Update (July 31, 2015): This week, the Minnesota Supreme Court has affirmed the Court of Appeals decision, discussed below, in which Minnesota Court of Appeals Judge Margaret H. Chutich issued a dissent. (Judge Chutich found ambiguity in a regulatory scheme (calling for judicial deference to agency interpretation) where the Minnesota Supreme Court saw none.)
Environmental lawyer, Thad Lightfoot, suggested in the earlier post that affirmance of the Court of Appeals’ decision would pose thorny problems of federal and state regulatory cooperation and collaboration. We’ll see how they navigate around this judicially (or legislatively?) created mire.
Here is what Mr. Lightfoot has to say about the Supreme Court’s decision:
As I wrote back in August 2104 when the Minnesota Supreme Court granted review of the case, the issues were whether Reichmann needed a National Pollutant Discharge Elimination System (NPDES) permit under federal Clean Water Act regulations governing concentrated animal feeding operations and a State Disposal System (SDS) permit under a similar Minnesota statute. MPCA said he needed both, Reichmann argued he needed neither, and the Court of Appeals held he did not need an NPDES permit but needed an SDS permit. The Minnesota Supreme Court affirmed. It relied on the Court of Appeals’ analysis for the NPDES permit issue but found that Reichmann needed an SDS permit under a slightly different interpretation than that employed by the Court of Appeals.
There are three interesting aspects to this case. The first is that the Minnesota Supreme Court granted review but then affirmed the Court of Appeals, albeit on different grounds for the SDS permit holding. When the Minnesota Supreme Court grants review, particularly in an environmental matter, it almost always reverses some aspect of the Court of Appeals’ opinion. Granting review and then affirming, even on slightly different grounds, is unusual.
Second, there is no dissent in the case. Although that is not shocking, there was a persuasive dissent by Judge Chutich in the Court of Appeals on the NPDES issue and I expected that issue to be more controversial than it appeared to be in the Minnesota Supreme Court. Given two plausible readings, Judge Chutich determined the Clean Water Act regulation was ambiguous and would have deferred to the EPA preamble to the final rule, which suggests that the Reichmann winter feeding field requires an NDPES permit. In the Minnesota Supreme Court, MPCA cited the EPA preamble to the final rule, the EPA preamble to the proposed rule, and dicta from a Second Circuit case, all of which supported MPCA’s interpretation of the regulation to require an NDPES permit. But all seven Minnesota Supreme Court justices found that the Clean Water Act rule was unambiguous on its face and did not require Reichmann to obtain a permit. The Court refused to consider external sources in interpreting the regulation. Writing for the Court, Justice G. Barry Anderson observed that an EPA preamble “does not have the force of law” and that if EPA intended the regulation to extend to winter feeding facilities, it could have amended the regulation.
Third, EPA’s reaction to the case will be interesting. MPCA clearly believes that EPA intended the federal Clean Water Act regulation to apply to winter feeding facilities such as Reichmann’s. The Minnesota Supreme Court has now held that the federal regulation, which MPCA is delegated to implement and enforce in Minnesota under the Clean Water Act, does not apply. MPCA is bound by the Minnesota Supreme Court’s interpretation of the regulation, which appears to differ from EPA’s interpretation. Of course, EPA could amend the regulation, as Justice Anderson suggested. But amending national Clean Water Act regulations is no easy task.