Tagged In: Rover Pipeline
Chris Tavenor, Staff Attorney, April 1, 2021
This blog was authored in partnership with OEC Law interns Aubrey Merkle and Eliza VanNess.
Previously, we discussed the saga of the Rover Pipeline and, specifically, its case before the Ohio Supreme Court, giving a high-level overview of the case and its implications on how the state regulates water pollution. Now it’s time to dive deeply into the issues!
The controversy surrounds a federal permitting process, known as a 401 Water Quality Certification. The Clean Water Act (CWA) establishes a mechanism whereby state environmental agencies can review projects that might generate water pollution.
The 401 Certification process allows states to have a say in the construction of potentially harmful projects permitted at the federal level. 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.
In the simplest terms, 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. It’s the foundation of their case.
The two important questions before the Court are: Did Ohio miss the deadline? And if so, what powers did it lose? But like everything, the answers are not as straightforward.
Rover complains that the state did not approve its application with the year. However, Rover was the one who created a long delay in the process because it submitted an incomplete application. Ohio requested the missing information, but Rover took seven months to supply it. The Ohio EPA responded promptly to Rover’s final submission of application materials. While this response came more than a year after Rover’s original, incomplete submission, it was well within the one-year mark of Rover’s final submission. For the court to hold that the one-year deadline begins to toll when a company submits any materials it calls an application, regardless of whether it has fulfilled the application criteria, would leave the Ohio EPA without the materials it needs to effectively evaluate the project.
In addition to delaying its submission of the final application materials, Rover changed its project several times, essentially transforming the scope and impacts of the project into moving targets. The shifting goalposts left the Ohio EPA without the facts necessary to responsibly approve or deny the certification.
Forcing an agency to make a determination based on a deficient application is tantamount to asking someone to drive blindfolded. The State would have no alternative but to approve a project that may become an environmental disaster, or prematurely deny a safe project that may bring economic opportunity to the state. Approval of incomplete applications could clog up the courts from lengthy litigation, millions of dollars in clean-up, and irreversible damage to Ohio’s waters. Denial of incomplete applications would require companies seeking certification to reapply, which also has costs and wastes time. Both options are absurd results.
Rover claims its original submission was sufficient to start the clock ticking on the Ohio EPA’s one-year deadline. It argues that the statutory text of the CWA says time begins to toll upon receipt of “request for certification,” but doesn’t mention completeness as a requirement anywhere.
According to Rover, submitting a variety of materials that communicate its desire to obtain 401 Certification is enough to start the clock. Rover argues allowing state agencies to evaluate application completeness would place too much power in the hands of the state. The one-year deadline was intended to encourage state efficiency, which wouldn’t happen if states were able to decide when the deadline kicks in.
Of course, efficiency also requires states to have the information necessary to meaningfully review projects, which won’t happen if companies can submit whatever they have on hand and then wait for the year to run out. This concept is known throughout the regulatory and permitting world as an “administratively complete” application. An “administratively complete” application ensures companies provide enough information to give agencies what they need to make a decision. It promotes transparency for the public impacted by the proposed permit, and an even playing field for other businesses looking to receive permits.
If the Court decides Ohio did not meet the deadline on the 401 certification, the state’s attorneys make the alternative argument that the State has only waived its right to penalize Rover for activities described in the federal permit.
As Ohio points out in its arguments, states traditionally have been the guardian of their natural resources, with the sole authority to enforce state laws to protect those resources. The CWA, 33 U.S.C. 1370, was not meant to “be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters of such States.”
The Clean Water Act (CWA) is built on the principle of cooperative federalism. The U.S. Constitution recognizes the states as having inherent power to protect their lands and citizens. However, when state law conflicts with federal law, federal law prevails. In an effort to respect state authority, many federal regulatory systems carve-out or delegate power to the states.
When state and federal agencies work together, the nation can cohesively implement its environmental laws. States relinquish some sovereign power to the federal government, but the entire country benefits from a relatively uniform system of pollution control. But states do not lose all their power to enforce their environmental laws.
In this case, Ohio argues that failing to act on a 401 certification does not mean all state environmental laws are unenforceable against Rover. If anything, the state merely waived the right to participate in the federal permitting process, and by extension, ceded its right to enforce state law against Rover for the discharges approved by the U.S. EPA.
However, that waiver should not exclude the Court from considering Ohio’s narrowly tailored rule: the state “only waives the right to enforce against a discharge that is in the scope of the federal permit if they fail to act within the year timeline.” Rover actually agrees with the state on this point, because this rule is a direct quote from Rover’s past briefs.
Under Ohio’s argument, the state is not obligated in our cooperative federalist government to depend on the federal system to defend the rights of its citizens. Rover’s federal permit only contemplated potential spills containing a benign mixture of clay and muddy water. When Rover discharged millions of gallons of fluid containing toxic diesel fuel, it was no longer acting within the scope of its federal permit.
If Rover’s arguments stand, it would be impossible for Ohio to hold polluters accountable if they exceed a federal permit yet violate state law.
Rover’s arguments are creative but run contrary to traditional notions of what an application is, and what cooperative federalism demands. How the Ohio Supreme Court justices will respond to these arguments is nevertheless difficult to predict. We’ll be following up with an update on oral arguments, but to make your own predictions, you can view the oral arguments here.
The OEC Law Center will continue to monitor State of Ohio ex rel. Dave Yost v. Rover Pipeline, LLC, and when the Ohio Supreme Court makes its decision, will ensure you know its implications.