U.S. water, air laws allow for suits

Uncertainty prevails after justices’ state-immunity ruling

The federal Clean Water Act and Clean Air Act require states to allow people to take them to court over permitting decisions related to those acts, but attorneys and officials in Arkansas are divided over what that means for the state in light of a recent Arkansas Supreme Court decision.

The Arkansas Department of Environmental Quality administers Clean Water Act and Clean Air Act programs with the permission of the U.S. Environmental Protection Agency, which must determine whether the state is doing all it’s required to do to run them.

In January, the Arkansas Supreme Court ruled in Board of Trustees of the University of Arkansas v. Matthew Andrews that residents have no right to sue the state government, even when the Legislature has allowed it, citing Article 5, Section 20, of the Arkansas Constitution of 1874. It states, “The State of Arkansas shall never be made defendant in any of her courts.”

Since the decision, attorneys and lawmakers have questioned the extent of the ruling’s impact and whether they could appeal state agency decisions to Circuit Court. Some have floated the idea of a constitutional amendment to return authority to the Legislature to make exceptions to sovereign immunity, but no amendment has been approved yet for signature-gathering.

The Clean Water Act says that all states wishing to administer Clean Water Act programs “shall provide an opportunity for judicial review in State Court of the final approval or denial of permits by the State that is sufficient to provide for, encourage, and assist public participation in the permitting process” (40 CFR 123.30).

“A State will meet this standard if State law allows an opportunity for judicial review that is the same as that available to obtain judicial review in federal court of a federally-issued NPDES permit … A State will not meet this standard if it narrowly restricts the class of persons who may challenge the approval or denial of permits,” the law states.

The Clean Water Act was amended to include this language in 1996, the year the Arkansas Supreme Court began allowing the Arkansas Legislature to pass laws exempting the state from sovereign immunity in certain cases. In 1997, the Arkansas Legislature passed Act 896, which altered language of the statute allowing people to appeal decisions of the Arkansas Pollution Control and Ecology Commission to state

specifically that they could be appealed to circuit court.

The Clean Air Act, in 42 U.S. Code § 7661a, approved in 1990, outlines expectations for states to implement permitting programs under the Clean Air Act, noting that they must include “an opportunity for judicial review in State court of the final permit action by the applicant, any person who participated in the public comment process, and any other person who could obtain judicial review of that action under applicable law.”

State and federal officials’ responses were scant regarding questions from the Arkansas Democrat-Gazette about whether appeals to state courts remained possible or whether the Department of Environmental Quality would be able to continue administering Clean Water Act and Clean Air Act programs.

Prominent environmental attorneys in the state voiced concern about whether they would be able to appeal department decisions to state courts and how long the department would be able to continue administering the federal programs.

The EPA told the Arkansas Democrat-Gazette it doesn’t typically comment on court cases, but it has threatened previously to increase its oversight of or revoke state programs of states for going against federal air and water laws.

In 2013, the EPA partially federalized certain water permits after the Arkansas Legislature passed Act 954. The act altered how stream flows were calculated, allowing municipalities and industries with water-discharge permits to release more minerals into the waters. The act also removed the default assumption that all waters in the state were potential drinking water sources, unless a scientific study had determined otherwise.

The EPA had told lawmakers they believed the act contradicted the Clean Water Act and decided to review minor discharge permits issued by the state, instead of only major ones. Lawmakers rescinded Act 954 in a special session later that year.

Officials at the Department of Environmental Quality said they do not anticipate the Arkansas Supreme Court’s decision as “necessarily impacting” the department’s administration of the programs.

Department officials noted that Arkansas Code Ann. 8-4-223 allows appeals of Arkansas Pollution Control and Ecology Commission decisions to state court. The commission is the department’s appellate and rule-making body. But the department also noted that the impact of the court’s decision on that statute and related provisions “has not been explicitly addressed in any adjudicatory proceeding or court decision.”

Arkansas Attorney General Leslie Rutledge’s office responded to questions from the newspaper by stating that Rutledge believes appeals can still be made to courts.

“The Attorney General is confident the Arkansas Supreme Court would agree,” Rutledge’s office said in its two-sentence response.

Environmental attorneys in Arkansas expressed greater skepticism that they would be able to make appeals to state courts.

“The answer is, I don’t know what the answer is,” said Richard Mays, an attorney with Williams and Anderson law firm in Little Rock.

To get some clarity on the reach of the decision, voters could pass a constitutional amendment or the Supreme Court could expound on its ruling, Mays said.

“Until then, it’s going to pretty well stop or block any appeals of administrative decisions to the circuit courts and the other appellate courts,” he said.

Allan Gates, an attorney at Mitchell Williams law firm in Little Rock, said he wasn’t sure the Department of Environmental Quality could waive a sovereign immunity defense in a state court case to maintain its ability to administer Clean Water Act and Clean Air Act programs, if that ability were in jeopardy.

“It’s not clear if a court would feel comfortable allowing the attorney general to waive sovereign immunity when it wouldn’t allow the Legislature to do so,” he said.

Mays has worked on cases related to C&H Hog Farms on behalf of the Buffalo River Watershed Alliance. He said the Supreme Court ruling could prevent either side from appealing the Pollution Control and Ecology Commission’s final permitting decision on the hog farm to a state court. But any impact of the ruling on the Clean Water Act would not trickle down into oversight of the hog farm or its permit application, because the farmers applied for a state program permit.

C&H is currently operating under an expired federal program permit from the state.

“If you can’t file a suit in circuit court challenging an agency’s decision,” Mays said. “That simply makes the decision of the agency the final authority, and that’s pretty unsatisfactory.”

“The answer is, I don’t know what the answer is.” — Richard Mays, a Little Rock attorney