
33
40 C.F.R. 261.2(b)(3) ...........................
33
40 C.F.R. 260.10 ................................
34
40 C.F.R. 261.1 .................................
34
40 C.F.R. 261.1(c)(3) ...........................
34
lxxx
40 C.F.R. 261.3(b) ..............................
25
Migratory Bird Treaty Act, July 3, 1918, U.S.-G.B., 16
U.S.C. 703-712 ...................................
15
Legislative Materials
1972 U.S.C.C.A.N. 3668 ...........................
15
H.R. Rep. No 1491, 94th Cong., 2d Sess. 26,
reprinted in 1976 U.S.C.C.A.N. 6238 .........
26
Federal materials
50 Fed. Reg. 614 (Jan. 4, 1985) ..................
35
45 Fed. Reg. 33093 (May 19, 1980) ................
25
The Federalist, No. 78 (H. Lodge ed. 1888) (A. Hamilton)
31
Law Reviews
Hill, Randolph L. An Overview of RCRA:
The “Mind-Numbing Provisions of the
Most Complicated Environmental Statute,
21 Envtl. L. Rep. (Envtl. L. Inst.) 10254 (May 1991)
25
Lile, Some Laws on the Rule of Stare Decisis, 4 Va. L. Rev.
95 (1916). .......................................
30
Dictionary
American Heritage Dictionary of the English Language ( 5th
ed. 1981) ........................................
17
lxxxi
STATEMENT OF THE CASE
Procedural History
This is an appeal from a judgment rendered by Judge Romulus in the United States District Court for the
District of New Union granting defendant’s motion to dismiss. Appellant Birdwatchers of Groveton’s (BOG) filed
actions against Appellee Suave Real Properties, Inc. (Suave) under citizen suit provisions of the Clean Water Act
(CWA) and the Resource Conservation and Recovery Act (RCRA) (R. at 3). BOG claimed that Suave violated the
CWA and RCRA by filling in a portion of Sheldrake Pond and discharging lead shot and skeet in and around
Sheldrake Pond. (R. at 1). BOG is seeking civil penalties and an injunction against Suave for their violations of
CWA and RCRA. (R. at 4). The District Court granted Suave’s motion for summary judgment in its entirety and
dismissed BOG’s claims. Id. The District Court set forth four reasons for granting Suave’s motion for summary
judgment in its entirety, they are: 1.) Sheldrake Pond is not navigable water under the CWA; 2.) neither the
Commerce Clause nor the Treaty Clause of the Constitution justify federal regulation of water pollution in
Sheldrake Pond; 3.) fired shot and skeet parts are not solid waste under 40 CFR § 261.2; and 4.) fired shot and skeet
parts are not solid waste under 42 U.S.C. § 6972(a)(1)(B). (R. at 1).
The United States Environmental Protection Agency (EPA) was granted a motion to intervene in support of
three of the four claims asserted by BOG and to oppose BOG on one. (R. at 4). The EPA now acts as an Appellant
opposing the District Court’s decision that Sheldrake Pond is not navigable water under the CWA, that federal
regulation of water pollution of Sheldrake Pond is not justified under the Commerce Clause or the Treaty Clause of
the Constitution, and that fired shot and skeet parts are not solid waste under 42 U.S.C. § 6972(a)(1)(B). Id.
G. Statement of the Facts
BOG is a non-profit corporation organized under the laws of New Union for the purpose of watching birds
and protecting their habitat at Sheldrake Pond. (R. at 3). Members of BOG observed thousands of species of birds
in Sheldrake Pond from the nearby county road for over two decades. Id. Sheldrake Pond is a twenty-five acre
pond attaining depths up to four feet. Id. Although it is temporarily dry during the dry part of the year, Sheldrake
Pond is a crucial stopover for many species of birds during their annual migration between Canada, the United
States, Mexico, and between states within the United States. Id.
Suave has operated the Groveton Rifle and Pistol Association (GRAPA) near Sheldrake Pond since 2000.
Id. GRAPA is a facility for skeet shooters as well as riflemen. Id. In order to expand their facility, Suave
discharged fill into Sheldrake Pond in order to build a platform for a skeet throwing device. Id. Suave does not own
all of the land which surrounds Sheldrake Pond, the County owns land to the east and South of the pond as well as a
portion of Sheldrake Pond itself. Id. There is also no evidence that Suave has an easement over any portion of the
County’s land. (R. at 4). The skeet shooters shoot at skeet which is launched directly over Sheldrake Pond and
towards the County’s property. (R. at 3). The riflemen also shoot at targets in front of an earthen berm immediately
adjacent to Sheldrake Pond and in the direction of the County’s property. Id. Skeet parts and spent lead shot fall
directly into Sheldrake Pond, including the County’s portion of the pond where they are left, and not recovered for
future use or recycling. (R. at 4). Lead bullets also occasionally miss their mark and fall into Sheldrake Pond and
onto the neighboring County land as well. Id. These lead bullets are also not recovered or recycled. Id. Suave
continues to operate GRAPA and to allow lead shot, skeet particles, and lead bullets to fall into Sheldrake Pond and
onto neighboring County property. (R. at 3).
BOG alleges that Suave is violating the CWA by discharging and maintaining fill in Sheldrake Pond
without a permit in violation of CWA 33 U.S.C. § 1344 and discharging fill and pollutants into navigable waters
without a permit in violation of CWA 33 U.S.C. § 1342. (R. at 4). The CWA was recently amended to specifically
include waters such as Sheldrake Pond. (R. at 1). BOG seeks civil penalties as well as an injunction against Suave
for its violations of the CWA. (R. at 4). BOG also alleges that Suave is violating RCRA by disposing of hazardous
waste into and around Sheldrake Pond without a permit in violation of 42 U.S.C. § 6925(a). Id. Also that Suave is
creating an imminent and substantial endangerment, by disposing of hazardous waste into and around Sheldrake
Pond. Id. BOG is seeking civil penalties and an injunction against Suave for these acts in violation of RCRA. Id.
2
SUMMARY OF THE ARGUMENT
The Court should reverse the District Court’s holding in favor of Suave on all four
issues. First, the court below erred by holding that Federal regulation of water pollution in
Sheldrake Pond was not justified by Congress’s power under the Commerce Clause or the
Treaty Clause of the Constitution. (R. at 1-11). Pollution and filling of Sheldrake Pond is
an economic activity which could have a substantial effect on interstate commerce related
to migratory birds. See United States v. Morrison, 529 U.S. 598, 609 (2000). In addition,
the Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers did not narrow Congress’s power under the Commerce Clause beyond what
was stated in Morrison. The Migratory Bird Treaty of 1916 between the United States and
Great Britain is a valid treaty. 16 U.S.C.A. §§ 703/711. Therefore, it is the supreme law of
the land and Congress may use all means which are necessary and proper means to fulfill
the United States’ obligation under the treaty. Missouri v. Holland, 252 U.S. 416, 432
(1920).
Second, the court below erred by holding that Suave did not violate the CWA
because Sheldrake Pond was not a navigable water according to 33 USC §§1311(a),
1362(7), and 1362(12). Suave violated §1344 by failing to obtain a permit for filling the
pond for purposes of constructing a skeet ejection platform. In addition, Suave failed to
obtain a permit for discharging fill material and pollutants into navigable waters, in
violation of §1344 and §1342, respectively. As a result, this case is governed by the 2001
Amendment to §1362(7) and this amendment merely clarifies that jurisdiction of the CWA
extends to Sheldrake Pond. Therefore, Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers is a departure from the long-standing history of the Clean
Water Act, and Sheldrake Pond is within the jurisdiction of the of the Environmental
Protection Agency’s and the Army Corps of Engineers’ power to regulate, granted to it by
Congress.
Third, the District Court should not have held the EPA’s interpretation of “solid
waste” under 40 C.F.R. § 261.2 to be dispositive because the EPA’s interpretation conflicts
with both the history of the regulation and the statute it interprets. The shot and skeet
particles in Sheldrake Pond have been “abandoned” for purposes of 40 C.F.R. § 261.2.
Finally, the District Court erred in holding that fired shot
and skeet parts are not solid waste when they fall to the ground
under 42 U.S.C. § 6972(a)(1)(B). The statutory definition of
“solid waste” is broadly interpreted as “discarded material.” The
lead shot and skeet particles in Sheldrake Pond are without
question “discarded material,” therefore they constitute solid
waste within the statutory definition. Therefore, District Court
is bound by the principle of Stare decisis. The district court
did not grant “substantial deference” to the EPA’s judgment that
the statutory definition of solid waste does not include a
consumer use exception. Cheveron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).
3
ARGUMENT
I.
THE DISTRICT COURT ERRED WHEN IT RULED THAT NEITHER THE
COMMERCE CLAUSE NOR THE TREATY PROVISION OF THE CONSTITUTION
JUSTIFY FEDERAL REGULATION OF WATER POLLUTION IN SHELDRAKE
POND.
Regulation of isolated waters that serve as habitats for
migratory birds falls well within the boundaries of Congress’
power under the Commerce Clause of the United States Constitution
as evidenced by years of Supreme Court precedent. Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers,
531 U.S. 159, 192 (2001)(Stevens, J dissenting). Contrary to the
District Court’s assertion in the case at bar, the majority’s
refusal to examine the constitutional question presented in Solid
Waste Agency of Northern Cook County (SWANCC) did not effectively
wipe out over fifty years of precedent. Recent Supreme Court
decisions have reiterated that Congress can pass legislation
regulating purely intrastate activities which have a substantial
effect on interstate commerce. See United States v. Morrison,
529 U.S. 598, 609 (2000); United States v. Lopez, 514 U.S. 549,
566 (1995). In addition, the Treaty Provision of the United
States Constitution allows the President of the United States
enter into treaties intended to protect migratory birds by all
means necessary and proper to effectuate the purposes of the
treaty. Baily v. Holland, 126 F.2d 317, 323 (4th Cir. 1942).
A.
The Trial Court’s Decision is Reviewable De Novo.
The appropriate standard of review for judges’ decisions as
to questions of law is de novo. Pierce v. Underwood, 487 U.S.
552, 558 (1998). The District Court’s decision regarding the
applicability of the statutory definition of solid waste to fired
shot and skeet parts was based statutory interpretation and
consideration of case law. (R. at 8). Such considerations are
questions of law, and should be reviewed de novo. McNary v.
Haitian Refugee Ctr., 498 U.S. 479, 480 (1991).
B.
Federal regulation of water pollution in Sheldrake Pond
is within
Congress’s power under the Commerce
Clause.
Pollution of waters like Sheldrake Pond is substantially
related to interstate commerce under the provisions set forth in
Morrison and Lopez. The recent Supreme Court decision in SWANCC
did not effectually alter what is required to prove that there is
a substantial relationship between the intrastate activity being
regulated and interstate commerce. Solid Waste Agency of Northern
Cook County, 531 U.S. 159 at 172.
Prior to Lopez, Supreme Court
precedent clearly established that totally intrastate activities
which substantially affect interstate commerce regardless of
whether these affects have been previously deemed to be indirect
or direct. Wickard v. Filburn, 317 U.S. 111, 125 (1942).
4
Although the Court’s recent ruling in Lopez and Morrison did
slightly narrow Congress’s power to regulate totally intrastate
activities, they by no means eliminated it. Rather, these
decisions merely defined what exactly is required to prove that
the intrastate activity being regulated has a substantial affect
on interstate commerce. Morrison, 529 U.S. at 609; Lopez, 514
U.S. 549 at 559.
1.
Federal regulation of water pollution of Sheldrake Pond
would be within Congress’s power under the Commerce
Clause of the Constitution as interpreted by the
Supreme Court prior to Lopez and Morrison .
Prior to Lopez and Morrison, the Supreme Court established
that regulation of intrastate activities, such as the regulation
of water pollution in Sheldrake Pond, was within the bounds of
Congress’s Commerce Clause Power as long as these intrastate
activities affected interstate commerce. U.S. v. Wrightwood
Dairy Co., 315 U.S. 110, 119 (1942)(holding that the commerce
power extends to intrastate activities which in a substantial way
affect Congress’s regulation of interstate commerce); U.S. v.
Darby, 312 U.S. 100, 118 (1941)(holding congress may regulate
intrastate activities which affect interstate commerce and which
regulation is a rational means to a legitimate end); NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)(holding that
intrastate activities that have such a close and substantial
relation to interstate are within Congress’s power to regulate).
These Supreme Court cases established that a rational basis was
needed in order for Congress to regulate intrastate activities in
route to the legitimate end of regulating interstate commerce.
Hodel v. U.S., 452 U.S. 264, 277 (1981).
Pollution of Sheldrake Pond is unarguably a purely
intrastate activity. However, it is an intrastate activity which
has a substantial affect on interstate commerce. Pollution of
Sheldrake Pond could result in the loss of a vital habitat for
migratory birds which would directly impact the population of
migratory birds in route to neighboring states. This loss of
habitat could affect any interstate commerce concerning migratory
birds such as bird watching or hunting, two activities which
generate billions of dollars in interstate commerce. Solid Waste
Agency of Northern Cook County, 531 U.S. at 195 (Stevens, J.,
dissenting)(citing National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation 45, 90 Nov. 1997). According to
the Supreme Court prior to Lopez, the Court need only find that
regulation of pollution in Sheldrake Pond is a rational means to
protect these migratory birds which are the basis of billions of
dollars in interstate commerce. Hodel, 452 U.S. at 277.
Although the loss of Sheldrake Pond as habitat for migratory
birds alone might only have a trivial affect on interstate
commerce, it is not necessary that each individual instance of
the activity substantially affect commerce. Rather, it is enough
5
that, when taken in the aggregate, the class of activities in
question has a substantial affect. Wickard, 317 U.S. at 125.
2. Even in light of Lopez and Morrison, federal regulation of
water pollution in Sheldrake Pond is within the Congress’s
Commerce Clause power.
In an attempt to narrow the rational basis analysis used in
Laughlin, Darby, and Wickard the court in Lopez identified three
categories of activity that Congress may regulate under its
commerce power: (1) use of channels of interstate commerce, (2)
activities which affected the instrumentalities of interstate
commerce, or persons, or things in interstate commerce, and (3)
activities having a substantial relation to interstate commerce.
Lopez, 514 U.S. at 558. Activities that contribute to the
pollution of isolated bodies of water, such as Sheldrake Pond,
that are used as crucial stopovers for migratory birds fit within
this third category. Solid Waste Agency of Northern Cook County,
531 U.S. at 193 (Stevens, J., dissenting).
In Lopez, the Supreme Court refined what was required to
prove that a sufficient relationship existed between the activity
being regulated and interstate commerce from merely requiring the
activity to affect interstate commerce to those substantially
affecting interstate commerce. Lopez, 514 U.S. at 558. Although
the Court in Lopez ruled that a statute prohibiting possession of
guns within a 1000 foot radius of a school zone did not regulate
an intrastate activity which substantially affected interstate
commerce, federal regulation of water pollution in Sheldrake Pond
does meet satisfy the substantial affects analysis established in
Lopez for a number of reasons. First, unlike the statute
regulating possession of guns in Lopez, in this case, the Clean
Water Act (“CWA”) clearly regulates an economic intrastate
activity. Discharge of fill into the Nation’s Waters, such as
the fill discharged into Sheldrake Pond, is almost always
undertaken for economic reasons. Solid Waste Agency of Northern
Cook County, 531 U.S. at 194 (Stevens, J., dissenting). Supreme
Court precedent clearly states that where an economic intrastate
activity substantially affects interstate commerce, legislation
regulating that activity will be sustained. Id. at 560.
Second, unlike the statute in Lopez, the CWA contains a
jurisdictional element which would ensure, through a case-by-case
inquiry, that the activity it seeks to regulate substantially
affects interstate commerce. Lopez, 514 U.S. at 561. As the
District Court conceded, the legislative history of the CWA
indicates that Congress intended the term to be interpreted to
exercise the full extent of congressional constitutional
authority. (R. at 4). In addition, the EPA has expressly stated
the regulations of the CWA to include intrastate waters, such as
“playa lakes”, which could affect interstate or foreign commerce.
40 C.F.R. § 122.2. This legislative history indicates a
jurisdictional element is present in the CWA that was not present
6
in the statute in question in Lopez. According to this
definition, the jurisdiction of the Federal Government to
regulate pollution of isolated intrastate waters under the CWA
does not go beyond those waters which have a substantial link to
interstate commerce.
This jurisdictional element present in the CWA also
addresses the Federalism concern highlighted by the Court in
Lopez. Lopez, 514 U.S. at 562. The CWA differs from Lopez’s
control statute, because the EPA expressly stated that the CWA
conferred Federal jurisdiction only over those waters which could
affect interstate or foreign commerce. 40 C.F.R. § 122.2.
If
Sheldrake Pond, and its similar counterparts nationwide, were not
used as a crucial stopover habitat for migratory birds there
would be no basis for federal regulation of water pollution in
Sheldrake Pond under the commerce clause. Solid Waste Agency of
Northern Cook County, 531 U.S. at 694 (Stevens, J., dissenting).
However, because the economic activity of filling the pond and
discharging shot and skeet particles into Sheldrake pond could
substantially affect migratory birds in route to other states,
thereby affecting all interstate commerce involving these birds,
the court need not make a tenuous connection from the intrastate
activity being regulated and its affect on interstate commerce.
The CWA regulates an economic activity, and has identified
definite boundaries to its jurisdiction, the legislative history
indicates that it intended to regulate intrastate activity
affecting bodies of water such as Sheldrake Pond used in
interstate commerce, and the relationship between the regulation
of water pollution and interstate commerce involving migratory
birds is attenuated. Clearly the regulation of water pollution
in Sheldrake Pond under the CWA is a limitation on an economic
intrastate activity which is within the bounds of congressional
power under the commerce clause as interpreted by the Court in
Lopez.
Federal regulation of water pollution in Sheldrake Pond
would also be justified under the reasoning of the Court in
Morrison. The Court in Morrison also emphasized the fact that
there must truly be a substantial affect to interstate commerce
promulgated by the intrastate activity being regulated.
Morrison, 529 U.S. at 612.
Morrison further emphasized the four
factors established in Lopez for determining whether an activity
regulated by Congress falls within Congress’s Commerce Clause
power: (1) the economic nature of the regulated activity, (2)
whether the statute has an express jurisdictional element, (3)
whether the legislative history of the statute provides insight
into the legislative judgment that the activity in question
substantially affects interests commerce, even though no such
substantial effect is visible to the naked eye, and (4) whether
the connection between the regulation and the interstate activity
is attenuated. Id. These concerns are essentially a reiteration
of the Court’s reasoning in Lopez. Lopez, 514 U.S. at 561.
7
Thus, for the same reasons as set forth in the preceding
paragraph, federal regulation of water pollution in Sheldrake
Pond would be proper under Morrison.
3. Federal regulation of the discharge of fill into Sheldrake
Pond is justified under the commerce clause because SWANCC
did not narrow Congressional power under the Commerce
Clause beyond the ruling in Morrison and Lopez.
The Court in SWANCC did not reach the question of whether
the commerce clause justified federal regulation of intrastate
activities that polluted isolated waters similar to Sheldrake
Pond. SWANCC, 531 U.S. at 682. The Court stated that “[w]here
an administrative interpretation of a statute invokes the outer
limits of Congress’s power, we expect a clear indication that
Congress intended that result.” Id. at 683. However,
legislative history of the CWA clearly indicates that Congress
intended the CWA to reach these outer limits. Conf. Rep. 921236, reprinted in 1972 U.S.C.C.A.N. 3776, 3822. Beyond its
general refusal to reach the Constitutional question presented in
SWANCC, the Court merely deferred to precedent set by the court
in Morrison and Lopez. SWANCC, 531 U.S. at 683.
The Supreme Court has established that “[d]ue respect for
the decisions of a coordinate branch of Government demands that
[it] invalidate a congressional enactment only on a plain showing
that Congress has exceeded its constitutional bounds.” Morrison,
529 U.S. at 607. The Court in SWANCC made no such plain showing.
Thus, the same constitutional constraints and concerns that were
established in Lopez and Morrison remain intact, despite the
decision in SWANCC.
Although the majority in SWANCC refused to address the
constitutional question presented, Justice Stevens stated in his
dissent that “[t]he Corps’s exercise of its Section 404
permitting power over isolated waters that serve as habitat for
migratory birds falls well within the boundaries set by this
Court’s Commerce Clause jurisprudence.” SWANCC, 531 U.S. at 694
(Stevens, J., dissenting). Justice Stevens stressed that the
Migratory Bird Rule is properly analyzed under the third category
of activities established in Lopez, in other words those
activities which substantially affect interstate commerce. Id.
Justice Stevens also stated that “[i]t is not necessary that each
individual instance of activity substantially affect commerce; it
is enough that, taken in the aggregate, the class of activities
in question has such an affect.” Id.
A Commerce Clause challenge is a determination, on a caseby-case basis, whether the activity involved in a particular case
has a substantial affect on interstate commerce. U.S. v. Dorris,
236 F.3d 582, 586 (10th Cir. 2000). The regulated discharge of
fill into waters such as Sheldrake Pond passes the “substantial
affects” test of Lopez and Morrison. Discharge of fill into
Sheldrake Pond is an economic intrastate activity. Solid Waste
8
Agency of Northern Cook County, 531 U.S. at 694 (Stevens, J.,
dissenting). It is clear that the discharge of fill into waters
such as Sheldrake Pond will, in the aggregate, adversely affect
migratory bird populations which have a direct affect on billions
of dollars in interstate commerce relating to these migratory
birds. Id.
Recent District Court jurisprudence has upheld Federal
Statutes which attempted regulate the same type of economic
intrastate activity as the discharge of fill into Sheldrake Pond.
See GDF Realty v. Norton, 2001 WL 1223519, *7 (S.D. Tex.
2001)(holding that modification of any habitat that actually
kills or injures endangered species by significantly impairing
their essential behavioral patterns has a substantial affect on
interstate commerce); Viejo v. Norton 2001 WL 1223502, *7 (D.D.C.
2001)(holding that an intrastate activity which disturbs the
habitat of an endangered species by impeding the animal’s ability
to migrate to breeding grounds has a substantial affect on
interstate commerce).
Like the intrastate activity being
regulated in GDF Realty and Viejo, the discharge of fill into
Sheldrake Pond will impair the ability of migratory birds to
reach their breeding grounds and significantly impair their
essential behavioral patterns.
In addition, federal regulation of the discharge of fill
into waters such as Sheldrake Pond does not “blur the distinction
between what is truly national and what is truly local.” SWANCC,
531 U.S. at 695 (Stevens, J., dissenting). This Court
established that the protection of migratory birds is “an example
of a national problem of the first magnitude.” Missouri v.
Holland, 252 U.S. 416, 435 (1920). Although the discharge of
fill is a predominantly local concern, when its affects
substantially affect interstate commerce, as it does in this
case, federal regulation is justified. Hodel, 452 U.S. at 288.
C.
Federal regulation of water pollution in
Sheldrake Pond is justified under the Treaty Provision
of the Constitution.
The President of the United States is granted the authority
to enter into, and has entered into, international treaties to
protect species that migrate between nations. Holland, 252 U.S.
at 435. The Treaty Provision of the United States Constitution
states that “all treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme law of the
land” and “any thing in the Constitution or laws of any state to
the contrary notwithstanding.” U.S.Const. art. VI, § 2. The
United States entered into treaties with Great Britain in 1916
and with Mexico in 1936. Both treaties were intended to protect
migratory birds throughout their migration across international
boundaries. Migratory Bird Treaty Act, July 3, 1918, U.S.-G.B.,
16 U.S.C. 703-712. Moreover, the Court in Holland upheld the
9
constitutionality of international treaties regulating migratory
birds. 252 U.S. at 432.
The District Court in the present case attempted to
distinguish between the Federal Regulation of migratory birds in
Holland and the regulation of water pollution in this case,
stating that the birds in Holland were not property of the state,
and therefore could be subject to Federal regulation. (R. at 7).
However, Sheldrake Pond is clearly property of the state, and
therefore federal regulation is not justified. Sheldrake Pond is
one of a class of bodies of water essential to migratory birds in
their migration from Canada to Mexico. Without the ability to
regulate habitats essential to migratory birds, such as Sheldrake
Pond, the United States would not be able to fulfill its
obligation under the treaty. Therefore, Congress may enact any
law necessary and proper to execute the treaty powers conferred
by the Constitution under the Treaty Provision. U.S. Const., art.
1, § 8.
II.
THE COURT BELOW ERRED IN HOLDING THAT SUAVE DID NOT VIOLATE
THE CLEAN WATER ACT BECAUSE SHELDRAKE POND IS A NAVIGABLE
WATER UNDER SECTIONS 1311(a), 1362(7), AND 1362(12).
It has been said that the CWA is the “most comprehensive legislation that the
Congress of the United States has ever developed in this particular field of the
environment,” and the legislative history abounds with remarks of the statute’s
“comprehensive” nature. SWANCC, 531 U.S. at 179 (Stevens, J., dissenting). Accordingly,
Congress intended the term “navigable waters” to be given the “broadest possible
constitutional interpretation.” Id. at 168 (citing 1972 U.S.C.C.A.N. 3668, 3822). According
to §1362(7), Congress defined “navigable waters” as “waters of the United States.”
In 1977, the Army Corps of Engineers (“Corps”) further expanded the definition of
“navigable waters” to include such waters as isolated wetlands, intermittent streams, and
playa lakes. SWANCC, 159 U.S. at 168. After much debates, Congress refused to adopt a
narrower definition of “navigable waters.” Id. at 185-86. Therefore, Congress was aware
of the jurisdictional scope the Corps exercised under the CWA. Id. at 186. In United
States v. Riverside Bayview Homes, Inc., the Court held that the Corp’s construction of the
statute was reasonable because Congress because refused to adopt a narrow definition of
“navigable waters.” 474 U.S. 121, 137 (1985).
Today, a water’s “navigability” is of limited importance. Id. at 133. The purpose of
federal water regulation has shifted from a focus on navigability to one of preventing
environmental degradation. SWANCC, 531 U.S. at 178 (Stevens, J. dissenting). The
purpose of the CWA, as stated in Section 101, is to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §1251. The history of
the 1977 amendments to the CWA demonstrates that, when Congress enacted Section
404(g), it intended the Corps’ jurisdiction to “extend beyond just navigable waters, their
tributaries, and the wetlands adjacent to each.” SWANCC, 531 U.S. at 189. Section
1362(7) of the CWA states, in pertinent part: “‘Navigable waters’ means the waters of the
United States, including the territorial seas.” 33 U.S.C. § 1362(7). Nothing in this definition
requires actual or potential navigability. SWANCC, 531 U.S. at 175. In fact, the word
“navigable” was explicitly removed from the definition of waters subject to the CWA’s
jurisdiction. Id. at 180-81. For these reasons, Congress clearly intended “navigable
10
waters” to be another way of saying “waters over which federal authority may properly be
asserted.” Id. at 182.
According to 40 CFR §122.2 and 33 CFR §328.3, “waters of the United States” are
defined as,
“all waters which are currently used, were used in the past, or
may be susceptible to use in interstate commerce, including all
waters which are subject to the ebb and flow of the tide . . . all
other waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, ‘wetlands,’ sloughs,
prairie potholes, wet meadows, playa lakes, or natural ponds
the use, degradation, or destruction of which would affect or
could affect interstate or foreign commerce . . .” (emphasis
added).
As illustrated in Section I of this brief, Congress has the authority to include
Sheldrake Pond within the definition of “navigable waters” because it affects interstate
commerce. Therefore, the Pond falls under the jurisdiction of the CWA.
Moreover, Sheldrake Pond is a “navigable water” because it is a “playa lake.”
Neither the statute nor the regulation further expands on the definition of playa lake, so,
therefore, the “Plain Meaning Rule” may be invoked. Unless the statutory language is
ambiguous, the courts must invoke the “Plain Meaning Rule” by ending its analysis with
the plain language of the statute. Hillman v. Internal Revenue Service, 263 F.3d 338, 342
(4th Cir. 2001). In the present case, there is no further definition of “playa lake.”
Therefore, it is appropriate to look to the plain meaning of “playa,” which can be found in
the dictionary. According to the American Heritage Dictionary, “playa” means, “a flatfloored bottom of an undrained desert basin that becomes at times a shallow lake.”
American Heritage Dictionary (5th ed. 1981). Sheldrake Pond fits into the category of a
playa lake because, during part of the year, it is dry and during the rest of the time it is
wet. During the wet part of the year, the Pond can get up to four feet deep and cover 25
acres. (R. at 3).
Sections 1311(a) and 1362(12) prohibit the discharge of fill material or pollutants
into navigable waters, and more specifically, §1362(12) states:
“‘Discharge of a pollutant’ and ‘discharge of pollutants’ each
means (A) any addition of any pollutant to navigable waters
from any point source, (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any point
source other than a vessel or floating craft.”
Furthermore, §1362(6) defines “pollutant” as:
“dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water . . .” (emphasis added).
A. Suave violated §1344 by failing to obtain a permit for filling the pond in order to construct a
skeet ejection platform
Contrary to the District Court’s decision, filling and maintaining fill in the pond
for the skeet ejection platform does constitute “discharging fill material into
11
navigable waters” without a Section 1344 permit. Under the CWA, “[t]he
Secretary may issue permits…for the discharge of dredged or fill material into the
navigable waters at specified disposal sites . . .” 33 U.S.C. § 1344(a).
In United States v. Buday, the defendant was charged with discharging pollutants
into navigable waters, in addition to dredge and fill material, and it was held to be
within the jurisdiction/scope of the CWA to regulate pollutant discharge into “the
tributary of a navigable waterway.” United States of America v. Buday, 138
F.Supp 2d 1282 (D. MT. 2001). The court in Buday declined to use the analysis
in SWANCC and instead focused on the “effects” intrastate waters may have on
interstate commerce, not on the “channels” used for interstate commerce. Id. at
1287. Instead, it held that “the Government need not establish jurisdiction by
proving that the pollutant actually reached the navigable water.” Id. at 1289
(citing United States v. Ashland Oil & Transp Co., 504 F.2d 1317 (6th Cir. 1974).
“It is enough that the waterway serves as a link in the chain of commerce among
the States as it flows in the various channels of transportation . . .” Id. at 1290.
Suave violated Section 1344 because it failed to get a permit for “discharge of
fill into navigable waters.” The present case is similar to Buday in that, “Suave
filled a small portion of the western end of the Pond to build a platform for the
skeet ejection device.” (R. at 3). Since Suave did not initially apply for a permit
from the Corps, it is in violation of Section 1344.
B. Suave failed to obtain a permit for discharging fill material and pollutants into navigable waters, in
violation of §1344 and §1342, respectively
Ejection of skeet and lead shots into Sheldrake Pond constitutes either the
discharge of fill material into a navigable water without a Section 1344 permit or
the discharge of pollutants into navigable waters without a Section 1342 permit.
12
Section 1342(a) of the CWA deals with permits for the discharge of pollutants,
and states, in pertinent part:
“…the Administrator may…issue a permit for the discharge of any
pollutant, or combination of pollutants, notwithstanding section
1311(a) of this title, upon condition that such discharge will meet
either (A) all applicable requirements under sections 1311, 1312,
1316, 1317, 1318, and 1343 of this title, or (B) prior to the taking
of necessary implementing actions relating to all such
requirements, such conditions as the Administrator determines are
necessary to carry out the provisions of this chapter.” 33 U.S.C.
§1342(a)
“To establish a violation of the CWA’s NPDES permit requirement, a
plaintiff must show that defendants (1) discharged (2) a pollutant (3) to navigable
waters (4) from a point source.” Id. at 532. In Headwaters, Inc. v. Talent
Irrigation District, the defendants directly discharged acrolein to a series of canals
243 F.3d 526, 532-33 (9th Circ. 2001). Because the canals were tributaries and
exchanged water with natural streams, the court declined to agree with the
decision in SWANCC because the tributaries in Headwaters can be distinguished
from the isolated ponds in SWANCC. Id. Although SWANCC held that an
isolated, intrastate body of water is not “navigable” merely on the basis of
migratory birds, in Headwaters, even intermittently flowing tributaries are “waters
of the United States,” because they are connected to other “waters of the United
States.” Id. at 533-34. Congress has a uniform interest in protecting the water of
the United States, and even though the creek in this case is distant from any
navigable stream, its protection is important to the water quality of navigable
streams and is thus within the intent of Congress. Id. at 1291-92.
Suave is also liable under Section 1342 for failure to apply for a permit for
the “discharge of pollutants into navigable waters.” The spent shot is composed
of lead, which is a toxic substance and a pollutant. Over time, the lead may effect
13
the quality of the water and any aquatic life depending on it, including wildlife
and migratory birds. Therefore, the discarded skeet and bullets will contaminate
the Pond and Suave is in violation for failure to apply for a permit under Section
1342.
Under the analysis in Headwaters, Suave is liable for failure to apply for an NPDES permit because it (1)
discharged (2) a pollutant (3) into navigable waters (4) from a point source. 243 F.3d at 532-33. Discharge of
pollutants occurred when lead shot and skeet fragments were expended into Sheldrake Pond from the ejection
platform, the point source.
C. This case is governed by the 2001 Amendment to §1362(7)
and this amendment merely clarifies that jurisdiction of
the CWA extends to Sheldrake Pond.
In United States v. Interstate General Company, the defendant discharged fill and
excavated material into a wetland without a permit, but nonetheless contends that
its actions are not within the scope of the CWA in light of SWANCC. 152
F.Supp.2d 843, 845 (D. MD. 2001). However, the District Court for the District
of Maryland held that SWANCC is “overly broad and misplaced.” Id. SWANCC
should be read narrowly, only invalidating the Migratory Bird Rule because the
Corps did not have jurisdiction under the CWA, and this court declined to extend
the SWANCC decision any further. Id. at 847. In fact, SWANCC never
determined a precise meaning of “navigable waters.” Id.
The statute that governed before this amendment did not prohibit the regulation of insignificant and isolated
waters, as Suave suggests. (R. at 6). Rather, the holding in SWANCC should be narrowly read, just as it was in
Interstate General, as merely limiting the means by which navigable waters should be defined. Interstate General,
152 F.Supp 2d at 847. Interstate General read SWANCC narrowly because it felt the holding was “overly broad and
misplaced,” and this court should interpret SWANCC the same way. Id. at 845. In this case, there are others ways
to prove that Sheldrake Pond affects interstate commerce and thus is a “water of the United States.”
In addition, the amendment implicates Congress’ intent to apply the statute to the instant case. The
amendment states, in pertinent part, the Supreme Court completely “misinterpreted congressional intent” when
14
determining the definition of “navigable waters.” From the enactment of the CWA, Congress has given the broadest
meaning possible to “waters of the United States” and “navigable waters.” By stating that migratory birds have
always constituted interstate commerce and continue to today, this amendment proves that a broad interpretation
continues to apply. Since SWANCC misinterpreted congressional intent, the Senators did not want that case to
create misplaced precedent and therefore issued this amendment as a notice to future courts clarifying what their
intent is and always has been. Congressional intent has not changed as evidenced by the history of the CWA, and
this amendment merely clarifies the broad interpretation to be afforded the statute. Thus, determining Sheldrake
Pond to be a “navigable water” is within the authority granted to the EPA and the Corps of Engineers under the
CWA.
Even if this amendment cannot be applied to the instant case, the CWA’s jurisdiction over Sheldrake Pond
is not limited because Congress can delegate authority to the EPA and the Corps to include Sheldrake Pond within
their regulatory powers. So, even if the amendment does not apply here, Congress is not prohibited from asserting
its authority over the Pond. Therefore, Congress did intend to include Sheldrake Pond within the definition of
“navigable waters” and, since it has already been determined that the Pond is a “navigable water,” Suave is liable for
violating the CWA.
According to Chevron USA v. Natural Resources Defense Council, Inc., “an
agency’s construction of a statute that it was charged with enforcing is entitled to deference
. . .” 467 U.S. 837, 837 (1984). The Corps interpreted the CWA to extend beyond navigable
waters, tributaries, and adjacent wetlands; this is a reasonable interpretation and thus
entitled to deference. SWANCC, 531 U.S. at 192. More recently, United States v. Mead
Corp, held that “administrative implementation of a particular statutory provision
qualifies for Chevron deference when it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and that the agency
interpretation claiming deference was promulgated in exercise of that authority.” 2001
WL 672258, *1 (2001). Just because a court may feel that agency’s position is unwise is not
a reason for the court to reject the agency’s exercise of its authority in resolving ambiguity
in a statute. Id.
As a result of Chevron and Mead, the court in our case should give substantial
deference to the Corps as well as the EPA because they are the agencies responsible for
interpreting the statute. In the instant case, deference is due because the EPA did not
exceed the authority granted to it under the CWA. Also, it is reasonable to assume that
Sheldrake Pond is within the scope of the CWA, and Chevron deference should be given
even if it “appears” Congress delegated authority to the EPA. Mead Corp., 2001 WL
672258 at *7.
III. THE DISTRICT COURT ERRED IN HOLDING THAT FIRED SHOT AND
SKEET PARTS ARE NOT SOLID WASTE UNDER 42 U.S.C. §
6972(a)(1)(B) BECAUSE THERE IS NO “CONSUMER USE” EXCEPTION
UNDER THE STATUTORY DEFINITION AND THE DISTRICT COURT SHOULD
HAVE FOLLOWED 12TH CIRCUIT PRECEDENT.
15
A.
There is no “consumer use” exception
under the broad statutory definition of solid waste.
Under the Resource Conservation and Recovery Act (“RCRA”),
“hazardous waste” is a subset of “solid waste.” 42 U.S.C. §
6903(5). Thus, before a substance can be considered a “hazardous
waste,” is must first trigger RCRA jurisdiction as a “solid
waste.” Id. See also United Technologies Corp. v. EPA, 821 F2d
714, 716 (D.C. Circ. 1987). Complicating the process of
determining whether or not a substance is a solid waste for
purposes of RCRA is the fact that there are actually two,
distinct definitions of “solid waste” used under RCRA: (1) the
regulatory definition and (2) the statutory definition. This
section will discuss the statutory definition.
The statutory definition is more broadly defined that the
regulatory definition, but still only applies in two, limited
situations: (1) lawsuits brought by the United States and (2)
citizen enforcement actions. See 42 U.S.C. § 6972; 42 U.S.C. §
6973. Under Section 7003 of RCRA, the United States government
may bring suits to abate an “imminent hazard” to health or the
environment. 42 U.S.C. § 6973. Under Section 7002(a)(1)(B), if
the United States fails to bring such a suit, “any person may
commence a civil action” against those who violate the act. 42
U.S.C. § 6972(a)(1)(B). The situation at issue in the instant
appeal deals with a citizen enforcement action.
Courts have repeatedly applied the statutory definition of
“solid waste” to citizen enforcement actions. See Connecticut
Coastal Fisherman’s Association v. Remington Arms Co., Inc., 989
F.2d 1305 (2nd Circ. 1993). Feikema v. Texaco, Inc., 16 F.3d 1408
(4th Circ. 1994); Craig Lyle, Ltd. v. Land O’ Lakes, Inc., 877 F.
Supp 476 (D. Minn. 1995); Jones v. Inmont Corp., 584 F. Supp.
1425 (S.D. Ohio 1984). Under the statutory definition, "solid
waste" includes “any garbage, refuse, sludge . . . [or] other
discarded material.” 42 U.S.C. § 6903(27) (emphasis added).
To determine what exactly does constitute “discarded
material,” one must first find out what, specifically, is not
included under that term. In fact, RCRA contains four narrow
exemptions to its statutory definition of “solid waste:” (1)
domestic sewage, (2) irrigation return flows, (3) industrial
discharges covered by Section 402 of the Clean Water Act, and (4)
nuclear material regulated under the Atomic Energy Act. Id.
Thus, RCRA’s statutory “solid waste” jurisdiction covers all
“discarded material” that does not fall within one of those four
exemptions.
When dealing with “solid waste” under RCRA, the EPA has long
been plagued by the problem of defining precisely when a material
is “discarded,” and, therefore, a “solid waste” under the
statutory definition. Hill, Randolph L. An Overview of RCRA: The
“Mind-Numbing” Provisions of the Most Complicated Environmental
16
Statute., 21 Envtl. L. Rep. (Envtl. L. Inst.) 10254 (May 1991).
Originally, “solid waste” was defined as “any garbage, refuse,
sludge or any other waste material” 45 Fed. Reg. 33093 (May 19,
1980) (emphasis added). Later, “any other waste material” was
further defined to include any material that had “served its
originally intended use and sometimes is discarded.” 40 C.F.R. §
261.3(b) (1981) (emphasis added). However, it proved to be too
difficult to determine whether or not a material is “sometimes
discarded,” so the definition was revised again in 1985, when it
took on the language as it reads today. 50 Fed. Reg. 641 (Jan.
4, 1985).
Although the EPA’s regulations go on to constrict the
meaning of “solid waste” by defining “discarded material” in
greater detail, the statutory definition does not get any
narrower. This is not an accident. In fact, Congress intended
the statutory definition of “solid waste” under RCRA to be quite
broad. The legislative history shows that Congress was concerned
with “not only the waste by-products of . . . manufacturing
processes,” but also with “the products themselves once they have
served their intended purposes and are no longer wanted by
[consumers].” 1976 U.S.C.C.A.N. 6238, 6241 (emphasis added). In
short, Congress never intend there to be a “consumer product
exception” under RCRA’s statutory definition of “solid waste.”
The leading case concerning interpretation of the statutory
definition of “solid waste” and the meaning of “discarded
material” is American Mining Congress v. Environmental Protection
Agency (“AMI I”). 824 F.2d 1177 (D.C. Circ. 1987). In AMI I,
the U.S. Court of Appeals for the District of Columbia Circuit
noted that the pivotal phrase in the definition of solid waste is
“garbage, refuse or sludge . . . and other discarded material.”
Id. at 1179. The D.C. Circuit had no trouble deciding that
“garbage, refuse, and sludge” clearly fit the plain, ordinary
meaning of things that are “disposed of,” “thrown away” or
“abandoned,” and thus have become part of the nation’s waste
problem. Id. at 1193.
In the instant case, BOG brought suit against Suave under
the citizen suit provision found in Section 7002(a)(1)(B) of
RCRA. (R. at 3). As noted above, it is well established that
the broad statutory definition of “solid waste” applies to these
types of citizen suits. Likewise, the spent lead shot and skeet
fragments at issue are without question “discarded material”
within Congress’ intended meaning of that term. They have served
their intended purpose to consumers and are no longer wanted.
They are not being reused, recycled or reclaimed nor could they
ever be. Thus, the spent shot and skeet are clearly “solid
waste” within the statutory definition. However, the District
Court in the instant case agreed with Suave that, even though
they fit the statutory definition of solid waste, the shot and
skeet materials are still not governed by RCRA, because shot and
skeet are exempt under the consumer products exception. (R. at
17
10). This finding improperly ignores case law, Congressional
intent, and the administrative findings of the EPA.
In Connecticut Coastal Fisherman’s Association, the EPA
filed an amicus brief taking the position that spent shot and
skeet do fall within the statutory definition of “discarded
material,” even though they are arguably consumer products used
for their intended purpose, because “they have been left to
accumulate long after they have served their intended purpose.”
989 F.2d at 1316. In the instant case, the EPA again asserted
its position that the consumer use exception does apply to the
statutory definition of solid waste for purposes of Section
6972(a)(1)(B). Id. However, the District Court in the present
case did not grant “substantial deference” to the EPA’s judgment.
(R. at 10). Instead, the District Court held that, under Mead
Corp., the EPA’s conclusion that the statutory definition of
solid waste does not include a consumer use exception is entitled
only to “relative respect.” (R. at 10). This decision was in
error.
The District Court erred in determining that the EPA’s
position that the statutory definition of “solid waste” does not
include a consumer use exception is only entitled to relative
respect and not substantial deference. As noted above, the
Supreme Court held in Chevron that “considerable weight should be
accorded to an [agency’s] construction of a statutory scheme it
is entrusted to administer . . .” 467 U.S. at 844. Agency action
that fills a gap in a statute it administers is subsequently
binding on the courts, provided it is not procedurally defective,
arbitrary or capricious, or manifestly against the weight of the
evidence. Id. at 844.
Under the Supreme Court’s Chevron analysis, “[w]hen a court
reviews an agency’s construction of a statute which it
administers, it is confronted by two questions.” 467 U.S. at 842.
First, is the Congressional intent clear? Id. If so, both the
court and the agency must “give effect to the unambiguously
expressed intent of Congress.” Id. at 843. However, if the
Congress’ intent is not clear, then the court cannot “simply
impose its own construction on the statute” as it would if the
agency had not already made an interpretation.” Id. It is not
necessary for the court to find that the agency’s interpretation
was the only possible interpretation of the statute. Instead,
“the question for the court is whether the agency’s
[interpretation] is based on a permissible construction of the
statute.” Id. (emphasis added).
While it is clear that Congress intended RCRA to contain a
very broad statutory definition of solid waste, Congress’ intent
as to exactly how broad the scope of that definition should be is
more muddled. However, Congress has charged the EPA with
administering RCRA. As such, the EPA is authorized to make
decisions that fill gaps left in the statute, and it did just
that when it decided that spent shot and skeet fragments indeed
18
do fall within the statutory definition of solid waste. It is
irrelevant that the statutory definition of solid waste could
possibly be construed to exclude such materials.
Because the
legislative history shows that Congress was concerned about waste
caused by unwanted consumer products that had served their
intended purposes, the EPA’s decision to include spent shot and
skeet under the statutory definition of solid waste was a
“permissible construction” of the statute. Thus, under Chevron,
the District Court was not free to construct the statute on its
own and decide that the spent shot and skeet were consumer
products, exempted from the statutory definition of solid waste.
The District Court chose to ignore the Chevron test and make
its own construction of RCRA’ definition of solid waste, because
it believed that the Supreme Court’s recent decision in Mead
Corp. changed the criteria for applying “substantial deference”
to an agency’s decision. (R. at 9). In fact, Mead Corp. did
nothing to excuse the District Court from following the
“substantial deference” mandate of Chevron. All the Supreme
Court did in Mead Corp. was hold that agency decisions regarding
particular statutory provisions qualify for Chevron deference
when it appears that (1) “Congress delegated authority to the
agency generally to make rules carrying the force of law,” and
(2) “that the agency interpretation claiming deference was
promulgated in the exercise of that authority.” 2001 WL 672258
at *1. However, the Court also noted that amount of deference
given to an agency “has been known to vary with circumstances.”
Id. at 12. To determine the proper amount of deference,
different courts have looked to a variety of factors, including
the degree of the agency’s care, its consistency, its formality,
the relative expertness, and the persuasiveness of the agency’s
position.” Id., citing Skidmore, 323 U.S. at 139-140.
Even applying the somewhat tighter standards of Mead Corp.,
the District Court should still have deferred to the EPA’s
judgment that the spent shot and skeet fragments were solid waste
within the statutory definition of that term. First, Congress
expressly gave the EPA authority to make rules under RCRA that
would carry the force of law. 42 U.S.C. § 6912(a)(1). Second,
when the EPA decided that skeet fragments and spent shot
qualified as solid waste, it was simply filling a gap
deliberately left by Congress to keep RCRA’s definition of solid
waste broad. Thus, the EPA was acting within the permissible
scope of its delegated authority.
Moreover, the District Court improperly characterized Mead
Corp.’s discussion of the varying factors different courts have
used to determine the appropriate degree of deference as a
“three-pronged inquiry.” (R. at 10). While the actual changes
Mead Corp. may have made to Chevron analysis are debatable, one
thing Mead Corp. certainly did not do is establish an absolute,
“three-pronged” test for deference. The Supreme Court itself
notes that the different factors courts have used to determine
19
deference have “produced a spectrum of judicial responses, from
great respect at one end . . . to near indifference at the
other.” Mead Corp, 2001 WL 672258 at *6. The District Court
below appears to have regarded that fact that the EPA’s decision
to include spent shot and skeet as “solid waste” was made without
formal rulemaking as a “death blow” to BOG’s argument in favor of
deference (R. at 10). However, the fact remains that the Supreme
Court has noted that it has “sometimes found reasons for Chevron
deference even when no such administrative formality was required
and none was afforded.” Id. at 7.
B.
The District Court should have adhered
to the Twelfth Circuit’s decision in NAG under principles
of Stare Decisis.
Consistently and repeatedly, the Supreme Court of the United
States has recognized that “the doctrine of stare decisis is of
fundamental importance to the rule of law.” Id. at 494; see also
Patterson v. McLean Credit Union, 491 U.S. 164, 172-3 (1989);
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406
(1932)(Brandeis, dissenting). “Indeed,” the Court notes, “the
doctrine is a ‘natural evolution from the very nature of our
institutions.’” Welsch v. Texas Dept. of Highways and Pub.
Trans., 483 U.S. at 478-479, (quoting Lile, Some Views on the
Rule of Stare Decisis, 4 Va.L.Rev. 95, 97 (1916)).
“Stare
decisis [is] the means by which we ensure that the law will not
merely change erratically, but will develop in a principled and
intelligible fashion.” Vasquez v. Hillary, 474 U.S. 254, 265
(1986).
Thus, the adherence of courts to precedent promotes
stability, predictability, and respect for judicial authority.
Id. at 265-266.
However, the Supreme Court has warned that “stare decisis is
a principle of policy and not a mechanical formula of adherence
to the latest decision.” Boys Markets, Inc. v. Retail Clerks,
398 U.S. 235, 241 (1970). Nonetheless, the Court has gone on to
say that “it is indisputable that stare decisis is a basic selfgoverning principle within the Judicial Branch, which is
entrusted with the sensitive and difficult task of fashioning and
preserving a jurisprudential system that is not based upon “an
arbitrary discretion.” Patterson, 491 U.S. at 173, (quoting The
Federalist, No. 78, p. 490 (H. Lodge ed. 1888)(A. Hamilton)).
The Supreme Court of California has noted that, although the
doctrine of stare decisis does not prevent a court from reviewing
and, if necessary, overruling prior decisions, it is “a
fundamental jurisprudential policy that prior applicable
precedent must be followed even though the case, if considered
anew, might be decided differently.” Mordadi-Shalal v. Fireman’s
Fund Ins. Companies, 46 Cal.3d 287, 296 (Cal. 1988). Thus,
according to the U.S. Supreme Court, “any departure from the
20
doctrine of stare decisis demands special justification.”
Arizona v. Rumsey, 467 U.S. 203, 212 (1984).
“Considerations of stare decisis have special force in the
area of statutory interpretation.” Patterson, 491 U.S. at 172.
With statutory interpretation, “the legislative power is implied,
and Congress remains free to alter what [a court has] done.” Id.
at 172-173. Historically, any detours taken by the Supreme Court
from the straight path of stare decisis have occurred for
articulable reasons, and only when the Court has felt obliged "to
bring its opinions into agreement with experience and with facts
newly ascertained." Vasquez, 474 U.S. at 266.
In the 12th Circuit, the question of whether or not the EPA’s
interpretation of the statutory definition of solid waste
includes a “consumer use” exception has already been conclusively
answered. In Neighborhood Against Golf, Inc. v. Recreation
Enterprises, Inc., (“NAG”) a neighborhood association filed a
suit to enjoin the operation of a golf course. 150 F.3d 1029
(12th Circ. 1999). The association alleged that the golf balls
were solid waste, and toxic components of the golf balls, were
leaching into the groundwater and endangering drinking water
supplies. (R. at 10). The defendant, Recreation Enterprises,
argued that the golf balls were not solid waste because they were
consumer products used for their intended purposes and, this,
were not “disposed.” Id. The district court rejected the
defendant’s argument, giving Chevron deference to the EPA’s
interpretation that the statutory definition of solid waste did
not include an exception for consumer products used for their
intended purposes. Id. That decision was later affirmed by this
Court on appeal. Id.
Since 1999, this Court’s affirmation of the decision in NAG
has been controlling precedent in the 12th Circuit. However, in
the instant case, the District Court took it upon itself to
ignore stare decisis and hold that the court in NAG applied the
wrong level of deference to the EPA’s statutory interpretation of
RCRA. (R. at 10). Suave has failed to demonstrate any “special
justification” for this departure. Accordingly, the District
Court should have adhered to the fundamental principle of stare
decisis and followed the precedent set by this Court’s
affirmation of NAG. Thus, the trial court’s decision to ignore
the precedent set by NAG, is clearly in error.
IV.
THE DISTRICT COURT ERRED IN HOLDING THAT SPENT SHOT AND
SKEET ARE NOT SOLID WASTE WHEN THEY FALL TO THE GROUND UNDER
THE REGULATORY DEFINITION OF SOLID WASTE BECAUSE THE COURT
INCORRECTLY CLASSIFIED THE MATERIALS AS “CONSUMER PRODUCTS.”
RCRA itself defines solid waste as “any garbage, refuse,
sludge . . . and other discarded material . . .” 42 U.S.C. §
6903(27). The statute does not give any further definition of
21
“discarded material.” Thus, there is a “profound ambiguity”
surrounding that definition. Connecticut Coastal Fisherman’s
Association, 989 F.2d at 1314. In an effort to clarify this
ambiguity, the federal regulations issued by the EPA expand upon
and narrow RCRA’s basic, statutory definition of “solid waste.”
The regulations go on to define solid waste as “any discarded
material” that is not excluded by another regulatory provision.
40 C.F.R. 261.2(a)(1). Moreover, the regulations define
“discarded material” as including any material that is (1)
“abandoned,” (2) “recycled,” or (3) inherently waste-like. 40
C.F.R. § 261.2(a)(2). As there has been no contention that the
spent lead shot and skeet fragments are inherently waste-like,
recycled or recyclable, this analysis will only deal with the
regulations’ treatment of “abandoned” material.
Under the regulations, “abandoned” material is defined as
that which has been (1) “disposed of,” (2) “burned or
incinerated” or (3) “accumulated, stored or treated before or in
lieu of being abandoned by being disposed of, burned or
incinerated.” 40 C.F.R. § 261.2(b)(3).
Although the
regulations contain no specific definition of what it means to be
“disposed of”,” the general definitions applicable to the
hazardous waste management system define the practically
identical term “disposal” as “the discharge, deposit, injection,
dumping, spilling, leaking, or placing of any solid waste or
hazardous waste into any land or water so that such solid waste
or hazardous waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any
waters, including ground waters.” 40 C.F.R. § 260.10.
At the very least, the regulatory definition of “disposal”
is applicable to practically anything that is “thrown out,” in
the usual sense of the term, by being deliberately placed into
the garbage and ultimately disposed of in a landfill somewhere.
However, the general definition of “disposal,” as it used to
reign in the exact meaning of “solid waste,” leaves an important
question unanswered: “Are materials that are placed on or fall on
land as part of their normal, intended use “disposed of” under
the regulatory definition of “abandonment?” In order to answer
this question, the regulations require that distinctions be drawn
between by-products, sludges, and spent materials, all of which
are classified as “solid wastes.” 40 C.F.R. § 261.1. For
purposes of this appeal, only “spent materials” and “by-products”
are relevant for consideration.
EPA regulations define “spent material” as “any material
that has been used and as a result of contamination can no longer
serve the purpose for which it was produced without processing.
40 C.F.R. § 261.1(c)(1). Likewise, the regulations define a “byproduct” as “ a material that is not one of the primary products
of a production process and is not solely or separately produced
by the production process. Id. at 261.1(c)(2). However, the
regulations specifically state that “by-products” do not include
22
“co-products.” Id. In contrast to both spent material and
byproducts, a consumer product or “co-product” is not a “solid
waste.” A co-product is a material produced for the “general
public’s use” and that is “ordinarily used in the form it is
produced by the process.” 40 C.F.R. § 261.1(c)(3). Nevertheless,
there is no bright-line distinction, either in the regulations or
in case law, between by-products and consumer products. The EPA
took note of this ambiguity when it published the most recent
revision of its regulatory definition of solid waste on January
4, 1985. In the introduction to that revision, the EPA stated
“By ‘co-product,’ we mean a material produced for use by the
general public and suitable for end use essentially as is.” 50
F.R. 614 (emphasis added). “[M]aterials produced intentionally,
and which in their existing state are ordinarily used as
commodities in trade by the general public, are considered to be
co-products and not by-products.” Id. “These co-products,” the
EPA noted, “are not (and were never intended to be) covered by
the regulations.” Id.
More recently, the EPA has the taken position that spent
shot and skeet fragments that fall in the area of skeet shooting
ranges are not “discarded material,” because they have come to
rest on land or water as the result of their proper and intended
use. See Long Island Soundkeepers Fund v. New York Athletic
Club, 1996 WL 131863, *7 (S.D.N.Y 1996); Connecticut Coastal
Fisherman’s Association, supra. This decision is inconsistent
with the EPA’s own, consistently applied definition of what
qualifies as a co-product. Spent shot and skeet fragments are
not suitable for any type of use in their present state. Thus,
the EPA has incorrectly applied its own definition of a coproduct to the material that collects around skeet shooting
ranges, and, in doing so, the EPA has mistakenly classified such
material as being exempt from the regulatory definition of “solid
waste.” The skeet and shot in the instant case have served their
purpose and can no longer be used without reprocessing. Given
the facts presented in this case, the EPA should have found that
the spent shot and skeet fragments that have accumulated in and
around Sheldrake Pond are “spent material,” rather than a
consumer product, and “solid waste” under the EPA’s regulations.
23
CONCLUSION
For all of the foregoing reasons, the judgment of the
District Court of the District of New Union should be reversed.
24
Team No. 34
Measuring Brief
Appeal No. 01-878
_______________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
_______________________
BIRDWATCHERS OF GROVETON, INC.,
Plaintiff-Appellant
and
UNITED STATES OF AMERICA,
Intervenor
v.
SUAVE REAL PROPERTIES, INC.,
Defendant-Appellee
_______________________
APPEAL FROM FINAL DECISION OF THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW UNION
_______________________
APPELLANT BIRDWATCHERS OF GROVETON’S
BRIEF
25
QUESTIONS PRESENTED
1.
Did the court below err in holding that Suave did not violate the CWA because Sheldrake Pond is not
navigable water under the CWA, 33 U.S.C. §§ 1311(a), 1352(7) & (12)? Is this case governed by the
amendment made to § 1352(7) in 2001? If so, does that amendment extend the jurisdiction of the CWA
over Sheldrake Pond?
2.
Did the court below err in holding that neither the Commerce Clause nor the Treaty Clause of the
Constitution justify federal regulation of water pollution in Sheldrake Pond?
3.
Did the court below err in holding that fired shot and skeet parts are not solid waste when they fall to the
ground under EPA’s definition of solid waste in 40 CFR § 262.2?
4.
Did the court below err in holding that fired shot and skeet parts are not
solid waste when they fall to the ground under 42 U.S.C. § 6972(a)(1)(B)?
i
TABLE OF CONTENTS
QUESTION PRESENTED …..………………………………………………………….… i
TABLE OF AUTHORITIES CITED……………………………………………………… iii
STATEMENT OF THE CASE ……………………………………………………………. 1
STATEMENT OF THE FACTS .…………………………………………………………. 1
SUMMARY OF ARGUMENT …………………………………………………………… 3
ARGUMENT
THE DISTRICT COURT ERRED IN FINDING THAT SUAVE REAL
PROPERTIES DID NOT VIOLATE THE CWA AND THE RCRA, BECAUSE
SHELDRAKE POND IS A “NAVIGABLE WATER” UNDER THE CWA,
JURISDICTION IS JUSTIFIED UNDER THE TREATY POWER AND THE
COMMERCE CLAUSE, AND FIRED SHOT AND SKEET WASTE ARE SOLID
WASTE UNDER THE RCRA ……………………………………………………………. 4
A.
SHELDRAKE POND IS A “NAVIGABLE WATER” UNDER THE
CWA, AND THE RECENT AMENDMENT TO SECTION 1362(7)
IS APPLICABLE TO THIS CASE ……………………………………………….. 4
B.
FEDERAL REGULATION OF SHELDRAKE POND CAN BE
JUSTIFIED UNDER BOTH THE TREATY POWER AND THE
COMMERCE CLAUSE OF THE CONSTITUTION ……………………………..
11
C.
FIRED LEAD SHOT AND SKEET TARGET DEBRIS ARE “SOLID
WASTES” FOR THE PURPOSES OF THE REGULATORY
DEFINITION CONTAINED IN 40 C.F.R. § 261.2 AND ARE THUS
SUBJECT TO SUBTITLE C REGULATION ……………………………………. 19
D.
FIRED LEAD SHOT AND SKEET TARGET DEBRIS ARE “SOLID
WASTES” FOR THE PURPOSES OF THE CITIZEN SUIT PROVISIONS
CONTAINED IN 42 U.S.C. § 6972(a)(1)(B) ……………………………………..
CONCLUSION ……………………………………………………….…………………... 29
CERTIFICATION ………………………………………………………………………... 30
TABLE OF AUTHORITIES CITED
Constitution, Statutes, Regulations, and Rules
ii
24
U.S. CONST., art. I, § 8, cl. 3 ………………………………………………………………. 13
U.S. CONST., art. I, § 8, cl. 18 ……………………………………………………………... 11
U.S. CONST., art. II, § 2 …………………………………………………………………..
U.S. CONST., art. VI …………………………………………………………………….…. 11
16 U.S.C. §§ 703-712 (2001) ……………………………………………………………… 11
33 U.S.C. § 1251 (2001) ……………………………………………………………………12
33 U.S.C. § 1311 (2001) ……………………………………………………………….….. 4
33 U.S.C. § 1343 (2001) …………………………………………………………………... 9
33 U.S.C. § 1344 (2001) …………………………………………………………………... 5
33 U.S.C. § 1362 (2001) …………………………………………………………………... 4
42 U.S.C. § 6901 (2001) …………………………………………………………………... 24
42 U.S.C. § 6902 (2001) …………………………………………………………………... 26
42 U.S.C. § 6903 (2001) …………………………………………………………………... 20
42 U.S.C. §6925 (2001) …………………………………………………………………… 19
42 U.S.C. § 6972 (2001) …………………………………………………………………... 19
42 U.S.C. § 6973 (2001) ……………………………………………………………………19
33 C.F.R. § 328.3 (2001) ………………………………………………………………….. 5
40 C.F.R. § 122.2 (2001) ………………………………………………………………….. 5
40 C.F.R. § 261.2 (1999) ………………………………………………………………….. 20
40 C.F.R. § 266.202 (2001) ……………………………………………………………….. 21
45 Fed. Reg. 33084 (1980) ………………………………………………………………... 26
50 Fed. Reg. 614 ……………………………………………………………………………21
51 Fed. Reg. 41206-01 ……………………………………………………………………. 5
62 Fed. Reg. 6622 …………………………………………………………………………. 21
H.R. Rep. No. 1491, 94th Cong., 2d Sess. 4 (1976) ……………………………………….. 20
S. Rep. No. 106-528 ………………………………………………………………………. 8
Water Pollution Protection Act of 2001, Pub. L. No. 106-720 (2001) ………………….… 7
.. 11
Cases
A.H. Phillips v. Walling, 324 U.S. 490, 493 (1945) ……………………………………… 25
American Hospital Ass’n. v. National Labor Relations Board, 499 U.S. 606 (1991) …….. 23
American Petroleum Inst. v. EPA, 906 F.2d 729 (D.C. Cir. 1990) (“API I”) …………….. 27
Baltimore Gas and Electric Co. v. National Resources Defense Council,
462 U.S. 87 (1983) …………………………………………………………………
Beverly Community Hosp. Assoc. v. Belshe, 132 F.3d 1259 (9th Cir. 1997) ………….…. 9
iii
22
Boddie v. Am. Broad. Co., 881 F.2d 267 (6th Cir. 1989) ………………………………….
9
Burnet v. Chicago Portrait Co., 285 U.S. 1 (1932) ………………………………………...
26
Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984) …….
22
Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc., 777 F. Supp. 173
(D.C. Conn. 1991) (“Remington Arms I”)
………………………………………… 22
Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc., 989 F.2d 1305
(2d Cir. 1993) (“Remington Arms II”) …………………………………………….
20
Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991) ……………………………….
28
DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council,
485 U.S. 568 (1988)
………………………………………………………………... 25
E. Enter. v. Apfel, 524 U.S. 498 (1998) ……………………………………………………
8
Environmental Defense Fund v. EPA, 465 F.2d 528 (D.C. Cir. 1972)
……………………. 27
GDF Realty Inv., Ltd. v. Norton, 2001 WL 1223519 (W.D. Tex. 2001) …………………
17
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) .……………………………………………
17
Good Samaritan Hospital v. Shalala, 508 U.S. 402 (1993) ………………………………..
25
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241(1964) ……………………….
13
Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981) ……..
13
Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (7th Cir. 1993) ………………………………
18
Joseph v. United States Civil Serv. Comm’n., 554 F.2d 1140 (D.C. Cir. 1977) …………..
22
K Mart Corp. v. Cartier, 486 U.S. 281 (1988) ……………………………………………..
25
Landgraf v. USI Film Products, 511 U.S. 244 (1994) ……………………………………..
8
Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990)
(“Leslie Salt II”), aff’d 55 F.3d 1388 (9th Cir. 1995)
(“Leslie Salt IV”), cert. denied, Cargill v. United States,
516 U.S. 955 (1995) (“Leslie Salt V”) …………………………………………….
18
Liquilux Gas Corp. v. Martin Gas Sales, 979 F.2d 887 (1st Cir. 1992) ……………………
9
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) ………………. 17
Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) ……………………………………………19
Missouri v. Holland, 252 U.S. 416 (1920) ………………………………………………… 11
iv
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) ……………………………….
14
Palila v. Hawaii Dept. of Land and Natural Resources,
471 F.Supp. 985 (D. Haw. 1979) ……………………………………………….….
11
Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999),
cert. denied, 528 U.S. 1136 (2000) ……………………………………..………….
9
Solid Waste Agency of Northern Cook County v. United States
Army Corps of Eng’rs, 531 U.S. 159 (2001) (“SWANCC”)……………………….
United States v. Larionoff, 431 U.S. 864 (1977) ………………………………………….. 22
United States v. Lopez, 514 U.S. 549 (1995) ………………………………………………13
United States v. Morrison, 529 U.S. 598 (2000) …………………………………………...13
United States v. Price, 688 F.2d 204 (3d Cir. 1982) ………………………………………. 28
United States v. Riverside Bayview Homes, 474 U.S. 121 (1985)………………………… 6
Wickard v. Filburn, 317 U.S. 111 (1947) …………………………………………………. 13
Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948) …….………………………………..13
5
Texts, Treatises, Briefs, Reports, and Law Reviews
Amicus Brief of Dr. Gene Likens and Association of State Wetland
Managers at 13, Solid Waste Agency of Northern Cook
County v. United States Army Corps of Eng’rs, 531 U.S. 159,
121 S.Ct. 675, 148 L.Ed.2d 576 (2001) ……………………………………………
Black’s Law Dictionary (6th ed. 1990) …………………………………………………… 20
Edward Alburo Morrissey, The Jurisdiction of the Clean Water
Act Over Isolated Wetlands: The Migratory Bird Rule,
22 J.Legis. 137 (1996) ……………………………………………………………..
Peter Arey Gilbert, The Migratory Bird Rule After Lopez: Questioning
the Value of State Sovereignty in the Context of Wetland
Regulation, 39 Wm. & Mary L. Rev. 1695 (1998) ………………………………...
Stephen M. Johnson, Federal Regulation of Isolated Wetlands After
SWANCC, 31 Envtl. L. Rep. 10669 (2001) ……………………………………….
Vicki Monks, The Beauty of Wetlands, National Wildlife, June 1996 …………………… 6
6
12
16
6
STATEMENT OF THE CASE
On December 20, 2000, Birdwatchers of Groveton, Inc. (“BOG”) a non-profit corporation organized under
the laws of New Union, filed a complaint in the United States District Court for the District of New Union against
Suave Real Properties, Inc., (“Suave”) a real estate management company organized under the laws of New Union.
BOG alleged jurisdiction under the citizen suit provisions of the Clean Water Act (“CWA”), 33 U.S.C. § 1365
(2001) and the Resource Conservation and Recovery Act (“RCRA”), 33 U.S.C. § 6072 (2001) and sought injunctive
and civil relief. BOG alleged that Suave illegally filled a portion of Sheldrake Pond and discharged lead shot and
skeet into and around the pond in the course of operating a recreational rifle range and skeet shooting operation
there. The court granted a motion to intervene by the United States on behalf of the Environmental Protection
v
Agency. Suave moved for summary judgment against BOG, and the court granted the motion in its entirety on
September 1, 2001. BOG appeals the court’s ruling on all four grounds, and the United States joins BOG on three
grounds and opposes it on one.
STATEMENT OF THE FACTS
Sheldrake Pond is a long, narrow, and shallow pond, running east to west in Groveton, New Union. The
pond is dry during part of the year but may become up to four feet deep and may cover twenty-five acres during the
wet part of the year. Sheldrake Pond is an important stopover for many aquatic and terrestrial birds during their
yearly interstate and even international migrations. Over two hundred species of birds have been observed at the
Pond, including Mexican ducks, jacanas, avocets, sandhill cranes, and warbling vireos.
Birdwatchers of Groveton, Inc. (BOG) is an non-profit corporation, organized under the laws of New
Union, whose members include birdwatchers living and watching birds in Groveton County, New Union. The
BOG’s members had watched birds on Sheldrake Pond from an adjacent country road for two decades until Suave
began operate the pond-side area as a firing and skeet shooting range in 2000.
Suave Real Properties, Inc. (Suave) is a real estate management company organized under the laws of New
Union. In 2000, Suave began to operate the Groveton Rifle and Pistol Association (GRAPA) near Sheldrake Pond
and continues such operation today. The GRAPA facility is a skeet shooting facility and consists of a pad for skeet
shooters, a device that ejects skeet into the air, and a firing range. The County owns the land to the east and south of
the Pond and most of the Pond. Suave owns land to the west and south of the Pond and part of the western end of
the Pond. Suave filled a portion of the pond in order build a platform to support the skeet ejection device. This
skeet ejection device ejects skeet over Sheldrake Pond while skeet shooters attempt to shoot the skeet with shotguns
from the firing range on the south end of the pond. When the shooters hit the skeet, skeet parts and spent lead shot
often fall into and around the Pond, both onto land owned by Suave and land owned by the County. When the
shooters miss the skeet, the skeet will also fall into both portions of the land and Pond, as does the spent lead shot.
There is a berm located about fifty feet from the Pond, behind the targets, designed to catch most of the spent shot.
Occasionally, lead bullets fired on this range overshoot the berm and enter the Pond or enter the County’s land
beyond the Pond. Suave does not have an easement over the County’s land or portion of the Pond. Nor does Suave
have any other agreement with the County allowing the invasions of skeet, spent shot, and bullets on its land or its
portion of the Pond.
SUMMARY OF ARGUMENT
THE DISTRICT COURT ERRED IN FINDING THAT SUAVE REAL PROPERTIES DID NOT VIOLATE THE
CWA AND THE RCRA, BECAUSE SHELDRAKE POND IS A “NAVIGABLE WATER” UNDER THE CWA,
JURISDICTION IS JUSTIFIED UNDER THE TREATY POWER AND THE COMMERCE CLAUSE, AND
FIRED SHOT AND SKEET WASTE ARE SOLID WASTE UNDER THE RCRA.
This court reviews an entry of summary judgment de novo, applying the same standard as the district court
and examining the record in the light most favorable to the non-moving party. See Barge v. Anheuser-Busch, Inc.,
87 F.3d 256, 258 (8th Cir. 1996). Summary judgment is appropriate when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In this case, the district court erred in its ruling that the CWA and the RCRA did not apply to the activities
of appellee Suave Real Properties, Inc. at Sheldrake Pond. Sheldrake Pond is a “navigable water” within the
meaning of the CWA, as the legislative history of the statute demonstrates that Congress intended the term
“navigable waters” to be interpreted to extend to the full extent of congressional authority. Also, Sheldrake Pond
falls within the 2001 amendment to the CWA’s definition of navigable waters as an intrastate water body that affects
interstate commerce as a migratory bird habitat. Since this amendment was intended to clarify prior law and not
effect a substantive change, there is no legitimate concern about applying the amendment retroactively to Sheldrake
Pond.
Congress can assert jurisdiction over Sheldrake Pond through the CWA under the Treaty Power because
the discharge of dredged or fill material into Sheldrake Pond will degrade or destroy a habitat of over 200 migratory
birds, and congressional action to preserve these waters is a “necessary and proper” measure to comply with this
nation’s treaty obligations to protect these birds. Federal jurisdiction over Sheldrake Pond can also be supported
under the Commerce Clause because there is a rational basis for Congress to conclude that activities that degrade or
destroy migratory bird habitats substantially affect interstate commerce, and the activity being regulated here passes
the test set forth by the Supreme Court recently in Lopez and Morrison.
The district court also erred in ruling that the fired lead shot and skeet targets are not solid waste under the
RCRA regulatory and statutory definitions. The fired shot and target debris are solid waste under the regulatory
definition as they were discharged into and around Sheldrake Pond and then subsequently abandoned by Suave. The
lead shot and target debris also comport with the statutory definition of solid waste contained within RCRA. RCRA
defines solid waste broadly as “discarded material.” Courts construing the term discarded material have held that
the term should be accorded its plain and ordinary meaning in keeping with Congressional intent that RCRA have a
broad reach. The waste materials at issue in the present case clearly come within the broad statutory definition of
solid waste as they were discarded into and around Sheldrake Pond.
ARGUMENT
SHELDRAKE POND IS A “NAVIGABLE WATER” UNDER THE CWA, AND
THE RECENT AMENDMENT TO SECTION 1362(7) IS APPLICABLE TO
THIS CASE.
H. “Navigable Waters”
Sheldrake Pond is “navigable water” under the CWA, 33 U.S.C. §§ 1311(a), 1362(7) and
(12) (2001). Section 1311(a) renders the discharge of pollutants, except within compliance of
the law, to be illegal. See id. § 1311(a). Section 1362(12) indicates that the term “discharge of a
pollutant” includes “any addition of any pollutant to navigable waters from any point source,”
and subsection (7) defines the term “navigable waters” to mean “the waters of the United States,
including the territorial seas.” Id. §§ 1362(7) and (12) (emphasis added). The legislative history
of the statute demonstrates that Congress intended the term “navigable waters” to be interpreted
to exercise the full extent of congressional constitutional authority. See Conf. Rep. 92-1236,
reprinted in 1972 U.S.C.C.A.N. 3776, 3822. BOG contends that the statutory language above
grants the Environmental Protection Agency (EPA) and the Army Corps of Engineers (COE) the
authority to regulate the discharge of pollutants into Sheldrake Pond.
The EPA administers most of the CWA and the COE administers the CWA’s section
1344 fill permitting program. The COE regulations define the section 1362(7) “waters of the
United States” that are subject to regulation under the CWA to include:
waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use,
degradation or destruction of which could affect
interstate or foreign commerce . . .
33 C.F.R. § 328.3(a)(3) (2001). Such uses include use by interstate and foreign travelers for recreational purposes.
See 40 C.F.R. § 122.2 (2001). The COE has interpreted its regulatory definition of navigable waters to include
waters that “are or would be used as habitat by birds protected by the Migratory Bird Treaties.” 51 Fed. Reg.
41206-01, 1986 WL 116041 (the “Migratory Bird Rule”).
The court below relied on a recent Supreme Court decision, Solid Waste Agency of Northern Cook County
v. United States Army Corps of Eng’rs, 531 U.S. 159 (2001) (“SWANCC”), where the Court held that the CWA did
not authorize the COE to prohibit a landfill operator from filling isolated ponds merely because the ponds were used
as habitat by migratory birds. The Court stated that the “Migratory Bird Rule” invoked the “outer limits of
Congress’ power under the Commerce Clause,” id. at 172, and thus, “is not fairly supported by the CWA.” Id. at
167. After SWANCC, the lower court in this case concluded that the Supreme Court has interpreted the preamendment CWA “not to cover insignificant and isolated waters such as Sheldrake Pond.” Birdwatchers of
Groveton, Inc. v. Suave Real Properties, Inc., No. 01-878, slip op. at 6 (D.N.U. Sept. 1, 2001).
The SWANCC decision only invalidates the regulation of isolated waters based on the migratory bird rule.
BOG believes that notwithstanding the invalidation of the “Migratory Bird Rule,” Sheldrake Pond must still be
considered a “navigable water” under the broad definition of the term that Congress intended. In United States v.
Riverside Bayview Homes, 474 U.S. 121, (1985), the Court held that the COE’s broad jurisdiction under the CWA
properly included an 80-acre parcel of marsh land that was not itself navigable, but which was part of a larger area
characterized by poor drainage that ultimately abutted a navigable creek. The majority in SWANCC distinguished
the low-lying marshland at issue in Riverside from the abandoned gravel pits in SWANCC by noting that the
marshland in Riverside was adjacent to navigable waters. See SWANCC, 531 U.S. at 168. (“Indeed, we did not
express any opinion on the question of the authority of the Corps to regulate discharges of fill material into wetlands
that are not adjacent to bodies of open water. In order to rule for respondents here, we would have to hold that the
jurisdiction of the Corps extends to ponds that are not adjacent to open water) (internal citations omitted) (emphasis
in original). In SWANCC, the Court stated that in Riverside it relied on the “significant nexus” between the
wetlands and the “navigable waters.” Id. BOG submits that a “significant nexus” does exist between Sheldrake
Pond and other navigable waters under the Court’s narrow definition in SWANCC.
Isolated wetlands prevent flooding of downstream waters and erosion of downstream river or stream banks
by temporarily collecting and storing water that would otherwise flow into the downstream waters. See Stephen M.
Johnson, Federal Regulation of Isolated Wetlands After SWANCC, 31 Envtl. L. Rep. 10669 (2001). Similarly, they
collect and filter pollutants out of water and reduce pollution of downstream waters. See Vicki Monks, The Beauty
of Wetlands, National Wildlife, June 1996, at 20. Development and drainage of these wetlands can release
pollutants into other waters. See Amicus Brief of Dr. Gene Likens and Association of State Wetland Managers at
13, Solid Waste Agency of Northern Cook County v. United States Army Corps of Eng’rs, 531 U.S. 159 (2001)
(citing studies).
In sum and substance, isolated waters, such as Sheldrake Pond, provide the same benefits that the Court
highlighted for “adjacent” wetlands when it upheld federal regulation of such wetlands in Riverside. Riverside, 474
U.S. at 134. (“The regulation of activities that cause water pollution cannot rely on artificial lines but must focus on
all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this
part of the aquatic system . . .will affect the water quality of the other waters within that aquatic system”). The
Court in Riverside continues:
In view of the breadth of federal regulation
contemplated by the [CWA] itself and the inherent
difficulties of defining precise bounds to regulable
waters, the Corps ecological judgment about the
relationship between waters and their adjacent
wetlands provides an adequate basis for a legal
judgment that adjacent wetlands may be defined as
waters under the Act.
Id. Although Sheldrake Pond is not “adjacent” to other navigable waters as were the wetlands at issue in Riverside,
the Court should use the same rationale and find that isolated waters such as Sheldrake Pond are subject to federal
jurisdiction under the CWA because of the affect that the filling and polluting of such waters will have on other
navigable waters.
The 2001 Amendment to § 1362(7)
On August 15, 2001, Congress amended the CWA’s definition of “navigable waters” to incorporate EPA’s
definition of the “waters of the United States” from 40 C.F.R. § 122.2. See Water Pollution Protection Act of 2001,
Pub. L. No. 106-720 (2001). The amendment effectively codifies the “Migratory Bird Rule” and renders the
SWANCC decision obsolete. However, the court below held that “the 2001 amendment is irrelevant to this case.”
Birdwatchers of Groveton at 5. The District Court of New Union noted that the complaint was filed more than eight
months prior to the amendments and that “[i]t is commonplace that the statutory law that governs a case is the
statutory law that exists at the time the complaint is filed, unless the statute explicitly directs that it be applied
retrospectively.” Id. The lower court then noted that the 2001 amendment to the CWA does not include a direction
that the amendment be applied retrospectively. See id.
However, the lower court did recognize that the report from one Senate committee embodies retroactivity.
See id. The Report of the Senate Environment Committee accompanying the Senate bill reflects this notion that the
amendment be retroactive. See S. Rep. No. 106-528 at 23 (2001). Using the legislative history of the amendments
as a guide, BOG contends that the August 15, 2001 amendment was intended to clarify the existing law and thus,
concerns about retroactive application are not implicated in this situation.
“Retroactivity is generally disfavored in the law, in accordance with fundamental notions of justice that
have been recognized throughout history.” E. Enter. v. Apfel, 524 U.S. 498, 532 (1998). In Landgraf v. USI Film
Products, 511 U.S. 244 (1994), the Supreme Court set forth an analytical construct to resolve the question of
whether a statute is retroactive and can be applied to pending cases. Landgraf prescribes a two-part test:
When a case implicates a federal statute enacted
after the events giving rise to the suit, a court’s
first task is to determine whether Congress has
expressly prescribed the statute’s proper reach. If
Congress has done so, there is no need to resort to
judicial default rules . . . Even absent specific
legislative authorization, application of a new
statute to cases arising before its enactment is
unquestionably proper in many situations. However,
where the new statute would have a genuinely
retroactive effect – i.e., where it would impair
rights a party possessed when he acted, increase his
liability for past conduct, or impose new duties with
respect to transactions already completed – the
traditional presumption teaches that the statute does
not govern absent clear congressional intent favoring
such a result.
Landgraf, 511 U.S. at 269-70. Thus, the two-part test asks 1)
has Congress expressly prescribed the temporal reach of the
statute; and if not, 2) does the statute have retroactive effect.
BOG, however, contends that the Landgraf test does not apply to the 2001 amendment to the CWA.
Rather, a separate analytical approach to whether a new statute can be applied to pending cases is applicable in the
present case. This approach, developed in the case law, is premised on whether the statute is a clarification or
change of existing law. If the statute is a clarification, it “accurately restates the prior law” and there is no need for a
Landgraf analysis because the statute has no retroactive effect. Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272,
1283 (11th Cir. 1999), cert. denied, 528 U.S. 1136 (2000). “Concerns about retroactive application are not
implicated when an amendment that takes effect after the initiation of a lawsuit is deemed to clarify relevant law
rather than effect a substantive change in the law.” Id., citing Beverly Community Hosp. Assoc. v. Belshe, 132 F.3d
1259, 1265 (9th Cir. 1997), Liquilux Gas Corp. v. Martin Gas Sales, 979 F.2d 887, 890 (1st Cir. 1992), and Boddie v.
Am. Broad. Co., 881 F.2d 267, 269 (6th Cir. 1989).
Several factors are relevant when determining if an amendment clarifies prior law, rather than effecting a
substantive change:
A significant factor is whether a conflict or
ambiguity existed with respect to the interpretation
of the relevant provision when the amendment was
enacted. If such an ambiguity existed courts view
this as an indication that a subsequent amendment is
intended to clarify, rather than change the existing
law.
Piamba Cortes, 177 F.3d at 1283-84, citing Liquilux, 979 F.2d at 890. Weight is given to “[a] declaration by the
enacting body that its intent is to clarify the prior enactment,” the importance of the statute’s text and its legislative
history. Id. at 1284.
In the present case, both the ambiguity and a declaration of the enacting body are present. The ambiguity
exists with respect to the interpretation of "navigable waters." This ambiguity is evident from the Court’s opinion in
SWANCC, where the narrow 5-4 majority's interpretation prevailed. The majority, relying on Riverside, held that
the word "navigable" in the statute was of "limited effect" and went on to hold that while section 404(a), or 33
U.S.C. § 1343(a), of the CWA extended to nonnavigable wetlands adjacent to open waters, it did not extend to
abandoned gravel pits filled with water. See SWANCC, 531 U.S. at 172, 121 S. Ct. at 683. "[I]t is one thing to give
a word limited effect and quite another to give it no effect whatever." Id. However, in his dissent, Justice Stevens
opined that the scope of the COE's mission under the CWA encompassed all of "the waters of the United States" and
"that definition requires neither actual or potential navigability." Id. at 175, 121 S. Ct. at 684 (Stevens, J.,
dissenting). Thus, the Court itself was divided over the ambiguity of the definition of "navigable waters" in section
404 of the CWA.
The SWANCC opinion highlighted the ambiguity of the term through the COE's changing definition and
the legislative history of the CWA. The majority points out that the "Corp's original interpretation of the CWA,
promulgated two years after its enactment, is inconsistent with that which it espouses here." Id. at 168 (emphasis in
original). Where the majority focuses on Congress' continued inclusion of the term "navigable," see id. at 172, 121
S. Ct. at 683, the dissent asserts that from the "history of federal water regulation . . . and Congress' unambiguous
instructions in the Conference Report, it is clear that the term 'navigable waters' operates in the statute as a shorthand
for 'waters over which federal authority may be properly asserted.'" Id. at 182 (Stevens, J., dissenting).
According to Piamba Cortes, when a court is determining whether an amendment was intending to clarify a
prior enactment, weight is given to a declaration by the enacting body of their intent to clarify. See Piamba Cortes,
177 F.3d at 1284. The Report of the Senate Environment Committee accompanying the Senate bill explicitly stated
that the Court in SWANCC "misinterpreted congressional intent" and goes on to acknowledge the validity of the
Migratory Bird Rule. S. Rep. No. 106-528 at 23 (2001). This unambiguously clear language of the enacting body
informs the court that their intent was to clarify the existing CWA. Thus, there should be no concern about the
retroactive application of the 2001 amendment to the CWA to Sheldrake Pond in this case. The amendment,
although it took effect after the initiation of the lawsuit, merely clarifies the pre-existing CWA and is not effecting a
substantive change in the law. See Piamba Cortes, 177 F.3d at 1283.
B.
FEDERAL REGULATION OF SHELDRAKE POND CAN BE
JUSTIFIED UNDER BOTH THE TREATY POWER AND THE COMMERCE CLAUSE OF
THE CONSTITUTION.
I. The Treaty Power
Article II, section 2 of the Constitution gives Congress the power to ratify treaties, and article VI provides
that treaties made under the authority of the United States become the supreme law of the land. See U.S. CONST.,
art. II, § 2, and art. VI . The “necessary and proper” clause of the Constitution authorizes Congress to “make all
laws which shall be necessary and proper for carrying into execution . . . powers vested by [the] Constitution in the
Government of the United States . . .” U.S. CONST., art. I, § 8, cl. 18.
In Missouri v. Holland, 252 U.S. 416 (1920), the Supreme Court held that the Migratory Bird Treaty Act of
1918 was a valid exercise of Congressional power under the Treaty Power and the “necessary and proper” clause.
See id.; 16 U.S.C. §§ 703-712 (2001). Rejecting a Tenth Amendment challenge to the treaty and the implementing
statute, the Court said:
Acts of Congress are the supreme law of the land only
when made in pursuance of the Constitution, while
treaties are declared to be so when made under the
authority of the Constitution . . . It is obvious
that there may be matters of the sharpest exigency
for the national well being that an act of Congress
could not deal with but that a treaty followed by
such an act could . . .
Id. at 433, 40 S.Ct. at 383.
Despite claims that the statute impermissibly
infringed on state power, the Court said that protecting migratory birds was
“a national interest of very nearly the first magnitude” which could be
protected only by national and international concerted action.
40 S.Ct. at 384.
Id. at 435,
See also Palila v. Hawaii Dept. of Land and Natural
Resources, 471 F.Supp. 985 (D. Haw. 1979) (holding that application of the
Endangered Species Act to endangered bird located solely in Hawaii was
supported under the Treaty Power by two treaties protecting such birds).
In this case, federal regulation of Sheldrake Pond under the CWA is
also justified under the Treaty Power of article II, section 2.
While
Sheldrake Pond may be an isolated body of water, the protection of such
isolated waters under the CWA is a necessary component to the CWA’s objective
to “maintain the chemical, physical, and biological integrity of the Nation’s
waters . . . [and] provide . . . for the protection and propagation of fish,
shellfish, and wildlife.”
33 U.S.C. § 1251(a) (2001).
Thus, one of the
objectives of the CWA is to maintain the integrity of the waters used by
migratory birds in order to protect and preserve those species.
See Edward
Alburo Morrissey, The Jurisdiction of the Clean Water Act Over Isolated
Wetlands:
The Migratory Bird Rule, 22 J.Legis. 137, 142 (1996).
On August 15, 2001, Congress amended the jurisdiction of the CWA to
expressly include isolated intrastate waters, such as playa lakes, which
could affect interstate or foreign commerce.
Act of 2001, Pub. L. No. 106-720 (2001).
See Water Pollution Protection
The report of the Senate
Environment Committee accompanying the Senate bill indicated that the
amendment was intended to clarify congressional intent that isolated waters
which serve as “important stopovers” for migratory birds fall within the
scope of the CWA.
S. Rep. No. 106-528 at 23 (2001).
The report indicated
that jurisdiction was justified under the Treaty Power, since protecting
these waters is necessary to protect these birds.
See id.
Discharges of dredged or fill material into isolated waters can destroy
or degrade the habitat of migratory birds.
See Stephen M. Johnson, Federal
Regulation of Isolated Wetlands After SWANCC, 31 Envtl. L. Rep. 10669 (2001).
Congressional action to preserve the waters of the habitat of migratory birds
is a necessary and proper measure to comply with the treaty obligation to
protect these birds.
Based on the reasoning of the Supreme Court in Missouri, Congress has
jurisdiction over Sheldrake Pond under the Treaty Power, even if Congress
does not have jurisdiction under the Commerce Clause.
It does not matter
that there is no indication that Congress was acting pursuant to the Treaty
Power when it enacted the CWA, because the Supreme Court has held that the
constitutionality of an act of Congress does not depend on the power that
Congress claims to be exercising.
See Woods v. Cloyd W. Miller Co., 333 U.S.
138, 145 (1948).
Since Sheldrake Pond is an important migratory bird habitat that must be protected from the degradation
and destruction that result from the discharge of fill material, Congress may regulate Sheldrake Pond under the
Treaty Power and the CWA.
The Commerce Clause
The Commerce Clause gives Congress the power to “regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.” U.S. CONST., art. I, § 8, cl. 3. The Supreme Court has found the
Commerce Clause to be a valid source of federal power supporting the regulation of a broad range of activities, such
as intrastate coal mining, see Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981);
inns and hotels catering to interstate guests, see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964);
and the production and consumption of homegrown wheat, see Wickard v. Filburn, 317 U.S. 111 (1947).
The Commerce Clause does have its limits, however, as the Supreme Court recently reminded us in United
States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). Due respect for the
legislative branch requires that a court may only invalidate a law upon a “plain showing” that Congress has
exceeded its constitutional bounds. Morrison, 529 U.S. at 607. However, the scope of the commerce power must
not be extended to embrace effects on interstate commerce so indirect and remote “that to embrace them . . . would
effectually obliterate the distinction between what is national and what is local . . .” NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 37 (1937).
There are three categories of activity that Congress may regulate under the Commerce Clause: (1) the
channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) activities that substantially
affect interstate commerce. See Morrison, 529 U.S. at 609, 120 S.Ct. at 1749. In this case, the power to regulate
Sheldrake Pond under the CWA falls within the third category.
In Lopez, the Court said that where “economic activity substantially affects interstate commerce, legislation
regulating that activity will be sustained.” Lopez, 514 U.S. at 560. It does not matter if the individual activity at
issue does not by itself substantially affect interstate commerce; Congress may regulate “activities that arise out of
or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate
commerce.” Id. at 561. In both Lopez and Morrison, the Court considered five factors in determining whether the
activity being regulated could be characterized as substantially affecting interstate commerce: (1) whether the
activity being regulated was economic in nature, (2) whether the statute contained a jurisdictional element, (3)
whether there were any Congressional findings on the matter, (4) the degree of attenuation of the proposed link
between the activity being regulated and interstate commerce, and (5) whether the statute infringes on traditional
sources of state power. See Lopez, 514 U.S. at 549; Morrison, 529 U.S. at 598-599. The statute at issue in Lopez
(Gun-Free School Zones Act) made it a federal crime to knowingly possess a firearm in a school zone, and the Court
said this had nothing to do with commerce or “any sort of economic enterprise, however broadly one might define
those terms.” Id. at 561. The statute at issue in Morrison, the Violence Against Women Act (“VAWA”), suffered
from the same flaw. The Court noted that crimes of violence motivated by gender are not economic activity. See
Morrison, 529 U.S. at 613. In addition, neither of the statutes at issue in Lopez and Morrison had a jurisdictional
element to ensure that the activity being regulated affects interstate commerce through a case-by-case analysis. See
Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 613.
Though there were no Congressional findings in Lopez about how guns in school zones affected interstate
commerce, the Court in Morrison did note that Congress made specific findings with regard to the VAWA and the
serious impact gender-motivated violence has on victims and their families. See Morrison, 529 U.S. at 614. But the
Court said the existence of such findings were not enough by themselves to sustain the legislation under the
Commerce Clause. See id.
In both Lopez and Morrison, the Court found that the link between guns in school zones or gendermotivated violence and interstate commerce was too tenuous. See Lopez, 514 U.S. at 564; Morrison, 529 U.S. at
615. For example, in Lopez the government tried to justify the Gun-Free School Zones Act by saying that the threat
of guns in schools hampers education, which results in a less qualified and productive citizenry, which would affect
the nation’s economic well-being. See id. The Court responded to this rationale by saying, “[I]f we were to accept
the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without the
power to regulate.” Id.
The Court noted that both the VAWA and the Gun-Free School Zones Act regulated criminal activity,
which is traditionally an area of state concern, and that allowing federal regulation in these instances would be an
impermissible intrusion into state power. See Lopez, 514 U.S. at 567; Morrison, 529 U.S. at 617.
Based on the test set forth by the Supreme Court in Lopez and Morrison, the application of the CWA to
isolated waters such as Sheldrake Pond is a constitutional exercise of congressional power under the Commerce
Clause. First, the activity being regulated by the CWA in this case is the discharge of fill material into Sheldrake
Pond by Suave Real Properties. Unlike the class of activities that Congress was attempting to regulate in Morrison
and Lopez, the discharge of fill material into our nation’s waters is almost always undertaken for economic reasons,
such as land development, manufacturing, agriculture, mining, construction, or waste disposal. See SWANCC, 531
U.S. at 193 (Stevens, J., dissenting); Johnson, supra. Undoubtedly, the discharge of fill material into Sheldrake
Pond here has also been done for economic reasons: to allow the construction of a platform for a skeet ejection
device and to allow Suave to avoid the costs of retrieval and disposal of spent shot.
Second, the migratory bird rule itself is the jurisdictional element that determines whether the CWA applies
to specific isolated waters. Every puddle where a migratory bird may land would not be subject to the CWA; only
isolated wetlands that serve as habitats for migratory birds would substantially affect interstate commerce and thus
be subject to the CWA. See SWANCC, 531 U.S. at 196 (Stevens, J., dissenting); Peter Arey Gilbert, The Migratory
Bird Rule After Lopez: Questioning the Value of State Sovereignty in the Context of Wetland Regulation, 39 Wm.
& Mary L. Rev. 1695, 1726-1727 (1998). In addition, the COE regulations issued pursuant to the CWA also contain
a jurisdictional element, stating that the CWA applies to various waters “the use, degradation or destruction of which
could affect interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3) (2001). A jurisdictional element clearly exists
in this case to ensure that the CWA will only apply to isolated waters that substantially affect interstate commerce.
Third, Congress believes that the Commerce Clause justifies the
regulation of isolated waters such as Sheldrake Pond under the CWA.
The
report of the Senate Environment Committee accompanying the recent Water
Pollution Protection Act of 2001 contained statements noting the importance
of migratory birds and explaining that jurisdiction over isolated waters such
as Sheldrake Pond is allowed under the Commerce Clause.
528 at 23 (2001).
See S. Rep. No. 106-
While these statements are not formal congressional
findings, they certainly warrant the court’s consideration in this case, as
the Supreme Court has held that Congress is not required to make formal
findings to support a valid law under the Commerce Clause.
See Lopez, 514
U.S. at 562.
Fourth, the link between the activity being regulated here and interstate commerce is not nearly as tenuous
as it was in Lopez and Morrison. “The causal connection between the filling of wetlands and the decline of
commercial activities associated with migratory birds is not ‘attenuated;’ it is direct and concrete.” SWANCC, 531
U.S. at 195 (Stevens, J., dissenting), citing Morrison, 529 U.S. at 612; Cf. Gibbs v. Babbitt, 214 F.3d 483 (4th Cir.
2000) (direct relationship existed between red wolf takings and interstate commerce, as no red wolves meant no red
wolf tourism). The filling of these isolated wetlands, in the aggregate, would directly cause a decline in the
population of these migratory birds. Less migratory birds means less hunting, trading, and observing of these
species.
Fifth, asserting federal CWA jurisdiction over Sheldrake Pond would not impermissibly infringe on any
traditional area of state power. Though states have the power to regulate wildlife within their borders, this power
has traditionally been shared with the federal government. See Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172 (1999). States also have the power to issue land-use regulations, but it is also “well established that
Congress can regulate even private land use for environmental and wildlife conservation.” Gibbs, 214 F.3d at 500.
See also GDF Realty Inv., Ltd. v. Norton, 2001 WL 1223519 (W.D. Tex. 2001). Numerous international treaties
exist to protect these migratory birds, and the Supreme Court has recognized this as a “national interest of very
nearly the first magnitude.” Missouri, 252 U.S. at 435.
Protection of migratory birds is a national problem, and “it is not sufficient to rely upon the States.” Id. at
435. Like many other environmental problems, the destruction of the habitat of migratory birds is an action where
the benefits are disproportionately local, while many of the costs are more nationally widespread. See SWANCC,
531 U.S. at 195. (Stevens, J., dissenting); Gilbert, supra, at 1731-1732. Allowing states to exercise sole authority
over these wetlands would result in destructive interstate competition at the expense of these wetlands and the
migratory birds. See id. at 196. The Supreme Court has held that the prevention of this sort of destructive interstate
competition is a traditional role for Congress under the Commerce Clause. See Hodel, 452 U.S. at 282. Unlike guns
in school zones or violence against women, wetland regulation clearly calls for a single national solution. See
Gilbert, supra, at 1737.
Though the Supreme Court has yet to rule on this issue, several federal courts have held that the Commerce
Clause gives Congress the power to regulate isolated intrastate waters that serve as habitats for migratory birds. See
Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990) (“Leslie Salt II”), aff’d 55 F.3d 1388 (9th Cir. 1995)
(“Leslie Salt IV”), cert. denied, Cargill v. United States, 516 U.S. 955 (1995) (“Leslie Salt V”); Hoffman Homes,
Inc. v. EPA, 999 F.2d 256 (7th Cir. 1993). In Hoffman, the court found that “Area A,” a periodically filled
depression isolated from other waters (similar to Sheldrake Pond in our case), could have been subject to the CWA
under the Commerce Clause had there been sufficient evidence to prove that it was a habitat for migratory birds.
See Hoffman, 999 F.2d at 261.
Since Lopez, the Supreme Court has twice had the opportunity to decide whether federal jurisdiction over
isolated wetlands that serve as habitats for migratory birds is allowed under the Commerce Clause. In the same year
that the Court issued the Lopez decision, the Court denied a petition for certiorari to hear the Leslie Salt case, with
only Justice Thomas dissenting. See Cargill v. United States, 516 U.S. 955 (1995). This denial of certiorari can
only be interpreted as an expression of approval of the holding in Leslie Salt IV, meaning that even after Lopez, the
Court interprets the Commerce Clause to allow federal jurisdiction over isolated wetlands that serve as migratory
bird habitats.
In SWANCC, the Supreme Court held that the CWA did not cover isolated waters used as habitats for
migratory birds, but significantly the Court did not consider whether the migratory bird rule would be outside the
scope of the commerce power of Congress. See SWANCC, 531 U.S. at 174. Since the Court has not yet ruled on
the issue of whether the Commerce Clause allows federal regulation of these isolated waters, Leslie Salt IV and
Hoffman endure as the best authority on the subject.
Thus, BOG urges the court to recognize congressional power under both the Treaty
Power and the Commerce Clause to regulate the discharge of fill material into isolated wetlands
such as Sheldrake Pond that serve as habitats for migratory birds.
C.
J.
FIRED LEAD SHOT AND SKEET TARGET DEBRIS ARE “SOLID
WASTES” FOR THE PURPOSES OF THE REGULATORY DEFINITION
CONTAINED IN 40 C.F.R. § 261.2 AND ARE THUS SUBJECT TO
SUBTITLE C REGULATION.
“RCRA is a comprehensive environmental statute that governs the treatment,
storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W., Inc., 516 U.S.
479, 483 (1996). RCRA has two underlying purposes. First, it creates a “cradle-tograve” regulatory framework, the aim of which is to “reduce the generation of
hazardous waste and to ensure the proper treatment, storage, and disposal of that waste
which is nonetheless generated, ‘so as to minimize the present and future threat to
human health and the environment.’” Id. (quoting 42 U.S.C. § 6902(b) (2001)). Second,
it provides for litigation to enforce this regulatory framework and to redress those
situations where the treatment, storage, and disposal of solid or hazardous waste may
have caused “an imminent and substantial endangerment to health or the
environment.” 42 U.S.C. §§ 6972(a)(1)(B), 6973(a) (2001).
Subtitle C of RCRA establishes a regulatory program designed to track and control hazardous waste from
generation to disposal. RCRA’s regulatory program under Subtitle C involves a strict scheme of permitting,
manifest tracking requirements, and waste treatment and handling standards and practices administered by the EPA.
Before any entity may treat, store, or dispose of hazardous waste, it must apply to the EPA for a permit. See 42
U.S.C. §6925 (2001). By disposing of hazardous wastes into and about Sheldrake Pond without the requisite permit,
Suave is in violation of § 6925.
Hazardous waste under RCRA is a subset of solid waste. See 42 U.S.C. § 6903(5) (2001). In order for a
waste to be regulated under Subtitle C, it must satisfy the regulatory definition of solid waste promulgated by the
EPA. See 42 U.S.C. § 6925 (a) (2001); Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc., 989
F.2d 1305 (2d Cir. 1993) (“Remington Arms II”). The regulatory definition of “solid wastes” includes “any
discarded material.” 40 C.F.R. § 261.2(a)(1) (1999). A “discarded material” is any material which is “abandoned.”
40 C.F.R. § 261.2(a)(2)(i) (1999).
Whether the fired shot and target debris fall under the regulatory definition of solid waste turns on the
interpretation of “abandoned.” To ascertain the meaning of the term abandoned in the RCRA context, the Court
need look no further than the statute itself. Under RCRA regulations, a material is abandoned when it has been
“disposed of.” 40 C.F.R. § 261.2(b)(1) (1999). RCRA defines “disposal” as the “discharge, deposit, injection,
dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water …” 42
U.S.C. § 6903(3) (2001). The fired shot and debris is this case have clearly been “disposed of” under the RCRA
definition. The lead and skeet targets were discharged into the air and deposited into and around Sheldrake Pond.
The fact that both waste materials passed through the air prior to landing in the pond and surrounding area is
irrelevant. “Disposal” is defined very broadly under RCRA, in keeping with the intent of Congress that the statute
have a wide application. See H.R. Rep. No. 1491, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.C.C.A.N. 6238,
6240 (2001).
The lead shot and target debris have also been “abandoned” by Suave under the ordinary meaning of the
term. According to Black’s Law Dictionary, abandonment is defined as “to desert, surrender, or to give up or cease
to use.” Black’s Law Dictionary 2 (6th ed. 1990). Further, in promulgating the regulations for determining which
materials are “abandoned,” the EPA indicated that it did not “intend any complicated concept, but simply mean[t]
thrown away.” 50 Fed. Reg. 614, 627 (January 4, 1985). Suave has indicated no intent to ever retrieve the
materials. Instead, the lead shot and skeet debris have been allowed to accumulate in Sheldrake Pond and, as a
result, have been abandoned for the purposes of RCRA regulation.
Forsaking the traditional tools of statutory construction, the lower court in the present case determined that
the lead shot and target debris do not constitute solid waste under the regulatory definition. See Birdwatchers of
Groveton at 10. The court below argued that the EPA has determined that the regulation defining solid waste does
not include consumer products used for their intended purposes. Id. The court considered itself bound by the EPA’s
interpretation of its own regulation and thus concluded that the waste materials in the present case fit under this
exception. Id. The lower court erred in two respects. First, no exemption for products serving their intended
purposes exists either in the statute or in regulations promulgated thereunder. Second, the court overstated the
degree of deference given to agency interpretations of statutes and regulations.
The lower court erred in holding that lead shot and target debris are not “discarded” under the regulatory
definition because the shooting of skeet involves the intended use of a consumer product. The intended purpose
principle derives from an established EPA precedent that provides that materials that involve application to the land
as part of their ordinary manner of use are not solid wastes. See 62 Fed. Reg. 6622, 6630 (2001). The reasoning
behind this exception is that because such materials are applied to the land as part of their intended use, such
application does not involve abandonment, and therefore the materials are not solid wastes under RCRA. See 40
C.F.R. § 266.202(a)(1) (2001); 62 Fed Reg at 6628 (2001).
The EPA, however, has never applied the intended purpose principle to the discharge of lead shot and skeet
targets at firing ranges. The EPA has only use this exception for products, such as pesticides and explosives, that
involve direct application to the land in the ordinary manner of use. 62 Fed Reg at 6630 (2001). The intended use
of lead shot and skeet targets does not involve direct application to the land. Instead, both products are intended to
be fired into the air for the purposes of sport shooting. The intended use of the lead shot and target debris has been
served by the time the materials reach the ground. The fact that the spent shot and target debris eventually end up on
the ground is irrelevant in a determination of the intended use of the product. Applying the exemption to all
products that eventually end up on the ground would leave “RCRA … without teeth, since virtually all waste could
fit within this loophole.” Connecticut Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc., 777 F. Supp. 173
(D.C. Conn. 1991) (“Remington Arms I”).
The lower court’s holding that an agency’s interpretation of its own regulation is dispositive overstates the
degree of deference given by courts to agency findings. An agency’s interpretation of its own regulation will be
accepted unless “plainly inconsistent with the wording of the regulations.” United States v. Larionoff, 431 U.S. 864,
872-873 (1977). Further, in Baltimore Gas and Electric Co. v. National Resources Defense Council, 462 U.S. 87
(1983), this Court held that an EPA decision would be upheld only where it was demonstrated that the agency
considered the relevant factors and articulated a rational connection between the facts found and the choices made.
The EPA has not met the requisite level of showing in this case. The EPA has not promulgated a regulation
exempting products used for their intended use from RCRA regulation as solid waste. Although exempting such
products may be the current EPA policy, general policy statements are not entitled to the level of deference outlined
by this Court in Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984). See Joseph v.
United States Civil Serv. Comm’n., 554 F.2d 1140, 1154 n.26 (D.C. Cir. 1977). Congress has not delegated to EPA
the authority to issue binding agency interpretations in a format other than a legislative rule. The EPA has not
promulgated a rule outlining the intended purpose exception through a formal process in conformance with the APA
public participation requirements. As such, the EPA’s interpretation of the regulation as including the intended
purpose exception does not reflect the kind of careful and reasoned agency policymaking that this Court has held
entitled to Chevron deference. Cf. American Hospital Ass’n. v. National Labor Relations Board, 499 U.S. 606, 608
(1991).
In its determination that fired lead shot and skeet targets do not constitute solid waste, the lower court read
the solid waste definition too narrowly. Although the regulatory definition of solid waste is arguably narrower than
the statutory definition, it is only more restrictive by requiring the element of abandonment. Furthermore, finding
that the waste materials in the present case to be within the regulatory definition of solid waste would not expand the
scope of RCRA beyond congressional intent. Defendants in other cases have argued that a broad reading of the
regulatory definition of solid waste would lead to RCRA regulation of a wide variety of situations unintended by
Congress, including the loss of golf balls by individual golfers and bullets by individual hunters. As other courts
have determined, however, this parade of horribles could not arise under the current RCRA regulatory scheme. See,
e.g., Remington Arms I at 188-189. Under RCRA definitions, hazardous waste is defined as a “solid waste …
which because of its quantity, concentration, or physical, chemical, or infectious characteristics may … cause risks
to health or the environment.” 42 U.S.C. § 6903(5) (2001). The disposal of golf balls and bullets by individual
hunters likely would not meet the quantity or concentration threshold requirements to be considered hazardous
wastes. In the present case, however, large quantities of lead shot and target debris have been allowed to accumulate
in and around Sheldrake Pond and will continue to do so absent RCRA regulation.
The focus of the lower court on the method by which the shot and target debris reach the pond, instead of
the end result, is misguided. Taking the lower court’s argument to its logical conclusion, the shot and target debris
would be solid waste under the regulatory definition if they were dumped directly into the pond instead of reaching
the water and surrounding lands indirectly. This simply cannot be the case. The purpose of RCRA was to address
“inadequate and environmentally unsound practices for the disposal or use of solid waste [which] have created
greater amounts of air and water pollution and other problems for the environment and for health.” 42 U.S.C. §
6901(b)(3) (2001). The disposal of waste materials from the shooting range into Sheldrake Pond is clearly an
environmentally unsound practice that can properly be regulated by RCRA. Suave has abandoned the lead shot and
skeet targets into and around Sheldrake Pond for the purposes of the regulatory definition of solid waste. The ruling
of the lower court that the waste materials did not constitute solid waste under the regulatory definition was thus
improper.
D.
FIRED LEAD SHOT AND SKEET TARGET DEBRIS ARE “SOLID WASTES” FOR THE
PURPOSES OF THE CITIZEN SUIT PROVISIONS CONTAINED IN 42 U.S.C. §
6972(a)(1)(B).
Like other federal environmental statutes, RCRA includes citizen suit provisions. Section 7002 allows
private citizens and other “persons” to bring a civil suit against any person alleged to be in violation of any permit,
standard, regulation, condition, requirement, prohibition or order under the Act. See 42 U.S.C. 6972(a)(1)(A)
(2001). Unlike other environmental statutes, RCRA also permits citizen actions to address imminent hazards. See
42 U.S.C. 6972(a)(1)(B) (2001). Section 6972(a)(1)(B) states in relevant part that “any person may commence a
civil action on his own behalf” against any other person who “has contributed or who is contributing to the past or
present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present
an imminent and substantial endangerment to health or the environment.” Id.
Courts have consistently held that the statutory definition of solid waste applies to “imminent and
substantial endangerment” citizens suits under RCRA. See, e.g., Remington Arms II at 1314. The statutory
definition of solid waste under RCRA is “any garbage, refuse, … and other discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural
operations, and from community activities …” 42 U.S.C. § 6903(27) (2001). Whether the lead shot and target
debris are considered hazardous waste under the statutory definition turns on the interpretation of “discarded
material.”
This case presents a pure question of statutory construction. “The starting point in interpreting a statute is
its language, for ‘if the intent of Congress is clear, that is the end of the matter.’” Good Samaritan Hospital v.
Shalala, 508 U.S. 402, 410 (1993) (quoting Chevron at 842). In ascertaining whether there is such a “plain
meaning,” this Court “must look to the particular statutory language at issue, as well as the language and design of
the statute as a whole.” K Mart Corp. v. Cartier, 486 U.S. 281, 291 (1988). The Court may also consider any
relevant judicial canons of statutory construction in determining whether the meaning of the statutory language is
sufficiently plain to give it controlling weight. See DeBartolo Corp. v. Florida Gulf Coast Building and
Construction Trades Council, 485 U.S. 568 (1988). Of particular relevance to this case is the established canon that
“any exemption from … remedial legislation must … be narrowly construed, giving due regard to the plain meaning
of the statutory language.” A.H. Phillips v. Walling, 324 U.S. 490, 493 (1945).
While the statute offers no definition of the term “discarded material” the ordinary plain-English meaning
of the word discarded is “disposed of, thrown away, or abandoned.” American Mining Congress v. United States
Envtl. Protection Agency, 824 F.2d 1177, 1183-1184 (D.C. Cir. 1987) (“AMC I”). In its analysis of the term
discarded, the court in AMC I also noted that the “term ‘discarded’ is neither inherently difficult to define nor is so
intimately tied to knowledge of the industry and the practicalities of regulation that definition requires agency
expertise.” Id. at 1184, n. 7.
In addition to considering the ordinary meaning of the discarded, courts have also looked to the overall
“purpose of the particular legislation” in an attempt to divine congressional intent. Id. (quoting Burnet v. Chicago
Portrait Co., 285 U.S. 1, 6 (1932)). The broad objectives of RCRA are to “promote the protection of health and the
environment and to conserve valuable material and energy resources.” 42 U.S.C. § 6902 (2001). Further, the
legislative history reveals that RCRA was intended to have a broad reach:
“It is not only the waste by-products of the manufacturing processes with which the committee is
concerned; but also the products themselves once they have served their intended purposes and are
no longer wanted by the consumer.” Remington Arms II at 1314 (quoting H.R. Rep. No. 1491,
94th Cong., 2d Sess. 4 (1976)).
In addition, the legislative history specifically states that the term discarded material “is meant to expand, not limit
the common meaning of the term solid waste.” 45 Fed. Reg. 33084, 33091 (1980).
The meaning of “discarded material” in the context of skeet shooting ranges has been considered by several
previous courts. In Remington Arms II, the Second Circuit found that lead shot generated by a gun club which was
scattered over the land and waters surrounding the club was a hazardous waste under the RCRA statutory definition.
Remington Arms II at 1316-1317. In its analysis of the term solid waste found at 42 U.S.C. § 6903(27), the court
focused on the portion of that definition referring to “ … other discarded material … resulting from industrial,
commercial, mining and agricultural operations and from community activities,” and concluded that a gun club was
clearly a commercial or community activity. Id. at 1314. The court stated that the language in the legislative history
suggested an intention that RCRA have a broad reach and apply not just to waste products, but to the products
themselves where they have served their intended purposes and were no longer wanted by the consumer. Id. In
attempting to determine whether the lead shot had served its intended purpose, the court reviewed the statutory
definition at 42 U.S.C. § 6903(3) which refers to “discharge, deposit, injection, dumping, spilling, leaking or placing
any solid waste into or on any land or water.” Id. The court finally concluded that the lead shot had been clearly
discarded, having been “left to accumulate long after they have served their intended purpose.” Id. at 1316; see also
American Petroleum Inst. v. EPA, 906 F.2d 729, 741 (D.C. Cir. 1990) (“API I”) (holding that once product is
“indisputably ‘discarded’” it has become part of the waste disposal problem and may be regulated under RCRA”).
The facts in the present case are extremely similar to those in Remington Arms II. As in Remington Arms
II, Suave operates a gun club that would be classified as a commercial operation or community activity under the
solid waste definition. Suave’s gun club discharges lead shot and target debris into and surrounding Sheldrake
Pond. The waste materials discarded into Sheldrake Pond were indisputably discarded under the ordinary meaning
of the term when they were left to accumulate long after they have served their intended purpose.
As in the case of the regulatory definition, the court below erred in concluding that the regulatory definition
of solid waste contains an exemption for products serving their intended purpose. Again, the EPA has never
promulgated a regulation excluding such products from the statutory definition of solid waste for the purpose of
RCRA regulation. Indeed, the EPA agrees with BOG that no such exemption exists. Even if such an exemption
existed, the materials had served their intended purposes by the time they land in and around Sheldrake Pond. At
this point, the materials had been “indisputably discarded” and had “become part of the waste disposal problem and
may be regulated by RCRA.” API I at 741.
Once a material is classified as solid waste under the statutory definition, it must also be shown that the
waste materials pose an imminent and substantial endangerment to health and the environment. See 42 U.S.C. §
6972(a)(1)(B) (2001). A finding of “imminency” does not require that a concrete harm will occur so long as the risk
of threatened harm is present. See Environmental Defense Fund v. EPA, 465 F.2d 528, 535 (D.C. Cir. 1972). In
addition, the word “may” was intended by Congress to provide the courts with broad powers that are not limited to
emergency situations, but rather extend to eliminating any risk posed. See United States v. Price, 688 F.2d 204, 214
(3d Cir. 1982). Courts have also consistently held that “endangerment” means a threatened or potential harm and
does not require proof of actual harm. See Dague v. City of Burlington, 935 F.2d 1343, 1356 (2d Cir. 1991).
The waste materials discarded into and around Sheldrake Pond pose an imminent and substantial
endangerment to the environment. At least one of the materials – spent lead shot – has been found to be hazardous
waste as a matter of law by previous courts due to its toxicity. 1 See Remington Arms II at 1317. As a result,
Suave’s disposal of solid and hazardous waste into and about Sheldrake Pond is creating an imminent and
substantial endangerment, actionable under § 6972(a)(1)(B).
In contrast to the dense and somewhat circuitous definition of “solid waste” contained in the RCRA
regulations, the statutory language is clear and unambiguous on its face. Under RCRA, solid waste is simply
defined as “discarded material.” Courts considering the meaning of discarded material have determined that
Congress intended the term to have a broad reach. In accordance with the intent of Congress, the EPA applies the
broader definition of solid waste for remedial purposes in contrast to regulatory purposes in order to preserve the
widest latitude to address imminent threats to human health and the environment. In effect, RCRA’s solid waste
jurisdiction covers all “discarded materials” that do not fall into four narrow statutory exemptions. 2 See 42 U.S.C. §
6903(27) (2001). This broad definition easily encompasses the waste materials at issue in the present case. By
RCRA defines “hazardous waste” as “solid waste … which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may … pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed of …” 42 U.S.C. § 6903(5)(B). Certain
wastes have been listed by the EPA as hazardous pursuant to 40 C.F.R. § 261.30. In the alternative, a waste is
considered hazardous if it exhibits any of the characteristics identified in 40 C.F.R. §§ 261.20 through 261.24:
ignitability, corrosivity, reactivity, or toxicity. Lead has been determined to meet the toxicity requirement contained
in § 261.24.
2
The exemptions include: 1) domestic sewage, 2) irrigation return flows, 3) industrial discharges covered by section
402 of the Clean Water Act, and 4) nuclear source, or by-product material regulated under the Atomic Energy Act of
1954. 42 U.S.C. § 6903(27).
1
discharging lead shot and skeet targets into and around Sheldrake Pond, while expressing no intent to ever retrieve
the materials, Suave has discarded solid waste under the RCRA statutory definition. These solid wastes pose an
imminent and substantial threat to health and the environment redressible under RCRA’s citizen suit provisions.
CONCLUSION
The district court erred in granting summary judgment, as Suave did violate the CWA
and the RCRA, and federal jurisdiction over Suave’s activities with regard to Sheldrake Pond is
supported by the Treaty Power and the Commerce Clause. Therefore, BOG requests that the
decision of the district court be vacated and remanded for trial.
CERTIFICATION
We hereby certify that this brief has been prepared in accordance with the Official Rules
of the National Environmental Moot Court Competition, and the work product is solely our own.
________________________
________________________
________________________
Team #35
Civ. No. 01-878
IN THE
UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT
Birdwatchers of Groveton, Inc.
and
United States of America,
Plaintiffs-Appellants
v.
Suave Real Properties, Inc.,
Defendant, Appellee
ON APPEAL
from the
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW UNION
BRIEF FOR PLAINTIFF-APPELLANT
BIRDWATCHERS OF GROVETON, INC.
Counsel for Birdwatchers of Groveton, Inc.
Plaintiff-Appellant
K. QUESTIONS PRESENTED
I.
Did the court below err in holding that fired shot and skeet parts are not solid waste when
they fall to the ground under EPA’s definition of solid waste in 40 C.F.R. § 261.2?
II.
Did the court below err in holding that fired shot and skeet
parts are not solid waste when they fall to the ground under
42 U.S.C. § 6972(a)(1)(B)?
III.
Did the court below err in holding that Suave did not violate the CWA because Sheldrake
Pond is not a navigable water under the CWA, 33 U.S.C. §§ 1311(a), 1362(7) & (12)? Is
this case governed by the amendment made to § 1362(7) in 2001? If so, does that
amendment extend the jurisdiction of the CWA over Sheldrake Pond?
IV.
Did the court below err in holding that neither the
Commerce Clause nor the Treaty Clause of the Constitution
justify federal regulation of water pollution in Sheldrake
Pond?
i
L. TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................................................................................... i
TABLE OF CONTENTS .............................................................................................................. ii
TABLE OF AUTHORITIES ....................................................................................................... v
OPINION BELOW ....................................................................................................................... 1
STATUES AND REGULATIONS INVOLVED ........................................................................ 1
STATEMENT OF THE CASE .................................................................................................... 1
STANDARD OF REVIEW .......................................................................................................... 2
SUMMARY OF THE ARGUMENT ........................................................................................... 2
ARGUMENT ................................................................................................................................. 3
I. THE LEAD SHOT AND CLAY SKEET AT SUAVE’S FIRING RANGE FALL
UNDER THE REGULATORY RCRA DEFINITION OF SOLID WASTE IN 40 C.F.R.
§ 261.2. ........................................................................................................................................ 3
A. The EPA Fails to Receive Chevron Deference.............................................................. 3
1. Since Congress has not spoken directly to the issue of a consumer use exemption the
EPA fails the first prong of Chevron. ................................................................................ 4
2. EPA’s unwritten exemption also fails the second prong of Chevron because it is an
unreasonable interpretation............................................................................................... 4
i. EPA’s informal adoption of the unwritten consumer use exemption fails to
receive Chevron deference. ......................................................................................... 4
ii. The unwritten exemption fails to gain Chevron deference since it is
inconsistently applied.................................................................................................... 6
iii. The unwritten exemption fails to gain Chevron deference since the EPA’s
support is unpersuasive. ............................................................................................... 7
B.
EPA Fails to Receive Skidmore Deference. ................................................................ 8
C. Lead ammo and clay skeet are considered “abandoned” under § 40 C.F.R.
261.2(b)(1). ........................................................................................................................... 10
II. THE SHOT AND CLAY SKEET AT SUAVE’S FIRING RANGE FALL UNDER
THE STATUTORY RCRA DEFINITION OF SOLID WASTE IN 42 U.S.C. § 6903(27).
................................................................................................................................................... 11
ii
A.
The EPA’s interpretation deserves Chevron deference. ......................................... 12
1. The Military Munitions Rule shows the EPA understood Congress would enumerate
when it wanted an exemption. ......................................................................................... 13
2. If the government wanted to include a statutory consumer use exemption it could
have done so explicitly as it has in the past ..................................................................... 15
B.
EPA’s Interpretation Would also Pass the less Deferential Skidmore test............ 16
III. SUAVE MUST ABIDE BY THE CLEAN WATER ACT SINCE SHELDRAKE
POND FALLS UNDER THE ACT’S REACH. ................................................................... 17
A.
Sheldrake Pond falls under the plain meaning of the CWA’s navigable water. ... 17
B. The Clean Water Act’s history necessitates a broad reading of the term
“navigable.” ......................................................................................................................... 18
C.
Courts have correctly given a broad reading to “navigable.” ................................ 19
1. This case fails to fall under the narrow holding of SWANCC. .................................. 20
2. SWANCC still recognizes the COE’s and the EPA’s definition of “navigable
waters.” ............................................................................................................................. 21
3. The recent amendment made to § 1362(7) governs in this case. ................................ 22
i. Though the amendment was passed after BOG filed its complaint, the
amendment still applies to this case........................................................................... 23
IV. THE COMMERCE CLAUSE AND THE TREATY CLAUSE OF THE
CONSTITUTION JUSTIFY REGULATION OF WATER POLLUTION IN
SHELDRAKE POND. ............................................................................................................ 24
A.
The Commerce Clause can regulate the pollution at Sheldrake Pond................... 24
1. ............. Suave's destruction of migratory birds and their habitats substantially affects
interstate commerce.......................................................................................................... 25
i. Lead shot is a hazardous waste known to kill migratory birds. .......................... 25
ii. Industry surrounding migratory birds is a billion dollar endeavor. ................. 26
2. Suave's pollution is destroying the ecosystem at Sheldrake Pond. ............................ 26
B. The Treaty Clause can regulate the pollution at Sheldrake Pond ............................. 27
iii
1.Suave's polluting of Sheldrake Pond violates the treaty between the United States and
Great Britain..................................................................................................................... 27
2.Suave's Polluting of Sheldrake Pond Violates a Treaty Between the United States and
Mexico, Japan, and Russia. ............................................................................................. 28
CONCLUSION............................................................................................................................ 28
APPENDIX A ............................................................................................................................A-1
APPENDIX B.............................................................................................................................B-1
iv
M. TABLE OF AUTHORITIES
United States Supreme Court Cases
Bragdon v.Abbott, 524 U.S. 624 (1998)…………………………………………………………11
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)…….…………4, 5, 6, 7, 8, 9, 10, 14, 15, 17
Christensen v. Harris County, 529 U.S. 576 (2000)………………………………….....….6, 7, 11
Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102 (1980)…………….…19
I.N.S. v. Cardoza-Fonseca, 107 S.Ct. 1207 (1987)……………………………………………..…8
Landgraf v. USI Film Products, 511 U.S. 244 (1994)……………………………………….…..28
Missouri v. Holland, 252 U.S. 416 (1920)…………………………………………………...33, 35
North Dakota v. U.S., 460 U.S. 300 (1983)…................………………………………………...34
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1856)……………………..….28
Skidmore v. Swift & Co., 323 U.S. 134 (1944)…………….……..……....5, 10, 11, 12, 14, 17, 18
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineer (SWANCC), 531 U.S. 159
(2001)………........…………………...…21, 22, 23, 24, 25, 26, 27, 31
United States v. James, 478 U.S. 597 (198)…………………………………………………...…19
United States v. Klein, 80 U.S. 128 (1871)……………………………………………….…28, 29
United States v. Lopez, 514 U.S. 549 (1995)………………………………………………..29, 30
United States v. Mead Corp., 121 S.Ct 2164 (2001)………………………….....6, 7, 8, 10, 11, 14
Unites States v. Morrison, 529 U.S. 598 (2000)…………………………………………..…29, 30
United States v. Riverside Bayview Homes, 474 U.S. 121, 123 (1985)...…........17, 22, 23, 24, 32
Watt v. Alaska, 451 U.S. 259, 273 (1981)…………………………………………………….......8
United States Court of Appeal Decisions
Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct and Sewer Authority, 888 F.2d 180 (1st Cir.
1989)………………………………………………………………………………….18
Connecticut Coastal Fishermen’s Association v. Remington Arms Co., Inc., 989 F.2d 1305 (2nd Cir.
1993)………………………………………………………………….9, 11, 12, 13, 17, 19, 30
Deltona Corp. v. U.S., 657 F. 2d 1184 (Ct. Cl. 1981)………......………………………. …...…22
Hoffman Homes Inc, v. EPA, 999 F. 2d 256 (7th Cir. 1993)……........………….......................32
v
Matz v. Household International Tax Reduction Investment Plan, 2001 WL 1027275
2001)…………………………………………………………………………………………11, 12
(7th Cir.
Neighborhood Against Golf v. Recreation Enterprises, Inc., 150 F.3d 1029 (12th Cir. 1999)…..
…………………………………………………………………………………...……..9,10, 17, 19
Palila v. Hawaii Dept. of Land and Natural Resources, 639 F.2d 495 (9th Cir. 1981)................33
United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979)……………........................ ………….….32
United States v. Holland, 874 F.2d 1470 (11th Cir. 1989)............................................................22
United States District Court Opinions
American Mining Congress v. U.S. EPA 824 F.2d 1177 (D.C. Cir. 1987)…………….....8, 12, 16
American Petroleum Institute v. US EPA, 216 F.3d 50 (D.C. Cir. 2000)……………………6, 11
Association of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000)………….12
Birdwatchers of Groveton v. Suave Real Properties, District of New Union (D.
2001)………………..…………………………………………............................................... 9, 17
New
Union
Long Island Soundkeeper Fund, Inc v. New York Athletic Club of the City of New York, 1996 WL 131863
(S.D.N.Y)………………………………………………………………….8, 9, 11, 13
Natural Resource Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.C. Cir. 1975)……...22
Palila v. Hawaii Dept. of Land and Natural Resources, 471 F. Supp. 985
(1979))……………………………………………………………………………...…………….33
(D.C.
Hawaii
Reading Co. v. City of Philadelphia, 823 F. Supp. 1218 (E.D. Pa. 1993)…..………………..….18
Sims v. CIA, 709 F.2d 95 (D.C. Cir. 1983)……….....................................……………………..17
Vanmoor v. Walmart Stores, Inc., 201 F.3d 1363 (Fed. Cir. 2000)…..........……………………..3
Wyoming v. Hoffman, 437 F. Supp 114 (D. Wyo. 1977)…............…………………………….22
Constitutions, Statutes, and Regulations
U.S. CONST. ART. I, § 8 ……………………………………………………………….…………1
U.S. CONST. ART. II, § 2………………………………………………..………………..……1, 33
33 U.S.C. § 1251 (1972).…...………………………………………………………....…....…1, 21
33 U.S.C. § 1311(a) (1995)…………...…………………………………………………2, 3, 19,20
33 U.S.C. § 1342 (1972)........……………………………………………………………..2, 19, 20
33 U.S.C. § 1344 (1987)……………………………………………………………….….2, 20, 25
vi
33 U.S.C. § 1362(7) (2001)……………....……………………………………….3, 19, 20, 21, 26
33 U.S.C. § 1362(12) (1972)…………………………………………………………...…3, 19, 20
42 U.S.C. § 6901 (1976)..…...………………………………………………………….…1, 18, 26
42 U.S.C. § 6903(27) (1976)…………………………………………..…….3, 5, 9, 10, 13, 15, 18
42 U.S.C. § 6921(a) (1976)………………………………………………………………………..6
42 U.S.C. § 6921(b) (1976)…………………………………………………………………….....6
42 U.S.C. § 6924 (1996)…………………………………………………………………………15
42 U.S.C. § 6935(a) (1980)……………………………………………………………………….2
42 U.S.C. § 6972(a)(1)(B) (1982)……….……………………………… …………………....2, 13
42 U.S.C. § 6992(k) (1988)……………………………………………………………………...26
42 U.S.C. § 9601(9) (1980)…………………………………………………………….……..8, 16
33 C.F.R. § 328 (1993)...…………………………………………………………….20, 25, 26, 28
40 C.F.R. § 122.2 (1983)…………………………………………………………….20, 26, 27, 29
40 C.F.R. § 261.2 (1985)………………………………………….3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15
40 C.F.R. § 261.24 (1990).............................................................................................................13
40 C.F.R. § 261.33(f) (1980)……………………………………….………………………...….13
40 C.F.R. § 266.205 (2001)................................................................................................... ..14, 15
50 C.F.R. § 20.21(j) (1973)…………………………………………………………………..….31
TREATIES
Convention for the Protection of Migratory Birds, United States-Great Britain (on behalf of Canada), 39 Stat. 1702,
1704 (Aug. 16, 1916)…………………………………………………..34
Convention for the Protection of Migratory Birds and Game Mammals, United States-United Mexican States, 50
Stat. 1311, 1313 (Feb. 7, 1936)……………………………………………..34
Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, United
States-Japan, 25 U.S.T. 3329 (March 4, 1972)……………………....34, 35
vii
Convention for the Conservation of Migratory Birds and Their Environment, United States-Union of Soviet Socialist
Republics (Russia), 92 Stat. 3110 (Nov. 26, 1976)………………..….35
Congressional Materials
40 Fed. Reg. 31325 (1975)…………………...........…………………………………………….22
51 Fed. Reg. 41206 (1986)…………............………………………………………………..24, 25
64 Fed. Reg. 45,632 (1999)..………………………………………………………………….....16
H.R. Rep. No. 1491, 94th Cong., 2d Sess. 4 (1976)………...……………………..…..7, 10, 12, 16
P.L. 106-720 (2001)…………….................................................................……………………..27
Pub. L. No. 94-616 (1984).............................................................................................................16
S. Rpt. 92-414 (1971)……..........………………………………………………………....……...21
S. Conf. Rep. No. 92-1236 (1972)……………………............………………………………….21
Other Secondary Sources
EPA, America's Wetlands: Our Vital Link Between Land and Water, (visited Nov.
<http://www.epa.gov/OWOW/wetlands/vital/toc.html> .........................................…………….32
20,
2001)
Federal Regulation of Isolated Wetlands After SWANCC, 31 ELR 10669 (June, 2001)……….20
Glen C. Sanderson and Frank C. Bellrose, Review of the Problem of Lead Poisoning in Waterfowl, htm (last
updated Oct. 17, 1997) <http://www.npwrc.usgs.gov/resource/othrdata/
pbpoison/PBPOISIN>.………………………………………….....……………………………31
Michael S. Gilmore, Application of Statutory Changes to Cases in Progress: The Crossroads of the Legislative and
Judicial Power, 34 Idaho L. Rev. 517, 523 (1998)………………………….28
Remington Arms Company, Steel v. Lead: Differences You Should Know (visited Nov. 20, 2001) <http://www.
remington.com/ammo/PAGES/shotshell/ STLVSLD.HTM>.............….....31
Sam Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal
Jurisdiction Over Wetlands, 69 N.D.L. Rev. 873 (1993)………………………….…21
viii
N. OPINION BELOW
The unpublished opinion of the United States District Court for the District of New
Union appears in Appendix A.
O. STATUES AND REGULATIONS INVOLVED
The statutes relevant to this case are the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et
seq and the Clean Water Act, 33 U.S.C. §§ 1251 et seq. The constitutional provisions relevant to this case are the
Commerce Clause, U.S. CONST. ART. 1, § 8 and the Treaty Clause, U.S. CONST. ART. II, § 2.
P. STATEMENT OF THE CASE
This is an appeal from a grant of summary judgment in favor of Suave Real Properties (Suave) and against
Birdwatchers of Groveton (BOG), a group consisting of birdwatchers that live in and watch the birds of Groveton
County. (R. at 3). Members of BOG have been watching birds on Sheldrake Pond (the “Pond”) in Groveton County
for nearly two decades. (R. at 3). During these years of observation, members recorded over two hundred species
of birds at the Pond or its banks. (R. at 3). The long, narrow, and shallow pond is an important habitat for many
migratory birds, both aquatic and terrestrial. (R. at 3). Many of these birds migrate between the United States and
Canada or Mexico including: Mexican ducks, jacanas, avocets, sandhill cranes and warbling vireos. (R. at 3).
However, the birdwatching activities had to stop after Suave opened the Groveton Rifle and Pistol Association
(GRAPA) in 2000 near Sheldrake Pond. (R. at 3).
The GRAPA facility consists of a pad for skeet shooters, a device to eject the skeet into the air, and a firing
range. (R. at 3). As part of the operation of the GRAPA facility, Suave filled a portion of the Pond to build the
platform for skeet shooting. (R. at 3). Suave ejects skeet over the Pond and as the shooters either hit or miss the
skeet, skeet parts and spent lead shot fall into and around the Pond. (R. at 3, 4). Suave owns the land to the west
and south of the Pond, and the western end of the Pond. (R. at 3). The County owns the land to the east and north
of the Pond, and the remainder of the Pond. (R. at 3). Skeet parts and lead shot commonly fall into both Suave and
County owned land. (R. at 4). The GRAPA firing range is located near the eastern end of the Pond. (R. at 4).
There is a berm about fifty feet behind the targets designed to catch the spent shot but occasionally lead bullets
overshoot the berm and enter the Pond and surrounding land. (R. at 4).
On December 20, 2000, BOG brought suit against Suave. BOG alleged that Suave violated the Resource
Conservation and Recovery Act (RCRA) in two ways: 1) by disposing of hazardous waste (skeet and lead shot) into
and around the Pond without a RCRA permit, in violation of 42 U.S.C. § 6935(a) (1980); and 2) by Suave creating
an imminent and substantial endangerment by disposing of solid waste, actionable under 42 U.S.C. § 6972(a)(1)(B)
1
(1982). (R. at 4). BOG sought civil penalties and an injunction to cease pollution for the former allegation and an
injunction under the latter allegation. (R. at 4).
BOG also alleged that Suave violated the Clean Water Act (CWA) under 33 U.S.C. § 1311(a) (1995) in
two ways. (R. at 3, 4). First, the filling and maintaining of the fill in the Pond for the skeet platform without a
permit was a violation of CWA 33 U.S.C. § 1344 (1987). (R. at 4). Secondly, the ejection of skeet and lead shot
into the Pond constitutes either discharging fill material without a § 1344 permit or discharging pollutants into
navigable waters without a CWA 33 U.S.C. § 1342 (1972) permit. (R. at 4). BOG sought civil penalties and an
injunction to stop further pollution in the Pond. (R. at 4).
The EPA intervened in support of the latter RCRA violation and in both CWA allegations. (R. at 4).
Suave subsequently filed a motion for summary judgment that was granted in its entirety. (R. at 1). BOG
naturally opposed the motion on all grounds and now appeals the District Court’s ruling. (R. at 1).
The EPA
opposed the motion on three of the four issues, and is appealing the district court’s ruling on those issues. (R. at 1).
Q. STANDARD OF REVIEW
This Court must review de novo a District Court’s grant of summary judgment. Vanmoor v. Walmart
Stores, Inc., 201 F.3d 1363, 1365 (Fed. Cir. 2000).
R. SUMMARY OF THE ARGUMENT
The decision of the United States District Court of New Union granting Suave’s motion
for summary judgment against BOG should be reversed.
First, there is no consumer use exemption to exclude Suave’s commercial activities under
the RCRA regulatory definition of “solid waste” at 40 C.F.R. § 261.2 (1985). The EPA’s
erroneous reading of an unwritten consumer use exemption into the regulatory scheme fails to
receive any deference because the unwritten exemption was informal, inconsistent and
unpersuasive.
Second, the statutory definition of “solid waste” also fails to include a consumer use
exemption and thus Suave’s activities can be regulated under 42 U.S.C. § 6903(27) (1976). The
EPA correctly informed the lower court that the statutory definition of “solid waste” did not
include a consumer use exemption. The EPA’s interpretation deserves high deference since it is
based on formal rulemakings and the intent of Congress.
Third, Sheldrake Pond is a navigable water under the CWA, 33 U.S.C. §§ 1311(a),
1362(7) (2001) & (12) (1972). The legislative history of the Act clearly demonstrates the intent
of Congress to apply the CWA broadly to all waters of the United States that affect interstate
commerce. Additionally, the most recent amendment to the CWA § 1362(7) governs because
this is a case of prospective relief.
Fourth, Suave's activities at Sheldrake Pond are within the jurisdiction of the Commerce Clause. Suave's
activities have a direct and substantial effect on interstate commerce because they are destroying the ecosystem,
migratory birds, and migratory bird habitats by polluting the Pond with lead shot and clay skeet. Additionally, the
2
Treaty Clause has allowed the United States to make four treaties to protect migratory birds within the United States.
These valid treaties have supremacy over state law and thus permit federal regulation over Sheldrake Pond.
For these reasons, and as discussed more fully below, the District Court’s granting of summary judgment
should be reversed.
S. ARGUMENT
I. THE LEAD SHOT AND CLAY SKEET AT SUAVE’S FIRING RANGE FALL UNDER THE
REGULATORY RCRA DEFINITION OF SOLID WASTE IN 40 C.F.R. § 261.2.
Suave’s skeet range pollutes the area in and around Sheldrake Pond with lead shot waste and clay target waste.
(R. at 3, 4). These wastes can be regulated by the Resource Conservation and Recovery Act (RCRA) because they
meet the regulatory definition of “solid waste” promulgated by the Environmental Protection Agency (EPA) under
40 C.F.R. § 261.2.3 That definition specifically fails to include a “consumer use exemption” that would allow
materials used as intended to be unregulated. However, the EPA told the lower court that 40 C.F.R. § 261.2 does
indeed include what appears to be an unwritten consumer use exemption. The lower court deferred to the EPA and
ruled Suave’s waste could not be regulated under RCRA.
However, this level of deference to the EPA’s
interpretation is incorrect. To understand why Suave’s waste can be regulated under RCRA, the Court must examine
what type of deference can be given to the EPA and its unwritten exemption. First, it will be shown that the lower
court’s high level of deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), was misplaced since the
EPA’s unwritten exemption was informal in nature, applied inconsistently and unpersuasively. Second, it will be
shown that the EPA’s interpretation fails to even receive the lower level of deference as seen in Skidmore v. Swift &
Co., 323 U.S. 134 (1944) because the EPA has failed to show expertise in this area by applying the unwritten
exemption inconsistently and against the very purpose of the statute. Thus, because the lower court erred in
accepting the unwritten consumer use exemption, it ignored the fact that the lead and skeet are solid waste under 40
C.F.R. § 261.2.
The EPA Fails to Receive Chevron Deference.
When the EPA has applied the unwritten consumer use exemption it has done so in such an informal
manner and so inconsistently and unpersuasively that it fails to receive the high deference accorded under Chevron.
When viewing an agency’s decision, the United States Supreme Court has developed a two-prong test as related in
3
The definition requires solid waste to be both “discarded” and “abandoned.” See 40 C.F.R. § 261.2(a),(b)
3
Chevron. If the first prong is not met, then an agency can still receive Chevron deference as long as the requirement
of the second prong is met. However, the EPA’s interpretation fails both prongs of Chevron because Congress did
not directly include a consumer use exemption and because the EPA’s interpretation of the statute was not
reasonable.
1. Since Congress has not spoken directly to the issue of a consumer use exemption the
EPA fails the first prong of Chevron.
The first step of the Chevron analysis requires a reviewing court to consider whether Congress “has directly
spoken to the precise question at issue.” Chevron, 467 U.S. at 842. Congress has not spoken directly to any
consumer use exemption, written or not, in RCRA. Instead, what Congress did was twofold: first, it created a
statutory definition of non-hazardous waste. (This definition will be further discussed in Section II. See 42 U.S.C. §
6903(27).) Second, Congress directed the EPA to develop specific “criteria” for the identification of hazardous
wastes, which thus led to the promulgation of 40 C.F.R. § 261.2, the regulatory definition of hazardous “solid
waste.” 42 U.S.C. § 6921(a),(b) (1976); see American Petroleum Institute v. US EPA, 216 F.3d 50, 54 (D.C. Cir.
2000). Neither the statutory definition nor the statute allowing the EPA to promulgate 40 C.F.R. § 261.2 intonates
that RCRA should include a consumer use exemption loophole. Since Congress failed to speak directly to the issue,
the EPA may not receive Chevron deference by way of the first prong. The EPA also fails to pass the second prong
of Chevron.
2. EPA’s unwritten exemption also fails the second prong of Chevron because it is an
unreasonable interpretation.
The EPA’s unwritten consumer use exemption also fails under the second prong of Chevron. Chevron’s
second prong asks if “the agency’s answer is based on a permissible construction of a statutory provision for a
reasonable interpretation made by the administrator of an agency.” Chevron, 467 U.S. at 843-44. To help clarify
this second prong, the Supreme Court has recently given guidance in the form of Christensen v. Harris County, 529
U.S. 576 (2000) and U.S. v. Mead Corp., 121 S.Ct 2164 (2001). Under the clarifications of these cases, the EPA
fails to receive Chevron deference because its unwritten exemption is informal, it has been applied inconsistently
and its interpretation is unpersuasive. See Mead, 121 S. Ct. 2171
i. EPA’s informal adoption of the unwritten consumer use exemption fails to receive
Chevron deference.
4
Simply put, the less scrutiny an agency action is afforded before it is given
the force of law, the less deference the courts may give that action. In this case, the
unwritten exemption is an informal agency interpretation that fails to receive any
Chevron deference. The unwritten exemption is informal because it was never
mandated by Congress, nor subjected to notice-and-comment rulemaking, nor
adjudicated. Failing to give Chevron deference to informal agency interpretations
has been mandated recently by the Supreme Court when it announced “opinion
letters … policy statements, agency manuals, and enforcement guidelines, all of
which lack the force of law-do not warrant Chevron-style deference.” Christensen,
529 U.S. at 587; see also Mead 121 S.Ct. at 2175. (“…classification rulings are best
treated like ‘interpretations contained in policy statements, agency manuals, and
enforcement guidelines.’ … They are beyond the Chevron Pale”) (citations
omitted)(quoting Christensen, 529 U.S. at 587).
Though not disposative, a way to frequently gain Chevron deference is to show that the agency both had
and used the power to engage in adjudication or notice-and-comment rulemaking. See Mead, 121 S.Ct at 2171; see
also Christensen, 529 U.S. at 587. However, like in our case, a low level of deference, or even no deference, is
given where an agency had the power to formally promulgate the rule but failed to do so. Id. Additionally, the
Supreme Court recently noted that the overwhelming cases to obtain Chevron deference were actions that received
the fruits of notice-and-comment rulemaking or formal adjudication. In fact, the Court even went so far as to break
down its own decisions to demonstrate that it gave Chevron deference to nineteen rulemaking cases, eight
adjudication cases and only once did it mention a case that received Chevron deference that had neither rulemaking
procedures nor adjudication. See Mead, 121 S. Ct. at 2713.
In the case at bar, though the EPA had the power to promulgate a consumer use exemption when it enacted
40 C.F.R. § 261.2 it never did so. Instead it appears the agency never included a consumer use exemption in its
regulations because it realized that Congress did not intend RCRA to include such a loophole. See H.R.Rep. No.
1491, 94th Cong., 2d Sess. 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241 (RCRA was meant to eliminate “the
5
last remaining loophole in environmental law” when it came to discarded waste). Also the agency knew if Congress
had wanted such an exemption anywhere in RCRA, Congress would have added it into the statute itself. See the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601(9) (1980)
(defining "facility" to exclude "any consumer product in consumer use or any vessel"). Therefore, the unwritten
consumer use exemption fails to receive Chevron deference because of the informal manner in which it was
adopted.
ii. The unwritten exemption fails to gain Chevron deference since it is inconsistently
applied.
When the EPA has decided to apply its unwritten consumer use exemption, it has done so inconsistently.
By denying precedential effect to its own unwritten exemption, it also denies itself Chevron deference. See Mead
121 S.Ct. at 2169 (Court refused to give Chevron-deference in part because the Customs agency had expressly
denied precedential effect to its own interpretation). “Under settled doctrine, ‘[a]n agency interpretation of a
relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’
than a consistently held agency view.” American Mining Congress v. U.S. EPA, 824 F.2d 1177, 1182 (D.C. Cir.
1987) quoting I.N.S. v. Cardoza-Fonseca, 107 S.Ct. 1207, 1221 n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259,
273 (1981).
The EPA’s inconsistency begins with Long Island Soundkeeper Fund, Inc v. New York
Athletic Club of the City of New York, 1996 WL 131863 (S.D.N.Y). Like the case at bar, Long
Island involved a skeet range that was sued because of the lead and skeet being deposited on the
ground and in the water. In the Long Island case, the EPA claimed the fallen skeet and lead did
not fall under 40 C.F.R. § 261.2 because the spent rounds of ammo and clay target fragments
were not considered “discarded material” as required by the regulation. Id. at *9. This was
because the shot and target came to rest on land and in water as a result of their proper and
expected use and thus didn’t meet the regulatory requirement of being “abandoned.” Id.
Conversely, in another skeet range case where the question was if the lead ammo and
skeet fell under 40 C.F.R. § 261.2, the EPA diametrically opposed its original view.
6
“Specifically the EPA states that the materials are discarded because they have been ‘left to
accumulate long after they have served their intended purpose.’”
Connecticut Coastal
Fishermen’s Association v. Remington Arms Co., Inc., 989 F.2d 1305, 1316 (2nd Cir. 1993).
The court found that because the lead shot and clay were amassing in the water and on the land it
was “discarded” as required by 40 C.F.R. § 261.2(b)(1).
The EPA’s inconsistency in applying the unwritten exemption also shows that the agency’s current
application of the unwritten exemption fails to receive Chevron deference.
iii. The unwritten exemption fails to gain Chevron deference since the EPA’s support is
unpersuasive.
Finally, Chevron deference should not be given because the EPA’s arguments are unpersuasive.
Specifically the EPA is unconvincing in how it justifies the unwritten exemption and because the unwritten
exemption goes against the spirit of RCRA.
The EPA is unpersuasive in justifying the consumer use exemption because it does so by
claiming the power comes from the word “discarded” in the regulatory definition of “solid
waste” at 40 C.F.R. §261.2.4 Yet this same “discarded” requirement is also found in the statutory
definition of “solid waste” and the EPA claims no consumer use exemption exists there. See 42
U.S.C. § 6903(27); see also Birdwatchers of Groveton, 4; Neighborhood Against Golf, 150 F.3d
1029.
Both regulatory and statutory definitions define “solid waste” as “discarded material,” but
the regulatory definition is even more restrictive by also requiring solid waste to be
“abandoned.” See 40 C.F.R. § 261.2(a)(2),(b)(1). Though neither of these written definitions
4
See Birdwatchers of Groveton, 4 (D. New Union 2001) (because of the unwritten consumer use exemption lead
shot and clay skeet are not considered “discarded” under the regulatory scheme of RCRA); see also Long
Island,1996 WL 131863 (EPA said lead shot and target were meant to fall to the ground and thus could not be
regulated under 40 C.F.R. § 261.2 because the material was not “discarded”); Neighborhood against Golf v.
Recreation Enterprises, Inc.,150 F.3d (12th Cir. 1999) (EPA found no consumer use exemption in the statutory
definition of solid waste under RCRA).
7
includes a “consumer use exemption,” both “solid waste” definitions have this same “discarded”
requirement. 40 C.F.R. § 261.2; 42 U.S.C. § 6903(27). The EPA is unpersuasive by couching its
justification in the word “discarded” for the regulatory definition but then saying this same
justification is not allowed under the statutory definition.
The EPA is also unpersuasive considering RCRA was designed to “eliminate[] the last remaining loophole
in environmental law” regulating the “disposal of discarded materials and hazardous wastes.” H.R. Rep. No. 1491,
94th Cong., 2d Sess. 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241.
The reach of RCRA is meant to be broad:
It is not only the waste by-products of the nation’s manufacturing
processes with which the committee is concerned: but also the
products themselves once they have served their intended purposes
and no longer wanted by the consumer. For these reasons the term
discarded materials is used to identify collectively those substances
often referred to as industrial, municipal or post-consumer waste;
refuse, trash, garbage and sludge.
Id. at 2, 1976 U.S.C.C.A.N. at 6240. Thus, the EPA’s unwritten exemption fails to receive any
high level Chevron deference because of the unwritten exemption's informal nature and its
inconsistent application is not persuasive.
EPA Fails to Receive Skidmore Deference.
Mead emphasized that even if an agency action does not deserve Chevron deference, the agency action still
needs to be reviewed to see if it deserves Skidmore deference. Mead, 121 S.Ct. at 2175 (“Chevron did nothing to
eliminate Skidmore’s holding that an interpretation may merit some deference whatever its form”). However, this
case also fails to receive Skidmore deference since the agency’s lack of expertise has led it to juxtapose its own
recommendations, and the purpose behind the statute is contrary to the agency’s interpretation.
Skidmore directs the court to give an agency deference based on the agency’s experience. Skidmore, 323
U.S. at 140. An agency “‘constitute[s] a body of experience and informed judgment to which courts and litigants
may properly resort for guidance,’” Bragdon v.Abbott, 524 U.S. 624, 642 (1998) (quoting Skidmore, 323 U.S. at
139-140). How much deference to give an agency action “will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those
8
factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140. In the case at bar,
the EPA has failed to show any thoroughness, validity or consistency in deciding when to use the unwritten
consumer use exemption. Instead, the only time the unwritten exemption is mentioned is in briefs to the courts, and
even then the EPA applies it inconsistently. See Long Island, 1996 WL 131863 at *9; Remington, 989 F.2d at 1316.
And just because the EPA has said there is an unwritten exemption, doesn’t necessarily mean that there is. “As
English teachers have long taught, a conclusion is not ‘clear’ or ‘obvious’ merely because one says so.” American
Petroleum, 216 F.3d at 57.
Matz v. Household International Tax Reduction Investment Plan, 2001 WL 1027275 (7th
Cir. 2001) recently demonstrated how the courts have interpreted this Skidmore re-emphasis.
The Seventh Circuit was reviewing its previous decision giving Chevron deference to the IRS’
interpretation of “partial termination” because it felt “constrained” to follow Chevron. Matz,
(page references not available). Due to the clarifications in Mead and Christensen, it revoked
that high level of deference. “The IRS’ position in the amicus brief was not born from a formal
policymaking procedure.
We do not believe that a position set forth in an amicus brief,
supported by some Revenue Rulings and an agency manual are formal enough to warrant
Chevron treatment.” It then reviewed the IRS’ position under Skidmore saying any deference
would depend on its “thoroughness, validity, consistency, and persuasiveness.” Since the term
was unclear, it found itself looking to the statute’s purpose. After doing so, it found the IRS’
definition contrary to the purpose of the statute.
Translating this to our case, it is clear the EPA’s unwritten exemption fails to receive
Skidmore deference.
As already shown, the EPA has applied this unwritten exemption
inconsistently. Like the IRS in Matz, the only description of the EPA’s unwritten exemption
appears in court papers. This lack of a logic trail makes the EPA’s arguments unpersuasive. In
addition, the EPA’s unwritten exemption goes against the purpose of RCRA, which was
designed to eliminate loopholes in environmental law and not create them. H.R. Rep. No. 1491,
9
94th Cong., 2d Sess. 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241. Consequently, the
EPA fails to even receive Skidmore deference.
Lead ammo and clay skeet are considered “abandoned” under 40 C.F.R. § 261.2(b)(1).
Since the lower court gave undue deference to the EPA, it never addressed the regulatory
fact that lead from the bullets, and possibly the clay from the skeet, are “solid waste” under 40
C.F.R. § 261.2. The regulatory definition of “solid waste” is “discarded material” that has been
“abandoned.”
40 C.F.R. § 261.2(a)(1);(b)(1).
As discussed supra, the EPA has
schizophrenically defined the word “discarded” by inconsistently applying its unwritten
consumer use exemption. In its most recent findings, the EPA had decided that skeet and lead
shot were discarded under the regulation definition because they had been “left to accumulate
long after they have served their intended purpose.” Remington, 898 F.2d at 1316. This idea of
reading “discarded” in its plain meaning is not new. Items “disposed of, abandoned, or thrown
away” are discarded.
American Mining, 824 F.2d 1177, 1193 (D.C. Cir. 1987), aff’d,
Association of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000).
Though no scientific studies have been done on the particular lead shot and clay targets in
question, it has previously been found that similar operations produce hazardous waste. In
Remington the defendants commissioned a study at the skeet range and found 45% of sediment
samples analyzed exceeded the applicable limits for lead under the toxicity level in 40 C.F.R. §
261.24 (1990). Remington, 989 F.2d at 1317. Also, accumulated lead in tissues of mussels and
ducks was sufficient enough to indicate a lead contamination problem requiring remediation. Id.
Though the court in Remington failed to make a finding to see if skeet falls under the regulatory
definition of solid waste, it did note that the materials in skeet are listed under 40 C.F.R. §
261.33(f) (1980). See Remington, 989 F.2d at 1318. Hence lead shot and possibly clay targets
are hazardous waste.
10
II. THE SHOT AND CLAY SKEET AT SUAVE’S FIRING RANGE FALL UNDER THE
STATUTORY RCRA definition of solid waste IN 42 U.S.C. § 6903(27).
BOG’s
advance
civilian
because
suit
fired
under
shot
42
and
U.S.C.
skeet
§
6972(a)(1)(B)
parts
fall
under
can
the
statutory definition of solid waste, which fails to include a
consumer
exemption.5
use
The
statutory
definition
of
“solid
waste” is less stringent than the regulatory definition by only
requiring solid waste to be “discarded” and not also “abandoned.”
See 42 U.S.C. § 6903(27); see also 40 C.F.R. § 261.2.
Though the
lower court read an unwritten consumer use exemption into the
statutory definition of solid waste, both BOG and the EPA agree
that this
unwritten
exemption
does not exist
in 42 U.S.C. §
6903(27); see (R. at 9).
At
first
glance,
it
may
appear
inconsistent between Issue I and Issue II.
that
BOG
is
being
In the first issue,
BOG requested that this Court not give the EPA deference, while
in the second issue BOG now requests this Court to give that same
agency
the
highest
level
of
deference.
juxtaposition is very consistent.
In
reality,
this
BOG is arguing that neither
the RCRA regulations nor the RCRA statutes include the unwritten
consumer use exemption that the lower court has read into both
situations.
However, while the lower court read the unwritten
Though the statute is unclear whether the statutory or regulator definition of “solid waste” should be used when
bringing a civilian suit under § 6972(a)(1)(B), previous courts have found the statutory definition reigns. See
Remington, 989 F.2d 1305; see also Long Island 1996 WL 131863; Birdwatchers of Groveton v. Suave.
5
11
exemption
into
both
situations,
the
EPA
has
only
read
the
unwritten exemption into the regulatory scheme seen in the first
issue and not the statutory scheme now being reviewed in this
second issue.
Thus Issue II allows BOG to explain why the EPA
currently deserves Chevron difference whereas it previously did
not.
And the explanation is simple.
In Issue I the EPA failed
to support its interpretation that there is an unwritten consumer
use exemption in the regulatory definition of “solid waste” with
any paper trail or formal rulemaking.
However, in Issue II the
EPA has based its interpretation that the RCRA statute does not
include
an
unwritten
consumer
use
exemption
on
such
formal
rulemaking actions as the Military Munitions Rule under 40 C.F.R.
§ 266.205 (2001) and by examining congressional intent.
EPA
deserves
Chevron
deference
in
Issue
II
Thus the
since
the
interpretation is based on formal rulemaking and is persuasive.
See Mead, 121 S. Ct. 2171.
Even if it does not receive Chevron
deference, the EPA’s interpretation deserves Skidmore deference.
A. The EPA’s interpretation deserves Chevron deference.
The EPA says the statutory definition of “solid waste” does not
include
an
unwritten
consumer
use
exemption.
interpretation deserves a high level of deference.
This
agency
To get that
high level of deference, Chevron first asks if Congress “has
directly spoken to the precise question at issue.”
U.S. at 842.
Chevron, 467
In this case, Congress has not spoken to this issue
12
and
thus
However,
the
the
EPA
EPA
cannot
passes
gain
the
deference
second
under
prong
to
this
gain
prong.
Chevron
deference because its interpretation “is based on a permissible
construction
of
a
statutory
provision
for
a
interpretation made by the administrator of an agency.”
467
U.S.
at
843-44.
The
EPA
has
reasonably
reasonable
Chevron,
justified
its
interpretation under the Military Munitions Rule and by reviewing
Congress’ intent for RCRA.
1. The Military Munitions Rule shows the EPA understood Congress would enumerate
when it wanted an exemption.
13
By reviewing previous congressional mandates, such as the Military Munitions Rule, the
EPA has determined that the statutory definition of “solid waste” does not include an unwritten
consumer use exemption. The Military Munitions Rule created a type of written consumer use
exemption under RCRA to satisfy Congress’ order under 42 U.S.C. § 6924(y)(1) (1996). See 42
U.S.C. § 6924(y)(1) (Congress ordered the EPA to “adopt regulations identifying when military
munitions become hazardous waste for purposes of [Subtitle C]”); see also 40 C.F.R. § 266.205.
The EPA proceeded to create 40 C.F.R. § 266.205 through official notice-and-comment
rulemaking. See 40 C.F.R. § 266.205. Hence, the EPA understood that to create a binding
exemption for a statute the exemption had to be in writing and promulgated in a formal manner.
Neither of these requirements is found in the unwritten consumer use exemption advocated by
Suave. When looking at RCRA, there is no congressional mandate to create a consumer use
exemption under 42 U.S.C. § 6903(27). Also, the unwritten exemption never went through any
formal rulemaking channels.
Consequently the EPA deserves Chevron deference when it
interprets 42 U.S.C. § 6903(27) as failing to include an unwritten consumer use exemption.
Additionally, when writing the munitions exemption the EPA realized Congress did not
want RCRA to be a source of loopholes. See H.R. Rep. No. 1491, 94th Cong., 2d Sess. 4. So
when promulgating the written munitions exemption, theEPA did not leave hazardous material
unregulated. Instead, it allowed for certain types of hazardous military munitions to be handled
in compliance with Department of Defense (DOD) and EPA requirements instead of receiving
the harsh RCRA classification of “hazardous.” This approach of remediation in conjunction with
agency cooperation created a “creative, affordable and common sense approach.” 64 Fed. Reg.
45,632 (1999). Thus, the Military Munitions Rule demonstrates that the EPA is correct in
assuming the statutory definition of “solid waste” fails to include an unwritten consumer use
exemption.
14
2. If the government wanted to include a statutory consumer use exemption it could have
done so explicitly as it has in the past
Additionally, the EPA’s interpretation deserves high Chevron deference because Congress is capable of
including a statutory consumer use exemption when it deems necessary. In CERCLA the definition of “facility"
specifically includes an exemption for "any consumer product in consumer use or any vessel." 42 U.S.C. § 9601(9).
Though RCRA was passed four years before CERCLA, major amendments were done to RCRA four years after the
passage of CERCLA. During that period, or the almost two decades since the 1984 amendments, 6 Congress could
have easily included a consumer use exemption. However, by not doing so, Congress’ silence speaks loud and clear.
Likewise, the placement of the definition in the statute and the specificity of the definition shows that
Congress never meant for there to be a statutory consumer use exemption. The statutory definition is included in a
very particular section. “First, the definition of ‘solid waste’ is situated in a section containing thirty-nine separate,
defined terms. This is definitional specificity of the first order. The very care evidenced by Congress in defining
RCRA’s scope certainly suggests that Congress was concerned about delineating and thus cabining EPA’s
jurisdictional reach.” American Mining, 824 F.2d 1177, 1189 (D.C. Cir. 1987). Likewise, the statutory definition of
“solid waste” is very specific. “Although Congress well knows how to use broad terms and broad definitions, as for
example, ‘waters of the United States” in Riverside Bayview, or in an altogether different setting, the term
‘intelligence source’ in CIA v. Sims, the definition here is carefully crafted with specificity.” Id. (citations omitted).
As another court has said, “far from indicating that Congress intended that the language used in its
definitions be ‘functionally’ interpreted, Congress’ care and precision suggests that it intended to give the potentially
vague terms that it was defining, such as ‘solid waste’ and ‘disposal,’ specific content.” Remington, 989 F.2d at
1314. Most recently in Neighborhood Against Golf the Twelfth Circuit ruled the statutory definition of “solid
waste” does not include a consumer use exemption. Neighborhood Against Golf, 150 F.3d 1029.
The lower court concluded that an unwritten consumer use exemption should be read into both the statutory
and regulatory definitions of “solid waste” to promote uniformity in the law. Birdwatchers of Groveton, 10.
However, legislative history and court interpretation show Congress understood that though uniformity might be a
nice idea in the abstract, in reality RCRA was meant to regulate two different categories – the more general statutory
“solid waste” category and the more specific and dangerous regulatory “hazardous waste.” And the uniformity the
6
See Pub. L. No. 94-616, 98 Stat 3271 (1984).
15
lower court wants to impose on RCRA must fail because as Congress designed, there must be two basic avenues of
regulation in RCRA depending upon if the solid waste is hazardous.
B. EPA’s Interpretation Would also Pass the less Deferential Skidmore test.
Even if the Court refuses to give Chevron deference, Skidmore deference must still be accorded and the
EPA’s interpretation upheld. Skidmore deference depends “upon the thoroughness evident in its [the agency’s]
consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140.
The EPA, long versed in environmental statutes, knows that even if a consumer use exemption were to be
found in the statutory definition of “solid waste” it would be redundant. This is because the unwritten consumer use
exemption that the lower court has erroneously read into the statutory definition of solid waste would be like the
written statutory consumer use exemption already seen in CERCLA. And that exemption has been interpreted by
the courts to limit the exemption to households, and not to act as a loophole for consumer-oriented businesses. See
Reading Co. v. City of Philadelphia, 823 F. Supp. 1218 (E.D. Pa. 1993) (a business operating a train was not meant
to receive safe harbor from CERCLA’s consumer use exemption).
Additionally, RCRA already incorporates this type of household exemption in the statutory definition of
“solid waste.” “The statutory provision defines ‘solid waste,’ not simply in terms of type of material, but also in
terms of source. Thus it speaks of material ‘resulting from industrial, commercial, mining, … agricultural … and …
community’ operations and activities and then contrasts against ‘domestic sewage.’” Comite Pro Rescate De La
Salud v. Puerto Rico Aqueduct and Sewer Authority, 888 F.2d 180, 185 (1st Cir. 1989) (citing 42 U.S.C. §
6903(27)) (emphasis added).
Congress never intended any exemption in either CERLA or RCRA to swallow the whole rule. When
RCRA was passed, Congress was concerned with the need “to reduce the amount of waste and unsalvageable
materials and to provide for proper and economical solid waste disposal practices.” 42 U.S.C. § 6901(a)(4) (1976).
Also, since there is no “‘clearly expressed legislative intention to the contrary,’ the language of the statute itself
‘must ordinarily be regarded as conclusive.’” United States v. James, 478 U.S. 597, 606 (1986), (quoting Consumer
Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).
In conclusion, the lower court erred in not considering whether the lead ammunition and clay targets were solid
waste under the statutory definition of “solid waste.” The EPA deserves deference for its interpretation that there is
16
no unwritten consumer use exemption under the statutory scheme for solid waste. This deference is owed because
the EPA based its opinion on the formally promulgated military munitions rule, and on Congress’ intent. Previous
cases like Remington show that that the mass of lead shot waste and clay skeet only accumulates and harms the
environment if not cleaned up.
And these types of wastes can be regulated under RCRA because they are
“discarded.” See Remington, 898 F.2d at 1316; see also Neighborhood Against Golf, 150 F.3d 1029. The civilian
suit by BOG was brought to help curtail these problems before they become too dangerous at Sheldrake Pond. BOG
is asking for the same relief that Congress has said it deserves –regulation of the firing range.
III. suave must abide by the clean water act since Sheldrake Pond falls under the act’s reach.
Suave’s skeet range at Sheldrake Pond falls under the clean up requirements of the Clean Water Act
(CWA) because the Pond is considered a navigable water by the CWA. Sheldrake Pond meets the statutory
definition of navigable water as required by the CWA under 33 U.S.C. § 1311(a), 33 U.S.C. § 1362(7) and (12).
Besides meeting the plain language definition of the statute, the history of the CWA shows that the term “navigable
waters” is meant to be read broadly and the courts have followed this precedent.
A. Sheldrake Pond falls under the plain meaning of the CWA’s navigable water.
The plain words used to define navigable water under the CWA shows Congress meant for the Act to
regulate bodies of water like Sheldrake Pond. BOG sued under the CWA § 1311(a) to address the illegality of
pollutant discharges that are neither permitted by the CWA nor comply with the Act. Specifically, BOG alleges
violations of § 1342, which requires a CWA permit to pollute, and § 1344, which requires a CWA permit to add fill
to navigable waters. (R. at 4). Section 1342 is administered by the EPA while the Army Corp of Engineers (COE)
administers § 1344.
The CWA defines navigable waters as “waters of the United States.” 33 U.S.C. § 1362(7). This definition
has been explained further by the EPA and the COE as: “All other waters such as intrastate lakes…playa
lakes…which would affect or could affect interstate or foreign commerce…” 40 C.F.R. § 122.2 (1983); see 33
C.F.R. § 328.3 (1993). Importantly, the term “navigable waters” is also used to define “discharge of a pollutant”
under §1362(12). “[D]ischarge of a pollutant…means… any addition of any pollutant to navigable waters from any
point source…” 33 U.S.C. § 1362(12).
The EPA and COE, the agencies overseeing the CWA, have promulgated their own definitions of “waters
of the United States” to help further promote Congress’ intent. Both agencies include playa lakes in their
17
definitions of “waters of the United States.” See 40 C.F.R. § 122.2; 33 C.F.R.§ 328.3. Sheldrake Pond meets the
definition of a playa lake. Playa lakes are temporary, shallow lakes in undrained desert basins, typically located in
Texas and New Mexico. They provide wintering habitat for waterfowl and a crucial water source for livestock. See
Federal Regulation of Isolated Wetlands After SWANCC, 31 ELR 10669 n. 13 (June 2001). The plain language of
the statute and regulations show that Sheldrake Pond fits the definition of navigable waters under the CWA.
B. The Clean Water Act’s history necessitates a broad reading of the term “navigable.”
The history of the CWA illustrates that the Act was created to prevent water pollution in all waters of the
United States, not just those that are navigable in fact or adjacent to navigable waters as the lower court erroneously
held. Before the CWA, water was regulated by the Rivers and Harbors Act (RHA), which “prohibited the discharge
of “refuse” into a navigable water or its tributaries…whereby navigation shall or may be impeded or obstructed.”
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineer (SWANCC), 531 U.S. 159,
177 (2001). However, during the twentieth century as the country industrialized, the concern shifted away from
navigability to focus upon pollution and prevention of environmental degradation in the nation’s waters. Id. citing
Sam Kalen, 69 N.D.L. Rev. 873, 877-879, n.30 (1993). In 1972, Congress passed the CWA as an amendment to the
existing Federal Water Pollution Control Act.
The CWA’s purpose was to create a plan for the long-term
elimination of water pollution. Id. citing S. Rpt. 92-414, 95 (Oct. 28, 1971). The principle objective of the Act
made no mention of navigability.
As stated by Congress, the CWA was meant to “restore and maintain the chemical, physical, and biological
integrity of the nation’s waters.” 33 U.S.C. § 1251 (1972). Congress’ use of the term “navigable” carried over from
nearly a century of use because originally Congress erroneously thought it only had jurisdiction over those waters
that were actually navigable. SWANCC, 531 U.S. at 182. However, Congress’ expanded authority under the
Commerce Clause reflects the broad purpose of the CWA. This was evidenced when Congress defined “navigable
waters” as all “waters of the United States.” 33 U.S.C. § 1362(7). A senate conference report explained that
“waters of the United States” was intended to “be given the broadest possible constitutional interpretation.”
SWANCC, 531 U.S. at 179, citing S. Conf. Rpt. 92-136, 144 (1972). In essence, Congress deleted the navigable
requirement from § 1362(7), using the broad definition “waters of the United States.” Thus, navigability was and is
no longer a criteria for waters like Sheldrake Pond to receive the protection of the CWA.
18
In 1975, the COE adopted and then expanded the EPA’s definition of “waters of the United States” to
include non-navigable tributaries, wetlands adjacent to navigable waters, lakes, and all other waters such as
intermittent rivers and streams. 40 Fed. Reg. 31325-31326 (1975).7 There was some opposition to the COE’s
expanded definition. In 1977, Congress considered a proposal that would limit the COE’s jurisdiction to waters that
“are used or could be used as a means to transport interstate commerce and their adjacent wetlands.” SWANCC,
531 U.S. at 184. This bill was defeated with the understanding that the COE’s jurisdiction under the CWA was
meant to include waters that were not in fact navigable, but instead waters that affected interstate commerce.
C. Courts have correctly given a broad reading to “navigable.”
As an isolated, intrastate water body, the courts recognize that Sheldrake Pond is within the jurisdiction of
the CWA. A majority of courts have found the term “navigability” should be read broadly, particularly because
Congress meant for the Act “to restore and maintain the chemical, physical, and biological integrity of the nation’s
waters…and not simply those waters that met the traditional test of navigability.” Wyoming v. Hoffman, 437 F.
Supp 114, 116 (D. Wyo. 1977). The Eleventh Circuit also held that Congress had intended to define away the old
“navigability restriction.” See U.S. v. Holland, 874 F.2d 1470 (1989); see also Deltona Corp. v. U.S., 657 F. 2d
1184 (1981) (term “waters of the United States” shows that Congress, by adopting this definition, asserted federal
jurisdiction over the nation’s waters to the maximum extent possible under the Commerce Clause); Natural
Resource Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.C. Cir. 1975) (by defining “navigable waters” as
“waters of the United States,” Congress asserted federal jurisdiction over the nation’s waters to the maximum extent
possible). Although there were many courts that held the definition of “navigability” should be read broadly, or out
of the Act entirely, there were other courts that felt the word retained its meaning.
As a result of the inconsistency, in 1985 the question of navigability came before the Supreme Court in
Riverside Bayview. Riverside Bayview involved a developer who was placing fill materials in low-lying marsh
land. The COE filed suit to stop the filling, asserting the marsh fell under the regulatory definition of “waters of the
United States.” The Supreme Court held the COE’s jurisdiction extended to non-navigable wetlands that were
adjacent to navigable waters. The Court based this conclusion on the broad scope of the CWA stating, “Congress
chose to define the waters covered by the Act broadly.” Riverside Bayview, 474 U.S. at 133. The Court’s holding
rested on the only plausible conclusion - the term “navigability” was not controlling and Congress intended to
This expanded definition of “navigable waters” was upheld by the Supreme Court in United States v. Riverside
Bayview Homes, 474 U.S. 121, 123 (1985).
7
19
regulate at least some waters that failed to be deemed navigable under the traditional meaning of the word. Id. The
Court also found that Congress had given agencies the authority to interpret the statutes they administer and that the
defeat of a congressional bill intending to limit the COE’s jurisdiction from wetlands confirmed its interpretation of
the CWA. Id. at 139.
Recently the Court has re-examined the CWA in SWANCC. This decision seemingly ignored the prior
interpretation of the CWA in Riverside Bayview. SWANCC involved the location of a disposal site for nonhazardous solid waste in an abandoned mine. The mine was abandoned and had since developed into “permanent
and seasonal ponds of varying size and depth.” SWANCC, 531 U.S. at 163. The plaintiff sought to fill these ponds
and contacted the COE to determine if a permit was necessary. Id. Ultimately, the COE determined that it had
jurisdiction over the ponds pursuant to the “Migratory Bird Rule” 8 and rejected the application for a permit. Id. at
165.
The Supreme Court invalidated the Migratory Bird Rule finding that the COE exceeded its authority under
the CWA. The Court was concerned that the COE was “push[ing] the limit of congressional authority.” Id. at 17273. Notably, the Court distinguished its opinion in Riverside Bayview recognizing that the term “navigable” was
given limited import in that opinion. Chief Justice Rhenquist, writing for the majority, explained that to extend the
CWA’s protection to isolated, non-navigable, intrastate-wetlands would essentially read the term “navigable” out of
the statute, and the majority was not willing to do so without a clear expression from Congress. Id. at 171-172.
However, in application the SWANCC opinion is very limited. This is true because of the case’s holding and also
because Congress has recently given the Court a “clear expression,” in the form of an amendment to the CWA,
reaffirming its desire for “navigable” to be read broadly.
1. This case fails to fall under the narrow holding of SWANCC.
It is necessary to read SWANCC narrowly to avoid an incorrect interpretation of the CWA. The
SWANCC opinion clearly addressed intrastate, manmade wetlands. Under the Court’s holding, the COE will only
lose jurisdiction when the man-made wetland is 1) completely isolated, 2) non-navigable, 3) intrastate, and 4) the
COE is only asserting jurisdiction because of the presence of migratory birds. All of the above criteria must be met
for the SWANCC opinion to limit the jurisdiction of the COE. Therefore, even after the SWANCC opinion
The “Migratory Bird Rule” was developed by the COE to extend jurisdiction to intrastate waters, “[w]hich are or
would be used as habitat by other migratory birds which cross state lines.” Migratory Bird Rule, 51 Fed. Reg.
41206, 41217 (1986).
8
20
Sheldrake Pond still falls under the jurisdiction of the CWA because it fails to meet all of the criteria. Namely the
Pond is a natural rather than a man-made wetland, nor is the COE asserting jurisdiction merely because of the
presence of migratory birds.
2. SWANCC still recognizes the COE’s and the EPA’s definition of “navigable waters.”
The Court in SWANCC did not invalidate any of the definitions of “waters of the United States” in 33
C.F.R. § 328.9 The holding in SWANCC merely invalidated the Migratory Bird Rule as an extension of 33 C.F.R. §
328. Thus the COE, and presumably the EPA, still have jurisdiction over intrastate waters that affect interstate
commerce so long as jurisdiction is not based solely on the presence of migratory birds. If a broad reading of
SWANCC were allowed, lower courts could then invalidate the other definitions of “waters of the United States” in
33 C.F.R. § 328, an approach inconsistent with SWANCC. The Court specifically refrained from invalidating the
provisions of 33 C.F.R. § 328, which grants the COE jurisdiction over waters that are wholly intrastate but could
affect interstate commerce. The District Court made this very error in neglecting to recognize the limited holding in
SWANCC and the fact that all portions of 33 C.F.R. § 328 remain the law.
By narrowly reading SWANCC one can still give deference to the comprehensive purpose of the CWA and
the authority given to the COE to interpret and administer § 1344(a). Although the Court placed great emphasis on
the term “navigable,” it is evident from the legislative history that the term was merely a carry-over from the Rivers
and Harbors Act of the nineteenth century and no longer carries meaning under the modern CWA. Using plain
language interpretation, the waters reached by the CWA are the “waters of the United States” without regard to
navigability. Although it may seem odd that the term includes the word “navigable” but does not lend it meaning,
this is not uncommon to environmental legislation. For instance, in RCRA, supra, the term “solid waste” is used to
describe the material regulated by that act. However, it is defined as “liquid, semisolid, or contained gaseous
material…” and no court has intimated that the term “solid” should be given effect in determining whether liquid or
gaseous materials are covered by the Act. 42 U.S.C. §§ 6901-6992(k). Similarly, based on the purpose of the CWA
the definition “waters of the United States” contains no limiting concept of navigability.
The SWANCC opinion did not alter the EPA’s definition of “waters of the United States” or the COE’s
interpretation of that definition. Although the opinion contains language that may purport to read the term navigable
as a requirement of the Act, the holding refrained from altering the interpretation found in 33 C.F.R. § 328. Thus,
33 C.F.R. § 328 contains the COE interpretations of “waters of the United States” and not the Migratory Bird Rule
that the lower court ruled against found in 51 Fed. Reg. 41217.
9
21
the COE’s interpretations of “waters of the United States” are governing law in the administration of permits under
the CWA § 1344.
The definition of “waters of the United States” has not been stricken or altered by the Supreme Court.
Likewise, the Court did not invalidate any section of the COE’s definition of this term in 33 C.F.R. § 328. It follows
then that the EPA’s identical interpretation remains good law. See 40 C.F.R. § 122.2. The COE’s and EPA’s
regulations define “waters of the United States” to include: “All other waters such as intrastate lakes…playa
lakes…the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce …”
40 C.F.R. § 122.2 and 33 C.F.R. § 328. Sheldrake Pond falls within this definition. It is an intrastate playa lake, the
degradation of which would or could affect interstate or foreign commerce (these effects are discussed in Section
IV).
3. The recent amendment made to § 1362(7) governs in this case.
The SWANCC Court asked for a “clear expression” by Congress as to what “navigable waters” should
mean and Congress has come through in the form of an amendment to § 1362(7) of the CWA. Thus, while there are
many possible interpretations of the SWANCC opinion this Court is not forced to decide whether a broad or narrow
reading should be given. Instead this new amendment, passed less than a year after the SWANCC opinion, is the
law and reaffirms that the CWA regulates Sheldrake Pond. The amendment incorporates the EPA’s definition of
“waters of the United States” from 40 C.F.R. § 122.2 into the CWA’s definition of “navigable waters.” 10 See Water
Pollution Protection Act of 2001, Pub. L. No. 106-720 (2001) The Report of the Senate Environment Committee
accompanying the amendment stated:
The Supreme Courts opinion in [SWANCC] misinterpreted congressional intent. When we first
enacted the CWA in 1972, we intended the terms 'navigable waters' and 'waters of the United
States' extend as far as our Commerce Clause authority extends. We intended the terms to cover
isolated waters that are important stopovers for migratory birds.
(R at 5, 6). The report continues by acknowledging that migratory birds are instrumentalities of interstate commerce
and the Commerce and Treaty clauses justify the regulation of these waters.
The District Court determined that the amendment was not applicable to this case and therefore relied
heavily upon the SWANCC opinion. However, SWANCC clearly stated that the holding may have been different if
there were a clear statement from Congress indicating whether they intended the CWA to assert jurisdiction over
EPA’s definition of “waters of the United States” found in 40 C.F.R. 122.2 is the exact same as the COE’s
definition of “waters of the United States” found in 33 C.F.R. 328.
10
22
wholly intrastate waters based solely on the presence of migratory birds. See SWANCC, 531 U.S. at 171-172. In
response to that opinion Congress has clearly expressed its intent to assert jurisdiction over such waters through this
amendment.
i. Though the amendment was passed after BOG filed its complaint, the amendment still
applies to this case.
Although Suave filed its complaint in 2000, the 2001 CWA amendment applies to this case because the
case was not decided until after the amendment was passed. The general rule is that when Congress enacts statutes
or statutory amendments they are to be applied to cases in progress unless a constitutional provision is offended.
See Michael S. Gilmore, Application of Statutory Changes to Cases in Progress: The Crossroads of the Legislative
and Judicial Power, 34 Idaho L. Rev. 517, 523 (1998). In Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S.
421 (1856), the Supreme Court held that a statutory change required it to revise one of its decisions. In reaching its
decision the Court declared an important legal principle: The right to continuing prospective relief is determined by
the law at the time of the decision, regardless of whether that law has changed since the case was initiated. Id. at
432. This rule of law directly applies to the statutory amendment before this Court. Since BOG is seeking
prospective relief in the form of an injunction, the statutory amendment should govern as the law at the time of the
decision.
Most recently the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994) stated when new
statutes are to be applied to cases in progress. Landgraf notes it is preferable that Congress be clear when it intends
for a new statute to apply retroactively. However, it also recognized that such a statement from Congress is ideal,
but not always a reality. The Court then said that if intent is not stated in the statute, the new statute will be applied
retroactively if “the new provision attaches new legal consequences to events completed before enactment.” Id. at
269-70; see also United States v. Klein, 80 U.S. 128 (1871) (Congress can enact a new law that is retroactive and
appellate courts must apply that law to cases on appeal). The opinion categorized five areas of the law that would be
affected differently by statutory amendments, including prospective relief. 11
Prospective relief is the area most aligned with the facts of this case. BOG is seeking civil penalties as well
as an injunction to stop further pollution in Sheldrake Pond. Injunctive relief is wholly prospective because it
11
The five categories included: 1) property, contract and similar private rights; 2) prospective relief; 3) jurisdiction
of tribunals; 4) procedure and evidence; and 5) attorneys’ fees.
23
attempts to alter the actions of a party in the future. The Court determined that prospective relief should be
determined or withheld according to the current law at the time of the reviewing decision. Id. at 273-74. Under
Landgraf, it is apparent that the statutory amendment is the governing law in the case at bar.
Sheldrake Pond undoubtedly falls under the recent statutory amendment. As discussed earlier, EPA’s
definition of “waters of the United States” includes intrastate playa lakes that affect interstate commerce. 40 C.F.R.
§ 122.2. Sheldrake Pond is such a playa lake and the use, degradation, or destruction of its waters would or could
affect interstate commerce. Additionally, Sheldrake Pond is a habitat for migratory birds and the senate report
accompanying the amendment clearly asserts that the CWA has proper jurisdiction when migratory birds are
instrumentalities of interstate commerce.
The polluting and filling of Sheldrake Pond also affects interstate
commerce in other ways: the operation of the skeet range and the recreational activities of foreign and interstate
travelers to watch the various species of birds. The 2001 amendment incorporating the EPA’s definition of “waters
of the United States” not only governs in this case, but also extends the CWA’s jurisdiction over Sheldrake Pond.
IV.
THE COMMERCE CLAUSE AND THE TREATY CLAUSE OF THE CONSTITUTION
JUSTIFY REGULATION OF WATER POLLUTION IN SHELDRAKE POND.
Through the Commerce and Treaty clauses, Congress has the power to regulate the polluting that is
currently occurring at Sheldrake Pond.
A. The Commerce Clause can regulate the pollution at Sheldrake Pond.
Suave’s commercial activities have a substantial affect on interstate commerce and thus can be regulated by
Congress because of the Commerce Clause. In Lopez and Morrison, the Supreme Court defined the outer limits of
Congress' reach under the Commerce Clause. United States v. Lopez, 514 U.S. 549 (1995) (invalidating the GunsFree School Zone Act since possession of a gun was not substantial economic activity); Unites States v. Morrison,
529 U.S. 598 (2000) (Commerce Clause did not provide Congress with authority to enact civil remedy provision of
Violence Against Women Act). The Court determined that Congress may regulate the activity if the aggregate
affect of the activity has a “substantial affect on interstate commerce." Lopez, 514 U.S. at 559-561; Morrison, 529
U.S. at 539. The Court stated that the statutes in Lopez and Morrison exceeded the outer limits of the Commerce
Clause because they attempted to regulate non-economic activities that did not have substantial interstate impact.
Lopez, 514 U.S. at 560-561; Morrison, 529 U.S. at 539.
24
Suave’s commercial skeet range passes this substantial interstate affect requirement and
thus allows federal regulation of those activities. Suave’s commercial activities have led to the
filling of Sheldrake Pond with lead shot, fill, and clay skeet. (R at 3). This in turn has had a
substantial affect on interstate commerce by killing the area’s migratory birds, desecrating the
bird-related industries, and destroying the Pond's ecosystem.
1. Suave's destruction of migratory birds and their habitats substantially affects interstate
commerce.
Suave is polluting Sheldrake Pond with lead shot, which is destroying the Pond's migratory birds and the
industries centered around those birds, such as bird hunting and bird watching. This destruction can be federally
regulated under the Commerce Clause.
i.
Lead shot is a hazardous waste known to kill migratory birds.
Lead shot is a solid waste, which due to its toxicity and the fact that it poses a substantial threat to the
environment, is a hazardous solid waste subject to regulation. Remington, 989 F.2d at 1317 (as a matter of law lead
shot is considered hazardous waste under RCRA). Additionally, there is a "nationwide ban on the use of lead shot to
hunt migratory birds" because migratory birds are known to ingest the leftover shot at the bottom of wetlands. 50
C.F.R. § 20.21(j) (1973). This regulation specifically pre-empts any state statute or regulation. Id. at § 20.2(d).
On average, each shotgun shell used for hunting contains 169-277 lead pellets. Remington Arms Company,
Steel
v.
Lead:
Differences
You
Should
Know
(visited
Nov.
20,
2001)
<http://www.
remington.com/ammo/PAGES/shotshell/ STLVSLD.HTM>. Those pellets spread into the air and then fall to the
ground after the shot is fired. In most instances, the birds need to ingest only one or two pellets in order to die from
lead poisoning in about a week’s time. See Glen C. Sanderson and Frank C. Bellrose, Review of the Problem of
Lead Poisoning in Waterfowl, (last updated Oct. 17, 1997) http://www.npwrc.usgs.gov/resource/othrdata/pbpoison/
PBPOISIN.htm>.
More than two hundred species of birds have been observed on Sheldrake Pond or its banks. (R at 3).
Many of these birds migrate between the United States and other nations. Id. The effects of pollution at Sheldrake
Pond could potentially destroy habitats in such countries as Canada and Mexico. For example, a fish in Sheldrake
Pond may swallow a lead shot from Suave's firing range. Suppose that fish is eaten by one of the Pond's migratory
25
birds. The bird travels across state lines or to another country to nest. The bird dies from lead poisoning and the
habitat's predators feed on the bird. The lead shot now poisons the predators and continues a vicious, poisonous
cycle. See Glen C. Sanderson and Frank C. Bellrose, Review of the Problem of Lead Poisoning in Waterfowl,
http://www.npwrc.usgs.gov/resource/othrdata/pbpoison/ PBPOISIN.htm.
ii.
Industry surrounding migratory birds is a billion-dollar endeavor.
Americans spend over a billion dollars annually to hunt, observe, and protect migratory birds. See
SWANCC 531 U.S. at 167. A billion-dollar generating national enterprise is well within Congress' Commerce
Clause jurisdiction. By reducing or destroying the migratory bird population at Sheldrake Pond, it is conceivable
that money will be lost. Money will no longer be spent on tourism, hunting licenses and supplies related to the
Pond’s migratory birds.
2.
Suave's pollution is destroying the ecosystem at Sheldrake Pond.
By contaminating Sheldrake Pond with lead shot, fill and clay skeet, Suave is destroying the area’s
ecosystem. Sheldrake Pond is scientifically known as a playa lake, which is also a type of inland wetland. See
EPA,
America's Wetlands:
Our
Vital Link Between Land
<http://www.epa.gov/OWOW/wetlands/vital/toc.html.>
and
Water,
(visited
Nov.
20,
2001)
The environmental importance of playa wetlands like
Sheldrake Pond has long been recognized by the courts. "Wetlands are a priceless, multi-use resource, and that in
addition to their economic value, they perform many biological services including: ... recharging groundwater for
water supplies, natural protection from floods and storms, and essential nesting and wintering areas for water fowl."
United States v. Byrd, 609 F.2d 1204, 1211 (7th Cir. 1979). Protection of wetlands demands "broad federal
authority to control pollution" because the hydrological process could allow one wetland to pollute another through
the groundwater system. Riverside Bayview, 474 U.S. at 132.
While playa wetlands similar to Sheldrake Pond are essential to the purification of drinking water, wetlands
have also helped save local areas millions of dollars by acting as a wastewater treatment plant. See EPA, America's
Wetlands: Our Vital Link Between Land And Water, pg. 6. Wetlands also help "control floods by absorbing large
volumes of water, protecting cities and towns." Id. at 7. The loss of wetlands, because of activities like Suave’s, has
reduced the number of migratory bird species and the ability of "people to hunt, trap, and observe those birds."
Hoffman Homes Inc, v. EPA, 999 F. 2d 256, 261 (7th Cir. 1993). By placing lead shot and clay skeet in the Pond,
Suave is poisoning the water and land, which could be disrupting the ecosystem and destroying the Pond.
26
Suave's pollution of Sheldrake Pond may appear to be small and isolated with no real significance. But
considering the aggregate effect on a national and international scale, the most effective way to protect migratory
birds and their habitats is through federal regulation allowed by the Commerce Clause and treaties. If not for
statutes like the CWA and treaties, "there soon might be no birds for any powers to deal with… It is not sufficient to
rely upon the States." Missouri v. Holland, 252 U.S. 416, 435 (1920).
B. The Treaty Clause can regulate the pollution at Sheldrake Pond
Suave's polluting of Sheldrake Pond with lead shot, fill and clay skeet is in violation of four valid treaties
between the United States and other countries. The U.S. Constitution empowers the President to make treaties,
"provided two thirds of the Senators present concur…" U.S. CONST. ART II, § 2. Treaties are the "supreme law of
the land. If the treaty is valid there can be no dispute about the validity of the statute… as a necessary and proper
means to execute the powers of the Government." Holland, 252 U.S. at 432. Valid treaties "are binding within the
territorial limits of the States as they are elsewhere throughout the dominion of the United States." Id. at 334. The
Tenth Amendment12 does not restrict enforcement of migratory bird treaties, even with respect to a species that are
endemic within a particular state, both because of the power of Congress to enact legislation implementing valid
treaties and because of the power of Congress to regulate commerce. See Palila v. Hawaii Dept. of Land and
Natural Resources, 471 F. Supp. 985 (D.C. Hawaii 1979); aff’d, 639 F.2d 495 (9th Cir. 1981).
This treaty power was correctly used when the United States entered into a treaty with Great Britain on
behalf of Canada, and also when the U.S. entered into treaties with Mexico, Japan, and Russia to prevent the
destruction of migratory birds and their habitats. These treaties all require that the U.S. federal government preserve
and protect migratory birds and habitats. These wetlands and migratory bird treaties obligates the United States to
"preserve and protect migratory birds through the regulation of hunting, the establishment of refuges, and the
protection of bird habitats." North Dakota v. U.S., 460 U.S. 300, 309-310 (1983).
1.
Suave's polluting of Sheldrake Pond violates the treaty between the United States
and Great Britain.
The Migratory Bird Treaty Act (MBTA) between the Untied States and Great
Britain became a valid treaty when Congress ratified it and the President signed it in 1916. See Convention for the
Protection of Migratory Birds, United States-Great Britain (on behalf of Canada), 39 Stat. 1702, 1704 (Aug. 16,
1916). There are four species of migratory birds protected by the MBTA sighted at Sheldrake Pond. Those species
12
The Tenth Amendment allows the States to regulate anything not specified by Congress.
27
include the Mexican ducks, avocets, sandhill cranes and vireos. Id. at 1703; (R at 3). If a bird from the MBTA is
found at a U.S. site, the treaty requires that bird to be protected by the United States. Id. Congress has delegated
this oversight responsibility to the EPA and COE.
Because the MBTA is a valid exercise of Congressional power, the CWA has the appropriate authority to
regulate the pollution activities at Sheldrake Pond.
2.
Suave's Polluting of Sheldrake Pond Violates a Treaty Between the United States
and Mexico, Japan, and Russia.
The treaties with Mexico, Japan, and Russia are similar to the treaty supra, except that the treaty with
Mexico specifically protects Sheldrake Pond's Mexican ducks and avocets. See Convention for the Protection of
Migratory Birds and Game Mammals, United States-United Mexican States, 50 Stat. 1311, 1313 (Feb. 7, 1936).
The treaty with Japan protects the Pond's Mexican ducks, sandhill cranes and wetland habitats. See Convention for
the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, United States-Japan,
25 U.S.T. 3329 (March 4, 1972). The treaty with the Russia protects the Pond's sandhill cranes and their habitats.
See Convention for the Conservation of Migratory Birds and Their Environment, United States-Union of Soviet
Socialist Republics (Russia), 92 Stat. 3110 (Nov. 26, 1976).
Valid treaties are the supreme law of the land and are binding on the States. Holland, 252 U.S. at 432. To
ensure compliance with the treaties, Congress empowered the EPA and COE to be the regulatory agencies to protect
migratory birds and their habitats. This is an appropriate use of congressional power. Federal regulation of Suave's
polluting activities is well within the jurisdiction of the CWA. The lower court erred in holding that the Treaty
power did not justify federal regulation of water pollution in Sheldrake Pond.
T. CONCLUSION
For the foregoing reasons, BOG respectfully requests this Court reverse the District Court’s decision
finding an unwritten consumer use exemption in both the regulatory and statutory definitions of “solid waste” under
RCRA. Also, BOG requests this Court find Sheldrake Pond a navigable water under the CWA and that the recent
amendment to the CWA is applicable to the case at bar. Finally, this Court should find that both the Commerce
Clause and the Treaty Clause of the Constitution justify federal regulation of water pollution in Sheldrake Pond.
28
U. APPENDIX A
V. UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
BIRDWATCHERS OF GROVETON, INC., and
UNITED STATES,
Appellants,
v.
SUAVE REAL PROPERTIES, INC.,
Appellee.
ORDER
Birdwatchers of Groveton, Inc. (BOG) alleges that Suave Real Properties, Inc. (Suave) violated the Clean
Water Act, 33 U.S.C. §§ 1251-1387 (CWA), and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 69016992k (RCRA), by filling a portion of Sheldrake Pond and discharging lead shot and skeet into and around
Sheldrake Pond in the course of operating a recreational rifle range and skeet shooting operation there. BOG
brought suit against Suave under the citizen suit provisions of the statutes, 33 U.S.C. § 1365 and 42 U.S.C. § 6972,
seeking civil penalties and injunctive relief. The court granted a motion to intervene filed by the United States on
behalf of the United States Environmental Protection Agency. Suave subsequently moved for summary judgment
against BOG on four grounds. The United States opposed Suave’s motion on three of those grounds and BOG, of
course, opposed it on all grounds. The court granted Suave’s motion in its entirety. BOG appeals the court’s ruling
and the United States joins it on three grounds and opposes it on one.
Each party is instructed to brief the following questions:
1. Did the court below err in holding that Suave did not violate the CWA because Sheldrake Pond is not
navigable water under the CWA, 33 U.S.C. §§ 1311(a), 1362(7) & (12)? Is this case governed by the amendment
made to § 1362(7) in 2001? If so, does that amendment extend the jurisdiction of the CWA over Sheldrake Pond?
BOG and the United States will file briefs opposing the court’s ruling and Suave will file a brief supporting it.
2. Did the court below err in holding that neither the Commerce Clause nor the Treaty Clause of the
Constitution justify federal regulation of water pollution in Sheldrake Pond? BOG and the United States will file
briefs opposing the court’s ruling and Suave will file a brief supporting it.
3. Did the court below err in holding that fired shot and skeet parts are not solid waste when they fall to the
ground under EPA’s definition of solid waste in 40 CFR § 261.2? BOG will file a brief opposing the court’s ruling
and Suave and the United States will file a brief supporting it.
4. Did the court below err in holding that fired shot and skeet parts are not solid waste when they fall to the
ground under 42 U.S.C. § 6972(a)(1)(B)? BOG and the United States will file briefs opposing the court’s ruling and
Suave will file a brief supporting it.
The parties are limited in their briefs to the above issues, but are not limited to the arguments for their
A-1
positions raised in the district court. For purposes of briefing and argument, legal authorities may be cited that date
before September 1, 2001. More recent authorities may not be cited or referred to.
Entered September 1, 2001.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW UNION
BIRDWATCHERS OF GROVETON, INC.,
Plaintiff, and
UNITED STATES OF AMERICA,
Intervenor,
v.
Civ. No. 01-878
SUAVE REAL PROPERTIES, INC.,
Defendant.
Romulus, Judge.
ORDER
On December 20, 2000, Birdwatchers of Groveton, Inc. (BOG),
a non-profit corporation organized under the laws of New Union,
A-2
filed a complaint against Suave Real Properties, Inc. (Suave), a
real estate management company organized under the laws of New
Union.
BOG alleged jurisdiction under the citizen suit
provisions of the Clean Water Act (CWA), 33 U.S.C. § 1365, and
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §
6972.
BOG alleged that its members are birdwatchers living and
watching birds in Groveton County, New Union. It further alleged
that its members watched birds on Sheldrake Pond from an adjacent
county road for at least the last two decades, until Suave began
using the pond-side area as a firearms and skeet shooting range
in 2000.
It further alleged that during those decades, its
members observed over two hundred species of birds on the Pond or
its banks, many of which are species that migrate between the
United States and Canada and/or Mexico, such as Mexican ducks,
jacanas,
avocets,
sandhill
cranes,
and
warbling
vireos.
Sheldrake Pond is a long, narrow, shallow pond, running east to
west, that is dry during part of the year and never more than
four feet deep and twenty-five acres in extent during the wet
part of the year. Even so, it is an important stopover for many
birds, both aquatic and terrestrial, during their annual
interstate and international migrations.
It is uncontested that Suave began operation in 2000 of the
Groveton Rifle and Pistol Association (GRAPA) near the Pond and
continues that operation today. The GRAPA facility consists of a
pad for skeet shooters, together with a device that ejects skeet
into the air, and a firing range. Suave filled a small portion
of the western end of the Pond to build a platform for the skeet
ejection device.
Suave owns land to the west and south of the
Pond, and part of the western end of the Pond. The County owns
land to the east and south of the Pond, and the remainder of the
Pond. Suave ejects skeet over the Pond, while skeet shooters at
some remove from the Pond attempt to shoot the skeet with
shotguns.
When they hit the skeet, skeet parts and spent lead
shot commonly fall into and around the Pond, both on Suave-owned
and county-owned land and portions of the Pond. When they miss
the skeet, the skeet commonly fall into both portions of the land
and Pond and the spent shot falls similarly. The firing range is
located south of the Pond, near its eastern end. A berm behind
the targets designed to catch most of the spent shot is located
about fifty feet from the Pond. Occasionally lead bullets fired
on this range overshoot the berm and enter the Pond or the
country’s land beyond.
There is no evidence that Suave has an
easement over the County’s land or portion of the Pond or other
agreement with the County allowing these invasions of its land or
portion of the Pond.
BOG alleges that Suave is violating CWA 33 U.S.C. § 1311(a) in two ways. First, filling and maintaining
A-3
the fill in the Pond for the skeet ejection platform constitutes discharging fill material into navigable waters without
a CWA 33 U.S.C. § 1344 permit. Second, ejection of skeet and firing shot and bullets into the Pond constitutes
either discharging fill material into navigable waters without a CWA § 1344 permit or discharging pollutants into
navigable waters without a CWA 33 U.S.C. § 1342 permit. BOG asks the court to assess civil penalties for these
violations and to issue an injunction against their continuance. BOG alleges that Suave is violating RCRA in two
ways. First, Suave is violating RCRA by disposing of hazardous waste (skeet, skeet parts, and lead shot) into and
about the Pond without a RCRA permit, in violation of 42 U.S.C. § 6925(a). BOG asks the court to assess civil
penalties for these violations and to issue an injunction against their continuance. Second, Suave’s disposal of solid
and hazardous waste into and about the Pond is creating an imminent and substantial endangerment, actionable
under 42 U.S.C. § 6972(a)(1)(B). BOG asks the court to issue an injunction requiring Suave to abate this
endangerment. EPA has intervened in support of BOG in its CWA counts and the second part of its RCRA count.
These allegations raise numerous factual and legal issues. At this point, however, we are called on to
decide only a few of them in response to a motion for summary judgment filed by Suave. First, Suave moves that
we dismiss the CWA counts because Sheldrake Pond is not navigable water, either in a statutory or a constitutional
sense. Second, Suave moves that we dismiss the RCRA counts because the use of skeet and lead shot for their
intended purpose does not constitute disposal of waste. The United States intervened to oppose the first motion and
to support and oppose different parts of the second. We grant both motions and dismiss the case.
I. The CWA Counts
A. Legal Background
The basic prohibition of the CWA is the addition of fill
material or a pollutant to navigable water from a point source
without a CWA permit.
33 U.S.C. §§ 1311(a), 1362 (12).
“Navigable water” is defined in the CWA to be the “waters of the
United States.” 33 U.S.C. § 1362(7).
The legislative history
of the statute indicates that Congress intended the term to be
interpreted to exercise the full extent of congressioanl
constitutional authority. Conf. Rep. 92-1236, reprinted in 1972
U.S.C.C.A.N. 3776, 3822.
The Environmental Protection Agency
(EPA), which administers most of the CWA, including the § 1342
pollutant permitting program, has interpreted the term in its
regulations to include intrastate waters, such as “playa lakes,”
which could affect interstate or foreign commerce.
Such uses
include use by interstate or foreign travelers for recreational
purposes.
40 CFR § 122.2.
The Army Corps of Engineers (COE),
which administers the CWA’s § 1344 fill permitting program, has
similarly interpreted the term. 33 CFR § 328.3(a)(3). A playa
lake is a lake that is intermittent, i.e., it is dry part of the
year.
There are a number of such lakes in the arid southwest.
BOG argues that Sheldrake Pond is a playa lake.
Suave argues
that it is too small to be a lake, that it is merely a “vernal
pool,” a pool that is wet in the spring and dry the rest of the
year. EPA has not specifically included vernal pools within its
definition of navigable water, probably because they are too
small. Nor has the COE. BOG argues further that Sheldrake Pond
is used in interstate commerce as part of an interstate and
international bird migration pathway between the Gulf of Mexico
and further south to the northern Great Plains and further north,
A-4
by migrating birds and by people watching the migratory birds for
recreational purposes.
Significantly, the COE has interpreted
its regulatory definition of navigable waters to include waters
that “are or would be used as habitat by birds protected by the
Migratory Bird Treaties.”
51 Fed. Reg. 41217 (“Migratory Bird
Rule”).
Suave argues bird flight is not commerce and that
birdwatching at Sheldrake Pond is not part of interstate commerce
because only BOG’s members are alleged to watch birds there and
they are intrastate birdwatchers.
These arguments are illuminated by recent judicial and
legislative actions.
In Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers,
___ U. S. ___, 121 S.
Ct. 675 (2001) (SWANCC), the Court considered an almost identical
legal and factual situation.
There, as here, the water in
question was isolated, with no allegation it had ever been or
could ever be used for traditional navigation purposes or that it
was connected in any way with such waters. The only difference
was that the water at issue in SWANCC was a flooded gravel pit,
that was always wet, and the water at issue here is a playa pond,
which is intermittently wet. On January 9, 2001, the Court held
that such insignificant and isolated waters were not within the
congressional definition of navigable water. The Court reasoned
that “waters of the United States” did not include all water or
the definition would have no meaning beyond “water.” It further
reasoned that the “navigable” in “navigable water” had to have
some meaning as well. Finally, it found no indication in either
the statute or the legislative history that Congress intended to
include such insignificant and isolated waters within its
definition of navigable waters.
Notwithstanding the lower
court’s finding that over a billion dollars a year is spent on
migratory bird-based recreational activities, the Court commented
that the “Migratory Bird Rule” invoked the “outer limits of
Congress’ power” under the Commerce clause. Id. at 683. Rather
than addressing the constitutional issue of whether it was within
Congress’ Commerce Clause authority, it interpreted that statute
not to assert jurisdiction over such insignificant and isolated
waters.
On August 15, 2001, Congress amended the CWA’s definition of
“navigable waters” to incorporate EPA’s definition of the “waters
of the United States” from 40 CFR § 122.2. See Water Pollution
Protection Act of 2001, P.L. 106-720.13
The Report of the Senate
Environment Committee accompanying the Senate bill stated:
13
This enactment exists only for the purposes of this Competition.
A-5
The Supreme Court’s opinion in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, ___ U.S.
___ (2001), misinterpreted congressional intent.
When we first
enacted the CWA in 1972, we intended that the terms “navigable
waters” and “waters of the United States” extend as far as our
Commerce Clause authority extends.
We intended the terms to
cover isolated waters that are important stopovers for migratory
birds.
We acknowledged then and reacknowledge today, that
migratory
birds,
particularly
migratory
game
birds,
are
instrumentalities of interstate commerce and that the flyways
they use to migrate are highways of interstate commerce.
Hundreds of thousands of our citizens travel across state
boundaries to hunt them and carry their carcasses across state
boundaries for food, competing with our billion-dollar interstate
domesticated fowl industry.
Migratory birds are objects sought
by hundreds of thousands of our citizens for recreational
observation.
Both of these activities result in over a billion
dollars annually in interstate expenditures.
Not only the
Commerce Clause justifies our jurisdiction to protect these
waters, the Treaty Clause justifies it as well. We have entered
into treaties with several nations to protect migratory birds,
including their habitat.
Waters used by such species during
migration are essential to their survival. S. Rep. 106-528, p.
23.14
B. Legal Analysis
The 2001 amendment is irrelevant to this case.
It is
commonplace that the statutory law that governs a case is the
statutory law that exists at the time the complaint is filed,
unless the statute explicitly directs that it be applied
retrospectively.
There is no such direction in the 2001
amendments. The complaint was filed more than eight months prior
to the amendments.
Although plaintiff argues that the Senate
Report quoted above indicates a congressional intent that the
amendments be applied retrospectively, it does not. The statute
itself does not embody retroactivity, only the report of one
chamber of Congress does so.
Neither the Conference Committee
Report nor the House Committee Report contains similar language,
indeed, they are silent on this issue. The plaintiffs next argue
that the Senate Report is a definitive indication of what
Congress intended by its use of “navigable waters” and “waters of
the United States” when it enacted the CWA in 1972. Of course,
it is not. Few, if any, of the members of Congress in 1972 were
still members of Congress in 2001.
And it is commonplace that
the views of a later Congress are of no help in ascertaining the
14
This Report exists only for the purposes of this Competition.
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intent of an earlier Congress.
That is particularly true when
the Court itself has told us what congressional intent was in the
earlier enactment, as it has in SWANCC.
Since the statute that
controls is the pre-amendment statute and the Court has
interpreted that statute not to cover insignificant and isolated
waters such as Sheldrake Pond, we need go no further.
But if the plaintiff prevailed in its arguments, either that
the amendments controlled this case or that the Senate Report
indicated the congressional intent in 1972 was to regulate
isolated waters like those at issue in this case, then we would
reach the constitutional question that the Court avoided in
SWANCC.
In that event, we would hold that Congress exceeded its
authority when it attempted to exercise its jurisdiction over
insignificant, isolated playa ponds such as Sheldrake Pond. We
start with the Court’s observation in SWANCC that such an attempt
would
raise
“significant
constitutional
and
federalism
questions.” Id. at 684. They are, of course, the same questions
considered by the Court recently in holding that a federal civil
remedy for victims of gender-based violence and a federal offense
for
possession
of
a
firearm
in
a
school
zone
were
unconstitutional.
See U.S. v. Morrison, 529 U.S. 598 (2000);
U.S. v. Lopez, 514 U.S. 549 (1995).
In both decisions, the Court reiterated the three categories
of activity that Congress may regulate under the Commerce Clause:
1) highways of interstate commerce; 2) instrumentalities of
interstate commerce; and 3) activities substantially affected by
interstate commerce. Morrison at 608-9; Lopez at 558. Plaintiff
first argues that Sheldrake Lake is part of a highway of
interstate commerce, i.e., part of a migratory bird flyway. This
argument sweeps too broadly.
Since migratory birds can land
virtually anywhere in the country, it would make the land and
water of the whole country subject to federal regulation,
obliterating the traditional state control over land and water
use decisions that underlies our federalist division of powers
between the two levels of government. Plaintiff then argues that
migratory birds are instrumentalities of interstate commerce,
citing Missouri v. Holland, 252 U.S. 416 (1919).
Plaintiff’s
attempted use of Missouri v. Holland is misplaced in two
respects.
First, the Court did not hold that migratory birds
were instrumentalities of interstate commerce, but merely that
they were not property of the state and thus not immune from
federal control. Second, the statute and regulations at issue in
that case protected migratory birds from being killed, captured
or sold, while the CWA regulates water pollution.
A-7
That leads to BOG’s third argument: either that defendant’s
activities substantially affect the interstate commerce of
hunting and observing migratory birds or that the aggregate of
activities like defendant’s substantially affects such commerce.
Plaintiff has utterly failed to plead or prove facts sufficient
to establish the first of these alternatives: no human interstate
activity has been alleged at Sheldrake Pond. As to the second,
the Court in both Morrison and Lopez acknowledged that a noneconomic activity might, in the aggregate, sufficiently affect
interstate commerce to justify regulation under the Commerce
Clause.
But in both cases the Court found that no such affect
had been proven.
Here the only proof plaintiff offers is the
Senate Report quoted above. Of course this does not suffice to
prove a factual issue.
In Morrison the Court rejected specific
congressional findings that possession of guns within a school
zone affected interstate commerce, finding that just because
Congress said so, does not make it so. It held that such factual
issues were for courts to decide on real evidence.
Morrison at
614. Plaintiffs have presented no evidence on this point beyond
the Senate Report, which, of course, does not rise to even the
level of congressional findings.
Nor does the plaintiff’s
reliance on the Court of Appeal’s decision in SWANCC or in U.S.
Pozsgai, 999 F.2d 719, 732-44 (3rd Cir. 1993) help; both were
obliterated by the Court’s opinion in SWANCC.
Plaintiff’s contention that the Treaty Clause justifies
congressional usurpation of state authority over insignificant
and isolated waters such as Sheldrake Pond, is a misplaced
attempt to end-run its inability to exercise jurisdiction over
those waters under the Commerce Clause.
A treaty simply cannot
transfer state authority to the federal government. Nor is there
any indication that the treaties protecting migratory birds
attempted to do so.
Nor is there any indication that Congress
was acting pursuant to the Treaty Clause when it enacted the CWA.
The Senate Committee may have thought it was doing so when
enacting the 2001 amendments, but that is a far cry from Congress
exercising such authority.
We therefore hold that the statutory definition of navigable
waters controlling this case does not reach the insignificant and
isolated waters of Sheldrake Pond. If it did, we would hold that
Congress and EPA exceeded their constitutional authority in
attempting to extend their jurisdiction to Sheldrake Pond.
Accordingly, we dismiss BOG’s CWA counts.
II.
The RCRA ISSUES
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BOG seeks a finding that 1) Suave is violating RCRA by
disposing of shot and skeet parts, hazardous waste, on and about
its Sheldrake Pond facility without a permit, actionable under 42
U.S.C. § 6972(a)(1)(A) and 2) the disposed shot and skeet parts,
solid or hazardous waste, constitute an imminent and substantial
endangerment, actionable under 42 U.S.C. § 6972(a)(1)(B).
To
make either of these findings, it is necessary to hold that the
fired shot and skeet parts are solid waste, for hazardous waste
is a subset of solid waste. This is a more complicated exercise
that it might appear, for there are two definitions of “solid
waste” that could be relevant.
First, Congress defined solid
waste as “… discarded material…resulting from industrial,
commercial,
mining
and
agricultural
operations,
and
from
community activities.”
42 U.S.C. § 6903(27).
Second, EPA has
promulgated a definition of solid waste at 40 CFR § 261.2(b) that
again defines it as “discarded material,” and then defines
“discarded material” in a long and complex manner.
Courts, and
even EPA officials, have commented that this definition is an
incomprehensible quagmire. The D.C. Circuit, for instance, has
characterized it as a “mind-numbing journey.”
American Mining
Congress v. U.S. EPA, 824 F.2d 1177, 1189 (D.C. Cir. 1987).
As
it turns out, the second, regulatory, definition applies to
allegations of violating RCRA’s regulatory program under §
6972(a)(1)(A), and the first, statutory, definition applies to
allegations that activities constitute imminent and substantial
endangerments under § 6972(a)(1)(B).
Connecticut Coastal
Fishmeren’s Association v. Remington Arms Co., Inc., 989 F.2d
1305 (2nd Cir. 1993). See also Long Island Soundkeeper Fund, Inc.
v. New York Athletic Club of the City of New York, 1996 WL 131863
(S.D.N.Y.).
The Second Circuit’s reasoning in this regard is
complicated but impeccable, and we see no reason to repeat it
here.
Suave argues that using a consumer product for its
intended use does not constitute disposal of the product under
either definition.
It further argues that shot, like a golf
ball, is not discarded when it is fired and falls to the ground,
for that is its intended use.
EPA agrees that the “consumer
use” exception applies to the regulatory definition of solid
waste for purposes of § 6972(a)(1)(A), but argues that it does
not apply to the statutory definition of solid waste for purposes
of § 6972(a)(1)(B).
Complicating this issue is the “military munitions rule,” 40
CFR § 261.2(a)(2)(iv), § 266.202.
The rule was upheld in
Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998).
Relevant portions of this rule essentially say that fired
military munitions that land on a military firing range are not
solid waste in the regulatory sense, but may be solid waste in
A-9
the statutory sense if they land off the firing range. Happily,
both Suave and BOG agree that the rule is irrelevant because it
deals only with military munitions, which are not the focus of
this case.
While EPA agrees that the military munitions rule
does not govern this case, it argues that the principles embodied
in it govern the interpretation of both the statutory and
regulatory definitions of solid waste.
According to EPA, the
exclusion embodies the Agency’s consistent interpretation of the
regulatory definition of solid waste as excluding commercial
products used for their intended use, if their ordinary use
results in their landing on the ground. Thus EPA interprets its
regulatory definition of solid waste to exclude shot landing on
the GRAPA firing range, for firing shot on a firing range is
using shot for its intended purpose.
And it interprets the
statutory definition to cover shot landing off the firing range
as in the military munitions rule. Under this interpretation it
is important to find whether the portion of the Pond owned by the
County is part of the skeet and firing ranges.
But if the
intended use of the ammunition at issue here is to shoot skeet or
to shoot at a target, this court fails to understand why that
purpose is accomplished when the shot lands on a firing range but
is not accomplished when it lands off the range.
We therefore
agree with the principle parties to this case that the military
munitions
rule
is
not
useful
in
making
the
required
interpretation.
Suave and EPA argue that EPA’s interpretation of its own
regulation defining solid waste as not including consumer
products used for their intended purposes is dispositive, absent
a conflict with the statute or regulation.
We agree and find
that BOG has raised no such conflict to prevent that conclusion.
Suave next argues that the statutory definition of solid waste
should be interpreted to exclude consumer products used for their
intended purposes as well.
If materials do not warrant
regulation as solid waste, neither do they warrant remedial
activities as solid waste. There is a good deal of common sense
in this argument and it has the great merit of consistency, a
special virtue in a statutory and regulatory structure as
complicated as RCRA’s.
Indeed, the decisions BOG cites in its
argument against this conclusion interpret different sections of
RCRA consistently for this very reason.
But BOG and EPA argue
that EPA’s interpretation of the statutory definition to exclude
the consumer use exception bars this approach, for EPA’s
interpretation is entitled to substantial deference.
Their
argument carried great weight under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, 467 U.S. 837 (1984), in which
the Court held that if a statute was ambiguous and the
A-10
implementing agency’s interpretation of it was reasonable, its
interpretation was entitled to great deference.
But the Court
has recently limited Chevron deference to agency interpretations
that are embodied in rulemakings.
U.S. v. Mead Corp., 2001 WL
672258 (U.S.).
Under Mead, agency interpretations not embodied
in rulemakings are entitled only to such respect as may be
warranted by the formality of the agency’s determination, the
consistency
of
the
agency’s
interpretation
and
its
persuasiveness.
BOG and EPA seek to cloak EPA’s interpretation of the
statutory definition with Chevron substantial deference rather
than Mead relative respect using two arguments.
First, they
argue that EPA’s definition is indeed embodied in a rule, 40 CFR
261.1(b)(2)(ii). But that rule only provides that the statutory
definition of “solid waste” applies to the EPA imminent and
substantial endangerment provision, 42 U.S.C. § 6972, and does
not
mention
the
citizen
suit
imminent
and
substantial
endangerment
provision
that
BOG
invokes,
42
U.S.C.
§
6972(a)(1)(B). Nevertheless, BOG argues “solid waste” should be
interpreted identically in both provisions because the provisions
are
otherwise
very
similar,
citing
Connecticut
Coastal
Fishermen’s Association v. Remington Arms Co., Inc., 989 F.2d
1305 (2nd Cir. 1993), and Comite Pro Rescate de la Salud v. Puerto
Rico Aqueduct and Sewer Auth., 888 F.2d 180, 187 (1st Cir. 1990).
We agree, for the same reason that we held that both the
statutory and regulatory definitions should be interpreted to
include the consumer use exception. But this does not help BOG,
for EPA’s regulation merely says that the statutory definition
applies to EPA imminent and substantial endangerment causes of
action and by extension to similar citizen suit causes of action;
it does not deal with whether the consumer use exception applies
to the statutory definition of solid waste.
In sum, it is
irrelevant to the issue before us. Thus, absent a countervailing
argument, under Mead Corp. EPA’s interpretation that the
statutory definition of solid waste does not include a consumer
use exception is entitled only to relative respect, not
substantial deference.
BOG and EPA next argue that our Circuit has already decided
that EPA’s interpretation that the statutory definition of solid
waste does not include a consumer use exception and that decision
must be followed under principles of stare decisis. In
Neighborhood against Golf, Inc. v. Recreation Enterprises, Inc.,
150 F.3d 1029 (12th
Cir.
1999) (NAG),15 a neighborhood
association filed a multi-count complaint seeking to enjoin the
15
This opinion exists only for the purposes of this Competition.
A-11
operation of a golf course that disrupted the neighborhood in
various ways. One count alleged that golf balls were solid waste
and that toxic components of golf balls, accumulating in the
roughs when their owners could not find them, were leaching into
groundwater, endangering neighborhood drinking water supplies.
Recreation Enterprises argued the golf balls were not solid waste
because they were consumer products used for their intended
purpose and hence they were not disposed.
The district court
rejected this argument, giving Chevron deference to EPA’s
interpretation that the statutory definition of solid waste did
not except consumer products used for their intended purposes,
and the Twelfth Circuit affirmed in NAG.
It now appears that NAG wrongly applied deference rather
than respect to EPA’s interpretation of RCRA.
BOG argues that
NAG nevertheless is controlling precedent in the Twelfth Circuit.
Here BOG and EPA part company.
Suave and EPA argue that this
cannot be, for such a conclusion would forever bar courts in the
Circuit from correct statutory interpretation.
This Court
agrees.
That leads to the final question: to what degree of respect
is EPA’s interpretation of the statute entitled? Mead Corp. sets
forth a three-pronged inquiry to determine this.
First, how
formal was the process in which EPA made the interpretation? EPA
did not develop its interpretation in any formal process.
Second, how consistent has EPA been in its interpretation? EPA’s
interpretation has been inconsistent.
EPA’s application of the
consumer use exception to the regulatory but not the statutory
definition of solid waste is basically inconsistent.
Moreover,
EPA’s interpretation of “discarded,” the key word and concept in
both
definitions,
has
been
inconsistent
even
in
its
interpretation for purposes of the regulatory definition.
American Petroleum Institute v. U.S. EPA, 216 F.3d 50 (D.C. Cir.
2000); Association of Battery Manufacturers v. U.S. EPA, 208 F.3d
1047 (D.C. Cir. 2000); American Petroleum Institute v. U.S. EPA,
906 F.2d 729 (D.C. Cir. 1990); American Mining Congress v. U.S.
EPA, 907 F.2d 1175 (D.C. Cir. 1990); American Mining Congress v.
U.S. EPA, 824 F2d 1177 (D.C. Cir. 1987).
Third, how persuasive
is EPA’s interpretation?
EPA is very persuasive that Congress
did not intend RCRA to regulate the use of consumer products for
their intended purposes.
The very reason for RCRA’s regulatory
program is to prevent endangerments. If Congress did not intend
EPA to regulate the use of consumer products for their intended
purposes to prevent endangerments, it is unlikely that Congress
would intend the courts to ameliorate endangerments from the same
use of those products.
Therefore, we find EPA’s interpretation
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of the statutory definition of solid waste to exclude the
consumer use exception to be entitled to little, if any, respect.
In sum, we hold that EPA’s interpretation is entitled to no
deference under Chevron because it is not embodied in a
rulemaking. Further, we hold that it is entitled to no respect
under Mead Corp. because it was not developed in a formal
process, has not been consistent, and is unpersuasive.
For the
very reasons that EPA’s interpretation is unpersuasive, we hold
that the consumer use exemption applies to both the statutory and
regulatory interpretations of “solid waste.”
Accordingly, we
dismiss BOG’s RCRA counts.
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Team No. 36
W. APPENDIX B
40 C.F.R. § 261.2(a),(b). RCRA regulatory definition of “solid waste”
§ 261.2 Definition of solid waste.
(a)(1) A solid waste is any discarded material that is not excluded by § 261.4(a) or that is not excluded by variance
granted under §§ 260.30 and 260.31.
(2) A discarded material is any material which is:
(i)
Abandoned, as explained in paragraph (b) of this section; or
(ii)
Recycled, as explained in paragraph (c) of this section; or
(iii)
Considered inherently waste-like, as explained in paragraph (d) of this section; or
(iv)
A military munition identified as a solid waste in 40 C.F.R. 266.02
(b) Materials are solid waste if they are abandoned by being:
(1) Disposed of; or
(2) Burned or incinerated; or
(3) Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being
disposed of, burned, or incinerated.
42 U.S.C. § 6893(27). RCRA’s statutory definition of “solid waste”
(27) The term "solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment
plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained
gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community
activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in
irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of Title
33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68
Stat. 923) [42 U.S.C.A. § 2011 et seq.].
40 C.F.R. § 266.205. Military Munitions Exemption
(a) Criteria for hazardous waste regulation of waste non-chemical military munitions in storage.
(1) Waste military munitions in storage that exhibit a hazardous waste characteristic or are listed as hazardous
waste under 40 CFR Part 261, are listed or identified as a hazardous waste (and thus are subject to regulation
under 40 CFR Parts 260 through 279), unless all the following conditions are met:
(i)
The waste military munitions are not chemical agents or chemical munitions.
(ii)
The waste military munitions must be subject to the jurisdiction of the Department of Defense
Explosives Safety Board (DDESB).
(iii)
The waste military munitions must be stored in accordance with the DDESB storage standards
applicable to waste military munitions.
(iv)
Within 90 days of August 12, 1997 or within 90 days of when a storage unit is first used to
store waste military munitions, whichever is later, the owner or operator must notify the
Director of the location of any waste storage unit used to store waste military munitions for
which the conditional exemption in paragraph (a)(1) is claimed.
(v)
The owner or operator must provide oral notice to the Director within 24 hours from the time
the owner or operator becomes aware of any loss or theft of the waste military munitions, or
any failure to meet a condition of paragraph (a)(1) that may endanger health or the
environment. In addition, a written submission describing the circumstances shall be provided
within 5 days from the time the owner or operator becomes aware of any loss or theft of the
waste military munitions or any failure to meet a condition of paragraph (a)(1) of this section.
(vi)
The owner or operator must inventory the waste military munitions at least annually, must
inspect the waste military munitions at least quarterly for compliance with the conditions of
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Team No. 36
paragraph (a)(1) of this section, and must maintain records of the findings of these inventories
and inspections for at least three years.
(vii)
Access to the stored waste military munitions must be limited to appropriately trained and
authorized personnel.
(2)
The conditional exemption in paragraph (a)(1) of this section from regulation as hazardous waste shall
apply only to the storage of non-chemical waste military munitions. It does not affect the regulatory status
of waste military munitions as hazardous wastes with regard to transportation, treatment or disposal.
(3)
The conditional exemption in paragraph (a)(1) of this section applies only so long as all of the
conditions in paragraph (a)(1) of this section are met.
(b) Notice of termination of waste storage. The owner or operator must notify the Director when a storage unit
identified in paragraph (a)(1)(iv) of this section will no longer be used to store waste military munitions.
(c) Reinstatement of conditional exemption. If any waste military munition loses its conditional exemption under
paragraph (a)(1) of this section, an application may be filed with the Director for reinstatement of the
conditional exemption from hazardous waste storage regulation with respect to such munition as soon as the
munition is returned to compliance with the conditions of paragraph (a)(1) of this section. If the Director finds
that reinstatement of the conditional exemption is appropriate based on factors such as the owner's or operator's
provision of a satisfactory explanation of the circumstances of the violation, or a demonstration that the
violations are not likely to recur, the Director may reinstate the conditional exemption under paragraph (a)(1) of
this section. If the Director does not take action on the reinstatement application within 60 days after receipt of
the application, then reinstatement shall be deemed granted, retroactive to the date of the application. However,
the Director may terminate a conditional exemption reinstated by default in the preceding sentence if he/she
finds that reinstatement is inappropriate based on factors such as the owner's or operator's failure to provide a
satisfactory explanation of the circumstances of the violation, or failure to demonstrate that the violations are
not likely to recur. In reinstating the conditional exemption under paragraph (a)(1) of this section, the Director
may specify additional conditions as are necessary to ensure and document proper storage to protect human
health and the environment.
(d) Waste chemical munitions.
(1)
Waste military munitions that are chemical agents or chemical munitions and that exhibit a hazardous
waste characteristic or are listed as hazardous waste under 40 CFR Part 261, are listed or identified as a
hazardous waste and shall be subject to the applicable regulatory requirements of RCRA subtitle C.
(2)
Waste military munitions that are chemical agents or chemical munitions and that exhibit a hazardous
waste characteristic or are listed as hazardous waste under 40 CFR Part 261, are not subject to the storage
prohibition in RCRA section 3004(j), codified at 40 CFR 268.50.
(d) Amendments to DDESB storage standards. The DDESB storage standards applicable to waste military
munitions, referenced in paragraph (a)(1)(iii) of this section, are DOD 6055.9-STD ("DOD Ammunition and
Explosive Safety Standards"), in effect on November 8, 1995, except as provided in the following sentence.
Any amendments to the DDESB storage standards shall become effective for purposes of paragraph (a)(1) of
this section on the date the Department of Defense publishes notice in the Federal Register that the DDESB
standards referenced in paragraph (a)(1) of this section have been amended.
33 U.S.C. § 1311, Effluent Limitations
(a) Illegality of pollutant discharges except in compliance with law Except as in compliance with this section and
sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall
be unlawful.
Clean Water Act Definitions
 33 U.S.C. § 1362(7)
The term "navigable waters" means the waters of the United States, including the territorial seas.

33 U.S.C. 1362(12)
The term "discharge of a pollutant" and the term "discharge of pollutants" each means
(A) any addition of any pollutant to navigable waters from any point source,
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Team No. 36
(B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other
than a vessel or other floating craft.
40 C.F.R. § 122.2, EPA Administered Permit Programs: The National Pullution Discharge Elimination
System
Waters of the United States or waters of the U.S. means:
(a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or
foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(b) All interstate waters, including interstate "wetlands;"
(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats,
sandflats, "wetlands," sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use,
degradation, or destruction of which would affect or could affect interstate or foreign commerce
including any such waters:
(1) Which are or could be used by interstate or foreign travelers for recreational or other
purposes;
(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce;
or
(3) Which are used or could be used for industrial purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the United States under this definition;
(e) Tributaries of waters identified in paragraphs (a) through (d) of this definition;
(f) The territorial sea; and
(g) "Wetlands" adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs
(a) through (f) of this definition
33 C.F.R. § 328.3, Corps of Engineers, Department of the Army: Definition of Waters of the United States
The term "waters of the United States" means
(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or
foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or
destruction of which could affect interstate or foreign commerce including any such waters:
(i)
Which are or could be used by interstate or foreign travelers for recreational or other
purposes; or
(ii)
From which fish or shellfish are or could be taken and sold in interstate or foreign commerce;
or
(iii)
Which are used or could be used for industrial purpose by industries in interstate commerce
U. S. CONST. ART. II, § 2 ¶ 2, Treaty Power
The President shall have Power, by and with the advice and consent of the Senate, to make treaties, provided two
thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate,
shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other Officers of
the United States, whose appointments are not herein otherwise provided for, and which shall be established by
Law: but the Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the
President alone, in the courts of Law, or in the heads of departments.
U. S. CONST. ART. I, § 8 ¶ 3, Commerce Clause
The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall
be uniform throughout the United States; ... To regulate Commerce with foreign Nations; and among the several
States, and with the Indian Tribes...
MEASURING BRIEF
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Team No. 36
MEASURING BRIEF
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Team No. 36
UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
BIRDWATCHERS OF GROVETON, INC., UNITED
STATES OF AMERICA,
Appellant,
v.
SUAVE REAL PROPERTIES, INC.,
Appellee.
) APPELLANT BIRDWATCHERS OF
) GROVETON, INC. OPENING BRIEF ON
) THE MERITS
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APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW UNION
The Honorable Judge Romulus
Judge of the District Court
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X. QUESTIONS PRESENTED
1. Did the court below err in holding that neither the Commerce Clause nor the Treaty Clause of
the Constitution justifies federal regulation of water pollution in Sheldrake Pond?
2. Did the court below err in holding that Suave did not violate the CWA because Sheldrake Pond is not navigable
water under the CWA, 33 U.S.C. §§ 1311(a), 1362(7) & (12)?
3. Did the court below err in holding that fired shot and skeet parts are not solid waste when they fall to the ground
under 42 U.S.C. § 6972(a)(1)(B)?
4. Did the court below err in holding that fired shot and skeet parts are not solid waste when they fall to the ground
under EPA’s definition of solid waste in 40 CFR § 261.2?
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Y. Table of contents
QUESTIONS PRESENTED............................................................................................................ I
Table of contents ............................................................................................................................. II
Table of authorities ....................................................................................................................... IV
Standard of review ......................................................................................................................... vi
Statement of the Case...................................................................................................................... ii
Summary of Argument .................................................................................................................. iii
Argument ....................................................................................................................................... iv
I. the District Court errEd in holding that neither the commerce clause nor the treaty clause
justifies federal regulation of water pollution in Sheldrake Pond iv
a.
The Commerce Clause justifies federal regulation of Sheldrake Pond
iv
1.
Migratory birds are instrumentalities of interstate commerce .......................... iv
2.
Migratory birds are also things of interstate commerce .................................... vi
3.
Sheldrake Pond is a channel of interstate commerce......................................... vi
4.
Appellee’s activities substantially affect interstate commerce .......................... vii
i.
Appellee’s activities are economic in character and will substantially affect
interstate commerce ..................................................................................................... viii
ii.
The jurisdictional validity of the CWA has already been approved .......... ix
iii.
Congress has made findings indicating the substantial effect of Appellee’s
activities on interstate commerce ................................................................................... ix
iv.
The link between Appellee’s activity and its effect on interstate commerce
is not attenuated .............................................................................................................. x
b.
The Treaty Clause justifies federal regulation of water pollution in
Sheldrake Pond xi
1.
The district court failed in its judicial duty by not evaluating the Treaty Clause
as support for federal regulation of Sheldrake Pond......................................................... xi
2.
The district court did not show proper deference to the legislative branch ...... xii
II. The District Court Erred in Holding that Sheldrake Pond is Not A Navigable Water
Under the CWA xiii
a.
The Water Pollution Control Act of 2001 controls this case
xiii
1.
The Amended Act extends jurisdiction over Sheldrake Pond ............................ xiv
i.
The plain language of the Amended Act extends jurisdiction over
Sheldrake Pond. ........................................................................................................... xiv
ii.
Congress intended to extend CWA jurisdiction to isolated intrastate waters
such as Sheldrake Pond................................................................................................. xv
2.
The 2001 Amended Act applies because it is clarifying legislation ................... xv
3.
Congress intended the Amended Act to be retroactive legislation .................... xvi
b.
Sheldrake Pond is distinguishable from the waters in SWANCC xvii
c.
The district court ignored applicable precedent xix
d.
Congress has overruled SWANCC xx
e.
The district court incorrectly construed the definition of “navigable waters”
xx
III. The District Court erred in holding that fired shot and skeet parts are not solid waste
when they fall to the ground under 42 u.s.c. § 6972(a)(1)(b)
xxiii
a.
The plain and unambiguous statutory language includes fired shot
and skeet parts xxiii
1.
There is no consumer use exception in the statutory definition of
solid waste...................................................................................................................... xxiii
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2.
Lead shot and skeet parts are discarded material and therefore are
solid waste....................................................................................................................... xxiv
b.
This circuit has already decided fired shot and skeet parts are solid waste
xxviii
c.
EPA’s interpretation of fired shot and skeet parts as solid waste warrants
deference xxix
IV. The district court erred in holding that Fired shot and skeet parts are not solid waste when
they fall to the ground under 40 C.F.R. § 261.2 xxxi
a.
The language of the regulation is not ambiguous xxxiii
b.
EPA’s interpretation is unreasonable
xxxiv
1.
EPA’s interpretation is contrary to law and the regulation itself ................. xxxiv
2.
EPA’s interpretation converts a question of fact to a question of law .......... xxxvi
Conclusion ............................................................................................................................. xxxviii
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Z. Table of authorities
Cases
Abkco Music, Inc. v . Lavere, 217 F.3d 684 (9th Cir. 2000)........................................................ 14
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).................................................................. 21
Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768 (1992) ....................................... 27
Am. Mining Congress v. U.S. EPA, 824 F.2d 1177 (D.C. Cir. 1984).................................... 23, 32
Am. Mining Congress v. U.S. EPA, 907 F.2d 1179 (D.C. Cir. 1990).......................................... 32
Am. Petroleum Inst. v. U.S. EPA, 216 F.3d 50 (D.C. Cir. 2000) ........................................... 32, 34
Am. Petroleum Inst. v. U.S. EPA, 906 F.2d 729 (D.C. Cir. 1990) ............................................... 32
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ....................................................... 5, 9, 35
Assoc. of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000)......................... 32
Auer v. Robbins, 519 U.S. 452 (1997) ......................................................................................... 30
Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983) .............................. 20
Babbitt v. Sweet Home Chapter of Communities for Greater Or., 515 U.S. 687 (1995) ............. 20
Baglin v. Cusenier Co., 221 U.S. 580 (1911) ............................................................................... 34
Beverly Community Hosp. Ass'n. v. Belshe, 132 F.3d 1259 (9th Cir. 1997)............................... 14
Birdwatchers of Groveton, Inc. v. Suave Real Props., Inc., No. 01-878 (D. New Union). ... passim
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) ................................................ 27, 30
Bradley v. School Bd. of the City of Richmond, 416 U.S. 696 (1974). ................................. 14, 15
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). .............................................................................. 9
Chevron, U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837 (1984). ........................... 26
Christensen v. Harris County, 529 U.S. 576 (2000) ............................................................... 26, 27
Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct and Sewer Auth., 888 F.2d 180 (1st
Cir. 1989) .................................................................................................................................. 22
Conley v. Gibson, 355 U.S. 41 (1957) .......................................................................................... 13
Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 777 F. Supp. 173 (D. Conn. 1991) . 25
Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305 (2nd Cir. 1993) 22, 24
Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) .................................................................... 22
Douglas v. Seacoast Prods., Inc., 431 U.S. 265 (1977) ................................................................ 21
Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273 (1st Cir. 1996).................................................... 16
EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) ................................................................... 26
Gardenbring v. Jenkins, 485 U.S. 415 (1988)............................................................................... 30
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) .............................................................................. 5
Houston, E. & W. Tex. Ry. Co. v. U.S., 234 U.S. 342 (1914) ....................................................... 4
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999).......................................................... 19, 21
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)....................................................................... 24, 25
Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ........................................................................ 20
Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990) ......................................... 15
Lal v. INS, 255 F.3d 998 (9th Cir. 2001) ................................................................................ 30, 32
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ...................................................................... 15
Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) ................................................................ 10
Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990) .................................................... 19
Long Island Soundkeeper Fund, Inc. v. New York Athletic Club, 1996 WL 131863 (S.D.N.Y.
1996) ................................................................................................................................... 23, 30
Marbury v. Madison, 1 Cranch 137 (1803) .................................................................................. 10
Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144 (1991) ................. 26, 34
Milwaukee v. Ill., 451 U.S. 304 (1981) ........................................................................................ 22
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Missouri v. Holland, 252 U.S. 416, 435 (1920).................................................................. 4, 5, 7, 9
Mun. Resale Serv. Customers v. FERC, 43 F.3d 1046 (6th Cir. 1995) ........................................ 31
Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) ................................... 5
NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995) .................. 29
Neighborhood Against Golf, Inc. v. Recreation Enters., Inc., 150 F.3d 1029 (12th Cir. 1999) ... 26
NLRB v. Gullett Gin Co., 340 U.S 361 (1951) ............................................................................ 20
No Spray Coalition, Inc. v. City of New York, 2000 WL 1401458 (S.D.N.Y. 2000)............ 23, 34
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)................................................ 29
Perez v. U.S., 402 U.S. 146 (1971) ................................................................................................. 4
Perry v. Dowling, 95 F.3d 231 (2nd Cir. 1996). ............................................................................. 1
Quinlan v. Koch Oil Co., 25 F.3d 936 (10th Cir. 1994) ............................................................... 14
Quivira Mining Co. v. EPA, 765 F.2d 126 (10th Cir. 1985); ....................................................... 19
Reno v. Koray, 515 U.S. 50 (1995) .............................................................................................. 26
Rueth v. U.S. EPA, 13 F.3d 227 (7th Cir. 1993) .......................................................................... 19
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............................................................................ 27
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs., 531 U.S. 159
(2001) ...................................................................................................................... 12, 15, 17, 20
Southern Ry. Co. v. United States, 222 U.S. 20 (1911).................................................................. 4
Stinson v. U.S., 508 U.S. 36 (1993).............................................................................................. 30
Stone v. Naperville Park Dist., 38 F. Supp. 2d 651 (N.D. Ill. 1999) ............................................ 24
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) ...................................................... 30, 31
U.S. Brewers Ass’n, Inc. v. EPA, 600 F.2d 974 (D.C. Cir. 1979)................................................ 32
U.S. v. City of Fort Pierre, 747 F.2d 464 (8th Cir. 1984). ............................................................ 16
U.S. v. Lopez, 514 U.S. 549 (1995) .................................................................................... 3, 6, 7, 8
U.S. v. Morrison, 529 U.S. 598 (2000) .................................................................................. passim
U.S. v. Riverside Bayview Homes Inc., 474 U.S. 121 (1985). ....................................................... 8
United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir. 1974) ............................... 20
United States v. Byrd, 609 F.2d 1204 (7th Cir. 1979) .................................................................. 19
United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997) ............................................................. 19
United States v. Lankford, 196 F.3d 563 (5th Cir. 1999). .............................................................. 5
United States v. Mead Corp., 121 S. Ct. 2164 (2001) ...................................................... 26, 27, 29
United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993) ................................................................. 19
Univ. of Cincinnati v. Bowen, 875 F.2d 1207 (6th Cir. 1989) ..................................................... 30
Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) ............................................................................. 16
Vincent v. Apfel, 191 F.3d 1143 (9th Cir. 1999) .......................................................................... 31
Waldschmidt v. Amoco Oil Co., 924 F. Supp. 88 (C.D. Ill. 1996). ............................................. 23
Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1428 .............................................. 1
Water Keeper Alliance v. U.S. Dept. of Defense, 152 F. Supp. 2d 163 (D.P.R. 2001) ......... 22, 23
Young v. Cmty. Nutrition Inst., 476 U.S. 974 (1986) .................................................................. 29
Zands v. Nelson, 779 F. Supp. 1254 (S.D. Cal. 1991) .................................................................. 23
Statutes
16 U.S.C. § 2104 ............................................................................................................................. 4
16 U.S.C. § 712 ............................................................................................................................... 9
33 U.S.C. § 1251 ........................................................................................................................... 19
42 U.S.C. § 6903. .................................................................................................................... 21, 22
42 U.S.C. § 6907 ........................................................................................................................... 28
42 U.S.C. § 6912 ........................................................................................................................... 28
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42 U.S.C. § 6942 ........................................................................................................................... 28
42 U.S.C. § 9601 ........................................................................................................................... 22
7 U.S.C. §§ 136-136y (2001) .......................................................................................................... 4
Other Authorities
45 Fed. Reg. 33,084 (May 19, 1980). ........................................................................................... 33
50 Fed. Reg. 614 (Jan. 4, 1985). ................................................................................................... 31
55 Fed. Reg. 30,798 (July 27, 1990) ............................................................................................. 35
H.R. Rep. No. 94-149(I) (1976), ............................................................................................. 24, 28
H.R. Rep. No. 98-198(I) (1984) .................................................................................................... 33
Letter from Jeff Hannapel, EPA Office of Solid Waste, to Duncan Campbell, EPA Region V
(Mar. 13, 1997) ......................................................................................................................... 29
Letter from Sylvia K. Lowrance, Director, EPA Office of Solid Waste, to Jame Magee, Asst.
Comm’r for Solid and Hazardous Waste Mgmt., Ind. Dep't of
Envtl. Mgmt. (Sept. 6, 1988) .............................................................................................. 29, 34
Letter from Sylvia K. Lowrance, Director, Office of Solid Waste, to Ward B. Stone, Associate
Wildlife Pathologist, New York Dep't of Envtl. Conservation (Jan. 15, 1992)........................ 29
Protocol Amending the 1916 Convention for the Protection of Migratory Birds in the U.S. and
Canada, S. Treaty Doc. No. 104-28 (1995) .............................................................................. 10
S. Conf. Rep. No. 92-1236 (1972) .......................................................................................... 11, 20
S. Rep. No. 106-528 (2001). .................................................................................................. passim
V. Albrecht & B. Goode, Wetland Regulation in the Real World (Feb. 1994) .............................. 7
Rules
Fed. R. Civ. P. 56 .......................................................................................................................... 35
Regulations
33 C.F.R. § 328.3 .................................................................................................................... 18, 21
40 C.F.R. § 122.2. ................................................................................................................... 14, 18
40 C.F.R. § 261.1 .......................................................................................................................... 25
40 C.F.R. § 261.2 .......................................................................................................................... 36
40 C.F.R. § 261.4 .................................................................................................................... 36, 38
Constitutional Provisions
U.S. Const. art. II, § 2 ................................................................................................................... 10
U.S. Const. art. I, § 8, cl. 3 .............................................................................................................. 3
AA.
Standard of review
The standard of appellate review of a district court’s grant of summary judgment is well
established. The appellate court reviews such a grant de novo. This is especially true where, as
here, the district court’s disposition presents only a legal issue of statutory interpretation. Waste
Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1428 (9th Cir. 1998) (reviewing whether
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uranium mill tailings are “pollutants” under the Clean Water Act); accord Perry v. Dowling, 95
F.3d 231, 235 (2nd Cir. 1996).
BB.
Statement of the Case
Birdwatchers of Groveton, Inc. (BOG) brought this action by filing a complaint in the
district court for the District of New Union, alleging that Suave Real Properties, Inc. (Suave)
violated the Clean Water Act (CWA), 33 U.S.C. § 1311(a), by discharging fill material and
pollutants into Sheldrake Pond without permits as required by 33 U.S.C. §§ 1342 and 1344.
BOG also alleged that Suave violated the Resource Conservation and Recovery Act (RCRA), 42
U.S.C. §§ 6925(a), 6972(a)(1)(B), by disposing hazardous waste into and around the Pond
without a RCRA permit and by creating an imminent and substantial endangerment. The
Environmental Protection Agency (EPA) intervened on behalf of BOG in both CWA claims, and
the RCRA claim under 42 U.S.C. § 6972(a)(1)(B). BOG and EPA appeal the district court’s
grant of summary judgment in favor of Suave on all claims.
Sheldrake Pond is a long, narrow, seasonal pond reaching four feet deep and twenty-five
acres in extent during the wet part of the year. The Pond is an important stopover for many birds
during their annual interstate and international migrations. Over two hundred species of birds,
many of which migrate between the United States, Canada and/or Mexico, such as Mexican
ducks, jacanas, avocets, sandhill cranes, and warbling vireos have been observed at the Pond.
Suave owns land to the west and south of the Pond, and part of the western end of the Pond. The
County owns land to the east and south of the Pond, and the remainder of the Pond.
In 2000, Suave began to operate the Groveton Rifle and Pistol Association (GRAPA),
including a skeet shooting range, on its land adjacent to Sheldrake Pond. Suave filled a small
portion of the western end of the Pond to build a platform for the skeet ejector. Skeet shooters
who visit GRAPA shoot at skeet launched over the pond with lead shot. Hit or miss, broken and
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unbroken skeet parts and spent lead shot commonly fall into and around the Pond, on land owned
by Suave and the County. While a berm behind the targets catches most of the spent shot, shot
and skeet commonly overshoot the berm, littering the land beyond and polluting the Pond.
CC.
Summary of Argument
The district court dismissed all of Appellant’s claims. In doing so, the court committed a
series of reversible errors. First, the court erroneously concluded that federal regulation of
Sheldrake Pond exceeded Congress’ power under the Commerce Clause by holding that
migratory birds are not instrumentalities of interstate commerce, or things in interstate
commerce, that the migratory bird flyway, which includes Sheldrake Pond, is not a channel of
interstate commerce, and that Appellee’s activities do not substantially affect interstate
commerce. The district court also erred by failing to attach any significance under the Treaty
Clause to treaties currently in force that support federal regulation of Sheldrake Pond in this case.
Second, the court failed to recognize the applicability of the Water Pollution Protection Act of
2001 to Appellant’s CWA claim. The court relied on inappropriate case law while ignoring
more relevant precedent, and incorrectly construed the plain meaning of the CWA’s jurisdiction
in dismissing that claim. Third, the court erred in construing RCRA’s statutory definition of
solid waste to include a consumer product exception, ignoring the statute’s plain language and
congressional intent while failing to defer to EPA’s interpretation. Last, the court erred in
construing RCRA’s regulatory definition of solid waste to likewise include a consumer product
exception by improperly deferring to an invalid EPA interpretation.
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DD. Argument
the District Court errEd in holding that neither the commerce clause nor the treaty clause justifies federal
regulation of water pollution in Sheldrake Pond
The court below held that federal regulation of Sheldrake Pond cannot be supported by
either the Commerce Clause or the Treaty Clause of the U.S. Constitution. In doing so, the court
misinterpreted constitutional jurisprudence.
The Commerce Clause justifies federal regulation of Sheldrake Pond.
The Commerce Clause states that Congress shall have the power “[t]o regulate
Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
U.S. Const. art. I, § 8, cl. 3. This power includes the regulation of instrumentalities or things of
interstate commerce, channels of interstate commerce, and activities that substantially affect
interstate commerce, either by themselves or through the aggregate effect of similarly situated
activities. See U.S. v. Lopez, 514 U.S. 549, 558-59 (1995); U.S. v. Morrison, 529 U.S. 598, 60809 (2000).
The district court concluded that federal regulation of Sheldrake Pond under the Clean
Water Act (CWA) is an unconstitutional use of the commerce power. The court erred, however,
by failing to recognize that: a) migratory birds known to Sheldrake Pond are instrumentalities or
things of interstate commerce, b) Sheldrake Pond is a channel of interstate commerce, and c)
Appellee’s activities substantially affect interstate commerce.
Migratory birds are instrumentalities of interstate commerce.
The Supreme Court recently ruled that the Commerce Clause justifies regulation of
“instrumentalities of interstate commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities.” Morrison, 529 U.S. at 609.
Although the Court has never defined instrumentalities of interstate commerce, we can glean a
definition from its jurisprudence. Essentially, an instrumentality of interstate commerce is
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something that facilitates or prevents injury to interstate commerce. See Southern Ry. Co. v.
United States, 222 U.S. 20, 27 (1911) (upholding federal regulation requiring safety devices on
railroad cars hauling goods intrastate); Houston, E. & W. Tex. Ry. Co. v. U.S., 234 U.S. 342
(1914) (the Shreveport Rate Cases) (upholding federal regulation of intrastate railroad rates);
Perez v. U.S., 402 U.S. 146, 150 (1971) (upholding federal regulation of extortionate intrastate
credit transactions).
Consequently, migratory birds are instrumentalities of interstate commerce because they
both facilitate interstate commerce and prevent injury to interstate commerce. First, migratory
birds contribute to insect control for both agricultural and forestry interests, both of which are
interstate industries. This in turn improves crop yields, protects national forests, and reduces the
need for chemical pest control. See Missouri v. Holland, 252 U.S. 416, 435 (1920) (recognizing
pest control benefits of migratory birds). Any harm to migratory birds that utilize Sheldrake
Pond diminishes such pest control benefits, detrimentally impacting interstate agriculture and
forestry. Congress has already used its commerce power to regulate pest control for both
agricultural and forestry protection, demonstrating that it has the ability to protect migratory
birds. See 7 U.S.C. §§ 136-136y (2001) (regulating the use of pesticides for insect control); 16
U.S.C. § 2104 (regulating pest control in the National Forest System).
Second, migratory bird hunters and recreational observers spend more than one billiondollars per year. S. Rep. No. 106-528, at 23 (2001). Therefore, by their very existence and
successful migrations, migratory birds facilitate interstate commerce. Any harm to these birds
will diminish these interstate industries, for if there is nothing to hunt or observe, there will be no
reason to furnish the goods and services necessary to do so.
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The district court erred in holding that migratory birds are not instrumentalities of
interstate commerce. Appellants presented evidence that there is a genuine issue of material fact
whether migratory birds are instrumentalities of commerce “such that a reasonable [fact-finder]
could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Accordingly, this Court should reverse the holding of the district court.
Migratory birds are also things of interstate commerce.
Migratory birds are things in interstate commerce despite the fact that other courts have
held that some types of wildlife are not things of interstate commerce. See Gibbs v. Babbitt, 214
F.3d 483 (4th Cir. 2000), cert. denied sub nom. Gibbs v. Norton, 121 S. Ct. 1081 (2001) (finding
that red wolves are not things in interstate); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d
1041, 1045 (D.C. Cir. 1997) (NAHB) (rejecting notion that Delhi Sands Flower-Loving Fly was
a thing in interstate commerce). Although migratory birds are unlike things we commonly think
of being transported in interstate commerce—no one owns them and they transport themselves
interstate—these differences do not remove them from the realm of interstate commerce. They
are a food supply that competes with the billion-dollar per year poultry industry. See S. Rep. No.
106-528, at 23. They provide recreational benefits to bird observers. Id. They are undeniably
interstate commodities. See Holland, 252 U.S. at 434. These differences distinguish them from
the red wolf at issue in Gibbs, which was not a food supply or even a source of commerce
through pelt trade, and from the Delhi Sands Flower-Loving Fly in NAHB, which was neither a
food supply nor an interstate insect. Accordingly, this Court should reverse the district court.
Sheldrake Pond is a channel of interstate commerce.
In Morrison, the Supreme Court acknowledged Congress’ ability to regulate channels of
interstate commerce. Morrison, 529 U.S. at 609. Although the Supreme Court has never offered
a definition, the Fifth Circuit equated channels of interstate commerce with “the use of the
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interstate transportation routes through which persons and goods move.” United States v.
Lankford, 196 F.3d 563, 571-72 (5th Cir. 1999). If migratory birds are things in interstate
commerce, then the channels they move in, notably the habitat that makes up the interstate bird
migration flyway, is a channel of interstate commerce. Id. Appellants have alleged that
Sheldrake Pond is part of this migratory bird flyway. See Birdwatchers of Groveton, Inc. v.
Suave Real Props., Inc., No. 01-878, slip op. at 3 (D. New Union). Consequently, the commerce
power extends to regulate water pollution at Sheldrake Pond.
The court below, however, believed that interpreting Sheldrake Pond as a channel of
interstate commerce will make the whole country subject to federal regulation, or obliterate
traditional state control over land and water use decisions. Birdwatchers, No. 01-878, slip op. at
7. This is not true. First, land throughout the country is not universally suitable for migratory
bird habitat. In fact, it is the combination of scarcity of habitat like that provided by Sheldrake
Pond, the importance of such habitat to migratory birds, and the risk of its destruction through
development that prompted environmental regulation through the CWA. See 1 Secretary of the
Interior, Report to Congress, The Impact of Federal Programs on Wetlands: The Lower
Mississippi Alluvial Plain and the Prairie Pothole Region 79-80 (Oct. 1988).
Appellee’s activities substantially affect interstate commerce.
Federal jurisdiction over Sheldrake Pond is further justified because Appellee’s activities
substantially affect interstate commerce. Morrison makes clear that Congress’ commerce power
extends to “those activities that substantially affect interstate commerce.” Morrison, 529 U.S. at
609. This power extends to regulation of activities that may have an individually insignificant
effect on interstate commerce but have a substantial effect if viewed in aggregate. Lopez, 514
U.S. at 558 (“Where a general regulatory statute bears substantial relation to commerce, the de
minimis character of individual instances arising under that statute is of no consequence.”).
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determine whether an activity substantially affects interstate commerce, the court looks to 1) the
subject of the regulated activity; 2) the presence of an express jurisdictional element in the
regulation; 3) the presence of congressional findings; and 4) degree of attenuation of the link
between the regulated activity and its effect on interstate commerce. Id. at 561-567; see also
Morrison, 529 U.S. at 609. A reviewing court uses a rational basis test to evaluate whether the
regulated activity sufficiently affects interstate commerce. Lopez, 514 U.S. at 557.
Appellee’s activities are economic in character and will substantially affect interstate
commerce.
Unlike regulations at issue in Lopez and Morrison, there are multiple levels of economic
activity at stake here, with no criminal overtones. First, Appellees filled and polluted Sheldrake
Pond in constructing and operating its facility. This certainly is an economic activity. See V.
Albrecht & B. Goode, Wetland Regulation in the Real World, Exh. 3 (Feb. 1994) (“the discharge
of fill materials into the Nation’s waters is almost always taken for economic reasons”).
Second, Appellee’s actions affect migratory birds’ ability to survive, substantially
affecting interstate commerce. Agricultural and forestry interests depend on the insect control
benefits provided by migratory birds. Holland, 252 U.S. at 431. Hunters and recreational
observers of migratory birds pay for travel, goods, and services in order to indulge those pursuits.
S. Rep. No. 106-528, at 23. For instance, in Gibbs, the Fourth Circuit found substantial affects
between the protection of endangered red wolves and interstate commerce. 214 F.3d at 493-96.
The Gibbs court noted economic ties between recreational observers of the red wolf, the
potential for hunting red wolves for pelts, and the red wolves’ economic benefit to agricultural
crops by preying on wildlife that could destroy such crops. Id.
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Third, even if Appellee’s activities by themselves are not adjudged to have a substantial
effect on interstate commerce, the aggregate of the activities of those similarly situated with
Appellee will definitely have a substantial effect on interstate commerce. In fact, that is why
Congress created a general regulatory framework to regulate water pollution and fill of areas like
Sheldrake Pond. See The Impact of Federal Programs on Wetlands at 79-80.
The jurisdictional validity of the CWA has already been approved.
The present case is not a facial challenge to the constitutionality of the legislative act as
was the case in Morrison and Lopez. See Lopez, 514 U.S. at 551 (holding the Gun-Free School
Zone Act, 18 U.S.C. § 922(q)(1)(A), unconstitutional); Morrison, 529 U.S. at 602 (holding the
civil remedy provision of the Violence Against Women’s Act, 42 U.S.C. § 13981,
unconstitutional). Rather, it is a challenge to the interpretation and application of the CWA by
the Corps to Sheldrake Pond. Significantly, the Court has already ruled that the CWA grants
jurisdiction to the Corps to regulate wetlands adjacent to other bodies of water over which the
Corps had jurisdiction. See U.S. v. Riverside Bayview Homes Inc., 474 U.S. 121, 135 (1985).
Therefore, the Lopez and Morrison Courts’ concern with jurisdictional limits has already been
assuaged for the CWA.
Congress has made findings indicating the substantial effect of Appellee’s activities on
interstate commerce.
In Lopez, the Court noted that the existence of congressional findings describing the link
between the regulated activity and interstate commerce might help it to find the regulation
constitutional. Lopez, 514 U.S. at 563. Here, a Senate Report details the connection between
interstate commerce and migratory birds. See S. Rep. No. 106-528, at 23.
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In fact, the district court erred by failing to recognize the validity of S. Rep. No. 106-528
as evidence showing the substantial effects Appellee’s activities have on interstate commerce.
The lower court mistakenly cited Morrison as standing for the proposition that congressional
findings and Senate reports are insufficient to prove an issue of fact. Having already found that
gender-motivated violence was not economic in character and that the act at issue did not contain
an express jurisdictional limit, the Morrison Court simply stated “the existence of congressional
findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause
legislation.” Morrison, 529 U.S. at 614 (emphasis added). Rather than commenting on the
insufficiency of congressional findings to show substantial effects on interstate commerce, the
Court was simply asserting its authority over Congress by noting that Congress could not simply
declare that the Commerce Clause applied to make it so. The Senate Environmental Committee
Report alleges facts that support Appellee’s contentions that the aggregate of activities like
Appellee’s do substantially affect interstate commerce from which a fact-finder could make
inferences favorable to Appellee. Therefore, it was improper for the district court to grant
summary judgment against Appellee. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The link between Appellee’s activity and its effect on interstate commerce is not
attenuated.
Both the Lopez and Morrison Courts were disturbed by the attenuated link between the
regulated activity and its effect on interstate commerce. Morrison, 529 U.S. at 612 (citing
Lopez, 514 U.S. at 563-67). Here, the link between the subject of federal regulation—filling and
polluting Sheldrake Pond and its effect on migratory birds—is concrete and direct. No one
disputes that filling and polluting Sheldrake Pond will have a detrimental effect on migratory
birds. It remains a matter of fact, however, whether the effect on interstate commerce will be
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substantial. Accordingly, the district court erred in holding that Appellee’s activities do not
substantially affect interstate commerce because appellants have plead facts upon which a
reasonable jury could return an affirmative verdict. Anderson, 477 U.S. at 248.
The Treaty Clause justifies federal regulation of water pollution in Sheldrake Pond.
The Treaty Clause of the U.S. Constitution, art. II, § 2, in combination with the
Necessary and Proper Clause, art. I, § 8, cl. 18, enables Congress and the Executive to implement
treaties. Holland, 252 U.S. at 433 (“if the treaty is valid there can be no dispute about the
validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the
powers of the government.”) The U.S. has various treaty obligations that require regulation of
Appellee’s activities on Sheldrake Pond. See 16 U.S.C. § 712 (authorizing the Department of
the Interior to promulgate regulations to implement migratory bird treaties with a number of
countries, including Canada); Protocol Amending the 1916 Convention for the Protection of
Migratory Birds in the U.S. and Canada, S. Treaty Doc. No. 104-28, art. IV(a) (1995) (each
country will “seek means to prevent damage to such birds and their environments, including
damage resulting from pollution”). The district court erred in two respects by holding that the
Treaty Clause does not support federal regulation of fill and water pollution in Sheldrake Pond.
First, by failing to interpret the law and the Constitution, the court below failed in its judicial
duty. Second, the district court did not show proper deference to the legislative branch.
The district court failed in its judicial duty by not evaluating the Treaty Clause as a
support for federal regulation of Sheldrake Pond.
The district court held that Congress must have indicated that it was “acting pursuant to
the Treaty Clause when it enacted the CWA,” and so failed to evaluate the constitutionality of
federal regulation under the Treaty Clause. Birdwatchers, No. 01-878, slip op. at 7. Since
Marbury v. Madison, 1 Cranch 137, 177 (1803), however, the Court has jealously guarded its
monopoly on constitutional interpretation, and the ability to determine whether legislation is
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constitutional. “Interpretation of the law and the Constitution is the primary mission of the
judiciary when it acts within the sphere of its authority to resolve a case or controversy.” 1
Cranch at 177; Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) (citing Marbury).
As the Court in Velasquez reiterated, the federal judiciary is responsible for determining
whether a law is constitutional. No pronouncement by Congress is necessary. In fact, Morrison
specifically states that congressional pronouncements on a law’s constitutionality are inadequate
to prove that point. Morrison, 529 U.S. at 614. Although Morrison noted that inclusion of the
jurisdictional basis of a congressional act might help the Court find that the regulated activity
substantially affects interstate commerce, it did not stand for a requirement that Congress include
a jurisdictional element when passing future legislation, much less require such a jurisdictional
element retroactively. Id. at 612. It is illogical to imagine Morrison stands for such a
requirement for statutes like the CWA, passed almost thirty years ago. Therefore, the district
court erred by not evaluating the Treaty Clause as a support of CWA regulation.
Further, the district court’s disavowal of its judicial duty is even more illogical when
compared with its earlier conclusion that congressional findings and senate reports were
insufficient evidence to supports Appellants’ claim that Appellee’s activities substantially affect
interstate commerce. Birdwatchers, No. 01-878, slip op. at 7. Either the word of Congress is
important, or it is not.
The district court did not show proper deference to the legislative branch.
Morrison also cautioned that legislative acts were to be evaluated deferentially. “Due
respect for the decisions of a coordinate branch of Government demands that we invalidate a
congressional enactment only upon a plain showing that Congress has exceeded its constitutional
bounds.” Morrison, 529 U.S. at 607. Instead, the district court eschewed such deference,
refusing even to engage in an analysis of whether the Treaty Clause supports federal regulation.
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Significantly, Congress has indicated that it intended to regulate areas like Sheldrake
Pond, regardless of their constitutional underpinnings. First, the joint Senate and House
conference committee report for the CWA stated that the definition of “navigable waters” was to
be given the “broadest possible constitutional interpretation.” S. Conf. Rep. No. 92-1236, at 144
(1972). Such a broad constitutional interpretation would include analysis under the Treaty
Clause of Congress’ power to regulate Sheldrake Pond. Second, in its most recent amendment,
the Senate Report stated, “not only the Commerce Clause justifies our jurisdiction to protect
these waters, the Treaty Clause justifies it as well.” S. Rep. No. 106-528, at 23. Accordingly,
this Court should find that the Treaty Clause supports federal regulation under the CWA of
Sheldrake Pond and remand to the district court for adjudication consistent with that holding.
The District Court Erred in Holding that Sheldrake Pond is Not A Navigable Water Under the CWA
The court below held that the statutory definition of navigable waters under the Clean
Water Act (CWA) does not reach Sheldrake Pond. The court relied heavily on Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In
doing so, the court erred by failing to recognize distinctions between that and the present case,
ignored the limited scope of the Supreme Court’s holding in SWANCC, overlooked Congress’
intent to legislatively overrule SWANCC, and failed to apply proper statutory construction.
The Water Pollution Protection Act of 2001 controls this case.
The 2001 Amendment of the CWA amended the statutory definition of navigable water
and extends CWA jurisdiction over Sheldrake Pond. Even though the Amended Act was passed
after this action was filed, it applies to this case because it clarifies the definition of “navigable
water,” and because Congress intended it to apply retroactively. The district court erred by
failing to recognize this.
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The Amended Act extends jurisdiction over Sheldrake Pond.
The plain language of the Amended Act extends jurisdiction over Sheldrake Pond.
The plain language of the amended definition of “waters of the United States” squarely
incorporates Sheldrake Pond. The definition states that these waters include:
[a]ll other waters such as . . . playa lakes, or natural ponds the use, degradation, or
destruction of which would affect or could affect interstate or foreign commerce
including any such waters . . . which are or could be used by interstate or foreign
travelers for recreational or other purposes.
Water Pollution Protection Act of 2001, Pub. L. No. 106-720 (2001). Sheldrake Pond, as a
natural pond or playa lake, falls under this definition.
Appellee argued below that Sheldrake Pond is not a playa lake, but a vernal pool. The
size of Sheldrake Pond, up to 25 acres in area, however, discredits this position. The district
court described Sheldrake Pond as a “playa pond, which is intermittently wet,” Birdwatchers,
No. 01-878, slip op. at 5, which would consequently fall within the amended definition.
Even if Sheldrake Pond were not a body of water enumerated by the definition of “waters
of the United States,” it would still be covered by the explicit language of the definition
exercising jurisdiction over “other waters . . . which are or could be used by interstate travelers
for recreational or other purposes.” 40 C.F.R. § 122.2. Appellant has identified at least two
recreational purposes for Sheldrake Pond in this case. One recreational use is bird watching.
The other is skeet shooting. Moreover, the fact that there might not be any current use by
interstate travelers is not determinative as the definition includes potential use in interstate
recreation. In the present case, such a potential exists as interstate travelers could easily be
attracted by the wealth of observable bird species or by the firing range. Thus, the plain
language of the Amended Act extends CWA jurisdiction to Sheldrake Pond.
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Congress intended to extend CWA jurisdiction to isolated intrastate waters such as
Sheldrake Pond.
Even if this Court finds that the language of the Amendment is not plain and
unambiguous, it should still extend the CWA’s jurisdiction to Sheldrake Pond because Congress
expressed a clear intent that the amendment extends jurisdiction to isolated, intrastate waters
such as Sheldrake Pond. The Senate report accompanying the amendment specifically states,
“[w]e intended to cover isolated waters that are important stopovers for migratory birds.” S.
Rep. No. 106-528, at 23. Appellants have alleged that during the past two decades, over 200
species of birds have been observed on the Pond or its banks, many of which migrate between
the United States, Canada, and Mexico. Birdwatchers, No. 01-878, slip op. at 3. Viewing this
pleading in the light most favorable to the party opposing summary judgment, the court below
should have applied the amendment and denied summary judgment to Appellee. See Conley v.
Gibson, 355 U.S. 41, 45 (1957). In granting Appellee’s motion, therefore, the court below erred.
The 2001 Amended Act applies because it is clarifying legislation.
The district court mischaracterizes the Amended Act as retroactive legislation. It is more
properly viewed as legislation clarifying the meaning of “navigable waters” under the Amended
Act. Although there is a general presumption against retroactive application of statutes,
clarifying legislation can be applied retroactively. See Abkco Music, Inc. v . Lavere, 217 F.3d
684, 689 (9th Cir. 2000) (“Clarifying legislation is not subject to any presumption against
retroactivity and is applied to all cases pending as of the date of its enactment.”); Quinlan v.
Koch Oil Co., 25 F.3d 936, 941 (10th Cir. 1994) (clarifying amendment which explains
ambiguous law to more clearly express the legislative intent is given retroactive application if it
does not impair vested rights).
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Nevertheless, the district court dismissed this clarifying legislation claiming the “views of
a later Congress are of no help in ascertaining the intent of an earlier Congress.” Birdwatchers,
No. 01-878, slip op. at 6. Yet, as noted in Beverly Community Hospital Ass'n. v. Belshe, 132
F.3d 1259 (9th Cir. 1997), “[g]iven the extraordinary difficulty that the courts have found in
divining the intent of the original Congress, a decision by the current Congress to intervene by
expressly clarifying the meaning of [the statute] is worthy of real deference.” 132 F.3d at 1265.
Consequently, the Amended Act, as clarifying legislation, should be applied to cases such as the
present one, which was pending at the time of its passage. Bradley v. School Bd. of the City of
Richmond, 416 U.S. 696, 715-17 (1974) (courts must apply the law in effect at the time a
decision is rendered). The district court erroneously overlooked the special clarifying nature of
the Amended Act.
Congress intended the Amended Act to be retroactive legislation.
Even if the 2001 amendment is not viewed as clarifying legislation, it still applies to the
instant case. The district court incorrectly stated “the statutory law that governs a case is the
statutory law that exists at the time a complaint is filed.” Birdwatchers, No. 01-878, slip op. at 6.
While it is true that, in general, statutes apply prospectively, the Court has held that courts must
apply the law in effect at the time it renders its decision. Bradley, 416 U.S. at 711, 715 (rejecting
the contention that a change in the law is to be given effect in a pending case only where that is
the clear and stated intention of the legislature). The presumption against retroactivity is, after
all, only a presumption. Courts have regularly applied statutes conferring or ousting jurisdiction
much as the expanded definition of navigable water expands the Corps’ jurisdiction. Landgraf v.
USI Film Prods., 511 U.S. 244, 274 (1994) (listing cases). Courts tend to apply statutes
retroactively when they specifically attempt to overrule previous court rulings. Id. at 251. If
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Congress expressed an intent that a statute apply retroactively, then that intent governs. Id. at
264; Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837 (1990).
Sheldrake Pond is distinguishable from the waters in SWANCC.
Even if the Amended Act does not govern the present case, neither does the Court’s
decision in SWANCC. In SWANCC, the Court held that isolated, intrastate waters did not
qualify as “navigable waters” under the CWA. In relying heavily on SWANCC, the district
court failed to note important factual and legal distinctions. In doing so, the court below erred.
While both SWANCC and the present case address isolated, intrastate waters, the type of
body of water at issue in each case is different. In SWANCC, the waters at issue were a
“scattering of permanent and seasonal ponds varying in size from 1/10 of one acre to several
acres” that developed from excavation trenches at a sand and gravel pit mining operation.
SWANCC, 531 U.S. at 163. These “ponds” were man-made trenches and gravel mining pits that
filled with water. Id. They would not exist but for the prior mining operation. In contrast,
Sheldrake Pond is a naturally occurring, seasonal playa pond of up to 25 acres in size during the
wet part of the year. Birdwatchers, No. 01-878, slip op. at 3, 5.
Although the district court dismissed these differences, calling the two cases “almost
identical,” id. at 5, the administrative scheme implementing the CWA and past precedent
demonstrate that the type of water body is central to assessing whether 33 U.S.C. § 1362(7)
applies to it. For instance, the Corps, which shares responsibilities for enforcement of the CWA
with the EPA, defines “waters of the United States” to include “waters such as intrastate lakes,
rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of
which could affect interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(3) (1999) (emphasis
added). EPA has adopted similar language. 40 C.F.R. § 122.2. These regulations are very
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explicit about which bodies of water qualify as “waters of the United States.” Consequently, it is
important what type of water body is at issue.
The importance of a water body’s attributes in assessing CWA jurisdiction is underscored
throughout CWA jurisprudence. Unlike the court below, courts generally pay close attention to a
water body’s attributes. See Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1296 (1st Cir. 1996)
(holding natural pond not directly connected to a navigable-in-fact water body is covered by the
Act); Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617, 624 (8th Cir. 1979)
(extending CWA jurisdiction to a non-navigable lake); Utah v. Marsh, 740 F.2d 799, 804 (10th
Cir. 1984) (CWA applies to a lake located entirely within a state). All these clearly identifiable
bodies of water have been held to be “waters of the United States” for the purposes of the CWA.
In contrast, an area characterized as a “slough” was not found to be a “navigable water” because
it exhibited none of the characteristics associated with a wetland. U.S. v. City of Fort Pierre, 747
F.2d 464, 467 (8th Cir. 1984). In all these cases, the courts were specific in describing the type
of water at issue.
In the present case, then, the district court erred by not recognizing the distinctions
between SWANCC and this case. It should be noted that the regulations do not mention manmade ponds such as those in SWANCC. The use of the word “natural” to modify “ponds” in the
regulation suggests that man-made ponds are specifically excluded from the CWA. This seems
reasonable since including man-made ponds would discourage people from building ponds on
their land for fear of invoking CWA jurisdiction. While the ponds in SWANCC took on a
“natural character,” SWANCC, 531 U.S. at 164, the Court’s holding that the CWA does not
apply to the ponds in that case indicates that a man-made pond that results from gravel quarrying
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does not qualify under the CWA, even if it takes on a natural character. Sheldrake Pond is not a
man-made pond and so it qualifies under the CWA.
The district court ignored applicable precedent.
In reaching its decision, the district court ignored the holding of Riverside Bayview, 474
U.S. at 121. In Riverside Bayview, the Court held that CWA jurisdiction extended to a wetland
adjacent to waters covered by the CWA. Id. at 124. The Court also recognized Congress’ broad
remedial intent for the statute and upheld the Corps interim final regulation. Id. That regulation
defined “waters of the United States” to include not only actually navigable waters, but also
tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate
waters whose use or misuse could affect interstate commerce. 40 Fed. Reg. 31,320 (1975).
Since Sheldrake pond is a nonnavigable intrastate water whose use or misuse could affect
interstate commerce (see above for discussion of commerce), the CWA applies to it under
Riverside Bayview.
The district court erred by relying on the SWANCC Court’s reading of Riverside
Bayview, which claimed that intrastate ponds must be adjacent to navigable in fact water to
invoke CWA jurisdiction. This is an incorrect assessment of the scope of the holding in
Riverside Bayview. First, the waters at issue in Riverside Bayview were wetlands, not ponds.
Second, it is not clear that the SWANCC Court’s characterization of the significant nexus
between the navigable waters and the wetlands in Riverside Bayview, which the SWANCC
Court uses to distinguish Riverside Bayview from SWANCC, is accurate. SWANCC, 531 U.S.
at 182 n.2 (Stephens J., dissenting) (“There was no direct ‘hydrological’ connection between the
parcel at issue and any nearby navigable waters.”). Third, the SWANCC Court improperly
restricted the holding of Riverside Bayview to wetlands adjacent to “navigable waters,” rather
than wetlands adjacent to waters covered by the CWA under the Corps regulation. Therefore,
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the district court erred by relying on the SWANCC Court’s reading of Riverside Bayview and
refusing to apply the CWA to Sheldrake Pond.
Congress has overruled SWANCC.
Even if the district court properly read SWANCC to limit Riverside Bayview, its reliance
on SWANCC is misplaced because Congress overruled the decision with the 2001 Amendment
to the Clean Water Act. See Water Pollution Protection Act of 2001, Pub. L. No. 106-720
(2001). In passing the Amended Act, Congress overruled SWANCC, stating that “[t]he Supreme
Court’s opinion in [SWANCC] misinterpreted congressional intent. When we first enacted the
CWA in 1972, we intended the terms ‘navigable waters’ and ‘waters of the United States’ to
extend as far as our Commerce Clause authority extends. We intended the terms to cover
isolated waters.” S. Rep. No. 106-528, at 23. With SWANCC properly overruled, the district
court erred in relying on that decision. At the very least, the district court should have engaged
in traditional methods of statutory interpretation to decide whether the CWA applied to
Sheldrake Pond.
The district court incorrectly construed the definition of “navigable waters.”
Whether isolated, intrastate waters are “navigable waters” under the CWA is a question
of statutory interpretation. Analysis of any statute begins with “the language of the statute.”
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). If the language of the statute is
clear, the analysis ends there. Id.
Section 33 U.S.C. 1362(7) defines “navigable waters” to be “waters of the United States
including the territorial seas.” This plain language provides no limitation to the scope of the
CWA, applying its jurisdiction to all of the waters within the United States. The district court
incorrectly relied on the SWANCC Court’s reasoning that “insignificant and isolated waters
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were not within the congressional definition of navigable water” because this would give the
definition “no meaning beyond water.” Birdwatchers, No. 01-878, slip op. at 5.
Congress used the phrase “waters,” not “water,” of the United States in defining the
scope of the term “navigable waters.” Looking to the regulations, the waters covered are
definable bodies, flows or areas of water as defined in 33 C.F.R. § 328.3(a)(3). The regulation
defining “waters of the United States” does not include such waters as transient drainage, vernal
pools, swales, man-made ponds or puddles. 33 C.F.R. § 328.3(a)(3). This distinction is
unsurprising and reasonable because Congress’ purpose in passing the CWA was to regulate
pollution, not to invade the state’s traditional control over land use. See 33 U.S.C. § 1251(a)
(CWA’s purpose is “to restore and maintain the chemical, physical, and biological integrity of
the Nation’s waters”); 33 U.S.C. § 1251(b) (recognizing the “primary responsibilities and rights
of States to plan the development and use . . . of land and water resources”).
In fact, prior to SWANCC, all courts addressing the issue have held that the phrase
“waters of the U.S.” reaches as many waters as the Commerce Clause allows. United States v.
Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979); see also United States v. Eidson, 108 F.3d 1336,
1341 (11th Cir. 1997); United States v. Pozsgai, 999 F.2d 719, 731 (3d Cir. 1993); Rueth v. U.S.
EPA, 13 F.3d 227 (7th Cir. 1993); Leslie Salt Co. v. United States, 896 F.2d 354, 357 (9th Cir.
1990); Quivira Mining Co. v. EPA, 765 F.2d 126, 129-30 (10th Cir. 1985); Avoyelles
Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 914-15 (5th Cir. 1983); United States v.
Ashland Oil & Transp. Co., 504 F.2d 1317, 1325 (6th Cir. 1974). The Supreme Court has also
recognized the broad scope of the CWA, stating that it “applies to virtually all surface water in
the country.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 486 (1987).
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The SWANCC Court, however, expressed concern that holding the CWA to apply to
man-made, non-navigable ponds would read the term “navigable” out of the statute. SWANCC,
531 U.S. at 172. Yet, as the dissent points out, “that was accomplished by Congress when it
deleted the word ‘navigable’” from the definition of waters of the United States. Id. at 182
(Stephens, J. dissenting). To adhere to a common dictionary definition of statutory language
without regard for the definition supplied by the statute is inconsistent with previous statutory
interpretation by the Court. Babbitt v. Sweet Home Chapter of Communities for Greater Or.,
515 U.S. 687, 697-98 n.10 (1995). The presence of the term “navigable” in the statute is due to
the history of federal water regulation and is shorthand for “waters over which federal authority
may be properly asserted.” SWANCC, 531 U.S. at 182 (Stephens, J. dissenting). At the very
least, the language of the CWA may be ambiguous regarding its scope. Such ambiguity requires
an examination of the legislative history.
The CWA’s legislative history reveals that Congress intended the CWA to have broad
jurisdiction. At passage, Congress indicated that the definition of “navigable water” was
intended to “be given the broadest possible constitutional interpretation.” S. Conf. Rep. No. 921236, at 144. Congress reaffirmed this intent when it ratified broad agency interpretation of
CWA jurisdiction while amending the Act in 1977. Affirmative ratification by Congress of
agency interpretations demonstrates Congress’ intent. See NLRB v. Gullett Gin Co., 340 U.S
361, 366 (1951) (when Congress amended the National Labor Relations Act without
modification, it accepted the existing administrative construction that had been approved by the
courts); Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 279 (1977) (where provisions of a statute
were repeatedly reenacted in the same form, the Court had “no doubt that Congress has ratified
the statutory interpretation” settled in the courts); Albemarle Paper Co. v. Moody, 422 U.S. 405,
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414 n.8 (1975) (where the courts were unanimous in their interpretation of Title VII
requirements, and Congress reenacted the statute without altering that interpretation, despite the
introduction of a bill designed to do so, “Congress plainly ratified th[at] construction”). In the
case of the CWA, the 1977 amendments demonstrate Congress’ intent that the CWA apply
broadly, even to isolated waters such as Sheldrake Pond.
The District Court erred in holding that fired shot and skeet parts are not solid waste when they fall to
the ground under 42 u.s.c. § 6972(a)(1)(b)
The court below held that fired shot and skeet parts are not solid waste within the
Resource Conservation and Recovery Act’s (RCRA) statutory definition. In doing so, the court
erred by ignoring plain and unambiguous statutory language, direct precedent within this circuit,
and an administrative interpretation that warranted deference.
The plain and unambiguous statutory language includes fired shot and skeet parts.
Whether fired shot and skeet parts are solid waste under 42 U.S.C § 6972(a)(1)(B) is a
question of statutory interpretation. As in any case of statutory construction, the Court’s analysis
begins with “the language of the statute.” Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438
(1999). Where the statutory language provides a clear answer, the court’s analysis ends there as
well. Id. Accordingly, this Court should look at the definition of solid waste expressed by
Congress in the statute.
There is no consumer use exception in the statutory definition of solid waste.
Solid waste is defined in RCRA as “any garbage, refuse, . . . and other discarded
material . . . resulting from . . . community activities.” 42 U.S.C. § 6903(27). It is this “broad []
statutory definition of solid waste [that] applies to citizen suits brought to abate imminent hazard
to health or the environment.” Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989
F.2d 1305, 1315 (2nd Cir. 1993) (Conn. Coastal II); Comite Pro Rescate De La Salud v. Puerto
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Rico Aqueduct and Sewer Auth., 888 F.2d 180, 187 (1st Cir. 1989) (concluding that statutory
definition of solid waste applies to citizen suits under section 6972(a)(1)(B) to abate imminent
and substantial endangerment); see also 40 C.F.R. § 261.1(b)(2)(ii) (material is a solid waste in
suits to abate imminent and substantial endangerment to health or the environment when the
statutory elements are established). The statute excludes “solid or dissolved material in domestic
sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which
are point sources . . . or source, special nuclear, or byproduct material.” 42 U.S.C. § 6903(27).
Nowhere in the statutory definition is there a “consumer use” exception. The court
below, however, found such an exception for consumer products used in their intended manner,
serving their intended purpose. While the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) includes such an exception for “any consumer
product in consumer use,” 42 U.S.C. § 9601(9), there is no such language in RCRA. Given that
“Congress knows how to say [something] when it means to,” Milwaukee v. Ill., 451 U.S. 304,
329 n.22 (1981), there consequently is no consumer product exception to RCRA as claimed by
the district court. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (Congress “says in a
statute what it means and means in a statute what it says there”). Accordingly, the court below
erred in holding that there is a consumer product exception to RCRA.
Lead shot and skeet parts are discarded material and therefore are solid waste.
The district court, however, concluded that fired shot and shattered skeet are not solid
waste because they have not been discarded, citing Water Keeper Alliance v. U.S. Dept. of
Defense, 152 F. Supp. 2d 163, 169 (D.P.R. 2001) (holding that military munitions do not become
discarded material immediately upon being fired) and No Spray Coalition, Inc. v. City of New
York, 2000 WL 1401458, at *4 (S.D.N.Y. 2000) (holding that spraying of a pesticide was not
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discarding because the pesticide was being used in its intended manner). Such a conclusion is
illogical because it conflicts with statutory language, congressional intent, and common sense.
Other courts considering the definition of solid waste have found that the term
“discarded” does not require specialized expertise to interpret it because it is “neither inherently
difficult to define nor is so intimately tied to knowledge of [an] industry.” Am. Mining Congress
v. U.S. EPA, 824 F.2d 1177, 1184 n.7 (D.C. Cir. 1984) (AMC I). In AMC I, the D.C. Circuit
concluded that Congress intended the ordinary, plain-English meaning of the word, specifically
that “discarded” means “disposed of,” “thrown away,” or “abandoned.” Id. at 1183-84.
In the present case, once shot and skeet fall back to the ground, they have been
“abandoned.” Defendants in similar cases have all conceded this point. Water Keeper, 152 F.
Supp. 2d at 169 n.6 (defendant not seeking to dismiss claim that ordinance debris and
unexploded ordinance left to accumulate constitute solid waste); see also Long Island
Soundkeeper Fund, Inc. v. New York Athletic Club, 1996 WL 131863, at *15 n.3 (S.D.N.Y.
1996) (defendant not moving for summary judgment on claim that operation of shooting range
results in disposal of waste which may present imminent and substantial endangerment).
The district court, however, persisted in claiming that even on the ground, the shot and
skeet continue to serve their intended purpose. Common sense dictates that once the shot and
skeet fall back to the ground, they are no longer useful and consequently become solid waste.
Zands v. Nelson, 779 F. Supp. 1254, 1262 (S.D. Cal. 1991) (holding that once gasoline is no
longer a useful product it is subject to RCRA authority as a statutory solid waste); accord
Waldschmidt v. Amoco Oil Co., 924 F. Supp. 88, 90 (C.D. Ill. 1996). Surely, lead shot and skeet
are no longer useful when scattered about. To all practical certainty, lead shot and clay skeet are
not good fertilizer. The present case, therefore, is distinguishable from No Spray, where a
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district court refused to consider the spraying of a pesticide to be discarding the pesticide. 2000
WL 140458, at *4. In that case, the pesticide had not yet effected its intended purpose. In the
present case, the shot and skeet have. Shot and clay skeet would normally be considered litter if
happened upon. In fact, it is instructive that under the CWA, lead shot and shattered clay targets
are considered pollutants. Stone v. Naperville Park Dist., 38 F. Supp. 2d 651, 655 (N.D. Ill.
1999).
It is telling that shooting ranges collect and dispose of spent cartridges that would
otherwise collect about the shooters’ feet. Surely, the spent cartridges are just as much subject to
the intended purpose logic as the spent shot and skeet, yet those cartridges are considered waste
as indicated by their disposal. Consider also what might happen if Appellee operated an archery
range instead of a shooting range. Arrows, like lead shot, are used to shoot at things. If errant
arrows are left to lie about, they would rightly be considered to have been abandoned or
discarded. Yet the court below thought that spent shot and skeet were not abandoned when left
to lie about. Unlike the application of pesticide, seed, sod, or mulch, when shot, skeet, and
arrows are used, they become trash once abandoned. Under plain statutory language, these
things are “solid waste.” Conn. Coastal II, 989 F.2d at 1316 (holding that spent lead shot and
clay targets in Long Island Sound are solid waste within RCRA’s broad statutory definition).
Even so, the court should look to RCRA’s legislative history to determine “whether there
is ‘clearly expressed legislative intention’ contrary to that language.” INS v. Cardoza-Fonseca,
480 U.S. 421, 433 n.12 (1987). RCRA’s legislative history reveals that Congress was
specifically concerned with “[consumer] products themselves once they have served their
intended purposes and are no longer wanted by the consumer.” H.R. Rep. No. 94-149(I), at
2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240. Closing the loophole for discarded and
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unwanted consumer products was Congress’ manifest intention in passing RCRA. Id. at
4 (RCRA designed to “eliminate[] the last remaining loophole in environmental law”).
Consequently, legislative history does not reveal any clearly expressed legislative intention that
requires to court “to question the strong presumption that Congress expresses its intent through
the language it chooses.” Cardoza-Fonseca, 480 U.S. at 433 n.12.
The court below failed to fully acknowledge congressional intent that once a product is
no longer wanted by the consumer and has been discarded, that product becomes subject to
RCRA. Even accepting the contention that lead shot and broken skeet scattered on the ground
and in water are serving their “intended purpose,” it cannot be accepted that they remain wanted
by the consumer. If they were, one would expect someone to go around collecting them. Rather,
the shot and skeet are left to lie on the ground, leech into groundwater, and otherwise create an
imminent and substantial endangerment to human health and the environment.
The Court need only consider the awkward proposition adopted by the district court in
order to reject it. Under the district court’s logic, lead paint chipping from houses, friable
asbestos falling from insulation, and petroleum leaking from underground storage tanks would
continue to do so because the products are being used in their intended manner regardless of the
imminent and substantial endangerment that such situations induce. “As a matter of policy, if all
products used for their ‘original intended purpose’ were exempted from regulation, RCRA would
be without teeth, since virtually all waste could fit within this loophole.” Conn. Coastal
Fishermen’s Ass’n v. Remington Arms Co., 777 F. Supp. 173, 188 (D. Conn. 1991) (Conn.
Coastal I), aff’d in part and rev’d in part, 989 F.2d at 1305. Consequently, the district court erred
in holding that fired shot and skeet parts are not solid waste.
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This circuit has already decided fired shot and skeet parts are solid waste.
This circuit has already decided that there is no consumer use or intended purpose
exception to the statutory definition of solid waste in RCRA. Neighborhood Against Golf, Inc.
v. Recreation Enters., Inc., 150 F.3d 1029 (12th Cir. 1999) (NAG). In NAG, this Court affirmed
the district court’s conclusion that RCRA’s statutory definition does not except consumer
products used for their intended purposes. Id. The court below, however, erred by dismissing
NAG as wrongly applying deference to an EPA interpretation in light of United States v. Mead
Corp., 121 S. Ct. 2164 (2001).
Ordinarily, in matters of statutory interpretation, courts generally defer to agency
statutory interpretations where the statute is silent or ambiguous with respect to a particular
issue. Chevron, U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 843 (1984). In
Mead, however, the Supreme Court refused to apply Chevron deference to a tariff classification
of day planners embodied in a “ruling letter.” 121 S. Ct. at 2175. The Court did so because the
terms of the congressional delegation of authority to Customs to issue such classification rulings
gave no indication that those rulings would have the force of law. Moreover, such rulings were
“churned out at a rate of 10,000 a year” from any of the agency’s 46 offices throughout the
nation. Id. at 2175. All were independently reviewable by the Court of International Trade
(CIT), and Customs never “set out with a lawmaking pretense in mind when it undertook to
make classifications like these.” Id. at 2174. Consequently, the Court held that these ruling
letters were “beyond the Chevron pale.” Id. at 2175.
The Mead Court, however, did nothing to disturb Supreme Court precedent regarding the
appropriate level of deference that this Court had available to it in deciding NAG.16 By the time
16
The court below characterized Mead as limiting Chevron deference. Birdwatchers, No. 01-878, slip op. at 7.
This, however, is plainly incorrect as Mead simply reaffirmed pre-existing limits to Chevron announced by the
Supreme Court. See Reno v. Koray, 515 U.S. 50, 61 (1995) (internal agency guideline, which is not “subject to the
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that this Court decided NAG, the outlines of Chevron deference had already been clearly
established, ranging from Skidmore deference, see Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944) (agency opinion, while not controlling, given weight according to power to persuade), to
Seminole Rock deference that courts accord to agency interpretations of their own regulations.
See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (agency interpretation of
its own regulation is given “controlling weight unless it is plainly erroneous or inconsistent with
the regulation”). It is entirely presumptuous of the district court to assume that the NAG court
was unaware of these limits to Chevron deference when it decided that case. Consequently,
without a showing that the decision in NAG is “unsound in principle” or “unworkable in
practice,” the district court should have accorded NAG the respect it deserves. Allied-Signal,
Inc. v. Director, Div. of Taxation, 504 U.S. 768, 783 (1992) (refusing to override precedent that
was neither unsound in principle nor unworkable in practice).
EPA’s interpretation of fired shot and skeet parts as solid waste warrants deference.
Even if NAG was improperly decided, the district court should still have granted EPA’s
opinion more respect than it did. First, it is entirely clear from the Mead Court itself that its
holding in the case was specific to the facts therein. Mead, 121 S. Ct. at 2173. As the Court
mentioned, “we have sometimes found reasons for Chevron deference even when no []
administrative formality was required and none was afforded.” Id. Just because EPA’s
interpretation was not formed through notice and comment rulemaking does not decide the issue
of whether Chevron deference applies. Id.; see also Christensen v. Harris County, 529 U.S. 576,
590 (2000) (Souter, J. concurring) (“Quite appropriately, therefore, we have accorded Chevron
rigors of the Administrative Procedur[e] Act, including public notice and comment,” entitled only to “some
deference”); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 256-58 (1991) (interpretative guidelines do not receive
Chevron deference); Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 157 (1991)
(interpretative rules and enforcement guidelines are “not entitled to the same deference as norms that derive from the
exercise of the Secretary’s delegated lawmaking powers”); see also Christensen v. Harris County, 529 U.S. 576, 587
(2000) (“opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law—do not warrant Chevron-style deference”).
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deference not only to agency regulations, but to authoritative agency positions set forth in a
variety of other formats.”). The court below, however, erred by presuming that such lack of
notice-and-comment rulemaking does preclude Chevron deference. Birdwatchers, No. 01-878,
slip op. at 9.
Unlike the ruling letters in Mead, EPA’s interpretation on this issue merits deference.
Congress specifically delegated to EPA the authority to define solid waste for the basis of
imminent and substantial endangerment suits. See 42 U.S.C. §§ 6907 (EPA shall publish
guidelines for solid waste management), 6912 (EPA is authorized to prescribe such regulations
as are necessary to carry out functions), 6942(EPA shall publish guidelines to assist state
development of solid waste plans); see also H.R. Rep. No. 94-149(I), at 6 (RCRA “authorizes the
Administrator to implement this Act and the Solid Waste Disposal Act”), reprinted in 1976
U.S.C.C.A.N. at 6243. EPA is the agency charged with implementing and enforcing RCRA and
its opinions are only reviewable by the judiciary, not a third-party, independent agency like the
CIT. Moreover, EPA’s interpretation was not churned out, but has been a consistent application
of the outcome of deliberate thought and measure. See EPA Region II, Best Management
Practices for Lead at Outdoor Shooting Ranges I-8 (EPA-902-B-01-001 Jan. 2001) (“spent lead
shot (or bullets), left in the environment, is subject to the broader definition of solid waste
written by Congress and used in sections 7002 and 7003 of the RCRA statute”); see also Military
Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies;
Manifest Exemption for Transport of Hazardous Waste on Right-of-Ways on Contiguous
Properties, 62 Fed. Reg. 6622, 6633 (Feb. 12, 1997) (munitions that land off-range are like a spill
that is not properly remediated and are considered by EPA to be discarded under the statutory
definition of solid waste). Lastly, EPA had a lawmaking pretense in mind in rendering this
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opinion, otherwise it never would have promulgated 40 C.F.R. section 261.1(b)(2)(ii)
(identifying that the statutory definition of solid waste applies in the context of imminent and
substantial endangerment suits). Consequently, the district court should have extended Chevron
deference to EPA’s interpretation even though it was not the result of notice and comment
rulemaking. Mead, 121 S. Ct. at 2173; see also NationsBank of N.C., N.A. v. Variable Annuity
Life Ins. Co., 513 U.S. 251, 256-60 (1995) (deferring to the Comptroller of the Currency’s
“deliberative conclusions as to the meaning of [banking] laws,” not embodied in a rule or
regulation but in letters); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 651-52
(1990) (deferring to decision by Pension Benefit Guaranty Corp. to restore terminated pension
plans of Chapter 11 debtor); Young v. Cmty. Nutrition Inst., 476 U.S. 974, 978-79 (1986)
(deferring to FDA’s interpretation of statutory language embodied in a Federal Register notice
that it had discretion to not set tolerance levels for aflatoxin in foods).
Therefore, in combination with the respect and deference that EPA’s interpretation
merits, the construction of statutory language, and common sense, this Court should hold that the
court below erred in holding that fired shot and skeet parts are not solid waste under 42 U.S.C.
§ 6903(27) and 42 U.S.C. § 6972(a)(1)(b).
The district court erred in holding that Fired shot and skeet parts are not solid waste when they fall to the
ground under 40 C.F.R. § 261.2
The court below held that fired shot and skeet parts are not solid waste within the
regulatory definition of solid waste. Dedicating less than four lines of its opinion to reach this
conclusion, the court unquestioningly deferred to EPA’s opinion17 that shot and skeet are not
That interpretation is embodied in several opinion letters that state EPA’s position that fired shot and skeet parts
are not solid waste because they have not been discarded—“[r]ather the shooting of bullets is within the normal and
expected use pattern of the manufactured product.” Letter from Sylvia K. Lowrance, Director, EPA Office of Solid
Waste, to Jame Magee, Asst. Comm’r for Solid and Hazardous Waste Mgmt., Ind. Dep’t of Envtl. Mgmt. (Sept. 6,
17
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regulatory solid waste. See Birdwatchers, No. 01-878, slip op. at 7; see also Long Island
Soundkeeper, 1996 WL 131863, at *9 (finding EPA’s interpretation of its own regulations that
used shot and skeet are not solid waste to be reasonable and entitled to deference). In doing so,
the court erred.
Ordinarily, an agency’s interpretation of its own regulation is given controlling weight.
Auer v. Robbins, 519 U.S. 452, 461 (1997); see also Seminole Rock, 325 U.S. at 414. This is
only the case, however, where the regulation is ambiguous. Christensen, 529 U.S. at 588
(refusing to apply Auer deference where the regulation was not ambiguous). Even if the
regulation is ambiguous, courts should not defer to an interpretation that is plainly erroneous or
inconsistent with the regulation. Auer, 519 U.S. at 461; Seminole Rock, 325 U.S. at 414; see
also Stinson v. U.S., 508 U.S. 36, 45 (1993) (agency interpretation cannot violate the
Constitution or a federal statute). Essentially, a court should not defer to an agency
interpretation if “an alternative reading is compelled by the regulation’s plain language or by
other indications of the [agency’s] intent at the time of the regulation’s promulgation.” Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Gardenbring v. Jenkins, 485 U.S.
415, 430 (1988)); see e.g., Lal v. INS, 255 F.3d 998, 1008 (9th Cir. 2001) (holding that Board of
Immigration Appeals’ interpretation of regulation regarding granting asylum did not warrant
deference); Univ. of Cincinnati v. Bowen, 875 F.2d 1207, 1212 (6th Cir. 1989) (“Because the
Secretary’s interpretation is inconsistent with the plain meaning of its Medicare regulations, it is
not entitled to deference.”). The district court erred in deferring to EPA’s interpretation because
1988); see also Letter from Jeff Hannapel, EPA Office of Solid Waste, to Duncan Campbell, EPA Region V (Mar.
13, 1997) (“shooting is in the normal and expected use pattern of the manufactured product”); Letter from Sylvia K.
Lowrance, Director, Office of Solid Waste, to Ward B. Stone, Associate Wildlife Pathologist, New York Dep’t of
Envtl. Conservation (Jan. 15, 1992) (“the deposition of lead at shooting ranges was within the normal and expected
use pattern of the manufactured product and that the resultant contamination was not subject to the RCRA
regulations”).
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the regulation itself is not ambiguous and the interpretation is plainly inconsistent with both the
regulation and RCRA.
The language of the regulation is not ambiguous.
The regulatory definition of solid waste is not ambiguous. Under that definition, solid
waste is any discarded material that is not otherwise excluded. 40 C.F.R. § 261.2. Discarded
material, in turn, is defined in part as material that is abandoned, while abandoned material is
material that has been disposed of. 40 C.F.R. § 261.2(a)(1)-(2), (b)(1). The regulation further
explicitly lists discarded materials that are not solid wastes. See id. § 261.4. Consequently, EPA
has unambiguously expressed the regulation’s scope by defining what is and is not solid waste.
In order to reach EPA’s interpretation that fired shot and skeet have not been discarded,
one must add qualifying language to what is otherwise a clear and unambiguous regulation that
materials are not “discarded” if being used in their intended fashion. In fact, in promulgating the
definition of “abandoned,” EPA stated that it did “not intend any complicated concept, but
simply mean[t] thrown away.” Hazardous Waste Management System; Definition of Solid
Waste, 50 Fed. Reg. 614, 627 (Jan. 4, 1985). Consequently, EPA’s current interpretation, is
contrary to its original intent and merits no deference. Thomas Jefferson Univ., 512 U.S. at 512;
Vincent v. Apfel, 191 F.3d 1143, 1148 (9th Cir. 1999) (“There is no justification for adding
limiting language to a clear and unambiguous . . . regulation.”); see also Mun. Resale Serv.
Customers v. FERC, 43 F.3d 1046, 1053 (6th Cir. 1995) (holding that no deference is warranted
to agency interpretation inconsistent with unambiguous regulation). Therefore, the district court
erred in deferring to EPA’s interpretation. Christensen, 529 U.S. at 588 (“To defer to the
agency’s position would be to permit the agency, under the guise of interpreting a regulation, to
create de facto a new regulation.”).
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Moreover, EPA’s interpretation is not saved by an argument that broad deference is all
the more warranted where, as here, the regulation concerns “‘a complex and highly technical
regulatory program,’ in which the identification and classification of relevant ‘criteria necessarily
require significant expertise and entail the exercise of judgment grounded in policy concerns.’”
Thomas Jefferson Univ., 512 U.S. at 512. Such an argument is specious given that EPA clearly
stated that it did not mean anything complicated by using the word abandoned. Moreover, EPA
has a track record of interpreting its RCRA regulations incorrectly. See generally Assoc. of
Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000); Am. Petroleum Inst. v.
U.S. EPA, 216 F.3d 50 (D.C. Cir. 2000) (API); Am. Petroleum Inst. v. U.S. EPA, 906 F.2d 729
(D.C. Cir. 1990); Am. Mining Congress v. U.S. EPA, 907 F.2d 1179 (D.C. Cir. 1990); AMC I,
824 F.2d at 1177 (1987). Consequently, EPA’s interpretation does not warrant the deference the
district court extended it. Christensen, 529 U.S. at 588.
EPA’s interpretation is unreasonable.
Even if the regulatory definition of solid waste is ambiguous, EPA’s interpretation of that
definition warrants no deference because it is unreasonable. Lal, 255 F.3d at 1004 (quoting
Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150-51 (1991)). First,
EPA’s interpretation is contrary to the law and the regulation itself. Second, the interpretation
unreasonably converts a question of fact into a matter of law.
EPA’s interpretation is contrary to law and the regulation itself.
EPA’s interpretation is inconsistent with its own regulations. First, EPA has already
meticulously itemized the exceptions to the definition of solid waste and there is no mention of
consumer products used in their normal manner. See 40 C.F.R. § 261.4(a). Second, EPA
considers household consumer products to be solid waste. Id. at 261.4(b)(1) (ordinary household
waste—defined as any material derived from households—is regulatory solid waste). It is
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inconsistent for EPA to argue that lead shot and skeet parts are exempt where ordinary household
consumer products used in the manner intended are not. Moreover, in parts of the RCRA
regulatory program, EPA considers consumer products as mundane as glass bottles to be solid
waste even before they are discarded. See U.S. Brewers Ass’n, Inc. v. EPA, 600 F.2d 974, 98283 (D.C. Cir. 1979) (rejecting argument that beverage containers are not solid waste prior to
being discarded in the context of solid waste management guidelines). Therefore, EPA’s
interpretation is inconsistent with its own regulations.
Moreover, EPA’s interpretation is inconsistent with RCRA itself and congressional
intent. When EPA first promulgated its hazardous waste regulations, it “adopted the statutory
definition in its entirety including the exclusions.” Identification and Listing of Hazardous
Wastes, 45 Fed. Reg. 33,084, 33,090 (May 19, 1980). Consequently, the subsequent regulations
directly implemented Congress’ intent. In doing so, EPA recognized that material that “has
served its original intended use and sometimes is discarded” is solid waste under the regulatory
definition. Id. at 33,119 (to be codified at 40 C.F.R. 261.2(b)(2)). Even “material which is reused by being placed in or on the land or water so that the material or any constituent thereof is
released into the environment” was considered solid waste. Id. at 33,090. Under such a
regulatory scheme, fired shot and skeet parts would be solid waste, even if one accepted the
notion that they fulfill some purpose while lying on the ground. As EPA recognized, “[w]astes
which are used or re-used by being placed on the land—e.g, chemical-bearing sludges used as
fertilizers, contaminated waste oil used as a dust suppressant on roads and radioactive mining
wastes used as residential land fill—may pose almost the same hazards as if they were simply
dumped there.” Id. at 33,091.
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An examination of congressional intent makes EPA’s interpretation even more
unreasonable. In passing RCRA, Congress stated that
the RCRA regulatory and enforcement program must be conducted in a manner
that controls and prevents present and potential endangerment to public health and
the environment. In the absence of that, little more will be done than to contribute
to future burdens on the 'Superfund' program, which is the remedial program
charged to EPA under the Comprehensive Environmental Response,
Compensation, and Liability Act.
H.R. Rep. No. 98-198(I), at 20 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5579. Without
proper action now, the shooting range operated by Appellee may become a public burden if ever
abandoned, potentially leaving tons of accumulated lead waste. This is exactly the situation that
Congress wished to avoid by creating RCRA’s regulatory program. In light of Congress’
concern, EPA’s cavalier exclusion for shooting ranges is unreasonable and does not merit any
deference. Martin, 499 U.S. at 150-51.
EPA’s interpretation converts a question of fact to a question of law.
EPA’s interpretation improperly turns a question of fact into a question of law.
Ordinarily, legal abandonment is premised on determining the intent to abandon, a determination
that requires an inquiry into facts and circumstances. Baglin v. Cusenier Co., 221 U.S. 580, 59798 (1911); API, 216 F.3d at 55. EPA attempts to circumvent that determination by claiming that,
by law, there can be no abandonment when a consumer product is used in the normal and
expected manner. EPA supports this contention with the example of pesticide application.
Letter from Sylvia K. Lowrance, Director, EPA Office of Solid Waste, to Jame Magee, Asst.
Comm’r for Solid and Hazardous Waste Mgmt., Ind. Dep’t of Envtl. Mgmt. at 1 (Sept. 6, 1988)
(“The situation, in our mind, is analogous to the use of pesticides whereby the expected, normal
use of a pesticide may result in some discharge to the soils.”); see also No Spray, 2000 WL
1401458, at *4.
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Applying pesticide and shooting at skeet, however, are wholly dissimilar. Whereas in the
case of pesticides, there is no way to collect and gather applied pesticide, in the case of fired shot
and skeet, nothing prevents Appellee from gathering and collecting the remnants. In fact, the
spent cartridges are gathered and collected. By its nature, pesticide cannot be abandoned (for
otherwise, its direct use would constitute abandonment). Skeet and shot can be abandoned,
therefore once launched and fired, failure to gather and collect the remnants constitutes
abandonment.
Even EPA recognizes that the central issue is intent to abandon. For instance, EPA states
that ordinance should be exempted from regulation because “it is possible that the user has not
abandoned or discarded the ordinance, but rather intends to reuse or recycle them at some time in
the future.” Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous
Waste Management Facilities, 55 Fed. Reg. 30,798, 30,809 (July 27, 1990) (emphasis added).
Because intent to abandon is such a central element in establishing whether lead shot and skeet
parts are regulatory solid waste, the court below was required to conduct the appropriate factual
inquiry to determine whether Appellees had the requisite intent. Such a factual inquiry precludes
summary judgment. Fed. R. Civ. P. 56; Anderson, 477 U.S. at 248 (“disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment”). Accordingly, the district court erred in deferring to EPA’s opinion and
granting summary judgment in favor of Appellee. Anderson, 477 U.S. at 248.
Therefore, this court should hold that the district court erred in holding that fired shot and
skeet parts are not solid waste under 40 C.F.R. § 261.2 because the regulatory definition of solid
waste is not ambiguous and EPA’s interpretation of that definition is unreasonable.
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EE. Conclusion
For all the foregoing reasons, the Court should reverse the district court’s grant of
summary judgment for Appellee and remand for further proceedings and trial.
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Team Number 37
______________________________________________________________________________
IN THE
UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
BIRDWATCHERS OF GROVETON, INC.,
and
UNITED STATES,
Appellants
v.
SUAVE REAL PROPERTIES, INC.,
Appellee
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW UNION
Brief for the Appellants
STATE OF NEW UNION
ATTORNEYS FOR APPELLANT
BIRDWATCHERS OF GROVETON, INC.
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QUESTIONS PRESENTED
1.
Did the court below err in holding that Suave did not violate the CWA because Sheldrake Pond is not
navigable water under the CWA, 33 U.S.C. §§1311(a), 1362(7) & (12)? Is this case governed by the
amendment made to §1362(7) in 2001? If so, does that amendment extend the jurisdiction of the CWA
over Sheldrake Pond?
2.
Did the court below err in holding that neither the Commerce Clause nor the Treaty Clause of the
Constitution justify federal regulation of water pollution in Sheldrake Pond?
3.
Did the court below err in holding that fired shot and skeet parts are not solid waste when they fall to the
ground under the EPA’s definition of solid waste in 40 CFR § 261.2?
4.
Did the court below err in holding that fired shot and skeet parts are not solid waste when they fall to the
ground under 42 U.S.C. § 6972(a)(1)(B)?
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TABLE OF CONTENTS
QUESTIONS PRESENTED ………………………………………………………………....
i
TABLE OF AUTHORITIES ………………………………………………………………... iv
RELEVANT STATUTES AND REGULATIONS …………………………………………
1
STATEMENT OF JURISDICTION…………………………………………………………. 1
STATEMENT OF THE CASE ………………………………………………………………. 1
SUMMARY OF THE ARGUMENT ……………………..……….………………………..
3
ARGUMENT …………………………….…………………………………………………...
6
I.
SHELDRAKE POND IS NAVIGABLE WATER UNDER THE CWA, 33 U.S.C.
§§ 1311(A), 1362(7) & (12), AND THE AMENDMENT MADE TO 1362(7)
IN 2001, DID EXTEND THE JURISDICTION OF THE CWA OVER SHELDRAKE
POND; THEREBY, REVERSING THE DECISION OF THE LOWER COURT.
……….…..
6
A. Explanation of the Fundamental Goal of the Clean Water Act.
……………………….
6
B. How is “Navigable Waters” Defined? …………………………………………………
C. Sheldrake Pond is a “Navigable Water”. ………………………………………………
8
D. Sheldrake Pond is a “Water of the United States”.
……………………………………
9
II. THE LOWER COURT ERRED IN HOLDING THAT NEITHER THE COMMERCE
CLAUSE NOR THE TREATY CLAUSE OF THE CONSTITUTION JUSTIFY
FEDERAL REGULATION OF WATER POLLUTION IN SHELDRAKE POND;
ii
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THEREFORE THIS COURT SHOULD OVERRULE THE LOWER COURT’S
DECISION. ……………………………………………………………………………….
10
A. Sheldrake Pond is an Important Stopover for Migratory Birds.
………………………
10
B. Does Federal Jurisdiction extend over Sheldrake Pond?
……………………………..
11
C. Sheldrake Pond is a Wetland. …………………………………………………………
12
D. Three Broad Categories of the Commerce Clause under Lopez.
……………………..
13
1. First Category of the Commerce Clause under Lopez.
……………………….
14
2. Second Category of the Commerce Clause under Lopez.
…………………….
14
3. Third Category of the Commerce Clause under Lopez.
……………………...
15
E. The Migratory Bird Treaty is a mitigating factor in this
case. ………….……………
16
F. The Migratory Bird Rule in Relation to the CWA.
……………………………….….
18
III. THE DISTRICT COURT ERRED IN HOLDING THAT FIRED SHOT AND
SKEET PARTS ARE NOT SOLID WASTE WHEN THEY FALL TO THE GROUND
UNDER EPA’S DEFINITION OF SOLID WASTE IN 40 CFR § 261.2 BECAUSE
40 CFR § 261.2 IS NOT THE APPROPRIATE DEFINITION OF SOLID WASTE
FOR SUITS FILED BY CITIZENS. ………………………………………………………………….
19
IV. THE DISTRICT COURT ERRED IN HOLDING THAT LEAD SHOT AND SKEET
PARTS ARE NOT SOLID WASTE WHEN THEY FALL TO THE GROUND UNDER 42
U.S.C. § 6972(a)(1)(B). ………………………………………………………………. 25
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A. An Explanation of the Interation Between the Solid Waste Act
and 42 U.S.C. § 6972 Amendments.
…………………………………………………………………………
25
B. The Courts Determine Lead Shot and Skeet Parts are Solid
Waste. …………………
26
C. What is Imminent and Substantial Endangerment?
…………………………………..
27
CONCLUSION ……………………………………………………………………………...
APPENDIX A …………………………………………………………………………………
28
A
APPENDIX B
Subset I…………………………………………………………………………………
Subset II………………………………………………………………………………..
B
C
Subset III………………………………………………………………………………. D
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TABLE OF AUTHORITIES
Page
United States Constitution
U.S.C.A. Const. art. I, § 8, cl. 3 ......................................................................................... 1,4,13,16
U.S.C.A. Const. art. II, § 2, cl. 2 ............................................................................................. 1,4,16
U.S.C.A. Const. art. VI, § 2 .................................................................................................... 1,4,16
United States Supreme Court Cases
Chevron U.S.A., Inc., v. NRDC,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed. 694, (1984).
5,22
Daniel Ball,
77 U.S. 557 (1871).
9
Missouri v. Holland,
252 U.S. 416 (1920). 5,14,15,17
Solid Waste Agency of Northern Cook County v. U.S. Corps of Eng’rs,
531 U.S. 159 (2001). 13
Tennessee Valley Auth. v. Hill,
437 U.S. 153 (1978). 18
United States v. Lopez,
514 U.S. 549 (1995). 14,15,16
United States v. Morrison,
529 U.S. 598 (2000). 15,16
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985). 12
Wickard v. Filburn,
317 U.S. 111 (1942). 4,15
United States Court of Appeals
Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct and Sewer Auth.,
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888 F.2d 180 (1st Cir.1989). 21,25
Connecticut Coastal Fisherman’s Association v. Remington Arms Co., Inc.,
989 F.2d 1305 (2nd Cir. 1993).
Passim
Deltona Corp. v. United States,
657 F.2d 1184 (Ct. Cl. 1981).
7
Hoffman Homes, Inc. v. Administrator, EPA,
999 F.2d 256 (7th Cir. 1993).
4,10,11,29
Leslie Salt Co. v. U.S.,
896 F.2d 354 (9th Cir. 1990).
10
Long Island Soundkeeper Fund, Inc. v. New York Athletic Club of the City of New York,
No. 94 Civ. 0436 (RPP) (S.D.N.Y. Mar. 22, 1996) (1996 WL 131863).
U.S. v. Faasse,
265 F.3d 475 (6th Cir. 2001).
15
United States v. Earth Sciences, Inc.,
599 F.2d 368 (10th Cir. 1979).
7
United Technologies Corp. v. EPA,
821 F.2d 714 (D.C. Cir. 1987).
26
Utah v. Marsh,
740 F.2d 799 (10th Cir. 1984).
4,14,17
United States District Courts
Brace v. United States,
48 Fed. Cl. 272, 277 (2000). 7
Craig Lyle Ltd. Partnership v. Land O'Lakes, Inc.,
877 F. Supp. 476, 481 (D.Minn.,1995).
23,26
P.F.Z. Properties, Inc. v. Train,
393 F. Supp. 1370 (D.C. 1975).
3,9,29
United States v. GAF Corp.,
389 F. Supp. 1379 (Tex 1975).
7
United States v. Phelps Dodge Corp.,
391 F. Supp. 1181 (Ariz. 1975).
3,8,29
Wyoming v. Hoffman,
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437 F. Supp. 114 (Wyo. 1977).
7
Federal Regulations
40 CFR Parts, 50 Fed. Reg. 614
(Environmental Protection Agency Jan. 4, 1985). 1,5,24,30
Migratory Bird Treaty,
51 Fed. Reg. 41206, 41217 (1986). 1,17,18
Legislative Material
S. Con. Rep. 92-1236, 92d Cong., 2d Sess. 8,9
Statutes
33 CFR § 328.3(8)(b).
40 CFR § 122.2.
10
40 CFR § 261.2.
1,21
12
33 U.S.C. § 1251(a). 6
33 U.S.C. § 1311 (1972).
6
33 U.S.C. § 1311(a) (1972). 1,3,6
33 U.S.C. § 1344(a) (1972). 11
33 U.S.C. § 1362(7) (1972). 1,3,7
33 U.S.C. § 1367(12) (1972).
42 U.S.C. § 6903 (1994).
1,3
6
42 U.S.C. § 6903(5) (1994). 1,26,27
42 U.S.C. § 6903(27) (1994).
42 U.S.C. § 6972 (1994).
1,5,26
1,6
42 U.S.C. § 6972(a)(1)(A) (1994).
1
42 U.S.C. § 6972(a)(1)(B) (1994).
1,27
Internet Cites
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U.S. Fish & Wildlife Service,
Birds Protected By the Migratory Bird Treaty Act, Division of Migratory Bird
Management, available at http://migratorybirds.fws.gov/intrnltr/mbta/gmebrd.html.
18
U.S. Fish & Wildlife Service,
Threatened and Endangered Animals and Plants, available at
http://endangered.fws.gov/wildlife.html#species. 18
Wetlands.Com,
Federal Court Decisions Affecting Wetland Regulations, Environmental Technical
Services Co., (last seen on November 27, 2001) available at
http://www.wetlands.com/regs/tlpge01f.htm.
12
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RELEVANT STATUTES AND REGULATIONS
The federal statutes relevant to the determination of this case are the Clean Water Act; 33 U.S.C. §§ 1311(a),
1362(7), 1367(12); 42 U.S.C. § 6903(5); 42 U.S.C. § 6903(27); 42 U.S.C. §§ 6972(a), 6972(a)(1)(A), 6972(a)(1)(B);
40 CFR § 261.2; Migratory Bird Treaty, 51 Fed. Reg. 41206, 41217 (1986); and 40 CFR Parts, 50 Fed.Reg. 614
(Environmental Protection Agency Jan. 4, 1885). Relevant sections are reprinted in Appendix B. Also pertinent to
the determination of this case is U.S.C.A. Const. art. I, § 8, cl. 3, U.S.C.A. Const. art. II, § 2, cl. 2, and U.S.C.A.
Const. art. VI, § 2. Relevant sections are reprinted in Appendix A.
STATEMENT OF JURISDICTION
A formal statement of jurisdiction has been omitted by the rules of the Moot Court Competition.
FF. STATEMENT OF THE CASE
Procedural History
This is an appeal from an order by the United States District Court for the District of New Union granting a
summary judgment for the defendant, Suave Real Properties, Inc. The district court, in its decision, dismissed an
action initiated by appellant Birdwatchers of Groveton, Inc. (“BOG”) against appellee Suave Real Properties, Inc.
(“Suave”), seeking civil penalties and injunctive relief under the citizen suit provision of the Clean Water Act
(“CWA”). (R. at 3,4). The district court justified its dismissal of BOG’s suit on two grounds, first, because
Sheldrake Pond is not navigable water in either a statutory or constitutional sense, and second, because the use of
skeet and lead shot for their intended purpose does not constitute disposal of waste. (R. at 4). The United States
was allowed to intervene in the case on behalf of the United States’ Environmental Protection Agency (“EPA”).
The United States joins in BOG’s appeal of the lower court’s ruling on three grounds and opposes on one. (R. at 1).
Statement of the Facts
BOG is a non-profit corporation, whose members have been watching over two hundred species of birds on or
near Sheldrake Pond for at least twenty years. Sheldrake Pond is a four feet deep and over twenty-five acre pond,
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which is dry during part of the year. Members of BOG would observe the many species of birds using the pond as a
stopover during their migration between the United States, Canada and Mexico from a nearby county road. (R. at 3).
The bird watching by BOG members came to an end in 2000 when Suave opened the Groveton Rifle and Pistol
Association (“GRAPA”) and began using the pond area for a firearms and skeet shooting range. Suave ejects skeet
for users to shoot over the pond from a platform, which was created by filling in the west part of the pond. Suave
owns the western end of the pond as well as the land west and south of Sheldrake Pond, the rest of the pond and the
land to the east and south is owned by the county. (R. at 3).
A berm was created behind Sheldrake Pond to catch most of the spent lead shot. However, lead shots are often
fired from the rifle range, going over the berm and falling into the pond or on the county’s land. Spent lead shot and
skeet parts also fall in and around the pond, on both Suave and county owned land when the skeet is being shot. (R.
at 3, 4).
BOG alleges that Suave has violated the CWA 33 U.S.C. § 1311(a) by filling the pond to create the skeet ejection
platform without a CWA 33 U.S.C. § 1344 permit, which is illegal. BOG also alleges that Suave violated the law by
discharging skeet, lead shot, and bullets into navigable waters without a CWA 33 U.S.C. § 1344 permit. BOG also
alleges that this illegal discharge of skeet, lead shot and bullets constitutes the release of pollutants into navigable
waters without a CWA 33 U.S.C. § 1342 permit. The EPA supports these CWA allegations against Suave. BOG
seeks the discharge of pollutants into Sheldrake Pond be stopped by an injunction and also seeks that the courts
assess the necessary civil penalties against Suave for these violations as well as violations under the Resource
Conservation and Recovery Act (“RCRA”). The disposing of hazardous waste into Sheldrake Pond without a
RCRA permit is a violation under 42 U.S.C. § 6925(a). In addition, BOG asserts that Suave violated 42 U.S.C. §
6972 (a)(1)(B) by disposing solid and hazardous waste into and around Sheldrake Pond thereby creating an
imminent and substantial endangerment. (R. at 4).
SUMMARY OF THE ARGUMENT
This court should reverse the decision of the lower court
because Sheldrake Pond is “navigable water” under the Clean Water
Act (“CWA”), therefore Suave was guilty of violating the CWA. See
33 U.S.C. §§ 1311(a), 1362(7), & (12).
Sheldrake Pond is
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governed by the CWA because the Pond should be considered
“navigable water” for the following reasons.
First, the waters
of the pond have the possibility to flow into surrounding areas
and thus carry pollutants into surrounding public waters of the
United States.
See United States v. Phelps Dodge Corp., 391 F.
Supp. 1181, 1187 (Ariz. 1975).
Second, continued pollution of
Sheldrake Pond would impair the biological integrity of the pond,
its surrounding area, and nearby “navigable waters” of the United
States.
See P.F.Z. Properties, Inc. v. Train, 393 F. Supp. 1370,
1381 (D.C. 1975). Third, even if Sheldrake Pond is not your
typical “navigable water” the 2001 amendment to 33 U.S.C.
§1362(7) extends the jurisdiction of the CWA to include Sheldrake
Pond by defining “navigable waters” as “waters of the United
States.”
33 U.S.C. § 1362(7).
The CWA defines “navigable waters” as “waters of the United
States, including the territorial seas.”
See Hoffman Homes, Inc.
v. Administrator, EPA, 999 F.2d 256, 260 (7th Cir. 1993) citing
33 U.S.C. § 1362(7).
The EPA’s definition, however, includes
isolated waters that are important stopovers for migratory birds.
(R. at 5, 6).
Sheldrake Pond supports many species of bird, some
even endangered, such as, the avocets, sandhill cranes, jacanas,
and warbling vireos.
It is our contention that Sheldrake Pond is
not only an important stopover for these birds but that it is
also a wetland.
Its waters attract not only many exotic species
of bird but also avid birdwatchers.
Sheldrake Pond serves as a
forum for people watching these migratory birds for recreational
purposes.
See generally Utah v. Marsh, 740 F.2d 799 (10th Cir.
1984).
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BOG contends that the aggregate effect of bird watching on
the national economy substantially affects interstate commerce.
While the intrastate activity (bird watching at Sheldrake Pond)
does not by itself substantially impact Interstate Commerce, the
aggregate (where others similarly situated act the same) would
substantially affect Interstate Commerce.
can regulate this activity.
As a result, Congress
This Court should not focus on the
nature of the regulated activity, whether it is local or national
in scale, but on the final economic effect of that activity.
See
Wickard v. Filburn, 317 U.S. 111, 124 (1942).
U.S.C.A. Const. art. II, § 2, cl. 2 grants the president the power to make treaties and
U.S.C.A. Const. art. VI, § 2 declares that treaties shall be part of the supreme law of the
land. The Migratory Bird Treaty is a valid treaty. Therefore, U.S.C.A. Const. art. I, § 8,
cl. 3 gives Congress the power to enact legislation that is a necessary and proper means to
enforce the treaty. While acts of Congress are the supreme law of the land only when they
are made in pursuance of the Constitution, treaties are valid when made under the
authority of the
United States. See Missouri v. Holland, 252 U.S. 416, 431-33 (1920).
However, when Congress does create an act, the Court has the right to review and
interpret that act. See generally Chevron U.S.A., Inc., v. NRDC, 467 U.S. 837, 104 S.Ct.
2778, 81 L.Ed. 694, 842-843 (1984) (stating the judiciary is the final authority concerning
issues of statutory construction). Based upon review of 40 CFR § 261.2 and 42 U.S.C. §
6972(a)(1)(B), the courts have determined that definitions found in 40 CFR § 261.2 are not
applicable to suits brought under 42 U.S.C. § 6972(a)(1)(B). See Connecticut Coastal
Fisherman’s Association v. Remington Arms Co., Inc. 989 F.2d 1305, 1315 (2nd Cir. 1993).
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Therefore, the court incorrectly determined that lead shot and skeet parts are not solid
waste because 40 CFR § 261.2 is the incorrect definition of solid waste for a suit brought
under 42 U.S.C. § 6972(a)(1)(B).
However, even if 40 CFR § 261.2 were applicable to suits brought under 42 U.S.C. §
6972(a)(1)(B), the definition of solid waste as set forth by the EPA in 40 CFR § 261.2 is a
violation to the Congressional intent of the law. 50 Fed. Reg. 614 clearly establishes the
Congressional intent of the RCRA. It states that the EPA is “guided by the principle that
the paramount and overriding statutory objection of RCRA is protection of human health
and the environment.” 40 CFR Parts, 50 Fed. Reg. 614, 618 (Environmental Protection
Agency Jan. 4, 1985). 40 CFR § 261.2 as defined by the EPA does not put the “protection
of human health and the environment” as the main priority. Id.
In looking at whether or not solid waste was correctly determined under 42 U.S.C. §
6972(a)(1)(B), courts have stated that the definitions located in 42 U.S.C. § 6903(27) are to
be followed. See Connecticut Coastal, 989 F.2d at 1314-1315. Since 40 CFR § 261 was used
by the lower court for the case at hand, solid waste was incorrectly determined. 42 U.S.C. §
6903(27) does establish lead shot and skeet parts as solid waste. See generally 42 U.S.C. §
6903(27) (allowing lead to fall into the category of hazardous waste which is a subset of
solid waste).
Upon further review of 42 U.S.C. § 6972 and § 6903, it is also determined that there is no
exclusion for a solid waste based on the fact that it is being used for its intended purpose.
See generally 42 U.S.C. Therefore, defendant is governed by 42 U.S.C. § 6972(a)(1)(B) and
the lead shot and skeet particles being left on the ground by Suave’s business are solid
waste.
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ARGUMENT
I.
SHELDRAKE POND IS NAVIGABLE WATER UNDER THE CWA, 33 U.S.C.
§§ 1311(A), 1362(7) & (12), AND THE AMENDMENT MADE TO 1362(7)
IN 2001, DID EXTEND THE JURISDICTION OF THE CWA OVER SHELDRAKE
POND; THEREBY, REVERSING THE DECISION OF THE LOWER COURT.
A.
Explanation of the Fundamental Goal of the Clean Water Act.
It is an indisputable fact that the fundamental goal of the CWA is to make the discharge of any pollutant into the
“navigable waters” of the United States against the law as well as to maintain the chemical, physical, and biological
integrity of the nation's waters. 33 U.S.C. § 1251(a) & 1311(a). In order to meet this goal of protecting the nation’s
waters, Congress prohibits the discharge of any pollutants into the “navigable waters” of the United States unless the
discharge was approved by an appropriate agency administering the Clean Water Act. 33 U.S.C. § 1311 (1972).
The court in United States v. Earth Sciences notes that the CWA is designed to regulate to the fullest extent possible
sources emitting pollution into rivers, streams and lakes. See United States v. Earth Sciences, Inc., 599 F.2d 368,
373 (10th Cir. 1979). The CWA intends to cover and offer protection to all waters of the United States. See
Deltona Corp. v. United States, 657 F.2d 1184, 1186 (1981). Sheldrake Pond is a “navigable water” of the United
States. Thus, Suave’s discharge of pollutants into Sheldrake Pond violates the CWA since the discharge of any
pollutant into the “navigable waters” of the United States violates 33 U.S.C. § 1311 (1972).
B. How is “Navigable Waters” Defined?
What exactly does the term “navigable waters” mean? What types of bodies of water does the term “navigable
waters” encompass? According to 33 U.S.C. § 1362(7), the term "navigable waters" means "the waters of the
United States, including the territorial seas." The definition of “navigable waters” in 33 U.S.C. § 1362(7) has
nothing to do with the actual concept of navigability. Actually, the concept of navigability is excluded from
consideration in law or in fact. See generally United States v. GAF Corp., 389 F. Supp. 1379 (Tex 1975). Although
the definition of “navigable waters” is easily defined, there is no doubt that Congress intended “navigable waters” to
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be given a very broad interpretation. See Brace v. United States, 48 Fed. Cl. 272, 277 (2000). This broad
interpretation of “navigable waters” should include bodies of water, such as the Sheldrake Pond, since the term
“navigable waters” is not limited to the traditional definition of what is considered navigable. See Wyoming v.
Hoffman, 437 F. Supp. 114, 117 (Wyo. 1977).
We contend that in following with the above mentioned Congressional intent, Congress wanted a broad
interpretation of the term “navigable waters” and that it intended the Federal Water Pollution Control Act
(“FWPCA”) to apply to all water bodies, including main streams and their tributaries. S. Conf. Rep. 92-1236, at
144, 1972 U.S.C.C.A.N. at 3822. Sheldrake Pond is a “water body of the United States.” In following the
Congressional intent, “navigable waters” should apply to the case at bar involving Sheldrake Pond where hazardous
wastes are being disposed of, which is creating an endangerment to the many hundred species of birds on Sheldrake
Pond and its surrounding area.
C. Sheldrake Pond is a “Navigable Water”.
Sheldrake Pond is a “navigable water” of the United States.
It is a potential source of pollution into traditional “navigable
waters,” or public waters, of the United States.
Dodge Corp., 391 F. Supp. at 1187.
See Phelps
This constitutes “navigable
waters” since at times of high waters or flooding, water from
Sheldrake Pond could flow into surrounding rivers, lakes, and
streams carrying the pollutants discharged in the waters of the
pond into public waters of the United States.
Id.
If this
pollution of Sheldrake Pond is allowed to continue, it poses a
threat to all surrounding areas of land and waters.
The
pollutants being disposed into the pond by GRAPA, if not stopped,
have the possibility of endangering the pond and land itself,
local ground water, surrounding waters such as rivers, streams,
and ponds and harming the many species of animals that depend on
these areas for food.
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Also, the waters of Sheldrake Pond are "navigable waters” of
the United States by virtue of the biological productivity of
this pond and the vital contribution to the biological vitality
of the numerous species of bird that depend on this area.
The
continued pollution of Sheldrake Pond will impair the biological
integrity of the pond, its surrounding area, as well as other
nearby “navigable waters” of the United States.
Sheldrake Pond
is vital to a healthy environment for the numerous species of
bird that use this area.
Sheldrake Pond is an important part of
the ecosystem that provides food and habitat for birds.
It also
provides a habitat for those who enjoy studying the birds.
It is
possible for the government to extend its power to protect
wildlife and natural resources in Sheldrake Pond since it is a
“navigable water” of the United States.
See P.F.Z. Properties,
Inc., 393 F. Supp. at 1381.
D.
Sheldrake Pond is a “Water of the United States”.
.
Suave will try to examine the actual “navigability” of Sheldrake Pond as construed in the Daniel Ball case,
where, in order for a water to be considered a “navigable water,” it must be a water which may be used as a channel
of transportation. Daniel Ball, 77 U.S. 557 (1871). Suave will argue that the CWA has no jurisdiction over
Sheldrake Pond, because it is not a “navigable water” actually used for a channel of transportation. However, this
narrow interpretation of “navigable waters” is severely outdated. There has since been a conference committee
meeting to update this interpretation.
The conference committee resolving discrepancies between the Senate and House versions of the FWPCA in 33
U.S.C § 1362(7) defining "navigable waters" as "the waters of the United States including the territorial seas." The
conference report declared that the term “navigable waters,” should "be given the broadest possible constitutional
interpretation." Sen.Conf.Rep.No.92-1236, 92d Cong., 2d Sess. In giving the term “navigable waters” the broadest
possible interpretation as per congressional intent, the amendment in 2001 to 33 U.S.C. §1362(7) which states the
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term “navigable waters” means the waters of the United States, including territorial seas, would easily include the
waters of Sheldrake Pond, thereby extending the jurisdiction of the CWA over Sheldrake Pond.
II.
THE LOWER COURT ERRED IN HOLDING THAT NEITHER THE COMMERCE
CLAUSE NOR THE TREATY CLAUSE OF THE CONSTITUTION JUSTIFY
FEDERAL REGULATION OF WATER POLLUTION IN SHELDRAKE POND;
THEREFORE THIS COURT SHOULD OVERRULE THE LOWER COURT’S
DECISION.
A. Sheldrake Pond is an Important Stopover for Migratory Birds.
Sheldrake Pond supports many species of bird, some even endangered. The waters of
the pond attract not only many exotic species of bird but also avid birdwatchers. As
discussed earlier, birds and their watchers create a recreational activity that has affect on
interstate commerce. It is quite clear that Congress intended to regulate discharges made
into every creek, stream, river, lake, pond, or body of water, especially if that body of water
may affect interstate commerce.
This case involves a small, isolated body of water that is a stopover for migratory birds.
Our contention is that this body of water is covered under the definition of “navigable”
water, as per the CWA. Both the EPA and the Army Corps of Engineers (“Corps”)
interpret the term “navigable waters” to include playa lakes, like Sheldrake Pond, through
the CWA. See generally Leslie Salt Co. v. U.S., 896 F.2d 354 (9th Cir. 1990) (stating that
although the CWA does not mention isolated wetlands, its legislative history suggests
otherwise); Hoffman Homes, Inc., 999 F.2d at 260 (stating that a wetland’s suitability, or
potential suitability, for habitat of migratory birds could premise the jurisdiction for the
CWA).
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The EPA has also determined that activities affecting interstate and foreign commerce
can include use by interstate or foreign travelers for recreational purposes. See 40 CFR
§122.2. The CWA defines “navigable waters” as “waters of the United States including the
territorial seas.” See Hoffman Homes, 999 F.2d at 260. The EPA’s definition, however,
includes isolated waters that are important stopovers for migratory birds. (R. at 5, 6). On
August 15, 2001, Congress amended the CWA definition of “navigable waters” to include
the EPA’s definition, which includes “playa lakes” from 40 CFR § 122.2. Thus, Sheldrake
Pond is navigable water.
B. Does Federal Jurisdiction extend over Sheldrake Pond?
Does federal jurisdiction extend to Sheldrake Pond? Yes, it does since it has been
labeled as navigable water. Congress, through the CWA and the Corps can regulate the
pollution in Sheldrake Pond. The pollution in Sheldrake Pond affects not only the water in
the pond but also the land surrounding the contaminated pond and the migratory birds’
water supply. If the pond had been ruled as non-navigable water, then Congress and other
federal agencies would be without jurisdiction to regulate the pollution or any other use of
the pond. This, however, is not the situation.
The CWA requires a permit from the Secretary of the Army Corps of Engineers in
order to discharge fill into “navigable waters.” See 33 U.S.C. §1344(a). BOG asserts that
Suave did not have this permit before it began discharging fill into Sheldrake Pond. BOG
further asserts that Suave’s filling and continued maintenance of the fill in the pond for the
skeet ejection platform constitutes discharging fill material into navigable waters. (R. at 4).
Because the operation of the skeet ejection platform called for the filling of some of either
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permanent or seasonal ponds, BOG asserts that Suave was required to obtain a federal
landfill permit as required under §404(a) of the CWA. See 33 U.S.C. §1344(a). If the state
has not established a federally approved permit program, then the Corps still has the
authority to issue and deny permits. If the state has established a federally approved
permit program, then the Corps may transfer to the States its authority. See United States
v. Riverside Bayview Homes, Inc., 474 U.S. 121, 124 (1985) (citing CWA § 404(g) as added,
91 Stat. 1600, 33 U.S.C. § 1344(g)). If the state of New Union does not have a federally
approved state permit program, and the record does not show it as having one, then federal
regulation is proper and a CWA permit is required in order to engage in this activity.
Furthermore, if Sheldrake Pond were a wetland adjacent to a navigable waterway, then
federal regulation would be proper. See Riverside Bayview, 474 U.S. at 124 (citing CWA §
404(g) as added, 91 Stat. 1600, 33 U.S.C. §1344(g)) (stating that wetlands adjacent to
navigable waterways are subject to federal regulation absent a state permit program).
C. Sheldrake Pond is a Wetland.
Federal regulation of water pollution in Sheldrake Pond is also proper because
Sheldrake Pond is a wetland. Under 33 CFR § 328.3(8)(b), the term wetlands
means:
Those areas that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal circumstances
do support, a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, playa lakes, vernal
pools, and similar areas. Emphasis added.
BOG asserts that Sheldrake pond is a playa lake (a lake that is dry part of the year) and
not a vernal pool (a pool that is wet in the spring and dry the rest of the year) as Suave
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asserts. Both vernal pools and playa lakes fall within the CWA’s definition of a wetland.
See 33 CFR § 328.3(8)(b). Suave will argue that Sheldrake Pond is not a wetland since it is
dry part of the year; therefore, it may not support the vegetation typically associated with a
wetland. This argument fails because playa lakes, by their very nature are ephemeral; they
are only present at certain times of the year. See Wetlands.Com, Federal Court Decisions
Affecting Wetland Regulations, Environmental Technical Services Co., (last seen on
November 27, 2001) available at http://www.wetlands.com/regs/tlpge01f.htm.
In order to effect federal jurisdiction over the wetland, migratory birds have to use the
wetland. Additionally, the area should have the characteristic for which the use and value
by the birds are well established. In the case at bar, Sheldrake Pond has been a stopover
for migratory birds for at least two decades. (R. at 3.) See generally Solid Waste Agency of
Northern Cook County v. U.S. Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC) (stating that
no sufficient nexus between the Migratory Bird Rule and interstate commerce must exist
for the man-made, isolated wetland to be considered waters of the U.S.). Thus, Sheldrake
Pond meets the jurisdictional requirements of an established history of use and the
characteristics necessary for use by migratory birds.
GG.
D. Three Broad Categories of the Commerce Clause Under Lopez.
Before discussing how the Commerce Clause relates to Sheldrake Pond, we must first
examine what the Commerce Clause entails. The Commerce Clause of the United States
Constitution provides that “The Congress shall have power…to regulate Commerce with
foreign nations, and among the several states, and with the Indian Tribes.” U.S.C.A.
Const. art. I, § 8, cl. 3. Three broad categories of activity exist under which Congress may
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regulate its commerce power: First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress is empowered to regulate and protect
instrumentalities of interstate commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities. Finally, Congress’ commerce
authority includes the power to regulate those activities having a substantial relation to
interstate commerce (activities that substantially affect interstate commerce). See United
States v. Lopez, 514 U.S. 549, 558 (1995).
1. First Category of the Commerce Clause under Lopez.
Under the first category, BOG contends that Sheldrake Pond is a channel of interstate
commerce. It is a part of an interstate and international bird migration pathway extending
south of the Gulf of Mexico to north of the northern Great Plains. It also serves as a forum
for people to watch these migratory birds for recreational purposes. (R. at 5). See Utah v.
Marsh, 740 F.2d 799, 803-04 (10th Cir. 1984) (holding interstate movement of travelers “to
observe, photograph, and appreciate a variety of bird and animal life” is sufficient to bring
federal regulations within the scope of the Commerce Clause). As a result, Sheldrake Pond
meets the requirement under the first category: it is a channel of interstate commerce.
2. Second Category of the Commerce Clause under Lopez.
It is unclear whether migratory birds are instrumentalities of interstate commerce. It is
also unclear whether the flyways the birds use to migrate are highways of interstate
commerce. The Court in Missouri held that wild birds are not the possession of anyone
since the birds might be within the state’s borders today but easily be one thousand miles
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away tomorrow. See generally Missouri v. Holland, 252 U.S. 416 (1920). As a result,
leaving the protection of those birds to the States is insufficient. Id. The migratory birds
are a national interest and require national protection. Id. While the migratory birds are
only transitorily within the state, the Court further held that without the Migratory Bird
Treaty and the state statute acting in concert, there might not be any birds left to protect.
Id.
The regulation of migratory birds is national, not local, in scope. The birds in question
follow a migration pathway that extends from the Gulf of Mexico and further south to the
northern Great Plains and further north. These migratory birds use Sheldrake Pond as a
stopover. (R. at 5). For that reason, Congress can regulate the activity in question because
it has an aggregate effect on interstate commerce. See generally Wickard, 317 U.S. at 111.
See also United States v. Morrison, 529 U.S. 598, 610-13 (2000) (enumerating four factors
for lower courts to consider in analyzing whether an activity substantially affects interstate
commerce).
3. Third Category of the Commerce Clause under Lopez.
BOG contends that this case falls under the last category of Commerce Clause
regulation as defined in Lopez. They seek to sustain bird watching at Sheldrake Pond, a
migratory bird habitation, as a regulation of activity that substantially affects interstate
commerce.
Congress’ intent is clear. The Congressional findings as to what activities constitute
interstate commerce are subject to the “substantially affects” test derived from United
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States v. Lopez, 514 U.S. at 559. It is up to this Court to decide whether the activity in
question substantially affects interstate commerce.
This Court should not focus on the nature of the regulated activity, whether it is local or
national in scale, but on the final economic effect of that activity. See Wickard, 317 U.S. at
124. As explained in Wickard, when a person “produces for their own consumption a
product that is traded in interstate commerce, his conduct is economic in nature.” See
Wickard, 317 U.S. at 114. See also U.S. v. Faasse, 265 F.3d 475, 483 (6th Cir. 2001) (stating
that for a statute that regulates intrastate activity to be upheld under category three [of the
Lopez decision], it must be “economic” in nature). Thus, the aggregate effect of bird
watching on the national economy is undoubtedly significant. While the intrastate activity
(bird watching at Sheldrake Pond) does not by itself substantially impact Interstate
Commerce, the aggregate (where others similarly situated act the same) does. The court
recognized that Congress can regulate intrastate activities if they substantially affect
interstate commerce. See Lopez, 514 U.S. at 558-559. As a result, Congress can regulate
this activity.
Here, bird watching in and of itself is not an activity affecting the national market.
However, interstate commerce can be substantially affected by activities such as the one at
issue here in Sheldrake Pond. If all birdwatchers were to cease crossing state lines or
traveling from country to country (e.g. from Canada and Mexico), their influence on the
local markets would be felt. The aggregate affect of this would be a substantial impact on
the national economy. The bird watchers are as migratory as the birds. Even though bird
watching may be considered an entirely intrastate activity, it is part of a larger, more
global, national activity that crosses state lines.
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As was the case in both Lopez and Morrison, our case involves issues where Congress
sought to regulate certain activities under the assumption that they substantially affected
interstate markets for other activities. It is of little importance that Congress does not
regulate the very thing (i.e. bird watching) for which an interstate market exists. See
Morrison, 529 U.S. at 611; and Lopez, 514 U.S. at 558-559.
HH.
II.
E. The Migratory Bird Treaty is a mitigating factor in this case.
U.S.C.A. Const. art. II, § 2, cl.2 grants the president the power to make treaties and
U.S.C.A. Const. art. VI, § 2, declares that treaties shall be part of the supreme law of the
land. If a treaty is a valid one, U.S.C.A. Const. art. I, § 8, cl. 3 gives Congress the power to
enact legislation that is a necessary and proper means to enforce the treaty. While acts of
Congress are the supreme law of the land only when they are made in pursuance of the
Constitution, treaties are valid when made under the authority of the United States. See
Missouri v. Holland, 252 U.S. at 431-33.
BOG argues that bird watching at Sheldrake Pond is part of interstate commerce
because bird watching is not limited to BOG members as Suave alleges. Suave is also
incorrect in its allegation that only intrastate birdwatchers visit Sheldrake Pond. BOG
asserts that the birdwatchers are both intrastate and interstate. (R. at 5). As has been
discussed before, people who study migratory birds either for recreational purposes or for
scientific study are as transitory as the birds themselves. See generally Utah v. Marsh, 740
F.2d 799 (10th Cir. 1984) (stating that the interstate movement of travelers who study bird
and animal life is sufficient to bring federal regulations within realm of Commerce Clause).
It is indisputable that Sheldrake Pond serves as a habitat for many migratory birds.
Similarly, it is indisputable that migratory birds engage in interstate travel. Disrupting the
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birds’ habitat has a profound affect on them and a substantial economic effect on the local
and national economy because of the decreased bird watching that would result. BOG
believes that Sheldrake Pond is used in interstate commerce as part of an interstate and
international bird migration pathway between Canada, the United States, and Mexico. (R.
at 5). Even the Corps has interpreted its regulatory definition of navigable waters to
include waters that “are or would be used as habitat by birds protected by the Migratory
Bird Treaties.” (R. at 5).
The Migratory Bird Treaty Act (“Act”) implements the bird conventions with Canada
and
Mexico. Migratory Bird Treaty, 51 Fed. Reg. 41206, 41217 (1986). It also grants the
Secretary of the interior the authority to establish hunting seasons for any of the migratory
game bird species on the protected bird list. While the Act considers over 170 species to be
“game birds,” less than 60 species are typically hunted each year. Thus, one can logically
infer that federal regulation is implemented over these birds and over the areas that serve
as habitats for these birds.
It is well established that many species of birds migrate annually across the borders of
the U.S., Canada, and Mexico. The birds at Sheldrake Pond are not only migratory but
several species are on both the endangered species list and included in the Act. See U.S.
Fish & Wildlife Service, Birds Protected By the Migratory Bird Treaty Act, Division of
Migratory Bird Management, available at
http://migratorybirds.fws.gov/intrnltr/mbta/gmebrd.html. See also U.S. Fish & Wildlife
Service, Threatened and Endangered Animals and Plants, available at
http://endangered.fws.gov/wildlife.html#species.
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The avocets, sandhill cranes, jacanas, and warbling vireos are on the current
endangered species list. The value of endangered species is incalculable. “The reason is
simple: they are potential resources. They are keys to puzzles that we cannot solve. They
may provide answers to questions which we have not yet learned to ask.” See Tennessee
Valley Auth. v. Hill, 437 U.S. 153, 178-79 (1978) (listing of birds protected by the Migratory
Bird Treaty Act and birds on the endangered species list).
F. The Migratory Bird Rule in Relation to the CWA.
The Migratory Bird Treaty (“Migratory Bird Rule”) 51 Fed. Reg. 41206, 41217 (1986)
states that the presence of migratory birds is a sufficient connection to interstate commerce
to justify federal regulation. The Migratory Bird Rule is a section of the CWA that extends
the Corp’s authority to regulate those waters providing habitat for migratory birds.
BOG asserts that the Treaty Clause allows Congress to regulate pollution in Sheldrake
Pond. Suave will argue that the State of New Union should have exclusive jurisdiction over
regulation of pollution in Sheldrake Pond. Many states have established a federally
approved permit program that allows the state agency to approve or deny the Corps § 404
dredged or fill material permit. However, the ultimate decision rests with the EPA. As a
result, both the state and federal regulatory agencies have concurrent jurisdiction over
water contamination. Where there is an absence of state statutes or state agencies that
approves or denies dredged or fill material permits, federal regulation supersedes state
regulation.
III. THE DISTRICT COURT ERRED IN HOLDING THAT FIRED SHOT AND
SKEET PARTS ARE NOT SOLID WASTE WHEN THEY FALL TO THE GROUND
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UNDER EPA’S DEFINITION OF SOLID WASTE IN 40 CFR § 261.2 BECAUSE
40 CFR § 261.2 IS NOT THE APPROPRIATE DEFINITION OF SOLID WASTE
FOR SUITS FILED BY CITIZENS.
40 CFR § 261.2 is a regulatory provision which, according to
case law, does not have the ability to govern or define issues
brought in a regulatory suit under 42 U.S.C. § 6972(a)(1)(B).
See generally Connecticut Coastal, 989 F.2d at 1314-1315.
In
other words, regulatory suits are governed by the statutory
definitions provided within the regulation under which the suit
is brought.
The suit at hand is brought under the regulatory
provision of 42 U.S.C. § 6972(a)(1)(B), which allows a person to
file a civil suit on the individual’s own behalf regarding issues
of disposal of “solid or hazardous waste which may present an
imminent and substantial endangerment to health or the
environment.…”
The governing statutory definitions for 42 U.S.C.
§ 6972 are found in the regulatory provision of 42 U.S.C. §
6903(27)18 and not in the regulatory provision of 40 CFR § 261.2.
Therefore, the lower court erred in finding that lead shot and
18
See 42 U.S.C. § 6903(27) (defining the term “solid waste”)
The term “solid waste” means any garbage, refuse, sludge from a waste treatment plant,
water supply treatment plant, or air pollution control facility and other discarded material,
including solid, liquid, semisolid or contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations, and from community activities, but does
not include solid or dissolved material in domestic sewage, or solid or dissolved materials in
irrigation return flows or industrial discharges which are point sources subject to permits
under section 1342 of Title 33, or source, special nuclear, or byproduct material as defined
by the Atomic Energy Act of 1954, as amended (68 Stat. 923) [42 U.S.C.A. s 2011 et seq.].
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skeet parts are not solid waste when they fall to the ground
under the definition of solid waste in 40 CFR § 261.2(a)(1)19.
Before looking at why 40 CFR § 261.2 is the wrong definition for the suit at hand, BOG would like to point out
that according to the record, 40 CFR § 261.2 is not an argument that either BOG or Suave relies upon. BOG does
not rely upon the argument, because it is incorrect to apply a regulatory definition to a regulatory problem when
there is an applicable statutory definition present. See generally Connecticut Coastal, 989 F.2d at 1314-1315.
Suave, on the other hand, does not rely on the definition of 40 CFR § 261.2 because it follows the EPA’s stance that
40 CFR § 261.2 is not applicable law since “waste” which is considered a consumer product being used for its
intended purpose is excluded from any definition of solid waste. See Long Island Soundkeeper Fund, Inc. v. New
York Athletic Club of the City of New York, No. 94 Civ. 0436 (RPP), *9 (S.D.N.Y Mar. 22, 1996) (1996 WL
131863).
Additionally, it is an understandable mistake that 40 CFR § 261.2 was incorrectly applied to a suit brought under
42 U.S.C. § 6972. It is understandable considering that not even the Environmental Protection Agency, the
regulatory agency for the RCRA, can settle on one definition for the meaning of solid waste20. Case law, however,
has determined that even though the regulatory language of the RCRA does not directly address citizen suits filed
under 42 U.S.C. § 6972(a)(1)(B),21 the suits are governed by the statutory definitions in 42 U.S.C. § 6903(27)
instead of the statutory language of 40 CFR § 261.2. See Connecticut Coastal, 989 F.2d at 1315. See also Comite
Pro Rescate de la Salud v. Puerto Rico Aqueduct and Sewer Auth., 888 F.2d 180, 187 (1st Cir.1989), cert. denied,
494 U.S. 1029, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990). Regardless of case law, the lower court applied 40 CFR §
19
“Any discarded material that is not excluded by § 261.4(a) or that is not excluded by variance granted under §§
260.30 and 260.31.” 40 CFR § 261.2(a)(1)
20
The EPA distinguishes between RCRA's regulatory and remedial purposes and offers a different definition of
solid waste depending upon the statutory context in which the term appears. See Connecticut Coastal, 989 F.2d at
1314.
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261.2 in the interpretation of a suit filed under 42 U.S.C. § 6972 instead of applying the correct definition of solid
waste as found in 42 U.S.C. § 6903(27). Suave and the EPA allege that the contradiction to known case law is
based on the disparity between the two definitions of solid waste. BOG will prove to the Court that there is no
justification for the district court breaking precedence in regards to applying statutory definitions within the
regulatory provision under which the suit is being brought instead of apply regulatory definitions from other,
although related, regulatory provisions. There is no justification because there is not a disparity in the two
definitions; rather, confusion as to when to apply one definition instead of the other. Hence, the definitions found in
40 CFR § 261.2 and 42 U.S.C. § 6903(27) must be reviewed to determine if the lower court had any standing to use
40 CFR § 261.2 and, thereby, justify the contradiction to known case law.
40 CFR § 261.2 provides the definition of solid waste as:
(a)(1) A solid waste is any discarded material that is not excluded by § 261.4 (a) or that is not
excluded by variance granted under §§ 260.30 and 260.31.
(2) A discarded material is any material which is:
(i) Abandoned…
(b) Materials are solid waste if they are abandoned by being:
(1) Disposed of; or
(2) Burned or incinerated; or
(3) Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by
being disposed of, burned, or incinerated.
This is an extremely narrow definition of solid waste. 42 U.S.C. § 6903(27), as provided in an earlier part of the
discussion, is a much broader definition of solid waste because it is not burdened by the definitions of “abandoned”
or “disposed of”.
Faced with one narrow definition and one broad definition for the term of solid waste, the burden of this Court is
to determine whether there is a conflict between Congress’ intent in 42 U.S.C. § 6903(27) and the EPA’s
determination of solid waste under 40 CFR § 261.2 or if there is simply confusion surrounding when each definition
should be applied. See generally Chevron U.S.A., Inc., 467 U.S. at 842-843 (discussing the responsibility of courts
in cases where Congress has not provided clear language in a regulation).
The EPA encourages the Court to find that based on 40 CFR § 261.2, lead shot and skeet part do not fit the
meaning of solid waste as promulgated under RCRA. See Long Island Soundkeeper, No. 94 Civ. 0436 (RPP) at *89. Suave argues that, in actuality, neither 40 CFR § 261 nor 42 U.S.C. § 6903 and § 6972(a)(1)(B) hold the
appropriate definition of solid waste for this matter. Suave argues that if one of the two is controlling, it is 40 CFR §
261.2, but that Suave is provided with an exemption under the guidelines of the EPA. This exemption is based on
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the EPA’s holding that the fired shot and skeet parts in question are excluded from any definition of solid waste
because they are consumer products being used for their intended purpose. See Connecticut Coastal, 989 F.2d at
1314. See generally Long Island Soundkeeper, No. 94 Civ. 0436 (RPP) at *8-9 (discussing the EPA’s definition of
solid waste under 40 CFR § 261.2 which does not include lead shot and skeet parts).
However, BOG urges the Court to look away from EPA’s argument in Long Island since the usability of the
EPA’s definition of solid waste as defined by 40 CFR § 261.2 was never determined. The EPA’s definition of solid
waste was only addressed on the court’s path to deciding that the definition that should be followed in citizen suits
was actually the definition associated with 42 U.S.C. § 6972(a)(1)(B). BOG argues that the appropriate definition
for solid waste is the statutory definition found in 42 U.S.C. § 6903(27) because it is the counterpart to the
regulatory provision found in 42 U.S.C. § 6972(a)(1)(B) allowed BOG to file the suit to be filed by BOG in the first
place. Regulatory suits should be governed by statutory definitions found within their set of regulations; not by
definitions found in other regulatory provisions.
BOG would instead ask the court to refer to Connecticut Coastal. In Coastal, the Second Circuit held that
Congress intended to include in its definition of discarded material any products which no longer serve “their
intended purposes and are no longer wanted by the consumer.” See Connecticut Coastal, 989 F.2d at 1314 (quoting
H.R. Rep. No 1491, 94th Cong., 2d Sess. 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6241). See also Craig
Lyle Ltd. Partnership v. Land O'Lakes, Inc., 877 F. Supp. 476, 481 (D.Minn.,1995). When looking at the Second
Circuit’s actual interpretation of the legislative intent, there is no question that the district court erred in the current
case in finding that lead shot and skeet parts are not solid waste under 40 CFR § 261.2.
If, however, this Court determines that the lower court correctly used the definition of 40 CFR § 261.2, BOG
would like to point out that the EPA’s definitional interpretation of solid waste for 40 CFR 261.2 is a violation of the
governing rules and regulations for this 40 CFR § 261. The rules and regulations that control how the EPA is to
handle 40 CFR § 260, 261, 264, 265 and 266 are found in 40 CFR Parts, 50 Fed. Reg. 614 (Environmental
Protection Agency Jan. 4, 1985).
The language in 50 Fed. Reg. 614 is very plain. It states that the EPA is “guided by the principle that the
paramount and overriding statutory objective of RCRA is protection of human health and the environment.” 40
CFR Parts, 50 Fed. Reg. 614 at 618. The intent of 50 Fed. Reg. 614, which was amended and agreed to by the EPA,
is to provide the EPA with controlling factors upon which to base interpretations of the RCRA. Based on the plain
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language of this controlling document, the definition provided by the EPA that lead shot and skeet waste are not
considered solid waste is a violation of both the RCRA’s Congressional purpose and the EPA’s own governing
rules. Additionally, 50 Fed. Reg. 614 goes on to state “the statutory policy of encouraging recycling is secondary
and must give way if it is in conflict with the principal objective [human health and the environment].” Id. 50 Fed.
Reg. 614 then goes a step further and gives a definition of scrap metal as “…bits or pieces of metal that are
discarded after consumer use….” 40 CFR Parts, 50 Fed. Reg. 614 at 619. The lead shot in question definitely fit the
description of pieces of metal that are discarded after they have been used by their consumer. Then 50 Fed. Reg.
614 goes one step further and actually states that scrap metal is a solid waste when its use constitutes disposal, it is
being burned for energy recovery or used to produce fuel, and when it is being reclaimed. See id. Therefore, BOG
encourages the Court to find that the definition of solid waste in 40 CFR § 261.2 may be a very simplistic one, but
not one that is so ambiguous as to allow the EPA to create a definition that violates its own federal regulation
foundation (50 FR 614).
Based on the fact that 40 CFR § 261.2 is the wrong definition for solid waste to be applied to citizen suits and the
fact that the EPA’s interpretation of 40 CFR § 261.2 is a violation to the EPA’s own guidelines, the district court
erred in finding that lead shot and skeet parts are not solid waste when they fall to the ground under 40 CFR § 261.2.
IV. THE DISTRICT COURT ERRED IN HOLDING THAT LEAD SHOT AND SKEET
PARTS ARE NOT SOLID WASTE WHEN THEY FALL TO THE GROUND UNDER 42
U.S.C. § 6972(a)(1)(B).
The Solid Waste and Disposal Act § 7002(a)(1)(B) and § 7003 were amended by 42 U.S.C. § 6972(a)(1)(B) and
§ 6973. Courts have ruled that § 6972(a)(1)(B) and § 6973 must be dealt with under the same set of guidelines since
§ 7002(a)(1)(B) and § 7003 are almost identical. See Connecticut Coastal, 989 F.2d at 1315; Comite Pro, 888 F.2d
at187. With this determination in mind, it is easy to see that the lower court erred in holding that fired shot and
skeet parts are not solid waste when they fall to the ground under 42 U.S.C. § 6972(a)(1)(B).
A. An Explanation of the Interaction Between the Solid Waste Act and 42 U.S.C. § 6972 Amendments.
As stated in Connecticut Coastal, 989 F.2d at 1315, the RCRA allows for two different types of citizen suits.
The first type, is found in 42 U.S.C. § 6972(a)(1)(A) enables private citizens to enforce the EPA's hazardous waste
regulations and invokes the narrow regulatory definition of solid waste as defined in 40 C.F.R. § 261.1(b)(1). The
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second type of citizen suit, under 42 U.S.C. § 6972(a)(1)(B), allows citizens to sue in order to put a stop to an
"imminent and substantial endangerment to health or the environment." While the regulations do not specifically
mention this second category of citizen suit, regulatory language referring to § 7003 must also apply to §
7002(a)(1)(B) because the two provisions are nearly identical. Comite Pro, 888 F.2d at 187. Consequently, the
broader statutory definition of solid waste applies to citizen suits brought to abate imminent hazard to health or to
the environment.
B. The Courts Determine Lead Shot and Skeet Parts are Solid Waste.
Using the broader definition of solid waste, the issue in question is that of “discarded material(s)”, not the issues
of “abandoned” and “disposed of” materials. See 42 U.S.C. § 6903(27). Without having to determine whether or
not the lead shot and skeet parts have been “abandoned” or “disposed of,” the issue of “discarded material” is easy
to address. For statutory purposes, the EPA defines “discarded material” as anything that is left behind once it is no
longer wanted and serves no further purpose. See Connecticut Coastal, 989 F.2d at 1314; Craig, 877 F. Supp. at
481. To date, the courts have not contradicted the EPA’s statutory definition of discarded materials. Since the
courts have not contradicted this definition, and the lead shot and skeet parts are clearly being left behind because
they can serve no further purpose and are not wanted, it is clear that they are solid waste. Hence, the lower court
erred in finding lead shot and skeet parts to not be solid waste under 42 U.S.C. § 6972(a)(1)(B).
BOG’s next step in showing the lower court erred in finding lead shot and skeet parts are not solid waste under
42 U.S.C. § 6972(a)(1)(B) is to show that they fit the criteria for hazardous waste which is a subset of solid waste.
See 42 U.S.C. § 6903(5). To translate this more plainly, under RCRA, waste must be classified as solid waste
before it can be considered hazardous waste. See United Technologies Corp. v. EPA, 821 F.2d 714, 716 n. 1 (D.C.
Cir. 1987). Hence, if waste is found to be hazardous, it is automatically considered solid waste as well. The
determination of whether or not lead shot and skeet parts should be found as hazardous waste is accomplished by
referring to the definitions in 42 U.S.C. § 6903(5)22. Upon review of this definition, BOG urges the Court to find
22
42 U.S.C. § 6903(5) (defining the term “hazardous waste”)
The term “hazardous waste” means a solid waste, or combination of solid wastes, which because
of its quantity, concentration, or physical, chemical, or infectious characteristics may
(A) cause, or significantly contribute to an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness; or
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that the definition of hazardous waste is met since the migratory birds are ingesting a harmful chemical (it is
common knowledge that lead is toxic) which causes serious illnesses and mortality. The migratory birds are
ingesting the lead by drinking the contaminated waters Sheldrake Pond, and eating the contaminated food sources at
the pond such as worms and fish. Therefore, with the pending death of thousands of migratory birds in mind, the
definition of “substantial present or potential hazard…[to] the environment…” as stated in 42 U.S.C. 6903(5)(B) has
been fulfilled. To advance this argument, BOG will also provide the Court with a discussion of “imminent and
substantial endangerment” as stated in 42 U.S.C. § 6972(a)(1)(B) since this is analogous to § 6903(5)’s language of
“substantial hazard”.
C. What is Imminent and Substantial Endangerment?
First, § 6972(a)(1)(B) does not require the endangerment be a present violation. 42 U.S.C. § 6972(a)(1)(B)
requires there to be “imminent and substantial endangerment”. The violation in question can be past or present. See
Connecticut Coastal, 989 F.2d at 1316. In this case, BOG shows the violation is current and on going. It is current
because the lead is currently being absorbed by the food sources that exist at Sheldrake Pond for migratory birds to
feed. Since the migratory birds are currently ingesting lead through their food sources and lead causes serious health
problems and death, the danger to these birds is evident. The danger is also considered substantial since some of the
migrating birds using Sheldrake as a stopover are on the endangered species list.
There is no denying on Suave’s part that there is a violation of this statute by the trash their “community activity”
is leaving on the ground and in the water. Since the birds are currently using the Pond as a stopping point, the
ingestion of the lead shot and skeet parts by the birds cannot be prevented. Therefore, the imminent endangerment
portion of the statute has been fulfilled.
With the inevitable ingestion of the lead by the endangered birds and their probable death
from this lead, the substantial endangerment portion of the statute has also been fulfilled. This
concept is based on the fact that the intentional death of an endangered species is a violation of
the Endangered Species Act and Migratory Bird Treaty (which were both discussed earlier) that
govern migrating birds. BOG would encourage the court to find that a violation of an
international treaty or a national policy, which was enacted to protect the environment, must be
viewed as a substantial endangerment to the environment since the government would not have
placed such rigid restraints on items that are minor concerns to the environment.
(B) pose a substantial present or potential hazard to human health or the environment when
improperly treated, stored, transported, or disposed of, or otherwise managed.
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CONCLUSION
When the United States Constitution was created, the framers had no concept of the water pollution problems
we would face in today’s world. But they did recognize the importance of water and potential water problems,
and gave Congress the power to regulate such future events. The United States Constitution provides Congress
broad legislative authority to pass laws concerning future unknown problems which will occur and that will
affect the health and welfare of the nation.
The Federal Water Pollution Control Act and its legislative history prove that the United States Congress is
concerned about pollution of the nation's waterways and wants to protect the health and welfare of the country,
as well as the hundreds and thousands of species that call these bodies of water, such as Sheldrake Pond and its
surrounding areas, home. It is obvious water pollution is a health threat to the water supply for drinking and for
irrigation. Pollution can also end the public use and enjoyment of our rivers, lakes, streams, and ponds for
fishing, recreational water activities, boating, swimming, camping and as in this case, bird watching.
Sheldrake Pond should be deemed “navigable water,” thereby
protecting it under the CWA.
for the following reasons.
Sheldrake Pond is “navigable water”
First, the waters of the pond have
the possibility to flow into surrounding areas and thus carry
pollutants into other waters of the United States.
Dodge Corp., 391 F. Supp at 1187.
See Phelps
Second, continued pollution of
Sheldrake Pond would impair the biological integrity of the pond,
its surrounding area, and nearby “navigable waters” of the United
States.
See P.F.Z. Properties, Inc., 393 F. Supp. at 1381.
Third, even if Sheldrake Pond is not your typical “navigable
water,” the 2001 amendment to 33 U.S.C. § 1362(7) extends the
jurisdiction of the CWA to include Sheldrake Pond by defining
“navigable waters” as “waters of the United States.”
The CWA defines “navigable waters” as “waters of the United
States including the territorial seas.”
999 F.2d at 260.
See Hoffman Homes, Inc.,
The EPA’s definition, however, includes
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isolated waters that are important stopovers for migratory birds.
(R. at 5, 6).
Sheldrake Pond supports many species of bird, some
even endangered, such as, the avocets, sandhill cranes, jacanas,
and warbling vireos.
It is our contention that Sheldrake Pond is
not only an important stopover for these birds but that it is
also a wetland.
Its waters attract not only many exotic species
of bird but also avid birdwatchers.
BOG contends that the
aggregate effect of bird watching on the national economy
substantially affects interstate commerce.
can regulate this activity.
As a result, Congress
Both the Commerce Clause and the
Treaty Clause justify the federal regulation of Sheldrake Pond.
When Congress has the right to regulate an activity and has
provided for a governmental agency, such as the EPA, to control
that activity, it is up to the judiciary to ensure that the
regulatory agency follows the intent of Congress when
interpreting and implementing laws that will control the activity
in question.
Courts have set precedence that the definitions in
42 U.S.C. § 6903 are the definitions that apply to suits brought
under 42 U.S.C. § 6972(a)(1)(B).
The lower court broke this
precedence by applying the EPA’s interpretation of the definition
for 40 CFR § 261.2 instead of the definitions in 42 U.S.C. §
6903.
The lower court cannot arbitrarily decide to break that
precedence without a just and valid explanation of why it is
doing so.
The lower court did, however, explain that it was finding
that both 40 CFR § 261.2 and 42 U.S.C. § 6972 included an
exemption for consumer use.
(R. at 11). Therefore, according to
the lower court, the lead shot and skeet part in question are not
solid waste.
Again, it is evident by the language in 50 Fed.
27
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Red. 614 that this is clearly against Congressional intent.
The
document is very clear in its statement that the EPA is “guided
by the principle that the paramount and overriding statutory
objection of RCRA is protection of human health and environment.”
40 CFR Parts, 50 Fed. Reg. 614 at 618.
This language does not
stipulate that it is okay for the EPA to allow an exemption which
will harm the environment if it is for consumer use.
It says
that the number one purpose of the EPA is to protect human health
and the environment.
Id.
For these reasons, we pray that this Court reverse the
judgment of the United States District Court for the District of
New Union and remand all four points for trial on the merits.
also pray that upon reversal and remand of this decision, this
Court grant all appropriate attorney fess to appellants.
28
We
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APPENDIX A
U.S.C.A. Const. art. I, § 8, cl.3
The Congress shall have power to regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes.
U.S.C.A. Const. art. II, § 2, cl.2
The President shall have power by, and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads
of Departments.
U.S.C.A. Const. art. VI, § 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the united States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby, and Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.
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APPENDIX B
Subset I
33 U.S.C.A § 1311(a)
Illegality of pollutant discharges except in compliance with law except as in compliance with this section
and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any
person shall be unlawful.
33 U.S.C.A § 1362(7)
The term “navigable waters” means the waters of the United States, including the territorial seas.
33 U.S.C.A § 1362(12)
The term “discharge of a pollutant” and the term “discharge of pollutants” each means (A) any addition of
any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of
the contiguous zone or the ocean from any point source other than a vessel or other floating craft.
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APPENDIX B
Subset II
40 CFR § 261.2
A solid waste is any discarded material that is not excluded by § 261.4(a) or that is not excluded by
variance granted under §§ 260.30 and 260.31. (a)(2) A discarded material is any material which is: (a)(2)(i)
abandoned….(b)materials are solid waste if they are abandoned by being:(b)(1)disposed of; or (b)(2)burned
or incinerated; or (b)(3)accumulated, stored, or treated (but not recycled) before or in lieu of being
abandoned by being disposed of, burned, or incinerated.
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APPENDIX B
Subset III
42 U.S.C. § 6903(27)
The term “solid waste” means any garbage, refuse, sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other discarded material, including solid, liquid,
semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural
operations, and from community activities, but does not include solid or dissolved material in domestic
sewage, or solid or dissolved in irrigation return flows or industrial discharges which are point sources
subject to permits under § 1342 of Title 33, or source, special nuclear, or byproduct material as defined by
the Atomic Energy Act of 954, as amended (68 Stat. 923) [42 U.S.C.A. § 2011 et.seq.].
42 U.S.C. § 6972(a)
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his
own behalf.
42 U.S.C. § 6972(a)(1)(A)
Against any person (including (a) the United States, and (b) any other governmental instrumentality or
agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in
violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has
become effective pursuant to this chapter.
42 U.S.C. § 6972(a)(1)(B)
Against any person, including the United States and any other governmental instrumentality or agency, to
the extent permitted by the eleventh amendment to the Constitution, and including any past or present
generator, past or present transporter, or past or present owner or operator of a treatment, storage, or
disposal facility, who has contributed or who is contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and
substantial endangerment to health or the environment.
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Team # 39—MEASURING BRIEF
In The
United States Court of Appeals
For the Twelfth Circuit
BIRDWATCHERS OF GROVETON, INC.,
and
the UNITED STATES,
Appellants
v.
SUAVE REAL PROPERTIES, INC.,
Appellee
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR
THE DISTRCIT OF NEW UNION
BRIEF FOR APPELLANT
Birdwatchers of Groveton, Inc.
ATTORNEYS FOR APPELLANT
BRIDWATCHERS OF GROVETON, INC.
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QUESTIONS PRESENTED
I.
Did the United States District Court for the District of New Union err in holding
that Sheldrake Pond is not navigable water under the terms of the Clean Water
Act?
II.
Did the United States District Court for the District of New Union err in holding
that neither the Commerce Clause nor the Treaty Clause of the United States
Constitution justifies federal regulation of water pollution in Sheldrake Pond?
III.
Did the United States District Court for the District of New Union err in holding
that fired shot and skeet parts are not solid waste as defined by 40 C.F.R. § 261.2(b)
and 42 U.S.C. § 6903(27)?
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TABLE OF CONTENTS
QUESTIONS PRESENTED…………………………………………………………………….ii
TABLE OF AUTHORITIES……………………………………………………………………v
CITATIONS OF OPINIONS AND JUDGMENTS BELOW…………………………………x
STATEMENT OF THE CASE…………………………………………………………………xi
STANDARD OF REVIEW……………………………………………………………………...1
SUMMARY OF THE ARGUMENT…………………………………………………………...2
ARGUMENT……………………………………………………………………………………..3
I.
SHELDRAKE POND MUST BE CONSIDERED NAVIGABLE WATER
UNDER THE LANGUAGE OF THE CLEAN WATER ACT.………………3
A. The United States District Court Erred In Holding That Sheldrake Pond Is Not
Navigable Water Under The Terms Of The Clean Water Act.…...…………...3
B. The Definition Of Navigable Waters In The Clean Water Act Is Clear And
Unambiguous Under The Environmental Protection Agency’s And The Corps
of Engineers’ Interpretations.………………………………………………….4
1. Sheldrake Pond clearly meets the definition of “other waters” as
defined by 40 C.F.R. § 122.1 and 33 C.F.R. § 328.3(a)(3).…………...5
2. Bird watching clearly meets the definition of “recreation or other
purposes” as defined by 40 C.F.R. § 122.1 and 33 C.F.R. §
328.3(a)(3)(i).…………………………………………………………6
C. The Supreme Court Has Repeatedly Reviewed The Limits Of Federal
Jurisdiction Allowable Under The Clean Water Act.…...…………………….6
1. The decision in United States v. Riverside Bayview Homes, Inc. has
long guided the actions of the Environmental Protection Agency and
the Corps of Engineers and its reasoning applies to the instant case..7
2. The interpretation of “navigable water” in Solid Waste Agency of
Northern Cook County v. United States Army Corps of Engineers does
not apply to Sheldrake Pond.………………………………………….8
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D. The United States District Court Erred In Holding That The Present Matter Is
Not Governed By The 2001 Amendments To § 1352(7) Of The Clean Water
Act.…………………………………………………………………………...11
E. The United States District Court Erred In Holding That The 2001 Amendment
To § 1352(7) Of The Clean Water Act Does Not Extend Jurisdiction To
Sheldrake Pond.……………………………………………………………...13
II.
THE DISTRICT COURT OF NEW UNION ERRED IN HOLDING THAT
NEITHER THE COMMERCE CLAUSE NOR THE TREATY CLAUSE OF
THE CONSTITUTION JUSTIFIES FEDERAL REGULATION OF
WATER POLLUTION IN SHELDRAKE
POND.…………………………………….……………………………………..14
A. Use of Respondent’s Waters By Migratory Birds For Habitat Provides A
Constitutionally Sufficient Basis For Federal Regulation Under The
Commerce Clause.………………………………………………………...…15
1. Intrastate activities that substantially effect interstate commerce may
be regulated under Congress’ commerce power.……………………15
2. Spending generated in pursuit of migratory birds is a constitutionally
significant basis for federal regulation under the Commerce Clause.17
3. The present case’s facts differ substantially from the factual situation
found in Solid Waste Agency of Northern Cook County v. United States
Army Corp of Engineers.………………………………………….…19
B. Use Of Respondent’s Waters By Migratory Birds For Habitat Provides A
Sufficient Basis For Federal Regulation Under The Treaty Clause Of The
Constitution.…………………………………………………………….……21
III.
THE DISTRICT COURT OF NEW UNION ERRED IN HOLDING
THAT FIRED SHOT AND SKEET PARTS ARE NOT SOLID WASTE AS
DEFINED BY 40 C.F.R. § 261.2(b) AND 42 U.S.C. § 6903(27).………..……23
A. Fired Shot And Skeet Fragments Are Discarded Solid Waste As Defined By
Congress In 42 U.S.C. § 6903 (27) And Therefore Impose Liability For
Disposal Violations Under 42 U.S.C. § 6972 (a)(1)(B).………………..……24
B. Fired Shot And Skeet Fragments Are Abandoned Solid Waste As Defined By
The E.P.A. In 40 C.F.R § 261.2(b) And Therefore Impose Liability For Permit
Violations Under 42 U.S.C. § 6972 (a)(1)(A).………………………………26
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C. The Consumer Use Exception Does Not Exempt Fired Shot And Skeet
Fragments From Solid Waste As Defined in 40 C.F.R. § 261.2 (b) And 42
U.S.C. § 6903 (27).………………………………………………………..…29
CONCLUSION…………………………………………………………………………………35
APPENDIX……………………………………………………………………………………..…I
Table of Authorities
Court Cases
American Mining Cong. v. U.S. EPA, 824 F.2d 1177 (D.C. Cir. 1987)
27, 28, 30, 33
Applied Genetics Int’l., Inc. v. First Affiliated Sec., 912 F.2d 1238 (10th Cir. 1990)
1
Association of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000)… 27, 28,
29, 30, 32, 33
Chevron U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) 13, 25, 27, 28
Connecticut Coastal Fisherman’s Ass’n v. Remington Arms, 989 F.2d 1305 (2d Cir. 1993)…
25, 26, 27, 28, 30
Eckles v. Wood, 143 Ky. 451 (Ky. Ct. App. 1911) 11, 12
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000)
19
Grove v. Todd, 41 Md. 633 (Md. Ct. App. 1875)
11
Harisades v. Shaughnessy, 342 U.S. 580 (1952)
12
Jones v. United States, 529 U.S. 848 (2000) 16, 20
Long Island Soundkeeper Fund, Inc. v. New York Athletic Club, No. 94 Civ. 0436, 1996 WL
131863 (S.D. N.Y. Mar. 22, 1996) 27, 28, 30, 32
Military Toxics Project v. U.S. EPA, 146 F.3d 948 (D.C. Cir. 1998)
30, 31
Nat’l Assoc. of Home Builders v. U.S. Army Corps of Eng’rs., No. 4:99cv11, 2000 U.S. Dist.
Lexis 10131 (E.D. Va. March 7, 2000)
8
Neighborhood Against Golf, Inc. v. Recreation Enterprises, Inc., 150 F.3d 1029 (12th Cir. 1999)
30
North Dakota v. United States, 460 U.S. 300 (1983) 18, 22
Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001)
10
Rivers v. Roadway Exp., Inc., 511 U.S. 298 (1994) 11, 12
Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs., 531 U.S. 159 (2001)…
6, 8, 9, 14, 20, 21
State v. Holland, 252 U.S. 416, 433 (1920) 22, 23
United States v. Interstate Gen. Co., 152 F. Supp 2d. 843 (2001) 10
United States v. Interstate Lead Co., 996 F.2d 1126 (11th Cir. 1993)
27, 30, 33
United States v. Krilich, 152 F. Supp. 2d 983 (N.D. Ill. 2001)
9
United States v. Morrison, 529 U.S. 598 (2000)
15, 16, 18
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)
4, 5, 7, 8, 21
Wickard v. Filburn, 317 U.S. 111 (1942)
16, 17
Federal Statutes
33 U.S.C. § 1251 (1999)
4
33 U.S.C. § 1251(a)(1) (1999)
33 U.S.C. § 1251(d) (1999) 4
4
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33 U.S.C. § 1342 (1999)
xii
33 U.S.C. § 1344 (1999)
xii
33 U.S.C. § 1365 (1999)
x, xii
42 U.S.C. § 6924(y) (1999) 31, 32
42 U.S.C. § 6925 (1999)
29
42 U.S.C. § 6972 (1999)
x, xii, 34
42 U.S.C. § 6972(a)(1)(A) (1999) 29
42 U.S.C. § 6972(a)(1)(B) (1999)
xii, xiii, 25, 26
5 U.S.C. § 706 (1999) 32
5 U.S.C. § 706(2)(A) (1999) 30, 32, 34
Federal Agency Regulations
33 C.F.R. § 328.3 (1999)
4
33 C.F.R. § 328.3(a)(3) (1999)
4, 5, 6, 9
33 C.F.R. § 328.3(a)(3)(i) (1999)
6
33 C.F.R. § 328.3(b) (1999) 9
38 Fed. Reg. 10834 (1973) 5
40 C.F.R. § 122.1 (1999)
4, 5, 6
40 C.F.R. § 122.2 (1999)
4, 11, 13, 21
40 C.F.R. § 261.1(b) (1999) 24, 31
40 C.F.R. § 261.2 (1999)
2, 27, 28, 29, 30, 31, 32, 33, 34
40 C.F.R. § 261.2(a) (1999) 23, 27, 28, 29
40 C.F.R. § 261.2(b) (1999) 27, 34
40 C.F.R. § 261.2(c)(1)(ii) (1999) 23, 30, 34
40 C.F.R. § 261.2(f) (1999) 27
40 C.F.R. § 262.2 (1999)
xiii
40 C.F.R. § 266.202 (1999) 30
40 Fed. Reg. 31320 (1975) 7
51 Fed. Reg. 41206 (1986) 9, 10, 13
United States Constitution
U.S. Const. art. I, § 8 14, 21
U.S. Const. art. I, § 9 12
U.S. Const. art. II, § 2 14, 21
Governmental Authorities
H.R. Rep. No. 94-1491(i), at 2-3 (1976), reprinted in 1976 U.S.C.C.A.N. 6238
23, 24, 25, 26,
29, 30, 31, 33, 34
National Survey of Fishing, Hunting, and Wildlife - Associated Recreation 45 (issued Nov.
1997)
17
S. Rep. 106-528
11, 18, 21
U.S. Congress, Offices of Technology Assessment, Wetlands: Their Use and Regulation 54
(OTA-O-206, Mar. 1984) 18, 19
U.S. Dept. of Interior, U.S. Fish and Wildlife Service and U.S Dept. of Commerce, Bureau of
Census, 1996
17
Water Pollution Protection Act of 2001, P.L. 106-720
21
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Federal Treaties
Convention Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19,
1976, U.S.-U.S.S.R., 29 U.S.T. 4647
22
Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their
Environment, Mar. 4, 1972, U.S.-Japan, 25 U.S.T. 3331 22
Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.-Mex.,
50 Stat. 1311
22
Convention for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702
22
Migratory Bird Treaty Act of July 3, 1918, ch. 128, 40 Stat. 755 (1918) 22
Federal Rules
Fed. R. Civ. Pro. 24 x
Fed. R. Civ. Pro. 56(c)
10
Other Authority
Webster’s Ninth New Collegiate Dictionary, A. Merriam Webster, Inc., Publishers (2001)
6
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CITATIONS OF OPINIONS AND JUDGMENTS BELOW
This action is an appeal from the grant of Suave Real Properties, Inc.’s motion for
summary judgment by the United States District Court for the District of New Union.
Birdwatchers of Groveton, Inc. brought a citizen suit against Suave Real Properties, Inc.
under both the Clean Water Act, 33 U.S.C. § 1365, and the Resource Conservation and
Recovery Act, 42 U.S.C. § 6972 . The United States Environmental Protection Agency
intervened in this action pursuant to Federal Rule of Civil Procedure 24. The Order of the
district court below is set forth in the Appendix.
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STATEMENT OF THE CASE
Statement Of The Facts
Birdwatchers of Groveton (“BOG”) is a non-profit corporation
organized under the laws of New Union. (R. at 3). Suave Real
Properties Inc. (“Suave, Inc.”) is a real estate management
company, also organized under the laws of New Union. (R. at 3).
On December 30, 2000, BOG filed a complaint against Suave, Inc.
(R. at 3).
Sheldrake Pond is a long, narrow, shallow pond, running east
to west. (R. at 3). Sheldrake Pond is dry during a portion of
the year, nevertheless it serves as an important stopover for
many aquatic and terrestrial birds during their annual
migrations. (R. at 3). BOG believes that Sheldrake Pond is not
a pond at all, rather that it is an intermittent playa lake. (R.
at 5). In 2000, the Groveton Rifle and Pistol Association
(“GRAPA”) began operation of a skeet-shooting platform and firing
range near the eastern end of the pond and continues that
operation today. (R. at 3-4). In order to construct the
platform necessary for the skeet ejection operation, Suave, Inc.
filled a portion of the western end of Sheldrake Pond. (R. at
3). Suave owns the land to the west and south of Sheldrake Pond,
but owns only a portion of the pond itself. (R. at 3). Groveton
County owns the remainder of Sheldrake Pond as well as land the
land to the east and south of the pond. (R. at 3). As a result
of the skeet and rifle operation, GRAPA and its users cause
skeet, skeet parts, and spent lead to fall into Sheldrake Pond.
(R. at 3-4). This waste material falls not only onto property
owned by Suave, Inc., but also onto property owned by Groveton
County. (R. at 4). Suave, Inc. has no easements or other
agreements with Groveton County that allow disposal of these
materials on its land or into Sheldrake Pond itself. (R. at 4).
BOG states that its members are bird watchers who live in
New Union and have watched birds on Sheldrake Pond from an
adjacent road for more than twenty years. (R. at 3). BOG states
that its members continuously observed a variety of species
including Mexican ducks, jacanas, avocets, sandhill cranes, and
warbling vireos on the pond or its surrounds until Suave, Inc.
began using Sheldrake Pond for a shooting range. (R. at 3).
Procedural History
BOG brought a suit in the United States District Court of
New Union (“district court”) against Suave, Inc. under the
citizen suit provisions of both the Clean Water Act (“CWA”), 33
U.S.C. § 1365 (1999), and the Resource Conservation and Recovery
Act (“RCRA”), 42 U.S.C. § 6972 (1999). (R. at 3). BOG alleges
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that Suave is violating CWA, 33 U.S.C. § 1311(a) either by
filling and maintaining fill in Sheldrake Pond without a CWA, 33
U.S.C. § 1344 permit. BOG further alleges that Suave, Inc. is
violating CWA, 33 U.S.C. § 1311(a) by disposing of hazardous
skeet, lead shot, and bullets into Sheldrake Pond without a CWA,
33 U.S.C. § 1344 permit or by discharging pollutants into
navigable waters without a CWA, 33 U.S.C. § 1342 permit. (R. at
4). BOG asked the district court to assess civil penalties for
these violations and to enjoin their continuance. (R. at 4).
Additionally, BOG alleges that Suave, Inc.’s disposal of
hazardous waste into Sheldrake Pond amounts to an imminent and
substantial endangerment actionable under 42 U.S.C. §
6972(a)(1)(B). BOG also asked the district court to issue an
injunction requiring Suave to abate this endangerment. (R. at
4).
The district court granted the Environmental Protection Agency’s (“EPA”) motion to
intervene. (R. at 1). Suave, Inc. then moved for summary judgment on the following four
grounds: 1) Sheldrake Pond is not navigable water under the terms of CWA, 33 U.S.C. §§
1311(a), 1362(7) and 1362(12); 2) neither the Commerce Clause nor the Treaty Clause of the
United States Constitution justifies federal regulation of Sheldrake Pond; 3) spent shot and skeet
parts are not solid waste after falling to the ground under 40 C.F.R. §§ 262.2; and 4) spent shot
and skeet parts are not solid waste after falling to the ground under 42 U.S.C. § 6972(a)(1)(B).
(R. at 1-2). The district court granted Suave, Inc.’s motion for summary judgment in this action.
(R. at 1). BOG now appeals the district court’s judgment on all four grounds. (R. at 1). The
EPA, as Intervenor, joins BOG’s appeal on parts 1, 2, and 4 and opposes BOG’s appeal on part
3. (R. at 1-2).
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STANDARD OF REVIEW
It is appropriate for this Court to review de novo the district court’s grant of summary
judgment for Suave Real Properties, Inc. See Applied Genetics Int’l., Inc. v. First Affiliated Sec.,
912 F.2d 1238, 1241 (10th Cir. 1990).
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SUMMARY OF THE ARGUMENT
Suave Real Properties, Inc. (“Suave, Inc.”) is liable to suit by Birdwatchers of
Groveton (“BOG”) under the citizen suit provisions of the Clean Water Act
(“CWA”) because Suave, Inc. discharged pollutants and fill materials into
Sheldrake Pond without a permit. Sheldrake Pond is clearly navigable water
according to the plain language of the CWA, 33 U.S.C. § 1362(7) (1999), and the
administrative interpretations of both the Environmental Protection Agency
(“EPA”) and the Corps of Engineers (“COE”). Additionally, Sheldrake Pond
clearly qualifies as other waters used for recreational purposes. Congress intended
the CWA to regulate Sheldrake Pond because it is navigable water and clarified that
intent in the 2001 amendments to the CWA.
The United States Constitution allows federal regulation of water pollution in
Sheldrake Pond under both the Commerce Clause and the Treaty Clause. The
Commerce Clause governs intrastate activities that substantially affect interstate
commerce. Suave, Inc.’s rental of land to GRAPA is sufficient to establish federal
jurisdiction. Additionally, activities that affect the habitat of migratory birds
substantially affect interstate commerce, and are thereby regulated by the federal
government under the Commerce Clause. Sheldrake Pond is also subject to federal
regulation under the Treaty Clause because of numerous treaties requiring the
federal government to protect migratory birds to the extent allowed by the
Constitution.
Suave, Inc. is liable to BOG under the citizen suit provisions of the Resource
Conservation and Recovery Act (“RCRA”) for disposing solid waste without a
permit and thereby creating an imminent and substantial endangerment. The lead
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shot and skeet discharged into Sheldrake Pond are solid waste as defined by
Congress, 42 U.S.C. § 6903(27) (1999), and the EPA, 40 C.F.R. § 261.2 (1999). These
materials are subject to federal regulation under RCRA. Congress clearly intended
RCRA regulations to cover the spent lead shot and skeet parts at issue because this
solid waste has served its purpose and is no longer of use to the consumer.
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ARGUMENT
I.
SHELDRAKE POND MUST BE CONSIDERED NAVIGABLE WATER UNDER
THE LANGUAGE OF THE CLEAN WATER ACT.
Sheldrake Pond clearly meets the definition of navigable water under the plain language
of 33 U.S.C. § 1362(7) of the Clean Water Act (“CWA”) and its accompanying administrative
interpretations. Alternatively, the 2001 curative amendments to the CWA clearly express
Congress’ intent to extend federal jurisdiction to Sheldrake Pond and should be applied in this
matter.
A)
The United States District Court Erred In Holding That Sheldrake Pond Is Not
Navigable Water Under The Terms Of The Clean Water Act.
The Record reflects that Sheldrake Pond “is a long, narrow, shallow pond … that is dry
during part of the year. It is an important stopover for many birds, both aquatic and terrestrial,
during their annual interstate and international migrations.” (R. at 3). As such, the Birdwatchers
of Groveton, Inc. (“BOG”) argues that Sheldrake Pond falls under Environmental Protection
Agency (“EPA”) and Corps of Engineers (“COE”) jurisdiction. Indeed, BOG asserts that
Sheldrake Pond is a playa lake on which its members have watched birds for at least two
decades, and that during that time, its members have observed hundreds of species of birds on
the pond or at its banks. (R. at 3). Finally, BOG argues that Sheldrake Pond “is used in
interstate commerce as part of an interstate and international bird migration pathway … and by
people watching the migratory birds for recreational purposes.” (R. at 5) (emphasis added).
Notwithstanding BOG’s assertions and its own findings, the district court held that the waters of
Sheldrake Pond are insignificant and isolated and, therefore, are not governed by the CWA. (R.
at 7). The district court below misinterpreted both the letter and the spirit of the CWA.
JJ.
B.
The Definition Of Navigable Waters In The Clean Water Act Is Clear And
Unambiguous Under The Environmental Protection Agency’s And The Corps of
Engineers’ Interpretations.
33 U.S.C. § 1251(a) defines Congress’ goals in enacting the CWA as to “[r]estore and
maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. §
1251(a) (1999). 33 U.S.C. § 1251(d) of the CWA instructs that “the Administrator of the
Environmental Protection Agency … shall administer [the] Act [33 U.S.C. §§ 1251 et seq.].” 33
U.S.C. § 1251(d) (1999). To effect that goal, the EPA’s construction of the CWA must be given
deference where it is reasonable and does not conflict with the intent of Congress as expressed in
the text of the Act. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131
(1985). 33 U.S.C. § 1251(a)(1) explains that “it is the national goal that the discharge of
pollutants into the navigable waters be eliminated… .” 33 U.S.C. § 1251(a)(1) (1999). Finally,
33 U.S.C. § 1362(7) defines navigable waters as the waters of the United States.
The EPA, charged with implementing the CWA, defines waters of the United States as:
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(a)
(b)
(c)
(1)
All waters which are currently used, were used in the past, or may be susceptible
to use in interstate or foreign commerce, including all waters which are subject to
the ebb and flow of the tide;
All interstate waters, including interstate “wetlands;”
All other waters such as intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds the use, degradation, or destruction of which would
affect or could affect interstate or foreign commerce including any such waters:
Which are or could be used by interstate or foreign travelers for recreational or
other purposes…
40 C.F.R. § 122.2 (1999) (emphasis added). Importantly, the COE utilizes the identical
definition of navigable waters for its jurisdictional test. See 33 C.F.R. § 328.3 (1999).
Sheldrake Pond is subject to the jurisdiction of the CWA for
two reasons. First, Sheldrake Pond meets the qualifications of
other waters as defined by 40 C.F.R. § 122.1 and 33 C.F.R. §
328.3(a)(3). Second, bird watching qualifies as a recreational
or other purpose as defined by 40 C.F.R. § 122.1 and 33 C.F.R. §
328.3(a)(3)(i). For these reasons, Sheldrake Pond clearly falls
within the statutory definition of navigable waters as
interpreted by the EPA and COE.
1.
Sheldrake Pond clearly meets the definition of “other waters” as defined
by 40 C.F.R. § 122.1 and 33 C.F.R. § 328.3(a)(3).
The EPA’s and COE’s definitions of waters of the United States include tidal waters, and
interstate waters. Admittedly, Sheldrake Pond is neither of these. However, in United States v.
Riverside Bayview Homes, Inc. (“Bayview”), the Supreme Court deferred to the “ecological
judgment” of the EPA and COE in formulating their original interpretations of the meaning and
extent of navigable waters stating that:
The regulation of activities that cause
water pollution cannot rely on artificial
lines…but must focus on all waters that
together form the entire aquatic system.
Water moves in hydrologic cycles, and
pollution of this part of the aquatic
system, regardless of whether it is above or
below an ordinary high water mark, or mean
high tide line, will affect the water
quality of the other waters within that
aquatic system.
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Riverside Bayview Homes, 474 U.S. at 133-34 (quoting 38 Fed. Reg. 10834 (1973)). It is this
very ecological judgment that prompted those agencies to include the term all other waters
followed by a litany of specific examples of such bodies of water. Included in the list of
contemplated protected bodies of water are both natural ponds and playa lakes. See 40 C.F.R. §
122.1 (1999); See also 33 C.F.R. § 328.3(a)(3) (1999). Sheldrake Pond’s classification into one
or both of these definitions is a factual determination, which must be made at trial.
Sheldrake Pond is a natural pond that meets the definition
of waters of the United States as contemplated by both 40 C.F.R.
§ 122.1 and 33 C.F.R. § 328.3(a)(3). Sheldrake Pond, therefore,
falls within the definition of navigable waters as contemplated
by 33 U.S.C. § 1362(7). Neither the Record nor any involved
party claims that Sheldrake Pond is man-made. Rather, the Record
simply indicates that Sheldrake Pond is “a long, narrow, shallow
pond… .” (R. at 3). BOG further argues that Sheldrake Pond is a
playa lake. A playa pond or playa lake is a “flat floored bottom
of an undrained desert basin that becomes at times a shallow
lake.” Webster’s Ninth New Collegiate Dictionary, 902, A.
Merriam Webster, Inc., Publishers (2001). The EPA and COE
specifically include these types of intermittent bodies of water
within their agency definitions. See 40 C.F.R. § 122.1 (1999);
See also 33 C.F.R. § 328.3(a)(3) (1999). No size limitations for
ponds, playa lakes, or other bodies of water are included in the
EPA’s or COE’s definitions.
2.
Bird watching clearly meets the definition of “recreation or other
purposes” as defined by 40 C.F.R. § 122.1 and 33 C.F.R. § 328.3(a)(3)(i).
Sheldrake Pond is a playa lake that is heavily used for recreational purposes as provided
by the EPA’s and COE’s definitions. See 40 C.F.R. § 122.1 (1999); See also 33 C.F.R. §
328.3(a)(3)(i) (1999). The Record reflects that BOG members have been watching birds there
for at least two decades. (R. at 3). As important as their use of the pond may be to its members,
BOG is but a single segment of a vast network of millions of similarly minded people who
spend billions of dollars annually on recreational pursuits relating to migratory birds. See Solid
Waste Agency of N. Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 173 & 195
(2001). The prevailing issue is the volume of recreation that Sheldrake Pond and similar playa
lakes produce or could produce. Any disruption of migratory waterfowl that negatively impacts
recreational activity is a disruption of the interstate commerce protected by the CWA.
C.
The Supreme Court Has Repeatedly Reviewed The Limits Of Federal Jurisdiction
Under The Clean Water Act
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The Supreme Court has repeatedly reviewed the limits of federal jurisdiction outlined in
the CWA. See generally United States v. Riverside Bayview Homes, Inc. 474 U.S. 121; Solid
Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs., 531 U.S. 159. Unfortunately,
their decisions have not always been consistent.
1.
The decision in United States v. Riverside Bayview Homes, Inc. has long
guided the actions of the Environmental Protection Agency and the Corps
of Engineers and its reasoning applies to the instant case.
In Bayview, a unanimous Supreme Court embraced the definition of waters of the United
States as provided by the EPA and COE. The EPA and COE have long defined the waters of the
United States to include “not only actually navigable waters but also tributaries of such waters,
interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse
could effect interstate commerce.” Riverside Bayview Homes, 474 U.S. at 123 (emphasis added)
(quoting 40 Fed. Reg. 31320 (1975)). Following this regulatory interpretation, the Bayview
Court held that “the evident breadth of congressional concern for protection of water quality and
aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term ‘waters’ to
encompass wetlands adjacent to waters as more conventionally defined.” Id. at 131-32.
Opponents have argued that this decision limited jurisdiction over traditionally non-navigable
waters to those waters adjacent to actually navigable waters. Such a reading of the Court’s
holding is patently mistaken. The Court specifically stated that “[w]e are not called upon to
address the question of the authority of the Corps to regulate discharges of fill material into
wetlands that are not adjacent to bodies of open water … and we do not express an opinion on
that question.” Id. at 131. The Bayview Court further indicated that their decision was not
whether to mandate EPA and COE regulation of wetlands similar in nature to Sheldrake pond,
rather the question was whether to allow it at all. The Bayview Court gave heavy deference to
the opinion of the administrative bodies but noted that “where it appears that a wetland covered
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by the Corps’ definition is in fact lacking in importance to the aquatic environment – or where its
importance is outweighed by other values – the Corps may always allow development of the
wetland for other uses simply by issuing a permit.” Id. at 135, n.9.
2.
The interpretation of “navigable water” in Solid Waste Agency of
Northern Cook County v. United State Corps of Engineers does not Apply
to Sheldrake Pond.
In their refusal to sustain the COE’s jurisdiction over Sheldrake Pond, the district court
stated that the Supreme Court has already considered an almost identical legal and factual
situation. (R. at 5). In Solid Waste Agency of Northern Cook County v. United States Army
Corps of Engineers (“SWANCC”), the Supreme Court stated that an abandoned man-made gravel
pit was not navigable water simply because it provided habitat for migratory waterfowl. Solid
Waste of N. Cook County, 531 U.S. at 171, 72. The instant matter is distinguishable from that
discussed in SWANCC because Sheldrake Pond is not a discarded man-made rock quarry.
Sheldrake Pond is a natural and vibrant playa lake that plays host to important interstate
recreational activities including bird watching. Determinations as to whether the COE has
jurisdiction over specific wetlands are historically considered on an ad hoc basis and must be
here. See Nat’l Assoc. of Home Builders v. U.S. Army Corps of Eng’rs., 2000 U.S. Dist. LEXIS
10131, *21 (2000). Because of the fundamental distinction between playa lakes and man-made
rock quarries, the holding in SWANCC does not bar the COE from exercising jurisdiction under
the CWA over Sheldrake Pond.
As previously noted, the COE defines waters of the United States in the following three
ways: 1) all waters currently used, or susceptible to use in interstate commerce; 2) intrastate
lakes, rivers, streams, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds the use, degradation or destruction of that could affect interstate or
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foreign commerce; and finally 3) non-navigable isolated wetlands based on the presence of
migratory birds. See 33 C.F.R. § 328.3(b) (1999); See also 51 Fed. Reg. 41206 (1986). It is only
the third and final definition, known as the Migratory Bird Rule, that was the target of the
decision in SWANCC. Sheldrake Pond remains a water of the United States under the plain
language of the EPA and COE guidelines and is unaffected by the holding in SWANCC.
A sharply divided Supreme Court held that “33 C.F.R. § [] 328.3(a)(3), as clarified and
applied to petitioner’s balefill site pursuant to the ‘Migratory Bird Rule’… exceeds the authority
granted to respondents under §404(a) of the CWA.” Solid Waste Agency of N. Cook County, 531
U.S. at 174. The limitations of this holding are summarized in the first major decision to grapple
with defining navigable waters following the SWANCC case. The District Court for the
Northeastern District of Illinois held that:
SWANCC does not reach the question of whether, on a basis other than being
visited by migratory birds, isolated wetlands may fall under the definition of
navigable waters/waters of the United States. It makes clear that it is still the rule
that a non-navigable (in the traditional sense) wetland … falls within the purview
of the CWA… SWANCC does not clarify at what points between those two
extremes a non-navigable body of water falls within the CWA definition of
navigable waters.
United States v. Krilich, 152 F. Supp. 2d 983, 987-88 (N.D. Ill. 2001) (citations omitted)
(emphasis added).
The majority holding in SWANCC remains open to a wide range in its interpretation and
implementation. A broad reading of SWANCC would suggest that the EPA and COE have
jurisdiction only where the body of water in question is actually navigable or is adjacent to
navigable waters. Such an interpretation would eviscerate the powers of both the EPA and COE.
Conversely, a narrow reading of SWANCC would leave intact the EPA’s and COE’s
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congressionally mandated powers. This narrow reading would remove jurisdiction only where
the sole basis of jurisdiction is the presence of migratory birds. The Supreme Court did not
specifically reject any of the EPA’s or COE’s definitions of waters of the United States. It only
rejected the Migratory Bird Rule as defined by 51 Fed. Reg. 41206 (1986). See generally United
States v. Interstate Gen. Co., 152 F. Supp 2d. 843 (2001).
BOG objects to the destruction of its members’ ability to participate in the opportunity
for recreational commerce provided by Sheldrake Pond and its surrounds. This recreational
activity is protected by the CWA and its administrative provisions and remains unaltered by the
decision in SWANCC. Certainly, BOG asserts that the offending fill in Sheldrake Pond
negatively impacts the habitat of a large number of migratory birds. However, the essence of
BOG’s assertion is not limited to the negative impact on migratory fowl itself but on the negative
economic impact that it causes.
Finally, summary judgment in the context of the CWA is only proper where: “there is no
genuine issue to any material fact and the moving party is entitled to judgment as a matter of
law.” Rice v. Harken Exploration Co., 250 F.3d 264, 266 (5th Cir. 2001) (citing Fed. R. Civ. Pro.
56(c)). In order to determine whether the CWA extends jurisdiction to a specific body of water,
such as Sheldrake Pond, several factual issues must be decided. First, it must be determined
whether Sheldrake Pond is a playa lake as argued by BOG. Second, it must be determined
whether Sheldrake Pond meets the qualifications of other waters as defined by the EPA and
COE. Finally, this Court must decide whether bird watching, as practiced by BOG and others,
qualifies as a recreational purpose under the EPA’s and COE’s definitions. Only after making
these determinations can a court rule on the legal questions of the intent of Congress and the
appropriate breadth of the SWANCC holding. This Court should reverse the district court
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because it failed to make the appropriate factual determinations necessary to warrant summary
judgment.
D.
The United States District Court Erred In Holding That The Present
Matter Is Not Governed By The 2001 Amendments To §1352(7) Of The
Clean Water Act.
On August 15, 2001, Congress amended the CWA to include the EPA’s definition of
waters of the United States from 40 C.F.R. § 122.2. The accompanying Senate Environment
Committee report stated that “[t]he Supreme Court’s opinion in Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers… misinterpreted congressional intent. When we
first enacted the CWA in 1972, we intended that the terms ‘navigable waters’ and ‘waters of the
United States’ extend as far as our Commerce Clause authority extends.” S. Rep. 106-528, p. 23.
This statement clearly indicates the Senate’s curative intent in passing the amendment. There is
no attempt here to add new law, merely to clarify the scope of the existing CWA provisions.
Nevertheless, the district court ignored the 2001 CWA amendments and the report of the Senate
Environment Committee as evidence of Congress’ original intent.
The Legislature is allowed to clarify that which it meant all along, and statutes that
retroactively adjust or clarify existing legislation to conform to the original intent of the
legislature are routinely upheld by courts. See generally Grove v. Todd, 41 Md. 633 (Md. Ct.
App. 1875); See generally Eckles v. Wood, 143 Ky. 451 (Ky. Ct. App. 1911). Admittedly courts
have had misgivings about retroactive civil statutes, but curative legislation passed by a
misunderstood Congress to correct an errant judiciary, is wholly appropriate in this instance. See
generally Rivers v. Roadway Exp., Inc., 511 U.S. 298 (1994). The constitutionality of retroactive
civil legislation has long since been settled and is not problematic. “That the Legislature may, in
proper cases, by retroactive legislation, cure or confirm conveyances, or other proceedings,
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defectively acknowledged or executed, we entertain no doubt.” Grove v. Todd, 41 Md. at 641.
“Congress, of course, has the power to amend a statute that it believes we [the Supreme Court]
have misconstrued. It may even … make such a change retroactive and thereby undo what it
perceives to be the undesirable past consequences of its work product.” Rivers v. Roadway Exp.,
Inc., 511 U.S. at 313. Courts caution that retroactive legislation must be used sparingly, but
emphasize that it may be used. “Retrospective legislation is not, merely as such,
unconstitutional; and though it may often be impolitic and unjust, the judiciary is bound by it
unless it shall have an effect forbidden by the fundamental law.” Eckles v. Wood, 143 Ky. at
454. Congress’ actions following the SWANCC decision were neither impolitic nor unjust and
should now be heeded by the judiciary.
Unquestionably, the Constitution places some limits on Congress’ use of retroactive
legislation by instructing that “[n]o Bill of Attainder or ex post facto Law shall be passed.” U.S.
Const. art. I, § 9 (emphasis added). However, the Supreme Court has repeatedly found that
“[t]he inhibition against the passage of an ex post facto law by Congress in [section] 9 of Article
I of the Constitution applies only to criminal laws.” Harisades v. Shaughnessy, 342 U.S. 580,
595 (1952). Because this matter is not a criminal case, Article One, section 9 of the Constitution
does not apply.
In defending their refusal to apply the curative intent of Congress, as clarified by the
2001 amendments to the CWA, the district court stated that “[f]ew, if any, of the members of
Congress in 1972 were still members of Congress in 2001. And it is commonplace that the
views of a later Congress are of no help in ascertaining the intent of an earlier Congress.” (R. at
6). This logic is fundamentally flawed. Congress is not a static reflection of its members at any
given point in time. Rather, Congress is a living corporate body that evolves over time. The
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Congress of today has every right to make new legislation, revoke unneeded legislation, or cure
judicial misinterpretations of its established legislation. See Rivers v. Roadway Exp., Inc., 511
U.S. at 313. The district court further emphasized that curative legislation is particularly
unwarranted “when the Court itself has told us what congressional intent was in the earlier
enactment, as it has in SWANCC.” (R. at 6). This assertion vastly overstates the limits of
judicial power. It is not the job of the judiciary to rewrite legislation, rather their function is
limited to eliminating confusion over various interpretations of that legislation. See Chevron
U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). This Court should reverse
the district court as it clearly erred by refusing to consider Congress’ 2001 amendments to the
CWA.
E.
The United States District Court Erred In Holding That The 2001
Amendment To § 1352(7) Of The Clean Water Act Does Not Extend
Jurisdiction To Sheldrake Pond.
The SWANCC Court and the district court below couch their decisions in their refusal to
recognize the Migratory Bird Rule, as set forth by the COE in 51 Fed. Reg. 41206 (1986).
Limiting the consideration of Sheldrake Pond’s status under the CWA to a catalog of its fauna
ignores the true issue. The 2001 amendments to the CWA specifically adopt the EPA’s
definition of waters of the United States which includes in pertinent part:
(c)
All other waters such as intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds the use, degradation, or destruction of which would
affect or could affect interstate or foreign commerce including any such waters:
(1) Which are or could be used by interstate or foreign travelers for recreational
or other purposes []
40 C.F.R. § 122.2 (1999) (emphasis added).
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Simply stated, Sheldrake Pond is a playa lake that is used by interstate travelers for
recreational purposes. BOG members have watched birds there for at least two decades. (R. at
3). The predominant issue is the high volume of commerce that Sheldrake Pond and similar
lakes produce and not simply their volume of migratory bird traffic. Both the majority and the
dissent in SWANCC recognized the enormous annual economic impact of recreational pursuits
relating to migratory birds. See Solid Waste Agency of N. Cook County, 531 U.S. at 173 & 195.
The provisions against disruptions in the interstate commerce protected by the CWA were not
affected by the decision in SWANCC. Sheldrake Pond clearly falls into the category of protected
waters as reaffirmed by Congress’ 2001 amendments to the CWA. This Court should hold that
Sheldrake Pond falls squarely within the CWA’s recently clarified definition of navigable water.
II.
THE DISTRICT COURT OF NEW UNION ERRED IN HOLDING THAT
NEITHER THE COMMERCE CLAUSE NOR THE TREATY CLAUSE OF THE
CONSTITUTION JUSTIFIES FEDERAL REGULATION OF WATER POLLUTION
IN SHELDRAKE POND.
The United States Supreme Court has identified three
categories that Congress may regulate by using their commerce
power. In United States v. Lopez, the Supreme Court held that
Congress, under the Commerce Clause, may regulate the use of the
channels of interstate commerce, the instrumentalities of
interstate commerce, or persons or things in interstate commerce,
and intrastate activities that substantially affect interstate
commerce. 514 U.S. 549, 558-59 (1995). The present case clearly
falls within the third category of activities that Congress may
rightfully regulate under the commerce clause. Additionally,
Congress may regulate intrastate activities that are affected by
treaties entered into by the United States with other nations.
The United States has entered into several treaties with other
nations specifically designed to protect migratory birds and
their habitat. The United State Constitution, art. I, § 8, gives
Congress the power to make all laws that are necessary and proper
for carrying into execution the powers thereby conferred to
Congress by other provisions of the Constitution, including the
Treaty Clause, art. II, § 2. Congress has the power to regulate
the activities endangering migratory birds under both the
Commerce Clause and the Treaty Clause of the United States
Constitution.
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A.
Use of Respondent’s Waters By Migratory Birds For Habitat Provides A
Constitutionally Sufficient Basis For Federal Regulation Under The
Commerce Clause
In United States v. Lopez, the Supreme Court identified
three broad categories that Congress can regulate under the
Commerce Clause of the Constitution. Lopez, 514 U.S. at 558-59.
In Lopez, the Court recognized that Congress can regulate the use
of the channels of interstate commerce, the instrumentalities of
interstate commerce, or persons or things in interstate commerce,
and intrastate activities that substantially affect interstate
commerce. Id. The present case clearly falls within the third
category of activities that the Supreme Court recognizes as being
within Congress’ commerce power. Since the Supreme Court has
defined the activities that Congress may regulate under the
commerce clause, and the present case involves activities that
substantially affect interstate commerce, this Court should
reverse the lower court’s holding and find that Congress’
regulation of Sheldrake Pond is constitutional.
1.
Intrastate activities that substantially effect interstate commerce may be
regulated under Congress’ commerce power.
Recently, the Supreme Court, in both Lopez and United States v. Morrison, has
recognized that Congress’ commerce power is not unlimited. United States v. Morrison, 529
U.S. 598, 607 (2000). Although the Court found the federal statutes in Lopez and Morrison
beyond Congress’ reach under the Commerce Clause, the point at which the analyses of Lopez
and Morrison diverge from the present case is at the juncture of economic activity. In both prior
cases, the Court’s criticism of the federal statutes centered on the attempted regulation of
insufficient amounts of economic activity. Suave Real Properties, Inc. (“Suave, Inc.”) conducts
sufficient levels of economic activity for Congress to regulate them under the Commerce Clause.
The Commerce Clause applies to Suave, Inc.’s use of Sheldrake Pond in two ways. First, the
ownership and operation of Groveton Rifle and Pistol Association (“GRAPA”) by Suave, Inc.,
aggregated with other similar economic operations, has a substantial effect on interstate activity.
Second, the harming of migratory birds by the operation of GRAPA has a significant effect on
interstate activity.
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In Lopez and Morrison, the Supreme Court held that for non-economic activity to be
regulated by Congress under the Commerce Clause, it is necessary to show that the activity itself
has a direct impact on interstate commerce. Lopez, 514 U.S. at 559-61; Morrison, 529 U.S. at
598. The Court also stated in these cases that Congress may regulate activities if their impact, in
the aggregate, has a substantial effect on interstate commerce, even if the regulated activity
involves solely intrastate activity. The federal regulations involved in Lopez and Morrison dealt
with the control of significantly non-economic activities (that of handgun possession in a school
zone and gender-motivated violence, respectively). Lopez and Morrison are distinguishable
from the present case because this case involves both significant intrastate and interstate
economic activity.
GRAPA, operated by Respondent, Suave, Inc., is a significant
economic activity. Just last year, the Supreme Court held that
the mere “rental of real estate….is unquestionably” a commercial
use of property. Jones v. United States, 529 U.S. 848, 856
(2000) (emphasis added). Following that analysis, the operation
of a rifle, pistol, and skeet range that is owned and operated by
a corporation is surely an economic activity. (R. at 3). The
amount of revenue specifically generated by GRAPA is not
significant under the Supreme Court’s settled doctrine of
aggregation of economic actions, or cumulative effects test as
enunciated in Wickard v. Filburn. 317 U.S. 111 (1942). In
Wickard, the Court affirmed the plenary power of Congress to
regulate activities that have a substantial effect on commerce in
the aggregate or in their total cumulative effect. Id, at 129.
In Wickard, the Court held that Congress’ commerce power could be
used to reach an independent farmer who grew wheat on his own
property for personal consumption and the feeding of his own
livestock. The farmer’s actions, if taken in the aggregate, as
applied to all other farmers in the nation in similar
circumstances, would have a substantial effect on interstate
commerce. Id. at 129. By allowing Congress to regulate
intrastate activities that substantially affect interstate
commerce in the aggregate, the Supreme Court has recognized the
danger of allowing the several states to promulgate their own
separate regulations and sanctions dealing with intrastate
activities that greatly affect the nation’s interest in
protecting interstate commerce. The economic activity that is
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still carried on under Suave, Inc.’s operation of GRAPA is
substantially more significant than the economic activity of a
single farmer engaging in growing bushels of wheat to feed his
family and livestock. Suave, Inc.’s operation of GRAPA generates
significant economic activity that, if taken in the aggregate,
has a significant effect on interstate commerce, thereby allowing
Congress to regulate the activities at Sheldrake Pond.
2.
Spending generated in pursuit of migratory birds is a constitutionally
significant basis for federal regulation under the Commerce Clause.
The district court found that Sheldrake Pond is an important stopover for many migratory
birds, both aquatic and terrestrial, during the birds’ annual migration between the United States,
Canada, and Mexico. (R. at 3). Members of Birdwatchers of Groveton, Inc. (“BOG”) have
observed over two hundred different species of birds at Sheldrake Pond over the last two
decades. (R. at 3). Wildlife watching, photography, and hunting account for over $14.8 billion
in spending by an estimated 17.7 million migratory bird enthusiasts. U.S. Dept. of Interior, U.S.
Fish and Wildlife Service and U.S Dept. of Commerce, Bureau of Census, 1996; National Survey
of Fishing, Hunting, and Wildlife - Associated Recreation 45 (issued Nov. 1997); see also U.S.
Congress, Offices of Technology Assessment, Wetlands: Their Use and Regulation 54 (OTA-O206, Mar. 1984). In any respect, migratory birds generate enough interstate commerce to be
reached under Congress’s commerce power. See S. Rep. 106-528, p. 23. As recently as Lopez,
the Supreme Court expressly recognized the cumulative impact doctrine enumerated in Wickard.
Under the cumulative impact doctrine, Congress can reach a single seemingly miniscule activity,
that by itself has no effect on interstate commerce, if the aggregate effect of that class of activity
has a substantial impact on interstate commerce. Likewise, the Supreme Court reasoned in
Morrison that protecting the focus of interstate commerce must surely be within Congress’
power to regulate “those activities having a substantial relation to interstate commerce.”
Morrison, 529 U.S. at 609. The present case involves a portion of over the two hundred species
of migratory birds that are pursued, watched, photographed, and hunted, by 17.7 million
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American citizens and foreign vacationers. These activities must surely be within Congress’
power to regulate because they have a “substantial relation to interstate commerce.” Morrison,
529 U.S. at 609; See generally North Dakota v. United States, 460 U.S. 300 (1983).
Recently, the United States Senate has expressly recognized the economic importance of
migratory wildlife. In Senate report 106-528, the Senate stated:
KK. We acknowledge then and reacknowledge today, that migratory birds, particularly
migratory game birds are instrumentalities of interstate commerce and that the flyways
the use to migrate are highways of interstate commerce. Hundreds of thousands of our
citizens travel across state boundaries to hunt them and carry their carcasses across state
boundaries for food, competing with our billion-dollar interstate domesticated fowl
industry. Migratory birds are objects sought by hundreds of thousands of our citizens for
recreational observation. Both of these activities result in over a billion dollars annually
in interstate commerce.
S. Rep. 106-528, p. 23. (emphasis added). The Senate’s express recognition of migratory
wildlife’s economic importance should guide this Court to allow federal regulation Sheldrake
Pond under the Commerce Clause.
The Fourth Circuit Court of Appeals has recently recognized
the commercial activity inherent in the regulation of wildlife.
Gibbs v. Babbitt challenged the validity of regulations governing
the killing of red wolves on private land. 214 F.3d 483 (4th Cir.
2000). The Fourth Circuit held that “[t]he relationship between
red wolf takings and interstate commerce is quite direct—with no
red wolves, there will be no red wolf related tourism, no
scientific research, and no commercial trade in pelts. We need
not ‘pile inference upon inference.’” Id. at 492 (quoting Lopez,
514 U.S. at 567). The Gibbs court clearly recognized the
commercial impact that a specific group of wildlife has on
interstate economic activity. In the present case, the facts
clearly indicate an even more direct relationship because 14.3
million Americans took trips in order to view, feed, photograph,
or hunt waterfowl. U.S. Congress, Offices of Technology
Assessment, Wetlands: Their Use and Regulation 54 (OTA-O-206,
Mar. 1984). Following the Supreme Court’s language in Lopez, we
“need not pile inference upon inference” to conclude that the
very real threat to migratory waterfowl at Sheldrake Pond is
likewise a very real threat to interstate commerce. Lopez, 514
U.S. at 56.
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3.
The present case’s facts differ substantially from the factual situation
found in Solid Waste Agency of Northern Cook County v. United States
Army Corp of Engineers.
The Supreme Court faced a somewhat similar factual situation in Solid Waste Agency of
Northern Cook County v. United States Army Corps of Engineers (“SWANCC”). In SWANCC,
the petitioner, a consortium of municipalities located near Chicago, challenged the United States
Corps of Engineers’ (“COE”) exercise of jurisdiction over an abandoned sand and gravel pit that
the petitioner planned to use as a landfill site for disposal of their non-hazardous waste. The
Supreme Court, relying on issues of fact, distinguishable from the present case, stated that the
COE did not have the authority to exercise control over abandoned sand and gravel pits, not
adjacent to navigable waters of the United States. Solid Waste Agency of N. Cook County, 531
U.S. at 171, 72. First, in SWANCC, the respondents failed initially to argue that the petitioner’s
use of the abandoned sand and gravel pit by itself was a sufficient economic activity to be
reached under Congress’ commerce power. Second, at the time of the SWANCC holding,
Congress had not deferred to the COE’s interpretation of navigable waters as it had to the
Environmental Protection Agency’s (“EPA”) interpretation.
In SWANCC, the COE originally claimed jurisdiction based only on the use of
petitioner’s abandoned sand and gravel pit as habitat for migratory birds. The Court recognized
that the respondent’s claim did not involve economic activity and stated: “for although the Corps
has claimed jurisdiction over petitioner’s land because it contains water areas used as habitat by
migratory birds, respondents now, post litem motam, focus upon the fact that the regulated
activity is petitioner’s municipal landfill, which is ‘plainly of a commercial nature.’” Solid
Waste Agency of N. Cook County, 531 U.S. at 173. In the present case, Suave, Inc. is conducting
a sufficient level of economic activity to warrant federal regulation under the Commerce Clause.
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The ownership and operation of any business for profit by a corporation such as Suave, Inc. is a
sufficient enough economic activity to merit federal regulation under the Commerce Clause.
Jones, 529 U.S. at 856.
At the time of the Supreme Court’s holding in SWANCC, Congress had not specifically
deferred to the COE’s interpretation of navigable waters. The SWANCC Court stated:
In United States v. Riverside Bayview Homes, Inc, 474 U.S. 121 (1985), we held
that the Corp’s jurisdiction over wetlands that actually abutted on a navigable
waterway. In so doing, we noted that the term “navigable” is of “limited import”
and that Congress evidenced its intent to “regulate at least some waters that would
not be deemed ‘navigable’ under the classical understanding of that term.” But
our holding was based in large measure upon Congress’ unequivocal
acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to
cover wetlands adjacent to navigable waters.
Solid Waste Agency of N. Cook County, 531 U.S. at 167 (discussing Riverside Bayview
Homes, 474 U.S. at 455) (emphasis added). Following the Supreme Court’s holding in
SWANCC, Congress amended the Clean Water Act’s (“CWA”) definition of navigable
waters to incorporate the EPA’s definition of the waters of the United States from 40
C.F.R. § 122.2. See Water Pollution Protection Act of 2001, P.L. 106-720. Congress
specifically addressed the SWANCC Court’s interpretation of congressional intent and
stated that the Legislature “intended the terms [navigable waters and waters of the United
States] to cover isolated waters that are important stopovers for migratory birds.” S. Rep.
106-528, p.23. See also (R. at 5-6). Following the SWANCC decision, Congress
succinctly expressed its intent, which should now be applied by this Court. Following the
clearly expressed intent of Congress, this Court should recognize that Congress has
jurisdiction under the Commerce Clause to regulate intrastate activities that substantially
effect interstate commerce, including activities threatening migratory wildlife at
Sheldrake Pond.
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B.
Use Of Respondent’s Waters By Migratory Birds For Habitat Provides A
Sufficient Basis For Federal Regulation Under The Treaty Clause Of The
Constitution.
The United States Constitution, art. 1, § 8, gives Congress the power to make all laws
necessary and proper for carrying into execution the powers thereby conferred to Congress by
other provision of the Constitution. Additionally, the Constitution, art. II, § 2, expressly
delegates to Congress the power to enter into treaties with other nations. In Missouri v. Holland,
the Supreme Court examined the constitutionality of the 1918 Migratory Bird Treaty Act. 252
U.S. 416 (1920). The Missouri Court explained that “[t]he treaty in question does not contravene
any prohibitory words to be found in the Constitution.” State v. Holland, 252 U.S. 416, 433
(1920). (citing Migratory Bird Treaty Act of July 3, 1918, ch. 128, 40 Stat. 755 (1918). The
Treaty Clause, as applied to the present case, gives Congress the authority to regulate activities at
Sheldrake Pond.
“The protection of migratory birds has long been recognized as ‘a national interest of
very nearly the first magnitude.’” North Dakota v. United States, 460 U.S. 300, 309 (1983)
(quoting Missouri, 252 U.S. at 435). In North Dakota, a state challenged Congress’ authority to
acquire, by purchase or condemnation, easements of wetlands for the purpose of protecting
migratory birds. The Supreme Court held that a “series of treaties dating back to 1916 obligates
the United States to preserve and protect migratory birds through the regulation of hunting, the
establishment of refuges, and the protection of bird habitats.” North Dakota, 460 U.S. at 309310. In deciding that case, the Supreme Court analyzed at least four different treaties that
obligated the United States to protect migratory birds, including: The Convention for the
Protection of Migratory Birds, Aug. 16, 1916, U.S.-U.K., 39 Stat. 1702; The Convention for the
Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.-Mex., 50 Stat. 1311; The
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Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their
Environment, Mar. 4, 1972, U.S.-Japan, 25 U.S.T. 3331; and The Convention Concerning the
Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, U.S.-U.S.S.R., 29
U.S.T. 4647. In the present case, as in Missouri and North Dakota, the statute involved does not
interfere with the rights reserved to the states, and thus does not “contravene any prohibitory
words to be found in the Constitution.” Missouri, 252 U.S. at 433. Thus, the statute in the
present case must be determined to be the “supreme law of the land,” as the United States is
obligated to protect and preserve migratory bird habitat under a series of treaties with different
nations. Id. This Court should, therefore, recognize Congress’ authority to regulate Sheldrake
Pond and reverse the district court below.
III.
THE DISTRICT COURT OF NEW UNION ERRED IN HOLDING THAT
FIRED SHOT AND SKEET PARTS ARE NOT SOLID WASTE AS DEFINED
BY 40 C.F.R. § 261.2(b) AND 42 U.S.C. § 6903(27).
The lead shot and skeet deposited into Sheldrake Pond and the surrounding area by Suave
Real Properties, Inc. (“Suave, Inc.”) are solid waste as defined by Congress and the
Environmental Protection Agency (“EPA”). These discarded materials do not qualify as
consumer products “applied to the land [in] their ordinary manner of use,” therefore, they are not
exempt from Resource Conservation and Recovery Act (“RCRA”) regulation as solid waste
under the EPA’s interpretation of the “consumer use exception.” See 40 C.F.R. § 261.2(c)(1)(ii)
(1999). Congress defines solid waste as “garbage, refuse, sludge … or other discarded material
… resulting from [various] industrial, commercial, … and community activities.” 42 U.S.C. §
6903(27) (1999) (emphasis added). The EPA further narrows the definition of solid waste in its
regulatory definition to include “discarded material … which is abandoned,… recycled,… or
considered inherently waste-like”. 40 C.F.R. § 261.2(a) (1999) (emphasis added). Congress
provided for a limited exception exempting commercial chemical products such as fertilizer from
regulation as solid waste when “applied to land [in] their ordinary manner of use”. H.R. Rep.
No. 94-1491(i), at 2-3 (1976), reprinted in 1976 U.S.C.C.A.N. 6238 (codified as 40 C.F.R. §
261.2(c)(1)(ii) (1999)). The discarded lead shot and skeet parts are not consumer products
exempt from regulation because they do not dissolve into the ground like the irreclaimable
agricultural chemicals exempted by Congress. The materials polluting Sheldrake Pond are solid
waste as defined in 42 U.S.C. § 6903(27) . Congress clearly intended RCRA to regulate all
discarded materials that “have served their intended purposes and are no longer wanted by the
consumer.” See Id. Furthermore, the materials left scattered in and around Sheldrake Pond meet
the EPA’s narrow regulatory definition of solid waste because the lead shot and skeet are
discarded, abandoned, and as far as Suave, Inc. is concerned, disposed of. See 40 C.F.R. §
261.1(b) (1999). The intended use of lead shot and skeet is target practice for hunters and
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competitive sport shooters. These products have served their usefulness once the round is
discharged, the lead shot hits or misses the skeet, and the spent materials fall to the earth below.
It is contrary to the congressional intent behind RCRA for the EPA and Suave, Inc. to claim that
the consumer use exception applies to exempt lead shot and skeet parts from the regulatory
definition of solid waste. Similarly, the consumer use exception cannot exempt lead shot and
skeet parts from the statutory definition of solid waste, 42 U.S.C. § 6903(27) (1999), as Suave,
Inc. argues. Birdwatchers of Groveton (“BOG”) should be allowed to prove that lead shot and
skeet waste, discharged by Suave, Inc. into Sheldrake Pond, are solid waste. This Court should
reverse the lower court’s grant of Suave, Inc.’s motion for summary judgment on the issue of
whether lead shot and skeet parts fall within the regulatory and statutory definitions of solid
waste.
A.
Fired Shot And Skeet Fragments Are Discarded Solid Waste As Defined By
Congress In 42 U.S.C. § 6903 (27) And Therefore Impose Liability For Disposal
Violations Under 42 U.S.C. § 6972 (a)(1)(B).
Congress broadly defines solid waste as: “any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control facility and other
discarded material, including solid, liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and agricultural operations, and from
community activities.” 42 U.S.C. § 6903(27) (1999) (emphasis added). Congress intended to
put all discarded materials that “have served their intended purposes and are no longer
wanted by the consumer” under RCRA control. H.R. Rep. No. 94-1491(I), at 2-3 (1976).
The EPA interpreted the congressional intent behind 42 U.S.C. § 6903(27) to include such
spent materials as lead shot and skeet parts. Connecticut Coastal Fisherman’s Ass’n v.
Remington Arms, 989 F.2d 1305 (2d Cir. 1993) (“Conn. Fisherman’s Ass’n”). The EPA is
directly authorized by Congress to administer the provisions of RCRA. H.R. Rep. No. 941491(I), at 5 (1976). The Supreme Court developed a two-step test for analyzing agency
interpretations of statutory language when that agency has congressional authority to
administer the regulation. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837
(1984) (“Chevron”). Under Chevron, the reviewing court must first determine if Congress
has spoken directly to the issue. If so, the plain language of the statute is followed. Id. at
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842. If ambiguity exists in the statutory language, the reviewing court must then determine
if the agency’s interpretation is permissible based upon the legislature’s intent and purpose
behind the statute. Id. at 843-44. If the agency’s interpretation clears both of these
hurdles, it is given deference by the reviewing court. Id. The EPA interprets discarded, in
the statutory definition of solid waste, to apply to lead shot and skeet parts. This
interpretation is reasonable and has properly been given Chevron deference by the Second
Circuit Court of Appeals. Connecticut Coastal Fisherman’s Ass’n, 989 F.2d at 1313-16
(citing Chevron U.S.A., Inc., 467 U.S. 837). The statutory definition of solid waste applies to
citizen suits brought to abate an imminent and substantial endangerment under 42 U.S.C.
6972(a)(1)(B) . Connecticut Coastal Fisherman’s Ass’n, 989 F.2d at 1315.
In Conn. Fisherman’s Ass’n, the court determined that the plain language of 42 U.S.C. §
6903(27), the congressional intent behind RCRA, and the EPA’s interpretation of discarded all
required that the lead shot accumulations in Long Island Sound fall under the statutory definition
of solid waste. Connecticut Coastal Fisherman’s Ass’n, 989 F.2d at 1309. In Conn.
Fisherman’s Ass’n, the lead shot and skeet parts accumulated due to Remington Arms Co.’s
operation of a trap and skeet range for over 70 years. An investigation uncovered 2,400 tons of
lead shot and 11 million pounds of clay target fragments in the waters surrounding the range. Id.
at 1308. The statutory definition was ambiguous as to when such materials were discarded. The
EPA interpreted the term discarded, in 42 U.S.C. § 6903(27), to include lead shot and skeet
parts. Id. at 1316. The court found the EPA’s interpretation to be reasonable and gave it
Chevron deference. Id. The court held that lead shot and skeet are solid waste within the
statutory definition. Id.
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The lead shot and skeet fragments located in and around Sheldrake Pond should be held
to be solid waste as defined in 42 U.S.C. § 6903(27) . The facts at issue are identical to those
decided in Conn. Fisherman’s Ass’n. The lead shot and skeet parts are discarded in the same
manner as they were in Conn. Fisherman’s Ass’n. In the case at bar, the EPA has again
intervened as amicus and interpreted discarded in 42 U.S.C. § 6903(27) to include these waste
materials. (R. at 4). This interpretation is reasonable based upon the congressional intent of 42
U.S.C. § 6903(27) to regulate post-consumer waste as discarded solid waste. H.R. Rep. No. 941491(I), at 2-3 (1976). This Court should give Chevron deference to the EPA’s interpretation of
discarded and hold that fired shot and skeet fragments are solid waste.
The spent lead shot and skeet waste disposed into and around Sheldrake Pond by Suave,
Inc. are solid waste as defined by 42 U.S.C. § 6903(27) . GRAPA’s disposal of solid waste
imposes liability under 42 U.S.C. § 6972(a)(1)(B) when an imminent and substantial
endangerment is created by such actions. Connecticut Coastal Fisherman’s Ass’n, 989 F.2d at
1314-15. Suave, Inc. is liable to BOG for the creation of an imminent and substantial
endangerment.
B.
Fired Shot And Skeet Fragments Are Abandoned Solid Waste As Defined By The
E.P.A. In 40 C.F.R § 261.2(b) And Therefore Impose Liability For Permit
Violations Under 42 U.S.C. § 6972 (a)(1)(A).
The EPA defines solid waste, for the purposes of its regulatory program, as
“discarded material … which is abandoned,… recycled,… or considered inherently wastelike”. 40 C.F.R. § 261.2(a) (1999) (emphasis added). The definition of discarded has been
the source of considerable litigation concerning when reclaimable and recyclable materials
with secondary industrial uses are subject to EPA regulation as hazardous waste. See
generally Association of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000)
(“Battery Recyclers”); United States v. Interstate Lead Co., 996 F.2d 1126 (11th Cir. 1993)
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(“Interstate Lead”); American Mining Cong. v. U.S. EPA, 824 F.2d 1177 (D.C. Cir. 1987)
(“AMC I”). Discarded, as used in 40 C.F.R. § 261.2(a), is held to mean materials that have
served their usefulness and have been disposed of, thrown away, or abandoned.
Association of Battery Recyclers, Inc., 208 F.3d at 1051 (citing American Mining Cong., 824
F.2d at 1190). The regulatory definition of solid waste further requires that the discarded
material be abandoned by being disposed of, burned or stored (but not recycled). Long
Island Soundkeeper Fund, Inc. v. New York Athletic Club, No. 94 Civ. 0436, 1996 WL
131863, at *9 (S.D. N.Y. Mar. 22, 1996) (citing 40 C.F.R. § 261.2(b) (1999) (emphasis
added)). In a suit to declare a material solid waste under RCRA, the respondent must
provide evidence that the material is recyclable, therefore, not abandoned solid waste
subject to regulation. 40 C.F.R. § 261.2(f) (1999).
The EPA has interpreted its regulatory definition of solid waste, 40 C.F.R. § 261.2, to
exclude spent lead shot and skeet parts. Connecticut Coastal Fisherman’s Ass’n, 989 F.2d
at 1315; Long Island Soundkeeper Fund, Inc., 1996 WL 131863, at *8. A court reviewing an
authoritative agency’s interpretation of a statute must determine if Congress has spoken
directly to the issue and if the agency’s interpretation is reasonable. Chevron U.S.A., Inc. v.
Natural Resources Defense Council, 467 U.S. 837, 844 (1984). The EPA’s interpretation of
40 C.F.R. § 261.2 to exclude lead shot and skeet parts fails both parts of the Chevron test
and should not be given deference by the reviewing court. See Id.
The confusion over discarded materials as used in the regulatory definition stems
from the EPA’s past attempts to import a different meaning to discarded than its commonly
understood definition. EPA interpretations of discarded failed to pass Chevron analysis in
both Battery Recyclers and AMC I. The D.C. Circuit Court of Appeals held that the EPA’s
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interpretation of discarded was “in contravention of Congress’ intent” in both cases.
Association of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047, 1056 (D.C. Cir. 2000)
(citing American Mining Cong. v. U.S. EPA , 824 F.2d 1177, 1190 (D.C. Cir. 1987)). In AMC
I and Battery Recyclers, the EPA argued unsuccessfully that secondary recyclable materials
destined for reuse in the industry were discarded. The EPA’s interpretation of 40 C.F.R. §
261.2(a), to include valuable useful materials, was clearly contrary to Congress’ intent to
regulate only solid waste that has been disposed of or abandoned. American Mining Cong.,
824 F.2d at 1186.
Unlike the secondary industrial materials at issue in AMC I and Battery Recyclers,
the lead shot and skeet dumped into Sheldrake Pond fall within the definition of discarded
and abandoned material in 40 C.F.R. § 261.2(a). The materials no longer serve any useful
purpose in their present state and are abandoned upon their disposal into Sheldrake Pond.
Although the EPA has interpreted 40 C.F.R. § 261.2(a) to exclude spent lead shot and skeet
parts, this interpretation fails Chevron analysis and should not be given deference by this
Court. Contra Connecticut Coastal Fisherman’s Ass’n, 989 F.2d 1305; Long Island
Soundkeeper Fund, Inc., 1996 WL 131863, at *9. Applying the first step in the Chevron
test, it is clear that Congress intended to regulate discarded abandoned materials like spent
lead shot and skeet parts that no longer serve any useful purpose. H.R. Rep. No. 941491(I), at 2-3 (1976). Furthermore, the EPA’s position that the regulatory definition does
not include lead shot and skeet parts is unreasonable and inconsistent with their prior
interpretations of 40 C.F.R. § 261.2(a) as applied to secondary recyclable materials. See
generally Association of Battery Recyclers, Inc., 208 F.3d 1047; United States v. Interstate
Lead Co., 996 F.2d 1126 (11th Cir. 1993); American Mining Cong., 824 F.2d 1177.
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In Battery Recyclers and AMC I, the EPA argued that valuable reclaimable
materials located on company property were solid waste under 40 C.F.R. § 261.2(a). The
used lead shot and skeet in Sheldrake Pond are obviously abandoned and discarded when
compared to the in-process secondary materials addressed in Battery Recyclers and AMC I.
Suave, Inc. does not have any effective secondary remediation processes to remove the lead
shot and skeet parts from the regulatory grasp of 40 C.F.R. § 261.2(a). In challenging
BOG’s claim, Suave, Inc. has offered no evidence that the materials can be recycled, as
required by 40 C.F.R. § 261.2(f). The EPA’s interpretation of 40 C.F.R. § 261.2, excluding
spent lead shot and skeet parts, fails to gain deference under the Chevron test because
RCRA unambiguously regulates these materials and because this interpretation is
unreasonable and inconsistent based upon the EPA’s own position in Battery Recyclers and
AMC I.
The lead shot and skeet discharged into Sheldrake Pond by Suave, Inc. are solid waste as
defined by 40 C.F.R. § 261.2. Material considered solid waste under 40 C.F.R. § 261.2(a) must
meet 42 U.S.C. § 6925 permit requirements or impose liability on the owner under 42 U.S.C. §
6972(a)(1)(A). Suave, Inc. is liable for disposing of solid waste into Sheldrake Pondwithout a
permit.
C.
The Consumer Use Exception Cannot Exempt Fired Shot And Skeet Fragments
From Either 40 C.F.R. § 261.2(B) Or 42 U.S.C. § 6903 (27) Definitions Of Solid
Waste Because Such An Interpretation Is Manifestly Contrary To R.C.R.A.
Congress, in enacting RCRA, sought to regulate not only manufacturing waste, but
also products that have served their intended purpose and are no longer of use to the
consumer. H.R. Rep. No. 94-1491(I), at 2-3 (1976). Congress created a limited exception
for agricultural chemicals that are disposed of when used as intended, thereby falling
under RCRA regulation as solid waste. Id. The EPA codified this exception in 40 C.F.R. §
261.2(c)(1)(ii) and interpreted it to apply to lead shot and skeet regulated as solid waste
under 40 C.F.R. § 261.2. Connecticut Coastal Fisherman’s Ass’n v. Remington Arms Co.,
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989 F.2d 1305, 1315 (2nd Cir. 1993); Long Island Soundkeeper Fund, Inc .v. New York
Athletic Club, No. 94 Civ. 0436, 1996 WL 131863, at *9 (S.D. N.Y. Mar. 22, 1996); (R. at 9).
However, the EPA interprets the statutory definition of solid waste in 42 U.S.C. § 6903(27)
to exclude the consumer use exception, thus making it applicable to lead shot and skeet
parts. Neighborhood Against Golf, Inc. v. Recreation Enterprises, Inc., 150 F.3d 1029 (12th
Cir. 1999); Connecticut Coastal Fisherman’s Ass’n, 989 F.2d at 1314-16; (R. at 8). The EPA
supports its inconsistent interpretation of 40 C.F.R. § 261.2, excluding lead shot and skeet
parts, by relying upon its Military Munitions Rule, 40 C.F.R. § 266.202. This rule exempts
military munitions waste that falls on the ground from regulation as hazardous waste.
Military Toxics Project v. U.S. EPA, 146 F.3d 948 (D.C. Cir. 1998) (“Military Toxics
Project”). An implementing agency’s interpretation of a statutory provision must pass
Chevron analysis to be given deference by the reviewing court. United States v. Interstate
Lead Co., 996 F.2d 1126, 1130 (11th Cir. 1993). Congress has stated that a reviewing court
must set aside an agency interpretation that is arbitrary, capricious, an abuse of discretion,
or not otherwise in accordance with law. 5 U.S.C. § 706(2)(A) (1999); see, e.g., Association
of Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000); American Mining
Cong. v. U.S. EPA, 824 F.2d 1177 (D.C. Cir. 1987).
Congress was clear in its intent to apply RCRA legislation to all solid waste
regardless of whether it was generated by a commercial industry or by a citizen using those
products as intended and disposing of them thereafter.
It is not only the waste by-products of the nation’s manufacturing
processes with which the committee is concerned; but also the
products themselves once they have served their intended purposes
and are no longer wanted by the consumer. For these reasons the term
discarded materials is to be used to identify collectively those
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substances often referred to as industrial, municipal, or postconsumer waste; refuse, trash, garbage, and sludge. … It should be
noted that discarded materials are generated from a multitude of
sources in every sector of the nation’s life. … In summary, discarded
materials are a direct result of [both] national industrial production
and the American life style[sic]. … Without a regulatory framework,
such hazardous waste will continue to be disposed of in ponds or
lagoons or on the ground in a manner that results in substantial and
sometimes irreversible pollution of the environment. … The
committee believes that the approach taken by this legislation
eliminates the last remaining loophole in environmental law, that of
unregulated land disposal of [both] discarded materials and
hazardous wastes.
H.R. Rep. No. 94-1491(I), at 2-5 (1976) (emphasis added). Congress recognized that certain
materials such as agricultural chemicals contain hazardous, toxic components that would
naturally fall within the definition of solid waste under 40 C.F.R. § 261.2(b) or 42 U.S.C. §
6903(27). These materials, once applied to the earth as intended, dissolve into the soil and
are unable to be recycled or reclaimed by the landowner. Congress specified that these
materials, applied as intended, fall outside the regulatory scope of RCRA and are not to be
considered discarded materials subject to regulation. Id.
In Military Toxics Project, the EPA applied the reasoning of the consumer use
exception to exempt spent military waste from the solid waste regulatory requirements of
40 C.F.R. § 261.2. This interpretation followed the enactment of the Federal Facility
Compliance Act, 42 U.S.C. § 6924(y), that instructed the EPA to decide when spent military
munitions constituted solid waste. The EPA enacted the Military Munitions Rule that
classified the munitions as solid waste only when they are collected and disposed of. The
Rule allowed the waste remaining on the ground, on or off of the firing range, to be outside
of the scope of EPA regulations. The Military Munitions Rule was challenged under
Chevron as being both against the express intent of Congress and as being arbitrary and
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capricious. For these reasons, the challengers argued that the Military Munitions Rule
should not be given deference by the reviewing court. The D.C. Circuit Court of Appeals
disagreed and allowed the rule to stand, believing that the EPA was reasonable in its
decision not to regulate military munitions waste as it was instructed to under 42 U.S.C. §
6924(y).
The court in Long Island Soundkeeper Fund followed the reasoning in Military
Toxics Project and allowed the EPA to exempt lead shot and skeet from the regulatory
definition of solid waste under 40 C.F.R. § 261.2. Long Island Soundkeeper Fund, Inc., No.
94 Civ. 0436, 1996 WL 131863, at *9 (S.D. N.Y. Mar. 22, 1996). The EPA reasoned that the
lead shot and target fragments came to rest on the ground as a result of their proper and
intended use and were exempt from regulation as solid waste under 40 C.F.R. § 261.2. Id.
The court, following Chevron, gave the EPA’s interpretation of abandoned in their
regulation deference and refused to consider the materials solid waste. Id.
In the case at bar, the EPA seeks to apply the consumer use exception to again
exempt lead shot and skeet from being defined as solid waste under 40 C.F.R. § 261.2. As
shown by the holdings in Association of Battery Recyclers and American Mining Cong., the
EPA’s interpretations should not be given Chevron deference when they adopt an
unreasonable interpretation of the statute. Additionally, Congress codified the Chevron
two step test in 5 U.S.C. § 706, and required reviewing courts to set aside any agency action
that is arbitrary, capricious, and not otherwise in accordance with the law. 5 U.S.C. §
706(2)(A) (1999).
Interpreting the consumer use exception to include spent lead shot and skeet parts
fails both prongs of Chevron. The statutory language of RCRA unambiguously regulates
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these kinds of materials, and the EPA’s interpretation is both unreasonable and contrary
to the congressional intent of RCRA. The result of the consumer use exception, as applied
in Long Island Soundkeeper Fund and Military Toxics Project, is contrary to the
congressional intent of RCRA. Prior holdings regarding what commercial and industrial
materials fall within the regulatory scheme of 40 C.F.R. § 261.2 arrive at a common
determination. Materials that are abandoned, disposed of, and that have no economic
value to the generator, are solid waste under 40 C.F.R. § 261.2. See generally Association of
Battery Recyclers, Inc. v. U.S. EPA, 208 F.3d 1047 (D.C. Cir. 2000); United States v.
Interstate Lead Co., 996 F.2d 1126 (11th Cir. 1993); American Mining Cong. v. U.S. EPA,
824 F.2d 1177 (D.C. Cir. 1987). Used munitions spread about the earth, whether created
by the government or a private individual, are abandoned, disposed of, and worthless.
Spent lead shot and skeet parts are precisely the types of materials that RCRA was enacted
to regulate. H.R. Rep. No. 94-1491(I), at 2-5 (1976).
The EPA’s argument that spent shot and skeet parts are not discarded because they
are not abandoned is untenable. The EPA’s position draws a clear line between
commercial solid waste regulation and consumer solid waste regulation when compared to
past interpretations of solid waste. See generally Association of Battery Recyclers, 208 F.3d
1047; American Mining Cong., 824 F.2d 1177. This distinction is manifestly contrary to the
congressional intent behind RCRA to regulate all forms of solid waste. H.R. Rep. No. 941491(I), at 2-3 (1976). Furthermore, the EPA’s interpretation of 42 U.S.C. § 6903(27) to
exclude the consumer use exception, thereby including spent lead shot and skeet parts, is
inconsistent. This inconsistency on the part of the EPA destroys its interpretive credibility.
This Court, under Chevron and 5 U.S.C. § 706(2)(A) , should set aside the EPA’s
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interpretation of 40 C.F.R. § 261.2 as including the consumer use exception. Additionally,
the application of the consumer use exception to solid waste other than agricultural
chemicals runs afoul of the congressional intent of RCRA and 40 C.F.R. § 261.2(c)(1)(ii).
The legislature provided a specific exception in RCRA for the use and application of
agricultural chemicals and mine wastes. H.R. Rep. No. 94-1491(I), at 2-3 (1976). If
Congress had wanted to provide further exceptions to RCRA they undoubtedly would have
stated so.
In sum, the consumer use exception, as interpreted by the EPA, is void. Chevron
and 5 U.S.C. § 706(2)(A) state that this interpretation cannot be applied to 40 C.F.R. §
261.2. For like reasons the consumer use exception cannot be applied to the statutory
definition of solid waste 42 U.S.C. § 6903(27). The EPA’s agreement that it does not apply
to the statutory definition is of no consequence. The skeet and lead shot deposited into
Sheldrake Pond are solid waste under both 40 C.F.R. § 261.2(b) and 42 U.S.C. § 6903(27).
Since these materials are clearly not agricultural chemicals, the consumer use exception is
inapplicable to remove liability for their improper disposal under 42 U.S.C. § 6972.
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CONCLUSION
Because genuine issues of fact exist, Birdwatchers of Groveton, Inc. respectfully
requests that this honorable Court reverse the district court’s grant of summary judgment
to Suave, Inc. on all issues.
Attorneys for Petitioner
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW UNION
BIRDWATCHERS OF GROVETON, INC.,
Plaintiff, and
UNITED STATES OF AMERICA,
Intervenor,
v.
Civ. No. 01-878
SUAVE REAL PROPERTIES, INC.,
Defendant.
Romulus, Judge.
ORDER
On December 20, 2000, Birdwatchers of Groveton, Inc. (BOG),
a non-profit corporation organized under the laws of New Union,
filed a complaint against Suave Real Properties, Inc. (Suave), a
real estate management company organized under the laws of New
Union. BOG alleged jurisdiction under the citizen suit
provisions of the Clean Water Act (CWA), 33 U.S.C. § 1365, and
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §
6972. BOG alleged that its members are birdwatchers living and
watching birds in Groveton County, New Union. It further alleged
that its members watched birds on Sheldrake Pond from an adjacent
county road for at least the last two decades, until Suave began
using the pond-side area as a firearms and skeet shooting range
in 2000. It further alleged that during those decades, its
members observed over two hundred species of birds on the Pond or
its banks, many of which are species that migrate between the
United States and Canada and/or Mexico, such as Mexican ducks,
jacanas, avocets, sandhill cranes, and warbling vireos.
Sheldrake Pond is a long, narrow, shallow pond, running east to
west, that is dry during part of the year and never more than
four feet deep and twenty-five acres in extent during the wet
part of the year. Even so, it is an important stopover for many
birds, both aquatic and terrestrial, during their annual
interstate and international migrations.
It is uncontested that Suave began operation in 2000 of the
Groveton Rifle and Pistol Association (GRAPA) near the Pond and
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continues that operation today. The GRAPA facility consists of a
pad for skeet shooters, together with a device that ejects skeet
into the air, and a firing range. Suave filled a small portion
of the western end of the Pond to build a platform for the skeet
ejection device. Suave owns land to the west and south of the
Pond, and part of the western end of the Pond. The County owns
land to the east and south of the Pond, and the remainder of the
Pond. Suave ejects skeet over the Pond, while skeet shooters at
some remove from the Pond attempt to shoot the skeet with
shotguns. When they hit the skeet, skeet parts and spent lead
shot commonly fall into and around the Pond, both on Suave-owned
and county-owned land and portions of the Pond. When they miss
the skeet, the skeet commonly fall into both portions of the land
and Pond and the spent shot falls similarly. The firing range is
located south of the Pond, near its eastern end. A berm behind
the targets designed to catch most of the spent shot is located
about fifty feet from the Pond. Occasionally lead bullets fired
on this range overshoot the berm and enter the Pond or the
country’s land beyond. There is no evidence that Suave has an
easement over the County’s land or portion of the Pond or other
agreement with the County allowing these invasions of its land or
portion of the Pond.
BOG alleges that Suave is violating CWA 33 U.S.C. § 1311(a) in two ways. First, filling
and maintaining the fill in the Pond for the skeet ejection platform constitutes discharging fill
material into navigable waters without a CWA 33 U.S.C. § 1344 permit. Second, ejection of
skeet and firing shot and bullets into the Pond constitutes either discharging fill material into
navigable waters without a CWA § 1344 permit or discharging pollutants into navigable waters
without a CWA 33 U.S.C. § 1342 permit. BOG asks the court to assess civil penalties for these
violations and to issue an injunction against their continuance. BOG alleges that Suave is
violating RCRA in two ways. First, Suave is violating RCRA by disposing of hazardous waste
(skeet, skeet parts, and lead shot) into and about the Pond without a RCRA permit, in violation of
42 U.S.C. § 6925(a). BOG asks the court to assess civil penalties for these violations and to
issue an injunction against their continuance. Second, Suave’s disposal of solid and hazardous
waste into and about the Pond is creating an imminent and substantial endangerment, actionable
under 42 U.S.C. § 6972(a)(1)(B). BOG asks the court to issue an injunction requiring Suave to
abate this endangerment. EPA has intervened in support of BOG in its CWA counts and the
second part of its RCRA count.
These allegations raise numerous factual and legal issues. At this point, however, we are
called on to decide only a few of them in response to a motion for summary judgment filed by
Suave. First, Suave moves that we dismiss the CWA counts because Sheldrake Pond is not
navigable water, either in a statutory or a constitutional sense. Second, Suave moves that we
dismiss the RCRA counts because the use of skeet and lead shot for their intended purpose does
not constitute disposal of waste. The United States intervened to oppose the first motion and to
support and oppose different parts of the second. We grant both motions and dismiss the case.
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I. The CWA Counts
A. Legal Background
The basic prohibition of the CWA is the addition of fill
material or a pollutant to navigable water from a point source
without a CWA permit. 33 U.S.C. §§ 1311(a), 1362 (12).
“Navigable water” is defined in the CWA to be the “waters of the
United States.” 33 U.S.C. § 1362(7).
The legislative history
of the statute indicates that Congress intended the term to be
interpreted to exercise the full extent of congressional
constitutional authority. Conf. Rep. 92-1236, reprinted in 1972
U.S.C.C.A.N. 3776, 3822. The Environmental Protection Agency
(EPA), which administers most of the CWA, including the § 1342
pollutant permitting program, has interpreted the term in its
regulations to include intrastate waters, such as “playa lakes,”
which could affect interstate or foreign commerce. Such uses
include use by interstate or foreign travelers for recreational
purposes. 40 CFR § 122.2. The Army Corps of Engineers (COE),
which administers the CWA’s § 1344 fill permitting program, has
similarly interpreted the term. 33 CFR § 328.3(a)(3). A playa
lake is a lake that is intermittent, i.e., it is dry part of the
year. There are a number of such lakes in the arid southwest.
BOG argues that Sheldrake Pond is a playa lake. Suave argues
that it is too small to be a lake, that it is merely a “vernal
pool,” a pool that is wet in the spring and dry the rest of the
year. EPA has not specifically included vernal pools within its
definition of navigable water, probably because they are too
small. Nor has the COE. BOG argues further that Sheldrake Pond
is used in interstate commerce as part of an interstate and
international bird migration pathway between the Gulf of Mexico
and further south to the northern Great Plains and further north,
by migrating birds and by people watching the migratory birds for
recreational purposes. Significantly, the COE has interpreted
its regulatory definition of navigable waters to include waters
that “are or would be used as habitat by birds protected by the
Migratory Bird Treaties.” 51 Fed. Reg. 41217 (“Migratory Bird
Rule”). Suave argues bird flight is not commerce and that
birdwatching at Sheldrake Pond is not part of interstate commerce
because only BOG’s members are alleged to watch birds there and
they are intrastate birdwatchers.
These arguments are illuminated by recent judicial
legislative actions. In Solid Waste Agency of Northern
County v. U.S. Army Corps of Engineers, ___ U. S. ___,
Ct. 675 (2001) (SWANCC), the Court considered an almost
legal and factual situation. There, as here, the water
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question was isolated, with no allegation it had ever been or
could ever be used for traditional navigation purposes or that it
was connected in any way with such waters. The only difference
was that the water at issue in SWANCC was a flooded gravel pit,
that was always wet, and the water at issue here is a playa pond,
which is intermittently wet. On January 9, 2001, the Court held
that such insignificant and isolated waters were not within the
congressional definition of navigable water. The Court reasoned
that “waters of the United States” did not include all water or
the definition would have no meaning beyond “water.” It further
reasoned that the “navigable” in “navigable water” had to have
some meaning as well. Finally, it found no indication in either
the statute or the legislative history that Congress intended to
include such insignificant and isolated waters within its
definition of navigable waters. Notwithstanding the lower
court’s finding that over a billion dollars a year is spent on
migratory bird-based recreational activities, the Court commented
that the “Migratory Bird Rule” invoked the “outer limits of
Congress’ power” under the Commerce clause. Id. at 683. Rather
than addressing the constitutional issue of whether it was within
Congress’ Commerce Clause authority, it interpreted that statute
not to assert jurisdiction over such insignificant and isolated
waters.
On August 15, 2001, Congress amended the CWA’s definition of
“navigable waters” to incorporate EPA’s definition of the “waters
of the United States” from 40 CFR § 122.2. See Water Pollution
Protection Act of 2001, P.L. 106-720.23
The Report of the Senate
Environment Committee accompanying the Senate bill stated:
The Supreme Court’s opinion in Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, ___
U.S. ___ (2001), misinterpreted congressional intent. When
we first enacted the CWA in 1972, we intended that the terms
“navigable waters” and “waters of the United States” extend
as far as our Commerce Clause authority extends. We
intended the terms to cover isolated waters that are
important stopovers for migratory birds. We acknowledged
then and reacknowledge today, that migratory birds,
particularly migratory game birds, are instrumentalities of
interstate commerce and that the flyways they use to migrate
are highways of interstate commerce.
Hundreds of thousands
of our citizens travel across state boundaries to hunt them
and carry their carcasses across state boundaries for food,
competing with our billion-dollar interstate domesticated
23
This enactment exists only for the purposes of this Competition.
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fowl industry. Migratory birds are objects sought by
hundreds of thousands of our citizens for recreational
observation. Both of these activities result in over a
billion dollars annually in interstate expenditures. Not
only the Commerce Clause justifies our jurisdiction to
protect these waters, the Treaty Clause justifies it as
well. We have entered into treaties with several nations to
protect migratory birds, including their habitat. Waters
used by such species during migration are essential to their
survival.
S. Rep. 106-528, p. 23.24
B. Legal Analysis
The 2001 amendment is irrelevant to this case. It is
commonplace that the statutory law that governs a case is the
statutory law that exists at the time the complaint is filed,
unless the statute explicitly directs that it be applied
retrospectively. There is no such direction in the 2001
amendments. The complaint was filed more than eight months prior
to the amendments. Although plaintiff argues that the Senate
Report quoted above indicates a congressional intent that the
amendments be applied retrospectively, it does not. The statute
itself does not embody retroactivity, only the report of one
chamber of Congress does so. Neither the Conference Committee
Report nor the House Committee Report contains similar language,
indeed, they are silent on this issue. The plaintiffs next argue
that the Senate Report is a definitive indication of what
Congress intended by its use of “navigable waters” and “waters of
the United States” when it enacted the CWA in 1972. Of course,
it is not. Few, if any, of the members of Congress in 1972 were
still members of Congress in 2001. And it is commonplace that
the views of a later Congress are of no help in ascertaining the
intent of an earlier Congress. That is particularly true when
the Court itself has told us what congressional intent was in the
earlier enactment, as it has in SWANCC. Since the statute that
controls is the pre-amendment statute and the Court has
interpreted that statute not to cover insignificant and isolated
waters such as Sheldrake Pond, we need go no further.
But if the plaintiff prevailed in its arguments, either that
the amendments controlled this case or that the Senate Report
indicated the congressional intent in 1972 was to regulate
isolated waters like those at issue in this case, then we would
24
This Report exists only for the purposes of this Competition.
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reach the constitutional question that the Court avoided in
SWANCC.
In that event, we would hold that Congress exceeded its
authority when it attempted to exercise its jurisdiction over
insignificant, isolated playa ponds such as Sheldrake Pond. We
start with the Court’s observation in SWANCC that such an attempt
would raise “significant constitutional and federalism
questions.” Id. at 684. They are, of course, the same questions
considered by the Court recently in holding that a federal civil
remedy for victims of gender-based violence and a federal offense
for possession of a firearm in a school zone were
unconstitutional. See U.S. v. Morrison, 529 U.S. 598 (2000);
U.S. v. Lopez, 514 U.S. 549 (1995).
In both decisions, the Court reiterated the three categories
of activity that Congress may regulate under the Commerce Clause:
1) highways of interstate commerce; 2) instrumentalities of
interstate commerce; and 3) activities substantially affected by
interstate commerce. Morrison at 608-9; Lopez at 558. Plaintiff
first argues that Sheldrake Lake is part of a highway of
interstate commerce, i.e., part of a migratory bird flyway. This
argument sweeps too broadly. Since migratory birds can land
virtually anywhere in the country, it would make the land and
water of the whole country subject to federal regulation,
obliterating the traditional state control over land and water
use decisions that underlies our federalist division of powers
between the two levels of government. Plaintiff then argues that
migratory birds are instrumentalities of interstate commerce,
citing Missouri v. Holland, 252 U.S. 416 (1919). Plaintiff’s
attempted use of Missouri v. Holland is misplaced in two
respects. First, the Court did not hold that migratory birds
were instrumentalities of interstate commerce, but merely that
they were not property of the state and thus not immune from
federal control. Second, the statute and regulations at issue in
that case protected migratory birds from being killed, captured
or sold, while the CWA regulates water pollution.
That leads to BOG’s third argument: either that defendant’s
activities substantially affect the interstate commerce of
hunting and observing migratory birds or that the aggregate of
activities like defendant’s substantially affects such commerce.
Plaintiff has utterly failed to plead or prove facts sufficient
to establish the first of these alternatives: no human interstate
activity has been alleged at Sheldrake Pond. As to the second,
the Court in both Morrison and Lopez acknowledged that a noneconomic activity might, in the aggregate, sufficiently affect
interstate commerce to justify regulation under the Commerce
Clause. But in both cases the Court found that no such affect
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had been proven. Here the only proof plaintiff offers is the
Senate Report quoted above. Of course this does not suffice to
prove a factual issue. In Morrison the Court rejected specific
congressional findings that possession of guns within a school
zone affected interstate commerce, finding that just because
Congress said so, does not make it so. It held that such factual
issues were for courts to decide on real evidence. Morrison at
614. Plaintiffs have presented no evidence on this point beyond
the Senate Report, which, of course, does not rise to even the
level of congressional findings. Nor does the plaintiff’s
reliance on the Court of Appeal’s decision in SWANCC or in U.S.
Pozsgai, 999 F.2d 719, 732-44 (3rd Cir. 1993) help; both were
obliterated by the Court’s opinion in SWANCC.
Plaintiff’s contention that the Treaty Clause justifies
congressional usurpation of state authority over insignificant
and isolated waters such as Sheldrake Pond, is a misplaced
attempt to end-run its inability to exercise jurisdiction over
those waters under the Commerce Clause. A treaty simply cannot
transfer state authority to the federal government. Nor is there
any indication that the treaties protecting migratory birds
attempted to do so. Nor is there any indication that Congress
was acting pursuant to the Treaty Clause when it enacted the CWA.
The Senate Committee may have thought it was doing so when
enacting the 2001 amendments, but that is a far cry from Congress
exercising such authority.
We therefore hold that the statutory definition of navigable
waters controlling this case does not reach the insignificant and
isolated waters of Sheldrake Pond. If it did, we would hold that
Congress and EPA exceeded their constitutional authority in
attempting to extend their jurisdiction to Sheldrake Pond.
Accordingly, we dismiss BOG’s CWA counts.
II.
The RCRA ISSUES
BOG seeks a finding that 1) Suave is violating RCRA by
disposing of shot and skeet parts, hazardous waste, on and about
its Sheldrake Pond facility without a permit, actionable under 42
U.S.C. § 6972(a)(1)(A) and 2) the disposed shot and skeet parts,
solid or hazardous waste, constitute an imminent and substantial
endangerment, actionable under 42 U.S.C. § 6972(a)(1)(B). To
make either of these findings, it is necessary to hold that the
fired shot and skeet parts are solid waste, for hazardous waste
is a subset of solid waste. This is a more complicated exercise
that it might appear, for there are two definitions of “solid
waste” that could be relevant. First, Congress defined solid
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waste as “… discarded material…resulting from industrial,
commercial, mining and agricultural operations, and from
community activities.” 42 U.S.C. § 6903(27). Second, EPA has
promulgated a definition of solid waste at 40 CFR § 261.2(b) that
again defines it as “discarded material,” and then defines
“discarded material” in a long and complex manner.
Courts, and
even EPA officials, have commented that this definition is an
incomprehensible quagmire. The D.C. Circuit, for instance, has
characterized it as a “mind-numbing journey.” American Mining
Congress v. U.S. EPA, 824 F.2d 1177, 1189 (D.C. Cir. 1987).
As
it turns out, the second, regulatory, definition applies to
allegations of violating RCRA’s regulatory program under §
6972(a)(1)(A), and the first, statutory, definition applies to
allegations that activities constitute imminent and substantial
endangerments under § 6972(a)(1)(B). Connecticut Coastal
Fishmeren’s Association v. Remington Arms Co., Inc., 989 F.2d
1305 (2nd Cir. 1993). See also Long Island Soundkeeper Fund, Inc.
v. New York Athletic Club of the City of New York, 1996 WL 131863
(S.D. N.Y.). The Second Circuit’s reasoning in this regard is
complicated but impeccable, and we see no reason to repeat it
here. Suave argues that using a consumer product for its
intended use does not constitute disposal of the product under
either definition. It further argues that shot, like a golf
ball, is not discarded when it is fired and falls to the ground,
for that is its intended use.
EPA agrees that the “consumer
use” exception applies to the regulatory definition of solid
waste for purposes of § 6972(a)(1)(A), but argues that it does
not apply to the statutory definition of solid waste for purposes
of § 6972(a)(1)(B).
Complicating this issue is the “military munitions rule,” 40
CFR § 261.2(a)(2)(iv), § 266.202. The rule was upheld in
Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998).
Relevant portions of this rule essentially say that fired
military munitions that land on a military firing range are not
solid waste in the regulatory sense, but may be solid waste in
the statutory sense if they land off the firing range. Happily,
both Suave and BOG agree that the rule is irrelevant because it
deals only with military munitions, which are not the focus of
this case. While EPA agrees that the military munitions rule
does not govern this case, it argues that the principles embodied
in it govern the interpretation of both the statutory and
regulatory definitions of solid waste. According to EPA, the
exclusion embodies the Agency’s consistent interpretation of the
regulatory definition of solid waste as excluding commercial
products used for their intended use, if their ordinary use
results in their landing on the ground. Thus EPA interprets its
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regulatory definition of solid waste to exclude shot landing on
the GRAPA firing range, for firing shot on a firing range is
using shot for its intended purpose. And it interprets the
statutory definition to cover shot landing off the firing range
as in the military munitions rule. Under this interpretation it
is important to find whether the portion of the Pond owned by the
County is part of the skeet and firing ranges. But if the
intended use of the ammunition at issue here is to shoot skeet or
to shoot at a target, this court fails to understand why that
purpose is accomplished when the shot lands on a firing range but
is not accomplished when it lands off the range. We therefore
agree with the principle parties to this case that the military
munitions rule is not useful in making the required
interpretation.
Suave and EPA argue that EPA’s interpretation of its own
regulation defining solid waste as not including consumer
products used for their intended purposes is dispositive, absent
a conflict with the statute or regulation. We agree and find
that BOG has raised no such conflict to prevent that conclusion.
Suave next argues that the statutory definition of solid waste
should be interpreted to exclude consumer products used for their
intended purposes as well. If materials do not warrant
regulation as solid waste, neither do they warrant remedial
activities as solid waste. There is a good deal of common sense
in this argument and it has the great merit of consistency, a
special virtue in a statutory and regulatory structure as
complicated as RCRA’s. Indeed, the decisions BOG cites in its
argument against this conclusion interpret different sections of
RCRA consistently for this very reason. But BOG and EPA argue
that EPA’s interpretation of the statutory definition to exclude
the consumer use exception bars this approach, for EPA’s
interpretation is entitled to substantial deference. Their
argument carried great weight under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, 467 U.S. 837 (1984), in which
the Court held that if a statute was ambiguous and the
implementing agency’s interpretation of it was reasonable, its
interpretation was entitled to great deference. But the Court
has recently limited Chevron deference to agency interpretations
that are embodied in rulemakings. U.S. v. Mead Corp., 2001 WL
672258 (U.S.). Under Mead, agency interpretations not embodied
in rulemakings are entitled only to such respect as may be
warranted by the formality of the agency’s determination, the
consistency of the agency’s interpretation and its
persuasiveness.
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BOG and EPA seek to cloak EPA’s interpretation of the
statutory definition with Chevron substantial deference rather
than Mead relative respect using two arguments. First, they
argue that EPA’s definition is indeed embodied in a rule, 40 CFR
261.1(b)(2)(ii). But that rule only provides that the statutory
definition of “solid waste” applies to the EPA imminent and
substantial endangerment provision, 42 U.S.C. § 6972, and does
not mention the citizen suit imminent and substantial
endangerment provision that BOG invokes, 42 U.S.C. §
6972(a)(1)(B). Nevertheless, BOG argues “solid waste” should be
interpreted identically in both provisions because the provisions
are otherwise very similar, citing Connecticut Coastal
Fishermen’s Association v. Remington Arms Co., Inc., 989 F.2d
1305 (2nd Cir. 1993), and Comite Pro Rescate de la Salud v. Puerto
Rico Aqueduct and Sewer Auth., 888 F.2d 180, 187 (1st Cir. 1990).
We agree, for the same reason that we held that both the
statutory and regulatory definitions should be interpreted to
include the consumer use exception. But this does not help BOG,
for EPA’s regulation merely says that the statutory definition
applies to EPA imminent and substantial endangerment causes of
action and by extension to similar citizen suit causes of action;
it does not deal with whether the consumer use exception applies
to the statutory definition of solid waste. In sum, it is
irrelevant to the issue before us. Thus, absent a countervailing
argument, under Mead Corp. EPA’s interpretation that the
statutory definition of solid waste does not include a consumer
use exception is entitled only to relative respect, not
substantial deference.
BOG and EPA next argue that our Circuit has already decided
that EPA’s interpretation that the statutory definition of solid
waste does not include a consumer use exception and that decision
must be followed under principles of stare decisis. In
Neighborhood against Golf, Inc. v. Recreation Enterprises, Inc.,
150 F.3d 1029 (12th Cir. 1999) (NAG),25 a neighborhood
association filed a multi-count complaint seeking to enjoin the
operation of a golf course that disrupted the neighborhood in
various ways. One count alleged that golf balls were solid waste
and that toxic components of golf balls, accumulating in the
roughs when their owners could not find them, were leaching into
groundwater, endangering neighborhood drinking water supplies.
Recreation Enterprises argued the golf balls were not solid waste
because they were consumer products used for their intended
purpose and hence they were not disposed. The district court
rejected this argument, giving Chevron deference to EPA’s
25
This opinion exists only for the purposes of this Competition.
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interpretation that the statutory definition of solid waste did
not except consumer products used for their intended purposes,
and the Twelfth Circuit affirmed in NAG.
It now appears that NAG wrongly applied deference rather
than respect to EPA’s interpretation of RCRA. BOG argues that
NAG nevertheless is controlling precedent in the Twelfth Circuit.
Here BOG and EPA part company. Suave and EPA argue that this
cannot be, for such a conclusion would forever bar courts in the
Circuit from correct statutory interpretation. This Court
agrees.
That leads to the final question: to what degree of respect
is EPA’s interpretation of the statute entitled? Mead Corp. sets
forth a three-pronged inquiry to determine this. First, how
formal was the process in which EPA made the interpretation? EPA
did not develop its interpretation in any formal process.
Second, how consistent has EPA been in its interpretation? EPA’s
interpretation has been inconsistent. EPA’s application of the
consumer use exception to the regulatory but not the statutory
definition of solid waste is basically inconsistent. Moreover,
EPA’s interpretation of “discarded,” the key word and concept in
both definitions, has been inconsistent even in its
interpretation for purposes of the regulatory definition.
American Petroleum Institute v. U.S. EPA, 216 F.3d 50 (D.C. Cir.
2000); Association of Battery Manufacturers v. U.S. EPA, 208 F.3d
1047 (D.C. Cir. 2000); American Petroleum Institute v. U.S. EPA,
906 F.2d 729 (D.C. Cir. 1990); American Mining Congress v. U.S.
EPA, 907 F.2d 1175 (D.C. Cir. 1990); American Mining Congress v.
U.S. EPA, 824 F2d 1177 (D.C. Cir. 1987).
Third, how persuasive
is EPA’s interpretation? EPA is very persuasive that Congress
did not intend RCRA to regulate the use of consumer products for
their intended purposes. The very reason for RCRA’s regulatory
program is to prevent endangerments. If Congress did not intend
EPA to regulate the use of consumer products for their intended
purposes to prevent endangerments, it is unlikely that Congress
would intend the courts to ameliorate endangerments from the same
use of those products. Therefore, we find EPA’s interpretation
of the statutory definition of solid waste to exclude the
consumer use exception to be entitled to little, if any, respect.
In sum, we hold that EPA’s interpretation is entitled to no
deference under Chevron because it is not embodied in a
rulemaking. Further, we hold that it is entitled to no respect
under Mead Corp. because it was not developed in a formal
process, has not been consistent, and is unpersuasive. For the
very reasons that EPA’s interpretation is unpersuasive, we hold
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that the consumer use exemption applies to both the statutory and
regulatory interpretations of “solid waste.” Accordingly, we
dismiss BOG’s RCRA counts.
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Team 40
IN THE
UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
BIRDWATCHERS OF GROVETON, INC.,
and
UNITED STATES,
Appellants
v.
SUAVE REAL PROPERTY, INC.,
Appellee
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW UNION
Brief for the Appellee
SUAVE REAL PROPERTY, INC.,
ATTORNEYS FOR APPELLANT
STATE OF NEW UNION
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QUESTIONS PRESENTED
1. Did the court below err in holding that Suave did not violate
the CWA because Sheldrake Pond is not navigable water under the
CWA, 33 U.S.C §§ 1311(a), 1352(7) & (12)? Is this case
governed by the amendment made to § 1352(7) in 2001? If so,
does that amendment extend the jurisdiction of the CWA over
Sheldrake Pond?
2. Did the court below err in holding that neither the Commerce
Clause nor the Treaty Clause of the Constitution justify
federal regulation of water pollution in Sheldrake Pond?
3. Did the court below err in holding that fired shot and skeet
parts are not solid waste when they fall to the ground under
the EPA’s definition of solid waste in 40 CFR § 262.2?
4. Did the court below err in holding that fired shot and skeet
parts are not solid waste when they fall to the ground under 42
U.S.C. § 6972(a)(1)(B)?
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TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
I. THE DISTRICT COURT WAS CORRECT IN HOLDING THAT SUAVE DID
NOT VIOLATE THE CWA BECAUSE SHELDRAKE POND IS NOT
NAVIGABLE WATER UNDER THE CWA , 33 U.S.C § 1311(A), 1362(7) & (12)
AND THAT THIS CASE IS NOT GOVERENED BY THE AMENDMENT
MADE TO § 1362 (7) IN 2001. . . .
3
A. The Court interpreted the CWA not to include insignificant and isolated waters
such as Sheldrake Pond in its definition of “navigable waters.”. . . . . . . . .
4
1. The August 15, 2001 Amendment to the CWA does not apply to this case, and
the Report of the Senate Environment Committee accompanying the
amendment is also irrelevant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
II. NEITHER THHE COMMERCE CLAUSE NOR THE TREATY CLAUSE OF
THE CONSTITUTION SUPPORT A READING OF THE CWA THAT
EMBRACES SHELDRAKE POND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
A. The Commerce Clause cannot reach Sheldrake Pond because the water is not part
of any economic activity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
1. Sheldrake Pond is neither a channel (highway) of interstate commerce no
an instrumentality of interstate commerce. . . . . . . . . . . . . . . . . . . . . . . . . .
10
2. Activities carried out a substantial affect on interstate commerce and are
non-economic. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
B. The Treaty Clause cannot be read to transfer state authority to the federal
government.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. There is no evidence that treaties protecting migratory birds attempted to
transfer state power to the federal government. . . . . . . . . . . . . . . . . . . . . . .
ii
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III. FIRED SHOT AND SKEET PARTS ARE NOT SOLID WASTE WHEN THEY
FALL TO THE GROUND UNDER THE EPA’S REGULATORY DEFINITION
OF SOLID WASTE UNDER 40 CFR. § 261.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
A. The EPA’s interpretation of its own regulation is controlling. . . . . . . . . . . . . . . . . .
14
1. The EPA’s interpretation of the regulatory definition of solid waste is not
clearly erroneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
2. The EPA’s interpretation of the regulatory definition of solid waste does not
conflict with the regulation itself. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
IV. FIRED SHOT AND SKEET PARTS ARE NOT SOLID WASTE WHEN THE
FALL TO THE GROUND UNDER THE STATUTORY DEFINITION OF
RCRA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
A. The EPA’s interpretation of the statutory definition of solid waste deserves little or
no deference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
1. The Chevron deference test does not apply to the EPA’s interpretation of
the statutory definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
a. The EPA’s interpretation of the statutory definition of solid waste
does not constitute a rulemaking. . . . . . . . . . . . . . . . . . . . . . . .
b. Congress did not give the EPA full enforcement powers under
RCRA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
23
2. Under Mead, the EPA’s interpretation of the statutory definition of solid
waste is entitled to little or no deference. . . . . . . . . . . . . . . . . . . . . . . .
25
3. Alternatively, even under Chevron, the EPA’s interpretation of solid waste
is not entitled to substantial deference . . . . . . . . . . . . . . . . . . . . . . . .
27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
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TABLE OF AUTHORITIES
Page
United States Constitution
U.S. Const. Art. 1 § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
U.S. Const. Art. 2 § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
United States Supreme Court Cases
Atlantic Mutual Insurance Co. v. Commissioner,
523 U.S. 382 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30, 32, 33
AT&T Corp. v. Iowa Utilities Bd.,
525 U.S. 366 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
22
Auer v. Robbins,
519 U.S. 452, 461 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Brandon v. Abbot,
524 U.S. 624, 642 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Chevron, U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20-25, 28
Clarke v. Securities Industry Assn.,
479 U.S. 388, 403-404 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22, 23
See EEOC v. Arabian American Oil Co.,
499 U.S. 244, 257 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22, 24
Federal Employees v. Department of Interior,
526 U.S. 86, 98-99 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Ford Motor Credit Co. v. Milhollin,
444 U.S. 555, 565 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Fort Steward Schools v. FLRA,
495 U.S. 641, 644-645 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gibbons v. Ogden,
iv
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9 Wheat. 1 (1824) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
Holly Farms Corp. v. NLRB,
517 U.S. 392 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
ICC v. Transcon Lines,
513 U.S. 138 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
INS v. Aguirre-Aguirre,
526 U.S. 415, 423-25 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Investment Company Institute v. Camp,
401 U.S. 617, 626-27 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
Landgraf v. U.S.I. Film Productions,
511 U. S. 244, 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Lyng v. Payne,
476 U.S. 926, 939 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Martin v. Occupational Safety and Health Review Comm’n,
499 U.S. 144, 157 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25
Metropolitan Stevedore Co. v. Rambo,
521 U.S. 121, 136 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25
Missouri v. Holland,
225 U.S. 416 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
Nations Bank of NC, N.A. v. Variable Annuity Life Ins. Co.,
513 U.S. 251, 256-57, 263 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22-24
Regions Hospital v. Shalala,
522 U.S. 448 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Reno v. Koray,
515 U.S. 50, 61 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25
Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 359 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
Shalala v. Illinois Council on Long Term Case, Inc.,
529 U.S. 1, 20-21 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22-23
Skidmore v. Swift & Co.,
323 U.S. 134, 139 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
v
21, 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Smiley v. Citibank,
517 U.S. 735 (1996) 22
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,
121 S. Ct. 675 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4-9, 11
Udall v. Tallman,
380 U.S. 1, 16-17 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
United States v. Haggar Apparel Co.,
526 U.S. 380 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
U.S. v. Lopez,
514 U.S. 549 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9, 10
United States v. Mead Corp.,
533 U.S. 218, 150 L. Ed. 2d 292 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United States v. Morrison,
20, 21,
23, 25
529 U.S. 598 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9,10
United States v. Morton,
467 U.S. 822, 834 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12, 28
United States v. O’Hagan,
521 U.S. 642 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Wickard v. Filburn,
317 U.S. 111 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Zenith Radio Corp. v. United States,
437 U.S. 443, 450 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
United States Court of Appeals Cases
American Mining Congress v. U.S. EPA,
824 F.2d 1177, 1189 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17, 26
Chemical Waste Management, Inc. v. EPA,
869 F.2d 1526, 1538-39 (D.C. Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16, 17
Connecticut Coastal Fishermen’s Association v. Remington Arms Co., Inc.,
989 F.2d 1305 (2nd Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Environmental Defense Fund v. EPA,
vi
13, 14, 26
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5
6
7
8
9
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11
12
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14
15
16
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20
21
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23
24
25
210 F.3d 396 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15, 17
Hazardous Waste Treatment Council v. Reilly,
938 F.2d 1390, 1395 (D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Marine Shale Processors, Inc. v. United States EPA,
81 F.3d 1371 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
MCI Cellular Tel. Co. v. FCC,
738 F.2d 1322, 1333 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
Military Toxics Project v. EPA,
146 F.3d 948 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18, 19
Natural Resources Defense Council v. EPA,
25 F.3d 1063, 1068-69 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16, 20
Neighborhood against Golf, Inc. v. Recreation Enterprises, Inc.,
150 F.3d 1029 (12th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25
United Technologies Corp. v. U.S. EPA,
821 F.2d 714, 717 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
United States District Court Cases
Borden Ranch Partnership v. U.S. Army Corps of Engineers,
261 F. 3d 810 (D. Cal. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Dithiocarbamate Task Force v. EPA,
98 F.3d 1394 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
United States v. Interstate General Company,
152 F. Supp. 2d 843 (D. Md. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Statutes
5 U.S.C. § 533. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
16 U.S.C.A. § 703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
33 U.S.C. § 1311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2, 3, 4
33 U.S.C. § 1362 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2, 3, 4
Amendment to 33 U.S.C. § 1362 (7) (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33 U.S.C. § 1362 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
vii
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2, 3, 4
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42 U.S.C. § 2000e –5(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
42 U.S.C. § 6901-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
42 U.S.C. § 6903(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1, 20
42 U.S.C. § 6903 (27) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
42 U.S.C. § 6921 – 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
42 U.S.C. § 6925 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
42 U.S.C. § 6941 – 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
42 U.S.C. § 6972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
42 U.S.C. § 6972 (a) (1) (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13, 14
42 U.S.C. § 6972 (a) (1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
P.L. 106-720 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7, 10
Regulations
33 C.F.R. § 328.3 (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
40 C.F.R. § 122.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
40 C.F.R. § 261.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
40 C.F.R. § 261.11(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
40 C.F.R. § 261.1(b) (2) (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
40 C.F.R. § 261.2 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
40 C.F.R. § 261.2 (a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
40 C.F.R. § 261.2 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
40 C.F.R. § 261.2 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
40 C.F.R. § 261.33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40 C.F.R. § 262.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14, 18
1
40 C.F.R. § 266.202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
40 C.F.R. § 266.202 (a) (1) (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19
51 Fed. Reg. 41217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4, 19
Legislative Materials
H.R. REP. 106 – 528, P. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
S. REP. NO. 92-414, at 64 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
viii
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Law Reviews
William Funk, The Court, the Clean Water Act, and the Constitution: SWANCC and
Beyond, 31 Envtl. L. Rep. 10741 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ix
8
STATEMENT OF THE CASE
Procedural History
This is an appeal from an order entered by Judge Romulus in the United States District
Court for the District of New Union, on the defendant’s motion for summary judgment. The
district court, in its decision below, dismissed an action initiated by Appellant Birdwatchers of
Groveton, Inc. (“BOG”) against Appellee Suave Real Properties, Inc. (“Suave”), seeking civil
penalties and injunctive relief under the citizen suit provisions of the Clean Water Act (“CWA”)
and the Resource Conservation and Recovery Act (“RCRA”). (R. at 1). The district court
justified its dismissal of BOG’s suit on four grounds. Specifically, the district court held that in
regulating “navigable water” in the CWA, congress did not intend to reach insignificant, isolated,
and seasonal water like Sheldrake Pond; Congress does not have the authority to regulate such
water under the Commerce Clause or under the Treaty Clause; and the correct interpretation of
both the statutory definition of solid waste (42 U.S.C. § 6903(27)) and the EPA’s definition of
solid waste (40 CFR § 262.2) is that shot and skeet parts are not solid waste. (R. at 5-11).
The district court granted the United States motion to intervene filed on behalf of the United
States Environmental Protection Agency. (R. at 1). The United States opposed Suave’s motion
on three of the above grounds and BOG opposed it on all four. (R. at 1). The court granted
Suave’s motion entirely. (R. at 1).
Statement of the Facts
Suave is a real estate management company organized under the laws of New Union. (R. at
3). In 2000, Suave opened a new business, called Groveton Rifle and Pistol Association
(GRAPA) on one of its properties in Groveton County. (R. at 3). The parcel is adjacent to land
owned by the County. (R. at 3).
GRAPA is a firearms and skeet shooting range which consists of a pad for skeet shooters, a
device that ejects skeet into the air, and a firing range. (R. at 3). Suave ejects skeet into the air
and skeet shooters attempt to shoot the skeet with shotguns. (R. at 3). Depending on the
accuracy of the shot, spent lead shot and skeet parts or skeet fall to the ground. (R. at 4). A berm
located behind the targets shooed for the firing range catches most of the spent shot. (R. at 4).
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A portion of the land belonging to Suave and the County is a seasonal shallow pool known as
Sheldrake Pond which is used by migratory birds. (R. at 3). Members of the local bird
watching club, BOG, watch the birds from an adjacent county road. (R. at 3).
SUMMARY OF THE ARGUMENT
This Court should affirm the district court’s dismissal of BOG’s CWA and RCRA citizen
suit because Sheldrake is not navigable water either in the statutory or Constitutional sense
and that the use of skeet and lead shot for intended purposes does not constitute disposal of
waste under RCRA.
Sheldrake Pond is not navigable water under the CWA, 33 U.S.C. §§ 1311(A), 1362 (7) &
(12). Relevant, recent precedent, occurring under very similar factual circumstances,
established that isolated, insignificant water is not navigable and also abolished the
Migratory Bird Rule which extended CWA jurisdiction on the basis of the presence of
migratory birds or endangered species. Subsequent to the filing of this claim, Congress
amended the CWA’s definition of “navigable water” to include EPA’s definition of “waters
of the United States.” But this change cannot be retroactively applied.
Even if the court found that Congress intended to reach waters like Sheldrake Pond, the
court would be compelled to strike down the statute as unconstitutional. The Commerce
Clause only reaches activity that has a substantial affect on interstate commerce. There is
not economic activity being regulated here. The Treaty Clause cannot be used to transfer
state’s powers to the federal government.
Fired shot and skeet parts are not solid waste either under the EPA’s regulatory definition
or the statutory definition under RCRA. EPA has interpreted “solid waste” to exclude
commercial products used for their intended purposes. This interpretation is not clearly
erroneous and therefore is entitled to deference.
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RCRA regulates solid waste and excludes commercial products. Congressional intent
trumps EPA’s interpretation of this statute because the EPA’s interpretation is not a rule,
and EPA does not have full enforcement powers under RCRA. The skeet parts and fired
shot at issue here are commercial products being used for their intended purpose and
therefore are not solid waste.
ARGUMENT
I.
THE DISTRICT COURT WAS CORRECT IN HOLDING THAT SUAVE DID
NOT VIOLATE THE CWA BECAUSE SHELDRAKE POND IS NOT
NAVIGABLE WATER UNDER THE CWA, 33 U.S.C. §§ 1311(A), 1362(7) &
(12) AND THAT THIS CASE IS NOT GOVERNED BY THE AMENDMENT
MADE TO § 1362(7) IN 2001.
The fundamental basis for BOG and the United States’ claim against Suave is the CWA’s
prohibition against the discharge of fill material or a pollutant to navigable waters without a
permit. 33. U.S.C. §§ 1311(a), 1362(12). The original drafters of the 1972 CWA defined the
term “navigable waters” as “waters of the United States.” 33 U.S.C. § 1362(7).
“Waters of the United States” has been defined for regulation purposes by both the
Environmental Protection Agency (EPA), which administers most of the CWA, and the U. S.
Army Corps of Engineers (COE), which administers the CWA’s fill permit program. The EPA
and the COE include intrastate waters like “playa lakes” that affect interstate or foreign
commerce in their definitions. 40 C.F.R. § 122.2; 33 C.F.R. § 328.3(a)(3). A playa lake is a
body of water that is dry for part of the year. The COE has also included the “Migratory Bird
Rule” to add waters that serve as habitat for birds protected by the Migratory Bird Treaties to
their definition of “navigable waters”. 51 Fed. Reg. 41217.
A. The Court has interpreted the CWA not to include insignificant and isolated
waters such as Sheldrake Pond in its definition of “navigable waters.”
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The question of Sheldrake Pond’s status under the CWA was correctly analyzed by the
court by citing Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,
121 S. Ct. 675 (2001) (SWANCC). The water in question in the SWANCC case was several
abandoned gravel pits, some permanently holding water and others holding water seasonally.
SWANCC, S. Ct. at 678. These abandoned pits had become a stopping point for over 121 bird
species. Id. at 678. The United States Supreme Court held that the Corps’ extension of the
definition of “navigable waters” under the Migratory Bird Rule to include these abandoned
gravel pits exceeded the authority granted to the Corps by the CWA. Id. at 675. The court also
noted that there is no evidence of Congress’ intent to protect non-navigable, isolated, intrastate
waters under the CWA that have no connection to navigable waters and are not involved in
interstate commerce. Id. at 681-2.
United States v. Interstate General Company, 152 F. Supp. 2d 843 (D. Md. 2001),
distinguished SWANCC, noting that SWANCC does not specifically address the question of
whether isolated wetlands may fall under the definition of “navigable waters” other than to hold
that the Migratory Bird Rule is not a sufficient legal basis for a intrastate body of water’s
protection under the CWA. Despite the hesitation the court in Interstate demonstrated in
applying SWANCC, other courts have cited SWANCC in cases involving isolated bodies of water
that do not provide habitat for migratory birds. In Borden Ranch Partnership v. U.S. Army
Corps of Engineers, 261 F. 3d 810 (D. Cal. 2001), the court cited SWANCC in holding that an
isolated, seasonal pond, similar to a vernal pool,26 does not fall under the Corps’ authority in the
CWA.
The SWANCC case and its subsequent interpretations clearly show that Sheldrake Pond is
not navigable water under the protection CWA. Sheldrake Pond is an isolated, intrastate pond
that contains water only during the spring as opposed to some of the gravel pits in SWANCC that
26
Vernal Pools hold water only during the wet spring months, whereas playa lakes are defined as being dry only part
of the year.
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contained water year round. The pond is non-navigable in the traditional sense of the term and is
not connected in any way to a navigable body of water. It is clear from the holdings in SWANCC
and Borden Ranch Partnership that the authority of the CWA does not stretch over isolated
pools like Sheldrake Pond.
Regardless of whether Sheldrake Pond is classified as an isolated vernal pool or as the
playa lake that the appellants allege, both the COE and the EPA definitions require these
intrastate waters to affect interstate or foreign commerce in some way if they are to come under
the protection of the CWA. The only purported interstate or foreign commerce that the
appellants claim would define Sheldrake Pond as navigable water under the CWA is the
economic activity surrounding the migratory bird species that inhabit the Pond. (R. at 5).
SWANCC clearly states that the COE’s Migratory Bird Rule cannot be used to extend the CWA’s
definition to include bodies of water like Sheldrake Pond. SWANCC, 121 S. Ct. 680. Even if
Sheldrake Pond is considered a playa lake, the appellants have presented no evidence to show
that the Pond is navigable water under the protection of the CWA.
1. The August 15, 2001 amendment to the CWA does not apply to this case, and the Report
of the Senate Environment Committee accompanying the amendment is also irrelevant.
The court correctly held that the August 15, 2001 amendment to the CWA’s definition of
“navigable waters” is irrelevant to this case. BOG commenced this suit by filing a complaint on
December 20, 2000. It is understood that the statutory law governing the case will be the
statutory law in place at the time the complaint is filed. This complaint was filed nearly eight
months prior to the passage of this amendment and is not governed by its additional language.
As Justice Scalia noted in Landgraf v. U.S.I. Film Productions, 511 U. S. 244, 287, “there
exists a judicial presumption, of great antiquity, that legislative enactment affecting substantive
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rights does not apply retroactively absent a clear statement to the contrary.” Even if the Senate
Report language could be interpreted to encourage the retroactive application of the amendment,
this language does not appear in the House Committee Report, the Conference Committee
Report, or in the statute itself. Retroactive application of this amendment would affect the
substantive rights of many individuals besides Suave who all performed within the bounds of the
law at the time of alleged violations. Without any “clear statement” in the statute instructing
otherwise, the amendment cannot be applied retroactively based on a questionable interpretation
of a Senate Committee Report and affect Suave’s substantive rights.
The appellants maintain that the language in the 2001 Senate Report is indicative of
Congress’ intended meaning of “navigable waters” in the original CWA of 1972 when it states:
[SWANCC] ”misinterpreted Congressional intent. When we first enacted
the CWA in 1972, we intended that the terms “navigable waters” and
“waters of the United States” extend as far as our Commerce Clause
authority extends. We intended the terms to cover isolated waters that are
important stopovers for migratory birds… Not only the Commerce Clause
Justifies our jurisdiction to protect these waters, the Treaty Clause justifies
it as well.”
S. Rep. 106-528, p. 23. The court correctly dismantles this proposition. First of all, the
CWA was enacted by the members of Congress in 1972, not by the members of Congress in
2001. Very few of the original 1972 Congress were still in office in 2001. It is preposterous to
assume that a present Congress can accurately state the intent of a Congress that held office
almost thirty years ago. This assumption is even more unreasonable considering that the
Supreme Court has already interpreted the 1972 Congress’ intent in the SWANCC case.
Secondly, as mentioned above, this is only the interpretation of the Senate Environment
Committee. These interpretations are not in the House Committee Reports, the Conference
Committee Reports, or explicitly in the language of the statute. The Senate Environment
Committee Report does not embody the intent of the entire Congress and therefore should not be
solely relied upon to interpret congressional intent.
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The lower court correctly held that Sheldrake Pond clearly does not fall under the
definition of “navigable waters” in the CWA. (R. at 7). Sheldrake Pond is an isolated vernal
pool that provides habitat for migratory birds in the few months that it is full of water. As the
Court held in the SWANCC, these conditions alone do not bring Sheldrake Pond under the
protection of the CWA. “We thus decline respondent’s invitation to…[hold] that isolated ponds,
some only seasonal, wholly located in two Illinois Counties, fall under § 404(a)’s definition of
‘navigable water’ because they serve as habitat for migratory birds.” SWANCC, 121 S. Ct. at
682.
The lower court also correctly held that the 2001 amendment does not apply in this case since
the statute was not in place when the original complaint was filed. (R. at 6). It does not contain
any explicit terms providing for retroactive application, and therefore cannot be used in this case.
Also, the Senate Environment Committee Report is not a definitive indication of the intent of the
Congress that enacted the CWA in 1972 and most likely would not be relied upon by any court
as the sole basis for determining congressional intent.
II.
NEITHER THE COMMERCE CLAUSE NOR THE TREATY CLAUSE OF
THE CONSTITUTION SUPPORTS A READING OF THE CWA THAT
EMBRACES SHELDRAKE POND.
The SWANCC court interpreted the CWA language as applied to small and seasonal bodies
of water similar to vernal pools like Sheldrake Pond, finding that isolated ponds are not governed
by the CWA and abolishing the migratory bird rule. SWANCC, 121 S. Ct. 684. The issues that
motivated the SWANCC court are the same as those present here. (R. at 5). That court used
legislative interpretation to conclude that the CWA doesn’t reach isolated, non-navigable,
seasonable water bodies such as Sheldrake Pond. They held that the canon of constitutional
doubt prevented the court from deferring to agency interpretation because of serious
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constitutional issues that would arise. SWANCC ,121 S. Ct. at 683. These serious conflicts
between the EPA and COE’s interpretation of the CWA’s language and Congress’ power are
resolved by the conclusion that the agencies’ interpretation is unconstitutional and supports the
SWANCC court’s statutory interpretation.
The term in the clean water act “navigable water” is there for a reason, as established in
SWANCC. Id. at 682. In some areas of jurisprudence, the word “navigable” refers to whether or
not a boat could be used to traverse a body of water. But the mere fact that for part of the year,
one could put a small craft on Sheldrake Pond, does not make it subject to the Commerce Clause.
Since navigability has no relationship with the purpose of the CWA, the drafters of the statute
must have included the term to show which power enumerated in the Constitution gave congress
the power to regulate this area. Sheldrake Pond is not used for interstate commerce.
A. The Commerce Clause cannot reach Sheldrake Pond because the water is not part of
any economic activity.
It is well established that the federal government has the power to regulate activities that
substantially affect interstate commerce in carrying out its power from the Commerce Clause of
the Constitution. U.S. Const. art I § 8; Gibbons v. Ogden 9 Wheat. 1 (1824). Although
interpretation of that power had grown increasingly broad, this power only applies to economic
activity and the current Supreme Court has recently reigned in Congress’ Commerce power. U.S.
v. Lopez, 514 U.S. 549 (1995); U.S. v. Morrison, 529 U.S. 598 (2000).
In Lopez, the court set limits for the substantial effects test. Under Lopez, congress may
regulate an area if it fits in one of three areas: 1) channels of interstate commerce 2)
instrumentalities of interstate commerce 3) activities having a substantial effect on interstate
commerce. Lopez, 514 U.S. at 558. In Morrison, the court added the criteria that only economic
activities can only be aggregated in order to be found to have a substantial effect on interstate
commerce. Morrison, 529 U.S. at 610.
The jurisdiction of the CWA is defined as “navigable waters” not to further the purposes
of the statute, but because it expresses the limit of congress’ power. William Funk, The Court,
the Clean Water Act, and the Constitution: SWANCC and Beyond, 31 Envtl. L. Rep. 10741
(2001). If economic activity, such as transportation of goods by boat were carried out on
Sheldrake Pond, it would be navigable water for the purposes of the CWA because it would be
under Congress’ Commerce Clause jurisdiction. But there is no economic activity carried out on
Sheldrake Pond.
BOG asserts that the bird watching activities carried on by its members are part of
interstate economic activity. But the lower court correctly stated, “no human interstate activity
has been alleged at Sheldrake Pond.” (R. 7)
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1.
Sheldrake Pond is neither a channel (highway) of interstate commerce nor an
instrumentality of interstate commerce.
The lower court was correct in holding that presence of migratory birds on Sheldrake
Pond cannot extend federal powers to reach it, either as a highway of interstate commerce or as
an instrumentality of interstate commerce. (R. 7). Navigable waters that are used for
transporting goods or people would fit in the court’s definition of channels or instrumentalities of
interstate commerce. Morrison, 529 U.S. at 659. Sheldrake pond is entirely non-navigable and
is not adjacent to any navigable waters.
In addition, it cannot be asserted that the presence of migratory birds converts Sheldrake
Pond into an instrumentality since the court in SWANCC abolished this line of reasoning, as
discussed earlier. SWANCC, 121 S. Ct. at 675. The language of the Report of the Senate
Environment Committee accompanying the senate bill which led to the Congress’ August 15,
2001 amendment of the CWA’s definition of “navigable waters, ” cannot be used to change this.
S. Rep 106-528, p.23. This legislative history does not reflect the reasoning of the whole
Congress and cannot be applied retroactively, as correctly established by the lower court. (R. 6)
2.
Activities carried out at Sheldrake Pond do not have a substantial affect on
interstate commerce and are non-economic.
The substantial effect rule was in effect since the New Deal era decision in Wickard v.
Filburn, 317 U.S. 111 (1942). In this case, the court found that although corn was a local
activity, its distribution, when considered with all those who produce corn, could affect interstate
commerce. This “cumulative effect” principle was clearly limited by the court in Morrison.
Morrison, 529 U.S. 625. Now, only clearly economic activity can be aggregated to reach the
jurisdiction of the commerce clause. (Id. at 654). BOG has presented no evidence of
birdwatchers spending money or traveling long distances to observe the birds at Sheldrake Pond.
There is no admission fee to stop along the County road used as a vantage point. Even if there
were some such allegation, in SWANCC, the court dismissed the last minute argument that
because the activity to be carried out in the water (a landfill) was economic in nature, the
economic effect could be aggregated and jurisdiction of the CWA extended to reach the ponds.
SWANCC, 121 S. Ct. at 684.
B. The Treaty Clause cannot be read to transfer state authority to the federal
government.
The federal power to make treaties with other nations comes from the Treaty Clause of
the Constitution. U.S. Const. art. II § 2. The power is divided between the executive and
legislative branches of the government since the president may make treaties, but the senate must
ratify it.
1.
There is no evidence that treaties protecting migratory birds attempted to
transfer state power to the federal government.
In Missouri v. Holland, 225 U.S. 416 (1920), the court considered the how a treaty can
give congress power in an area un-enumerated by the Constitution and therefore previously left
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to the states. Congress’ attempt to regulate the killing of migratory birds within the United
States was struck down. But subsequently, a treaty governing migratory birds in the United
States and Canada was enacted between the U.S. and Great Britain. When the state of Missouri
challenged federal law implementing the treaty, the court held that the federal government has
the power to enact statutes to carry out its enumerated mission, including powers coming from
treaties. Id.
The treaty at issue in this case was the Migratory Bird Treaty Act of 1918 (16
U.S.C.A §
703), which established that migratory birds were not the property of states, and protected
them from being killed, captured or sold. The mission of this statute bears no relation to
that of the CWA and cannot be interpreted to extend the power of the CWA beyond that
allowed by the Constitution. BOG has presented no evidence that Congress was acting
pursuant to a treaty when it enacted the CWA.
III. FIRED SHOT AND SKEET PARTS ARE NOT SOLID WASTE WHEN THEY FALL
TO THE GROUND UNDER THE EPA’S REGULATORY DEFINITION OF SOLID
WASTE UNDER 40 CFR § 261.2.
The lower court correctly held that fired shot and skeet parts do not constitute solid waste
under 40 CFR § 261.2. BOG now requests this court to deny summary judgment, allowing a suit
based on the allegation that Suave is violating the RCRA by disposing of materials including
shot and skeet parts in relation to its Sheldrake Pond recreational facility without a permit. Such
a violation would be actionable under 42 U.S.C. § 6972(a)(1)(A). 42 U.S.C. § 6972(a)(1)(A)
allows any citizen to file a suit against any person “who is alleged to be in violation of any
permit, standard, regulation, condition, requirement, prohibition, or order which has become
effective pursuant to this Act.” Id. BOG alleges that the shot and skeet parts in question
constitute hazardous waste. Pursuant to 42 U.S.C. § 6925(a), a permit is required for “the
disposal of any such hazardous waste.” Id. In regards to a 42 U.S.C. § 6972(a)(1)(A) suit, the
regulatory definitions of the waste in question should apply. See Connecticut Coastal
Fishermen’s Association v. Remington Arms Co., Inc., 989 F.2d 1305 (2nd Cir. 1993); Long
Island Soundkeeper Fund, Inc. v. New York Athletic Club of the City of New York, 1996 WL
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131863 (S.D.N.Y.). In Connecticut Coastal, the Second circuit reasoned around the apparent
difficulties in applying a regulatory definition in some cases and a statutory definition in others.
989 F.2d at 1315. The structure of RCRA contemplates the EPA issuing its own definition for
hazardous and solid waste for the purposes of instituting a regulatory scheme. Under 42 U.S.C.
§§ 6921-6939, Congress provided the EPA with a mandate to regulate hazardous waste. For
example, 42 U.S.C. § 6925 provides the EPA with the authority to require the very permits a
citizen suit under 42 U.S.C. § 6972(a)(1)(A) must prove relevant. Consequently, Congress
awarded the EPA great latitude in defining the instances where its regulations would apply. The
Second Circuit contrasted these sections of RCRA with 42 U.S.C. §§6941-6949, which only call
upon the EPA to issue guidelines and not institute a complex regulatory scheme requiring more
specific definitions. Connecticut Coastal, 989 F.2d at 1315. Therefore, the lower court correctly
applied the regulatory definition of solid waste with respect to BOG’s 42 U.S.C. § 6972(a)(1)(A)
claim.
Under the regulations, the lower court correctly identified hazardous waste as a subset of
solid waste. (R. 8). Under 40 CFR § 261.3, the EPA’s choice of language indicates that in order
to classify material as hazardous waste, the material must first be classified as solid waste and
then additional factors must be examined (“A solid waste … is a hazardous waste if…”
(emphasis added). Id. The specific regulatory definition of solid waste addressed by the lower
court invoked 40 CFR § 261.2. 40 CFR § 261.2(a) defines solid waste as any material which is
1) “Abandoned,” 2) “Recycled,” 3) “Considered inherently waste-like,” or 4) “A military
munition identified as solid waste…” Id. The allegations against Suave point to a disposal of
shot and skeet parts fired over Sheldrake Pond and the surrounding areas. (R. 4). Accordingly
40 CFR § 261.2(b) defines abandoned material as solid waste if it is “Disposed of.” Id.
The problem for BOG’s analysis, which is the reason for the lower court’s grant of
summary judgment, rests in the EPA’s own interpretation of its regulation. The EPA has
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maintained that a commercial product used for its intended purposes does not constitute a solid
waste under the regulatory scheme. (R. 9). Therefore, the fired shot and skeet parts at issue here
aren’t waste because they are commercial products used for their intended purposes by the
members of GRAPA.
A. The EPA’s interpretation of its own regulation is controlling.
BOG maintains that despite the EPA’s own interpretation of its definition of solid waste,
the lower court erred in ruling that commercial products used for their intended purposes do not
constitute solid waste. An Agency’s interpretation of its own regulation has been determined as
controlling unless it is plainly erroneous or inconsistent with the regulation. See Auer v.
Robbins, 519 U.S. 452, 461 (1997) (allowing the Secretary of Labor to interpret his own salarybasis test); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (addressing the
authority of the Price Administrator to interpret price control regulations adopted pursuant to the
Emergency Price Control Act of 1942); Lyng v. Payne, 476 U.S. 926, 939 (1986) (interpreting
regulations relevant to emergency loans for farmers from the farmer’s home administration under
the Secretary of Agriculture); Udall v. Tallman, 380 U.S. 1, 16-17 (1965) (giving great deference
to the Secretary of the Interior to interpret regulations reopening public lands for leasing and
other uses); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989) (involving
the Forest Service’s interpretation of its regulations when it granted a permit to a ski developer).
See also Environmental Defense Fund v. EPA, 210 F.3d 396 (D.C. Cir. 2000); Dithiocarbamate
Task Force v. EPA, 98 F.3d 1394 (D.C. Cir. 1996); Marine Shale Processors, Inc. v. United
States EPA, 81 F.3d 1371 (5th Cir. 1996).
The lower court granted summary judgment on this issue by agreeing that the EPA’s own
interpretation controls the matter “absent a conflict with the statute or regulation.” (R. 9).
Applicable Supreme Court jurisprudence indicates, however, that the proper inquiry does not
even involve the statute in question, but merely whether the interpretation of the agency is
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clearly erroneous or conflicts with the regulation itself. The inquiry for this court, then,
necessarily involves two questions. First, is the EPA’s interpretation of its own regulations not
to include commercially used products clearly erroneous? Second, is the EPA’s interpretation in
conflict with the regulation itself?
1.
The EPA’s interpretation of the regulatory definition of solid waste is
not clearly erroneous.
BOG has not argued thus far that the EPA’s interpretation of the regulatory definition of
solid waste is clearly erroneous. Instead, in its allegations to the lower court, BOG merely
asserted that shot and skeet parts constituted solid waste for the purposes of the regulatory
scheme advanced by the EPA. (R. 4). Absent a persuasive argument from BOG demonstrating
how the EPA’s interpretation should not be given deference due its clearly erroneous nature, this
court should affirm the grant of summary judgment.
Furthermore, in similar cases involving the EPA, courts have given great latitude to the
agency’s interpretation of its own regulations, again underscoring the jurisprudential
permissiveness in allowing the EPA to interpret its regulations. In Environmental Defense
Force, the D.C. Circuit adjudicated a case where the petitioners requested a ruling against a
particular interpretation of the EPA’s regulations. 210 F.3d at 397. The dispute stemmed from a
final EPA order not to add fourteen solvent wastes to the Agency’s list of hazardous wastes
under RCRA. Id. The applicable regulation, 40 CFR § 261.11(a)(3), remained silent as to the
procedural requirements for the EPA to pursue an inquiry regarding additions to the list of
hazardous wastes. Id. at 399. The court, in light of this silence, allowed the EPA broad latitude
to interpret the regulation to allow for an inquiry solely on the toxicity levels of the solvents in
question. Id. at 400. See also Chemical Waste Management, Inc. v. EPA, 869 F.2d 1526, 153839 (D.C. Cir. 1989); Natural Resources Defense Council v. EPA, 25 F.3d 1063, 1068-69 (D.C.
Cir. 1994); Hazardous Waste Treatment Council v. Reilly, 938 F.2d 1390, 1395 (D.C. Cir. 1991).
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The reason to give the EPA great latitude rested on the highly technical nature of the subject
matter of interpretation. Environmental Defense Fund, 210 F.3d at 400. See also Chemical
Waste Management, 869 F.2d at 1539; MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C.
Cir. 1984). As the court found such an interpretation to be reasonable, the EPA’s interpretation
controlled. Environmental Defense Fund, 210 F.3d at 401.
In Marine Shale Processors, the court even contemplated a situation where the EPA’s
interpretation of its regulations may be incorrect. In a case where the petitioner requested
judicial review of the processes used by the EPA to deny an application for a Boiler and
Industrial Furnace Permit under RCRA, the court gave deference to the EPA’s definition of
“aggregate kiln” in 40 CFR § 261.10. Id. at 1384. In light of the petitioner’s claim that such a
definition by the EPA was “arbitrary or capricious,” the court explained that “Federal courts give
deference to an agency’s interpretation of its own rules.” Id. Furthermore, the court implied that
deference is to be applied when the court might have reason to conclude that the agency’s
interpretation is merely erroneous. Id.
This case presents a similar situation to both Environmental Defense Fund and Marine
Shale Processors. In the former case, the court especially gave weight to the technical nature of
the interpretation. The latter case illustrates the deference given to the EPA for definitional
matters. With regards to the regulatory definition of solid waste, this court is presented with both
a highly technical issue and a definitional one. Initially, delineating the bounds of solid waste
within the confines of the regulatory scheme adopted by the EPA can be a daunting task. As the
D.C. Circuit in American Mining Congress v. U.S. EPA, 824 F.2d 1177, 1189 (D.C. Cir. 1987)
pointed out, sifting through the regulatory definitions of solid waste can be a “mind-numbing
journey.” In light of the complexities of ascertaining a proper definition, the clearly erroneous
standard with respect to this case gains even greater importance. The clearly erroneous standard
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is almost insurmountable absent a direct conflict with the regulatory language. See
Dithiocarbamate, 98 F.3d at 1399.
2.
The EPA’s interpretation of the regulatory definition of solid waste
does not conflict with the regulation itself.
The EPA has interpreted the regulatory definition of solid waste as non inclusive of
commercial products used for their intended purposes. No direct conflict with the language of
the regulation exists in this regard. In Dithiocarbamate, the court did not defer to the EPA
because of a clear breach between the EPA’s interpretation and the specific language of the
regulation. 98 F.3d at 1399. 40 CFR § 261.2 remains silent on whether or not commercially
used products fall within the definition of solid waste. Id. Given the total silence on the matter,
no clear breach exists between the regulatory language and the EPA’s interpretation.
Furthermore, the regulatory scheme advanced by the EPA in response to RCRA indicates
that not including commercial products such as shot and skeet parts used for their intended
purposes would achieve consistency. 40 CFR § 261.33 specifically exempts commercial
chemical products from the definition of hazardous waste if the products are applied for their
intended use. Id. As hazardous waste is a subset of solid waste, by exempting such commercial
chemical products from the category of hazardous waste, the regulation also exempts such
products from the category of solid wastes. This regulation clearly illustrates the intent of the
EPA to allow the use of commercial products for their intended purposes.
Additionally, the EPA has maintained a regulatory posture exempting the use of
commercial products for their intended purposes through the “military munitions rule.” 40 CFR
§§ 261.2(a)(2), 266.202. Although the lower court is correct in stating that the military
munitions rule is irrelevant to a final disposition of this case, the rule, when judiciously applied,
does illustrate the inherent consistency the EPA wishes to maintain. (R. 8). In Military Toxics
Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), the D.C. Circuit upheld the military munitions
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rule relying on the EPA’s own statement that “the use of munitions does not constitute a waste
management activity because the munitions are not ‘discarded.’” Id. at 952 (citing the Military
Munitions Rule, 62 Fed. Reg. 6622, 6630). Under the EPA regulatory scheme, a military
munition does not constitute solid waste when it is used for training, research, testing, and a
variety of other normal uses. 40 CFR § 266.202(a)(1)(iii). The military munitions rule
illustrates the consistency to be gained by adopting the EPA’s interpretation of the regulatory
definition of solid waste. A conflict with the regulation cannot exist when other comparable
exemptions for commercial chemical products and military munitions have been advanced by the
Agency. Expended munitions are not waste under the military munitions rule and the regulatory
definition should not be interpreted otherwise. Consequently, this court should affirm the lower
court’s grant of summary judgment based on the EPA’s interpretation of the regulatory definition
of solid waste as non inclusive of commercial products used for their intended purposes.
However, the military munitions rule must be placed in context. The EPA argues that the
rule provides insight on both the regulatory and statutory definition of solid waste. This is not
the case. The military munitions rule has been adopted and interpreted in the context of the
deference an Agency enjoys in interpreting its own regulations. As for the interpretation of
statutory definitions, the EPA’s own statements are not so persuasive.
IV. FIRED SHOT AND SKEET PARTS ARE NOT SOLID WASTE WHEN THEY FALL
TO THE GROUND UNDER THE STATUTORY DEFINITION OF RCRA.
The lower court correctly held that the statutory definition of solid waste also includes a
commercial use exemption. An inquiry centered on the definition for solid waste is also
appropriate, as RCRA also considers hazardous waste to be a subset of solid waste. See 42
U.S.C. § 6903(5); United Technologies Corp. v. U.S. EPA, 821 F.2d 714, 717 (D.C. Cir. 1987).
Both BOG and the EPA have argued before the lower court that the statutory definition of solid
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waste does not include a commercial use exemption. The statutory definition can be found at 42
U.S.C. § 6903(27):
The term "solid waste" means any garbage, refuse,
sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility
and other discarded material, including solid,
liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and
agricultural operations, and from community
activities, but does not include solid or dissolved
material in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial
discharges which are point sources subject to permits
under section 402 of the Federal Water Pollution
Control Act, as amended (86 Stat. 880) [33 U.S.C. §
1342] or source, special nuclear, or byproduct
material as defined by the Atomic Energy Act of 1954,
as amended (68 Stat. 923) [42 U.S.C. §§ 2011, et.
seq.].
Id. For the purposes of this dispute, this statutory definition must be applied to BOG’s claims
under 42 U.S.C. § 6972(a)(1)(B), which provides for a cause of action in light of “an imminent
and substantial endangerment to health or the environment.” Id. The EPA seeks to apply its
own interpretation with regards to the statutory definition of solid waste as inclusive of
commercial products regardless of the context of their use. (R. 9). This time, the EPA’s
interpretation should not be given deference, and further, Congressional intent suggests that
RCRA does contain a commercial use exemption.
A. The EPA’s interpretation of the statutory definition of solid waste deserves little or no
deference.
1. The Chevron deference test does not apply to the EPA’s
interpretation of the statutory definition.
Under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984),
an implementing agency’s interpretation of a statute can, in some circumstances, be entitled to
substantial deference. United States v. Mead Corp., 533 U.S. 218, 150 L. Ed. 2d 292 (2001)
provides greater focus on when Chevron is applicable to give an Agency substantial deference.
In Mead, the Court adjudicated a dispute arising out of the United States Customs Service’s
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fixing of the rate of duty on imports pursuant to rules and regulations from the Secretary of the
Treasury. 150 L. Ed. 2d at 300. The Court decided not to give Chevron deference to the
Customs Service’s tariff classifications. Id. at 306. The reasoning behind the Mead decision
denies Chevron deference to the EPA’s interpretation in this case.
Chevron applies when Congress has “explicitly left a gap for an agency to fill” with “an
express delegation of authority to the agency to elucidate a specific provision of the statute by
regulation.” 467 U.S. at 843-44. The resultant regulatory scheme adopted by the agency has a
binding effect on judicial decisions unless the regulations contain some defect, represent
substantive arbitrariness or capriciousness, or directly contradict the statute. Id. at 844. See also
United States v. Morton, 467 U.S. 822, 834 (1984). In order to implement an effective
regulatory scheme, agencies must make interpretive decisions. Mead, 150 L. Ed. 2d at 304.
Thus, the Court in Brandon v. Abbot, 524 U.S. 624, 642 (1998), points out: “The well-reasoned
views of the agencies implementing a statute 'constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” Id. (quoting Skidmore
v. Swift & Co., 323 U.S. 134, 139 (1944). The Chevron Court utilized this fact to establish rules
of deference towards an administrative body possessing such expertise in the implementation of
a federal statute. 467 U.S. at 844. See also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555,
565 (1980); Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978). Chevron also
understood Congress to grant administrative bodies implicit powers, in addition to the explicit
regulatory mandates, to interpret enabling statutes. 467 U.S. at 844. Therefore, under Chevron,
the Court provided for broad deference for administrative interpretation of Congressional
statutes, so long as the interpretations did not conflict with clear Congressional intent and were
reasonable. Id. at 845-46.
After Chevron, jurisprudential doctrine has grown to include an important factor in
determining whether Chevron deference should apply to a given case. Where Congress did not
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afford the administrative body the power to promulgate rules and regulations, the Court has been
reluctant to apply Chevron deference. See EEOC v. Arabian American Oil Co., 499 U.S. 244,
257 (1991). Indeed the bulk of cases decided by the Court where Chevron was applied involved
cases of clear rulemaking or adjudication by administrative bodies. See generally Shalala v.
Illinois Council on Long Term Case, Inc., 529 U.S. 1, 20-21 (2000); United States v. Haggar
Apparel Co., 526 U.S. 380 (1999); AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999);
Atlantic Mutual Insurance Co. v. Commissioner, 523 U.S. 382 (1998); Regions Hospital v.
Shalala, 522 U.S. 448 (1998); United States v. O’Hagan, 521 U.S. 642 (1997); Smiley v.
Citibank, 517 U.S. 735 (1996); ICC v. Transcon Lines, 513 U.S. 138 (1995); INS v. AguirreAguirre, 526 U.S. 415, 423-25 (1999); Federal Employees v. Department of Interior, 526 U.S.
86, 98-99 (1999); Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996); Fort Steward Schools v.
FLRA, 495 U.S. 641, 644-645 (1990). See also 5 U.C.S. § 533 (notice and comment requirement
of the Administrative Procedure Act).
However, isolated instances do exist where the Court has elected to give deference to an
administrative agency without the presence of a rulemaking or adjudication. See Nations Bank
of NC, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-57, 263 (1995). In Nations
Bank, the Court understood the National Bank Act to give the Comptroller of the Currency the
full enforcement powers of the Banking laws. 513 U.S. at 256. See also Clarke v. Securities
Industry Assn., 479 U.S. 388, 403-404 (1987); Investment Company Institute v. Camp, 401 U.S.
617, 626-27 (1971).
Essentially, in order to apply Chevron, the Mead Court considered a few different
principles. First, if the agency adopted a new rule or adjudicated an issue within its
Congressional authority, the agency decision would be entitled to Chevron analysis. Second, if
Congress awarded an administrative body full enforcement powers, then under Nations Bank, the
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administrative body’s actions would be reviewed with Chevron analysis. None of these three
principles apply to the EPA’s attempt at interpreting the statutory definition of solid waste.
a.
The EPA’s interpretation of the statutory definition of
solid waste does not constitute a rulemaking.
In this particular case, the EPA has not adopted a new regulation pursuant to its authority,
which would have the potential of being classified as a rulemaking entitled to Chevron
deference. The EPA asserts that its definition is embodied in 40 CFR 261.1(b)(2)(ii). (R. 9). 40
CFR 261.1(b)(2)(ii) does not represent an actual regulation defining solid waste or barring the
commercial use exemption. Instead, the regulation merely refers to the statutory elements of
solid waste for any EPA imminent and substantial endangerment suit. Consequently, the
regulation itself makes no mention of the commercial use exemption and does not seek to
interpret the statutory definition of solid waste. Indeed, the only affirmative steps towards rule
making with respect to defining solid waste involve the regulatory definition, which the EPA
feels does include a commercial use exemption.
In Shalala, the Court considered actual Medicare rules and regulations adopted pursuant
to Congressional authority to constitute rulemaking to which Chevron analysis could be applied.
519 U.S. at 17. The Court in Haggar reviewed the enforceability of an actual regulation in light
of the Tariff Schedule of the United States. 526 U.S. at 384-85. In both of these decisions, the
Court was asked to determine the authority under which an administrative body could adopt a
specific regulation in light of the enabling statute. The Court then applied Chevron analysis to
the regulation. In this case, BOG and the EPA are not asking this court to determine the validity
of a particular regulation, but rather to assume that a regulation exists and based on a fictitious
regulation containing the EPA’s interpretation of the statutory definition of solid waste, Chevron
analysis applies. Such a review does not comport with the application of Chevron in the rule
making context.
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b.
Congress did not give the EPA full enforcement powers
under RCRA.
Absent an actual rule to consider, the Court, in Nations Bank, has still applied Chevron
analysis to the more informal interpretations of administrative bodies when Congress has
supplied full authority to enforce a particular statute. However, in this case, Congress has not
given the EPA full authority to enforce RCRA. The fact that BOG sought to enforce RCRA in
court serves as the clearest evidence of the lack of full authority given to the EPA. RCRA can be
distinguished in this regard by Title VII, for which the Equal Employment Opportunity
Commission (EEOC) is given exclusive jurisdiction to enforce. See 42 U.S.C. 2000e-5(f).
Under Title VII, an aggrieved employee filing a charge with the EEOC does not have the right to
sue the employer for discriminatory practices unless the EEOC issues a right to sue letter. Id.
The EEOC has exclusive jurisdiction to bring a suit against the employer to seek legal and
equitable relief. RCRA does not grant the EPA such broad authority in that it allows citizen suits
not only against alleged private violators of RCRA, but also the government. 42 U.S.C. § 6972.
Without such broad authority, Nations Bank does not lend any assistance to the deference claims
made by BOG and the EPA.
Nor does is it of consequence that in Neighborhood against Golf, Inc. v. Recreation
Enterprises, Inc., 150 F.3d 1029 (12th Cir. 1999) (NAG), the Twelfth Circuit applied Chevron
analysis in a case involving the definition of golf balls as solid waste. Even the EPA agrees that
if this court were inextricably bound to the statutory interpretation espoused in prior cases, the
correct statutory interpretation might be lost. Furthermore, although NAG might normally be
strong precedent, the intervening Supreme Court decision in Mead necessarily calls upon the
Twelfth Circuit to revisit the issue. As Mead did not exist at the time of NAG, the
authoritativeness of the prior Twelfth Circuit decision has diminished. Consequently, instead of
applying Chevron analysis, the court should apply the analysis adopted in Mead.
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2. Under Mead, the EPA’s interpretation of the statutory definition of
solid waste is entitled to little or no deference.
The Mead Court did contemplate supplying a certain amount of deference to agency
interpretations despite the inapplicability of Chevron. 150 L. Ed. 2d at 309. See also
Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 136 (1997) (a reasonable interpretation
deserves some persuasive force); Reno v. Koray, 515 U.S. 50, 61 (1995) (“some deference” to
interpretative rules); Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144,
157 (1991) (“some weight” given to informal rules, but not the “same deference as norms that
derive from the exercise of … delegated lawmaking powers”). The Mead Court applied the
requirement of Skidmore to situations where an administrative body issues a more informal
interpretation of a statute. The requirements of Skidmore include: 1) “the thoroughness evident
in [the administrative judgment’s] reasoning,” 2) “the validity of its reasoning,” and 3) “its
consistency with earlier and later pronouncements.” Skidmore, 323 U.S. at 140. The lower court
correctly applied this three-pronged test by isolating the procedural aspects of the EPA’s
interpretation (i.e. the thoroughness of the EPA’s reasoning), the consistency in the EPA’s
position, and the persuasiveness of the EPA’s argument (i.e. the validity of the Agency’s
reasoning). In this case, the EPA has provided no evidence of any formal process utilized to
reach its position that the statutory definition of solid waste does not include a commercial use
exemption. (R. 10). Further, in view of the EPA’s position that its regulatory definition (which
is entitled to great deference) does include a commercial use exemption, the EPA’s position now
fails the consistency test. Finally, the EPA’s position against the commercial use exemption in
the statutory definition of solid waste is not persuasive, as it does not comport with
Congressional intent on the issue.
The operative word in the definition of solid waste in both the regulatory sense and the
statutory sense is “discarded.” See American Mining Congress v. United States EPA, 824 F.2d
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1177, 1188-89 (1987). Congress had developed an understanding of “discarded” based on the
EPA’s definition of “discarded” as being abandoned through disposal, burning, or incinerating.
40 CFR §261.2(c). For the purposes of the statutory scheme, Congress expounded upon the
EPA’s regulatory scheme in certain respects. For example, with respect to commercial chemical
products, Congress included the sum of commercial chemical products as hazardous waste so
long as the products were not being used for their intended purposes. H.R. Rep. No. 198, 98th
Cong., 1st Sess. 40. The Second Circuit’s analysis of the issue in Connecticut Coastal does not
represent true Congressional intent. The court in Connecticut Coastal concluded that Congress
did not evince any intent with respect to whether or not fired shot and skeet products constituted
solid and hazardous waste. 989 F.2d at 1314. Congress, however, intended to allow commercial
products to be used for their intended purposes certainly exists. H.R. Rep. No. 198, 98th Cong.,
1st Sess. 40. Moreover, clear evidence of Congress’s ability to amend the EPA regulatory
scheme exists. When Congress was dissatisfied with the EPA’s understanding of hazardous
waste, Congress took action and incorporated more applicable material. H.R. Rep. No. 198, 98th
Cong., 1st Sess. 40. See also American Mining, 824 F.2d at 1189. In this case, Congress’
unwillingness to mandate the EPA remove the commercial use exemption from its own
regulatory interpretation evinces Congress’s approval of the exemption.
Additionally, in drafting RCRA, Congress included a set of findings and objectives. 42
U.S.C. §§ 6901, 6902. One of the objectives outlined by Congress calls for measures to assure
“that hazardous waste management practices are conducted in a manner which protects human
health and the environment.” 42 U.S.C. § 6902. These measures, of course, are inclusive of
both the regulatory scheme advanced by the EPA as well as the statutory scheme allowing
citizen suits for endangerment. In this regard, Congress seeks the same goal through EPA permit
requirements and citizen suits. Therefore, an inconsistent interpretation as to the broadness of
solid waste does not adhere to the Congressional objectives. As the EPA’s own regulatory
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interpretation deserves much greater deference, that interpretation must carry through. Further,
in Congress’s introduction to RCRA, Congress lays out the technological advances requiring the
safeguarding of the environment. 42 U.S.C. § 6901. At no time does Congress denounce such
technological advance, thereby suggesting that Congress wishes to encourage the free use of
commercial products for their intended purposes, as stunting the use of commercial products
might also stunt the growth of technology. Instead, RCRA seems to be more of a statute
designed to minimize environmental impact while at the same time encouraging innovation.
Such an outlook on the RCRA comports with a commercial use exemption to a far greater degree
than BOG’s and EPA’s position that the statute does not contemplate commercial uses. Because
the EPA’s interpretation with regard to the statutory definition of solid waste deserves no
deference and because of the Congressional goals and intent of RCRA, this court should affirm
the decision of the lower court and hold the commercial use exemption does apply to the
statutory definition of solid waste.
3. Alternatively, even under Chevron, the EPA’s interpretation of solid
waste is not entitled to substantial deference.
Even if the court wishes to apply Chevron analysis, the decision of the lower court should
be affirmed. Chevron is by no means a rubber stamp on an agency’s interpretation. Instead,
interpretation in question must be in light of ambiguous Congressional intent and be reasonable.
See Chevron, 467 U.S. 837. While Suave maintains that Congressional intent with regard to the
commercial use exemption can be ascertained through an amalgamation of the Congressional
outlook on commercial chemical products as well as the overall objectives of RCRA, the real
problem for the EPA’s interpretation comes in its reasonableness. In this case, the EPA wants to
interpret its regulatory definition as inclusive of a commercial use exemption and the statutory
definition as non-inclusive. Such an interpretation violates the standards of arbitrariness. See
Morton, 467 U.S. 822, 834. The EPA’s perspective would lead to a situation where no
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regulatory scheme would apply to the use of commercial products for their intended purposes,
but both citizens and the EPA can bring a cause of action against users of commercial products.
Such a result is not only inconsistent with the goals of RCRA, but remains quite arbitrary.
Therefore, even under Chevron, the EPA’s interpretation is not entitled deference.
CONCLUSION
For the reasons stated above, the Appellee respectfully requests that this Court affirm the
district court’s grant of summary judgment in favor of Suave.