Decision concludes a permit is required if such discharges are the “functional equivalent” of a direct discharge to navigable waters.

By Janice Schneider, Maria Hoye, and Ethan Prall

On April 23, 2020, the Supreme Court of the United States issued an opinion in County of Maui, Hawai’i v. Hawai’i Wildlife Fund, holding that the Clean Water Act (CWA) requires a permit for certain discharges through groundwater. Specifically, a permit is required if there is a “direct discharge” from a point source to navigable waters, or if a given discharge is the “functional equivalent” of a direct discharge when that discharge passes through groundwater before reaching navigable waters.[1]

In establishing this new functional equivalence test, the Court rejected both the argument that allowing any regulation of discharges through groundwater would expand the CWA’s scope without warrant, and the contrary argument that every discharge that is “fairly traceable” from a point of discharge to navigable waters must be regulated under the CWA. When applying the test, the Court explained that several factors — most centrally, time and distance — are relevant to determining whether a discharge through groundwater is the functional equivalent of a direct discharge.

By Michael Green and Paul Davies

The UK will need to revisit its strategy to improve air quality following a recent court judgment determining that the Government’s existing plans are insufficient.  With air pollution reportedly responsible for 9,500 premature deaths in London each year, according to a study commissioned by the Greater London Transport Authority and Transport for London, the implications of this judgment are likely to have significant impact on the country’s transport infrastructure.

By Jim Arnone, DJ Moore, Winston Stromberg and Michele Leonelli

On August 5, the California Supreme Court issued an important new California Environmental Quality Act (CEQA) decision in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. (Neighbors).[1]  In Neighbors, the Supreme Court established that, under limited circumstances, a lead agency can compare a project’s potential environmental impact against a baseline consisting of projected physical environmental conditions at some future point.

Over the past three years, conflicting opinions by different districts of the Courts of Appeal[2] created uncertainty over whether such an approach was permissible under CEQA.  Overturning (in part) two of those decisions, the Supreme Court held that under CEQA a public agency has discretion to study a project’s environmental impacts compared to future conditions instead of to physical conditions that exist when the analysis is prepared — even if the future conditions analyzed are many years away. However, the Court severely constrained that discretion, holding that an agency may only avoid using the existing conditions as a baseline where (1) that is justified by “unusual aspects of the project or surrounding conditions” and (2) “an analysis based on existing conditions would be uninformative or because it would be misleading to decision makers and the public.” Absent an agency supporting these specific determinations with substantial evidence in the record, analyzing a project’s impacts against existing conditions at the time a CEQA analysis is prepared remains the “norm” in California.

The U.S. Supreme Court’s decision last week in Koontz v. St. Johns River Water Management District expands the holdings of Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) to provide more extensive protections to property owners faced with government-imposed land use conditions.  Nollan and Dolan hold that government exactions must have a sufficient nexus and be roughly proportional to the effects of the property owner’s proposed use