On July 28, the Minnesota Court of Appeals has upheld a general permit issued by the Minnesota Pollution Control Agency (MPCA) which regulates the discharge of ballast water from commercial ships operating in the Minnesota waters of Lake Superior. Minnesota now joins Michigan as the only states to regulate ballast water discharges into the Great Lakes.
Ballast water is pumped onboard large ships to improve stability, draft, and buoyancy and is discharged as the ships are loaded with cargo. Because the water frequently is taken onboard in one body of water and discharged into another, it has the potential to transport invasive species into the receiving waters. One of the most urgent threats related to ballast water discharges involves Viral Hemorrhagic Septicemia (VHS) which causes fish to hemorrhage from their internal organs. VHS has been found in four of the five Great Lakes and it is believed that unregulated ballast water discharges could introduce the disease into Lake Superior.
Until recently, federal regulations exempted ballast water discharges from the Clean Water Act’s permitting requirements. In 2007, however, a federal appeals court stuck down the exemption and the United States Environmental Protection Agency was required to develop a regulatory program to address ballast water discharges. At that time, MPCA began developing a general permit to regulate ballast water discharges in the Minnesota waters of Lake Superior.
The general permit requires all vessels operating in Minnesota waters of Lake Superior to comply immediately with seven proven best-management practices. In addition, ships operating in Minnesota waters must treat the ballast water to limit the number of biological organisms discharged. The treatment requirements take effect on January 1, 2016 for existing ships and ships constructed after January 1, 2012 must comply with the treatment requirements before operating in Minnesota waters.
The Minnesota Center for Environmental Advocacy challenged the general permit on the grounds that MPCA failed to conduct an adequate non-degradation review (a review to determine whether the permitted discharges will adversely affect the existing high-quality of the receiving water) and used an inadequate process to determine whether the terms of the permit were sufficiently stringent to protect the waters of Lake Superior. The Minnesota Court of Appeals deferred to MPCA’s technical expertise and judgments regarding both the adequacy of the non-degradation review and the effectiveness of the regulations in upholding the general permit.
Viral Hemorrhagic Septicemia (VHS), which has spread to four of the five Great Lakes, has prompted a lawsuit against the Minnesota Pollution Control Agency in an effort to prevent its introduction into Lake Superior. VHS, commonly referred to as "the Ebola of Fish," causes fish to hemorrhage from their internal organs and poses a serious threat to sport and commercial fishing in the Great Lakes fishery which generates $5 billion in annual revenue.
It is believed that VHS, which was originally found only in ocean fish populations, was introduced into the Great Lakes by ballast water from an ocean-going ship. Ballast water is taken onboard an empty ship to provide stability at sea and is discharged when the ship is loaded with cargo. Unfortunately, numerous fish and other species can be taken on board with the ballast water and introduced into the ecosystems where the water is discharged — sometimes with potentially catastrophic effects.
Recently, the Minnesota Center for Environmental Advocacy (MCEA) filed a lawsuit against the Minnesota Pollution Control Agency (MPCA) alleging that the agency is required to regulate ballast water discharges under its delegated authority to enforce the Clean Water Act. MCEA is seeking an order directing MPCA to issue and enforce permits regulating ballast water discharges in Lake Superior. MPCA has responded that the threats posed by ballast water discharges require uniform national regulation and, therefore, has chosen to defer to the Environmental Protection Agency.
Two bills which would require ballast water discharge standards far more stringent than current Federal regulations are working their way through Congress. Both bills exempt ships which are confined to the Great Lakes from regulation. This may be significant for Minnesota and Lake Superior because the ports in Duluth and Two Harbors rely heavily on intra-lake ships to carry Minnesota products throughout the upper Midwest. Although the bills would curtail the introduction of invasive species from outside the Great Lakes, they would do little to slow the spread across the lakes. The Minnesota legislature is considering a similar bill addressing discharges from ocean-going vessels and would join Michigan as the second Great Lakes state to pass its own law regulating ballast water discharges.
The United States Supreme Court issued a landmark decision ruling that carbon dioxide and other greenhouse gases are "air pollutants" subject to regulation under the Clean Air Act. The case, Massachusetts, et. al. v. United States Environmental Protection Agency, was the Court's first opportunity to address the issue of global warming and its decision may prompt the development of comprehensive climate change legislation.
The case arises from EPA's denial of a petition for rulemaking asserting that the agency was required to regulate greenhouse gas emissions from new motor vehicles. EPA denied the petition, stating that it is not authorized to regulate greenhouse gas emissions under the Clean Air Act because the greenhouse gases are not "air pollutants." Moreover, even if it were authorized to regulate greenhouse gas emissions, EPA stated that it would decline to do so because of various "policy" considerations, including the substantial foreign policy concerns associated with the regulation of greenhouse gases.
Justice John Paul Stevens, writing for the 5-to-4 majority, rejected out of hand EPA's claim that it is not authorized to regulate greenhouse gases emissions. The Court noted that the Clean Air Act specifically authorizes regulation of all air pollutants which "may reasonably be anticipated to endanger public health or welfare and that the term "air pollutant" is defined broadly to embrace "all airborne compounds of whatever stripe. According to the Court, there is no doubt that EPA is authorized to regulate greenhouse gas emissions under the Act.
The majority also dismissed EPA's alternative basis for denying the petition - that it would decline to exercise its authority to regulate greenhouse gas emissions in light of various policy considerations. The Court noted that although EPA is free to decide whether sufficient information exists to make the endangerment finding it may not rely upon "laundry list" of policy concerns which "have nothing to do with whether greenhouse gas emissions contribute to climate change" to support its decision.
The Court referred the case back to EPA to determine whether greenhouse gas emissions may be anticipated to endanger public health or welfare. The Court emphasized, however, that "EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do."
Given the sweeping language of the majority's opinion, EPA faces substantial obstacles if it chooses not exercise its authority to regulate greenhouse gas emissions. The most significant aspect of the Court's ruling, however, may be its potential to prompt Congress to enact comprehensive regulations specifically addressing global warming rather than allowing EPA to regulate greenhouse gas emissions under the framework of the Clean Air Act.
The Minnesota Supreme Court recently reversed a decision by the Court of Appeals which halted plans for more than 60 new or expanded wastewater facilities and threatened future residential developments across the half of the State within the Lake Pepin watershed, including the Twin Cities. The Court of Appeals decision prohibited the permitting of any new or expanded discharges which would contribute to Lake Pepin’s impaired status until plans were created to bring the lake into compliance with the requirements of the Clean Water Act.
The controversy centers on a discharge permit issued for a joint wastewater treatment facility proposed by the cities of Annandale and Maple Lake to replace the cities’ existing facilities which were constructed in the 1940s. The Minnesota Pollution Control Agency (MPCA) issued the permit even though the proposed facility would discharge an additional 2,200 pounds of phosphorus into the North Fork of the Crow River, eventually reaching Lake Pepin. The agency reasoned that the increased phosphorus discharge would be off-set by a 50,000 pound reduction in the annual phosphorus discharge from an upgraded wastewater treatment facility in Litchfield and, therefore, would not contribute to the continued impairment of Lake Pepin. The Minnesota Court of Appeals held the relevant Clean Water Act regulations do not allow MPCA to consider such offsetting reductions and reversed the agency’s decision to issue the permit.
The Minnesota Supreme Court disagreed and concluded that the federal regulations allow MPCA "to make a range of policy judgments based on [its] scientific and technical knowledge" and that it was appropriate for the agency to consider the off-setting reductions from the Litchfield facility when it issued the permit to Annandale and Maple Lake. The Supreme Court’s decision relaxes the de facto moratorium imposed by the Court of Appeals and makes room for continued development by granting MPCA broad latitude to implement its permitting authority under the Clean Water Act.
Lockridge Grindal Nauen P.L.L.P. represented the Metropolitan Council in this matter as an amicus curiae before the Minnesota Supreme Court. The views expressed in this note are exclusively those of Lockridge Grindal Nauen P.L.L.P. and not the Metropolitan Council or any other clients of the firm.
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