Environment

In County of Maui, Hawaii v. Hawaii Wildlife Fund the Supreme Court will decide whether groundwater is subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements under the Clean Water Act (CWA). The State and Local Legal Center (SLLC) filed an ...

CSG Midwest
A U.S. Army Corps of Engineers plan to keep Asian carp from reaching the Great Lakes has an important new supporter — J.B. Pritzker, the recently elected governor of Illinois. In an April letter to the Corps, Pritzker said the state was “willing to move forward to preconstruction, engineering and design” on the Brandon Road Lock and Dam Project. But he also expressed concern about the estimated price tag: $778 million.
CSG South

For farmers in Florida, Alabama and Georgia, the timing of the Hurricane Michael could not have been worse. Just as harvest season for many vegetable and row crops was beginning, like a plague of locusts, Michael devoured nearly every farm in its path. This SLC Regional Resource, current as of April 15, 2019, reviews the agricultural impact of Hurricane Michael on Florida, Alabama and Georgia. Across the three states, cotton and timber were hardest hit, but damage to other agricultural products and infrastructure was equally devastating.

CSG Midwest
A legal dispute in Indiana over private property rights and the public trust doctrine ended in February when the U.S. Supreme Court chose not to hear the case. In 2018, Indiana’s Supreme Court ruled that public use of the Lake Michigan shoreline extended to the lake’s “natural ordinary high water mark.” Some lakefront property owners argued that the “water’s edge” should instead be used as the legal dividing line. The Indiana justices disagreed: “At a minimum, walking below the natural [ordinary high water mark] along the shores of Lake Michigan is a protected public use.”

CSG Midwest
By July of next year, a practice in Ohio’s commercial harbors will no longer be allowed — the dumping of dredged materials into the open waters of Lake Erie. This ban is the result of a bill passed by the legislature in 2015 (SB 1), and is part of the state’s broader efforts to keep excess nutrients from entering the shallowest of the Great Lakes, causing harmful algal blooms and degrading water quality.
The legislative action from four years ago, along with subsequent funding commitments, has led to an unprecedented effort in the state to find beneficial uses of these materials — the rock, sand, gravel, mud and clay removed from the bottom of shipping channels to keep them safe for navigation.

If a state or local government discharges a pollutant from a point source to a navigable water it must obtain a permit under the Clean Water Act (CWA). But what if that pollutant is conveyed in something—say groundwater—between the point source and the navigable water? Must the state or local government still obtain a permit? That is the question the Supreme Court will decide next term in County of Maui, Hawaii v. Hawaii Wildlife Fund.

CSG Midwest
Michigan Sen. Curt VanderWall calls it the “most scrutinized pipeline in the nation.” And whatever one thinks the state should do about the future of Line 5 ­­— which is located under the Straits of Mackinac and carries up to 540,000 barrels of oil and natural gas liquids every day — it’s hard to disagree with the observation. Built in 1953, the twin pipelines have been called a “sunken hazard” that put the “Great Lakes at risk of a catastrophic oil pipeline rupture.”
But VanderWall and others note that Michigan relies on the energy supplies being shipped via Line 5. He says, for example, that most of the propane used in the Upper Peninsula comes from the 645-mile pipeline, which starts in Wisconsin, goes under the Straits, and then winds through Michigan before reaching Ontario.
“To get the same supplies by truck, you’d need 2,400 trucks doing it every day, nonstop,” says VanderWall, a member of the Great Lakes-St. Lawrence Legislative Caucus Executive Committee. “The pipeline is the safest way to transport the oil. We need to make it safer.”
The state’s policy solution, at least for now, is this: Allow Line 5 to continue to operate for another few years, under enhanced inspections. Meanwhile, begin construction on a utility tunnel, located up to 100 feet beneath the lakebed, that would secure a new pipeline.
Climate Adaptation

Alternative energy has consistently improved over the years. Wind, solar, geothermal, and hydroelectricity technology have gradually made their mark in America’s energy production as producers and consumers look for alternatives to fossil fuels. State governments have been increasingly mandating alternative energy goals and implementation of alternative energy sources where feasible – 30 states have alternative energy mandates and eight states have voluntary requirements. Now, the Environmental Protection Agency’s decreased...

In a decision difficult to understand without context the Supreme Court held that “critical habitat” under the Endangered Species Act (ESA) must also be habitat. In Weyerhaeuser Co. v. United State Fish and Wildlife Service the Court also held a federal court may review an agency decision not to exclude an area from critical habitat because of the economic impact. The State and Local Legal Center (SLLC) filed an amicus brief on the latter issue arguing in favor of the result the Court reached.

The United State Fish and Wildlife Service (Service) listed the dusky gopher frog as an endangered species. It designated as its “critical habitat” a site called Unit 1 in Louisiana owned or leased by Weyerhaeuser Company, a timber company. The frog hasn’t been seen at this location since 1965. As of today Unit 1 has all of the features the frog needs to survive except “open-canopy forests,” which the Services claims can be restored with “reasonable effort.”

Weyerhaeuser argued Unit 1 could not be a “critical habitat” for the frog because it could not survive without an open-canopy forests. The Fifth Circuit disagreed holding that the definition of critical habitat contains no “habitability requirement.”

The Supreme Court held unanimously that “critical habitat” must be habitat. The ESA states that when the Secretary lists a species as endangered he or she must also “designate any habitat of such species which is then considered to be critical habitat.”

While the public benefits of electric vehicles are becoming increasingly clear, they continue to represent only a small percentage—a little over 1 percent—of new vehicle annual sales in the United States. State legislatures have numerous strategies at their disposal they can deploy to help improve the marketplace for electric vehicles, from helping to expand electric vehicle charging access to encouraging the electrification of public fleets. California and New Hampshire are two states at different stages in their efforts to advance the electric vehicle marketplace. CSG spoke recently with two legislators who have been responsible for enacting related measures in those states.

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