Tagged In: Rover Pipeline
Chris Tavenor, Staff Attorney, April 15, 2021
Last week we delved into the issues presented by the Rover Pipeline and its case before the Ohio Supreme Court. You can review a summary of the case here, and if you want to go deeper, take an in-depth look at the issues here.
To recap, the controversy surrounds a federal permitting process, known as a 401 Water Quality Certification, a mechanism whereby state environmental agencies can review projects that might generate water pollution. The certification process has a deadline—state agencies must respond to applications within a year. If the state does not act within that year, the project moves forward without the state’s input on the federal permit. The Rover case is a battle over whether this one-year deadline passed. Ohio believes they acted in a timely manner in reviewing the 401 certification, but Rover claims Ohio missed the one-year deadline.
The two important questions before the Court are: Did Ohio miss the deadline? And if so, what powers did it lose?
On January 26th, the parties had a chance to argue these questions directly to the justices in oral arguments, thirty minutes jam-packed with argumentation. Oral arguments give us our best chance to see which way the justices are leaning in the case. The questions they ask the attorneys, the ones they don’t ask, even their facial expressions are all evidence of where the case might be headed.
Below, we’ve identified a few important aspects of the case’s oral arguments we think worth highlighting. It’s difficult to learn a lot about justice’s opinions from the questions they ask (or don’t ask). It’s also interesting to note what arguments the defense and prosecution emphasize when making their case. Regardless, we encourage you to make your own predictions by viewing the oral arguments here.
Arguments regarding when the deadline tolled were largely absent from oral arguments, leaving us with few clues as to the justices’ thoughts on the issue. Why the attorneys for Rover and the State chose not to devote much time arguing over whether Ohio missed the Certification deadline could mean a few things. It could mean the state considered this to be their weaker argument and wanted to prioritize what it considered to be its stronger arguments. Rover’s attorney may have then chosen to spend his time responding to only those arguments the State raised. On the other hand, it could indicate both parties felt their briefs covered the issue sufficiently and wanted to spend their limited time arguing over the intricacies of what missing the deadline would entail.
It’s also noteworthy that the Justices didn’t ask questions regarding whether Ohio missed the deadline. At one point Justice O’Connor even asked a hypothetical which began, “If Ohio had not missed the deadline…” This question could be O’Connor wanting to take the timing issue off the table in order to drill down into the waiver issue, or it could mean she’s made up her mind that Ohio missed its deadline. That, beyond this, the timing issue didn’t come up could indicate that the justices have already made up their minds, and didn’t want to waste the limited time in orals asking about it. Which way they’ve decided the timing issue is unclear; having asked no questions, they didn’t reveal their inclinations.
The fact that the deadline wasn’t the focus of oral arguments doesn’t mean the State has given up its claim that OEPA didn’t miss the deadline- nor should it. Rover’s argument that its application started time-tolling on the state’s deadline regardless of the fact that it was incomplete runs afoul of every common-sense notion of what constitutes an application. The State’s argument relies on the ordinary understanding of what it means to have submitted an application, and any argument that appeals to common sense is a winning argument.
Justices Brunner and O’Connor asked a few questions to Benjamin Flowers, representing the State. Justice Brunner, in particular, explored the question of waiver with questions that could be interpreted as favoring the State’s approach.
Justice Brunner focused on defining the scope of the federal permit. Her questions were asked in a way that seemingly underscored the State’s position. She started by confirming federal certifications have precise descriptions about what is permitted and asking if generally it is considered going beyond the parameters of the authorized activity if an action does not match the specifics found within the permit. She followed this by asking if Rover tacitly recognized they had a different activity when they sought modifications to their permits. This line of questioning signals that Justice Brunner might agree Rover’s discharges are out of the scope of the federal permit putting them within the State’s enforcement authority.
While it’s unclear how Justice O’Connor is leaning in regard to the timing issue, at times she hinted she was skeptical of a complete waiver of state rights. Notably, O’Connor emphasized that the 401 certification process does not need to explicitly say the state preserves the right to enforce its statutes. Later she explored with Rover’s attorney if an outer boundary existed to federal authority if there is a state waiver, and if not, is there any remedy a state could seek in the instance FERC refused to act. At times, Justice O’Connor seemed receptive to Rover’s answers, but it was difficult to tell if she was persuaded.
Justice DeWine asked tough questions of both sides. DeWine pushed back against the state’s argument that, if the state had missed its deadline, it would only waive the right to enforce regulations involving the types of pollution specifically mentioned in Rover’s application. Justice DeWine posited that the scope of the waiver should be broad, given the breadth implied by the statutory text. He also wondered how the Court would determine what was and wasn’t anticipated if the State didn’t set forth conditions in the 401 certification.
Justice DeWine did not go easy on Rover either. At one point, Rover’s attorney argued that if the Court held the State had not waived all rights to enforce its environmental laws it would mean any slight deviance from the federal permit would invite state action. Justice DeWine seemed skeptical. He stated that was an extreme example, and even said he was “struggling to understand [Rover’s] permit argument.” Justice DeWine appeared unsatisfied with the attorney’s response to this but predicting who he agrees with overall would be conjecture.
It is encouraging that the Justices were asking questions because it signals they recognize the significance of this issue and want to fully understand it. The release of the Court’s opinion is not expected immediately, but we will publish a reaction to it when it is. Look for that and other updates on the work of the Ohio Environmental Council here.