Tuesday, May 16, 2006

Justices Uphold State Rules in Decision on Dam Licenses

The New York Times
Justices Uphold State Rules in Decision on Dam Licenses

WASHINGTON, May 15 — The Supreme Court ruled Monday that operators of hydroelectric dams must meet a state's water quality requirements in order to qualify for a federal license. The unanimous decision was the court's first ruling in an environmental case under Chief Justice John G. Roberts Jr., and it came as a relief to environmental advocates.

Justice David H. Souter's opinion for the court upheld a ruling by the Supreme Judicial Court of Maine. The justices rejected the argument of a company that owns five dams on the Presumpscot River, which runs through Portland, that it did not need state approval because its operations did not add pollutants to the water that passed over its dams and through its turbines.

The company, S. D. Warren Company, a subsidiary of South African Pulp and Paper Industries Ltd., uses the power it generates to run a paper mill in Westbrook, Me. The dispute arose when the company prepared to renew its federal licenses.

A federal law, the Clean Water Act, requires an applicant for a federal license or license renewal to first obtain state certification if its activities "may result in any discharge into the navigable waters." Congress did not define the word "discharge," and the company argued that the word should be understood to refer to the addition of pollutants. Since it was not adding anything to the water, the company argued, Section 401 of the Clean Water Act, requiring state certification, did not apply to its activities.

To the contrary, Justice Souter said, there was no reason not to give the word "discharge" its plain, everyday meaning: "flowing or issuing out." The flow of water over a dam was therefore a "discharge," he said.

The decision applies to about 2,500 hydroelectric dams on 500 rivers in 45 states.

Justice Souter said that the Clean Water Act was concerned with water quality and that alteration in water quality "is a risk inherent in limiting river flow and releasing water through turbines." He noted that Maine's environmental agency had concluded that S. D. Warren's dams had caused "long stretches" of the riverbed to become "essentially dry" and had blocked the passage of eels and spawning fish.

The state agency made its approval contingent on S. D. Warren's maintaining a minimum water flow over its dams, a conclusion that the company challenged unsuccessfully in state court.

In his opinion on Monday, S. D. Warren Company v. Maine Board of Environmental Protection, No. 04-1527, Justice Souter said that "changes in the river like these fall within a state's legitimate legislative business, and the Clean Water Act provides for a system that respects the states' concerns."

Environmental groups had been alarmed by the court's decision last fall to hear the company's appeal in the absence of the usual reasons for a grant of Supreme Court review, such as a conflict among the lower courts on the interpretation of a federal law. Every court to consider the meaning of "discharge" had reached the same conclusion. The Bush administration had argued in the case in support of Maine.

Environmental advocates were also pleasantly surprised by another development at the court on Monday in a case that found them opposing the administration. The justices rejected the Bush administration's advice and agreed to hear an appeal by a coalition of environmental groups of a lower court's interpretation of another important issue under another major statute, the Clean Air Act.

The question in the new case, Environmental Defense v. Duke Energy Corporation, No. 05-848, is the validity of the method by which the Environmental Protection Agency measures emissions from power plants and other industrial facilities that are subject to the agency's "new source review" program for installing new pollution controls.

The dispute is over whether emissions are to be measured hourly or yearly. The hourly measure, favored by industry, does not measure an overall increase in emissions if plants operate for a greater number of hours. Consequently, the E.P.A. had long insisted on the yearly measurement.

During the Clinton administration, the agency brought a series of enforcement actions, with the resulting litigation lingering into the Bush years. In this case, the United States Court of Appeals for the Fourth Circuit ruled late last year that the agency had to use the hourly measure.

The administration did not appeal to the Supreme Court, instead announcing that it would acquiesce in the decision and would issue a new set of rules. Citing the new rulemaking procedure, it urged the justices to turn down the appeal filed by the environmental groups and supported by 14 states, including New York, New Jersey and Connecticut.

The justices' decision to hear the case now requires the administration to decide whether to defend the agency's previous position or formally abandon it. The case contains the additional question of whether the Fourth Circuit, which sits in Richmond, Va., had jurisdiction to address the agency rules in the first place. Ordinarily, challenges to rules issued by the Environmental Protection Agency must be filed exclusively in the United States Court of Appeals for the District of Columbia Circuit. A week after the Fourth Circuit ruling, the District of Columbia Circuit addressed the same issue in a separate case and reached the opposite conclusion.

In another development on Monday, the court turned down appeals filed by both the federal government and Cayuga Indian Nation of New York of a ruling that overturned a $248 million judgment on behalf of the Indians against New York State.

The judgment, awarded to the Cayugas in 1992 by Judge Neal P. McCurn of Federal District Court in Syracuse, was to compensate the Indians for purchases of their tribal land that New York made in the late 1700's in violation of federal law. The federal government entered the case on the Indians' behalf.

Last year, however, the United States Court of Appeals for the Second Circuit, in Manhattan, dismissed the lawsuit on the ground that the Indians had waited too long to bring it.

Both the government, in United States v. Pataki, No. 05-978, and the tribe, in Cayuga Indian Nation v. Pataki, No. 05-982, filed Supreme Court appeals, arguing that the Second Circuit had misapplied a doctrine of the common law known as laches, under which legal claims that have been allowed to lapse for a long period may not be revived.