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At Earthrise, we are passionate about using the law to protect and
restore the environment and the planet's natural resources, and about
training law students to become skilled environmental advocates.
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Earthrise Tackles Stormwater Pollution in Two States
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| Stormwater, which runs off land, roads and buildings when it rains, carries fertilizer pollution, harmful bacteria, oil, gas, toxic metals, and salt into nearby waterways. In Oregon, industrial stormwater is a leading cause of toxic pollution in surface waters and poses a serious risk to endangered salmon and other aquatic life. And in Massachusetts, stormwater runoff causes more than half of the State’s waterways to be listed by the U.S. Environmental Protection Agency ("EPA") as impaired. “Our rivers aren’t catching on fire any more, but significant pollution problems persist,” said Earthrise Senior Attorney Kevin Cassidy. “Pollution caused by discharges of stormwater into rivers and streams is at the top of the list.” Earthrise is working to address this pervasive problem with new legal actions in both states. In September, Earthrise filed a lawsuit in federal district court on behalf of 10 Massachusetts watershed groups challenging the Trump EPA’s decision to stay the implementation of the State’s new municipal stormwater permit. The permit, known as the “MS4,” for small “municipal separate storm sewer systems,” regulates stormwater pollution under the federal Clean Water Act. Issued jointly in 2016 by EPA and MassDEP, it covers 260 entities in Massachusetts, including municipalities and federal and state facilities. The permit was scheduled to go into effect on July 1, 2017.
“This permit is a product of extensive public input as well as eight long years of negotiation among the state DEP, the EPA, and many stakeholders," said lead plaintiff Massachusetts Rivers Alliance Executive Director Julia Blatt. "The EPA pulled the rug out from under the state’s pollution control efforts by announcing this delay two days before the effective date.”
“The MS4 permit stay is one of several ongoing attempts by the Pruitt EPA to roll back important environmental protections without going through the proper procedure to do so,” said Cassidy. “New administrations have their prerogative to implement their policies, but they must follow the law.”
Earthrise Senior Attorney Kevin Cassidy is co-counseling the case with Access to Justice Fellow Irene Freidel. Joining Massachusetts Rivers Alliance as plaintiffs are watershed groups representing the Connecticut, Mystic, Taunton, Merrimack, Ipswich, North and South, Jones, Sudbury, Assabet, Concord, and Neponset Rivers.
In October, Earthrise filed suit on behalf of Columbia Riverkeeper and the Northwest Environmental Defense Center (“NEDC”), challenging a National Pollution Discharge Elimination System (" NPDES") permit issued by the Oregon Department of Environmental Quality (“DEQ”) to authorize and regulate the discharge of stormwater associated with industrial activity. This so-called “1200-Z Permit” is a general permit that applies to hundreds of industrial facilities statewide, from power plants to factories to auto dismantlers.
This is actually the third time in twelve years that Earthrise has challenged this particular permit; previous versions of it were incrementally strengthened as a result of our litigation and the tireless advocacy of Columbia Riverkeeper and NEDC. A core issue in the current litigation is DEQ’s dogged reliance on outdated, non-binding “benchmarks” instead of numeric effluent limitations for toxic pollutants. The Clean Water Act and its implementing regulations require all NPDES permits to include numeric limitations unless they are infeasible, and to include limitations that reflect the application of the “best available technology economically achievable.” “DEQ’s decision in this most recent 1200-Z Permit is all the more frustrating given its conclusion in the permit record that there are ‘consistently achievable and justifiable’ limits for the metals copper, lead, and zinc ‘that can be reached at a reasonable cost by Oregon industrial facilities,’” said Earthrise Staff Attorney Jamie Saul.
If our lawsuit is successful, DEQ will be required to revisit its permitting decision and, we contend, either impose numeric effluent limits or provide further justification for why such limits are not feasible for Oregon’s industrial dischargers.
Earthrise attorneys Jamie Saul and Allison LaPlante are handling the case, along with co-counsel Karl Anuta.
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Earthrise Steps Up FOIA Litigation
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| The Freedom of Information Act (“FOIA”) is the law that keeps citizens "in the know" about their government. Our clients often file FOIA requests to gain information about how important government decisions are made. In addition, Earthrise's ability to hold the government accountable and win cases depends on our clients' ability to access information. Agency records uncovered through FOIA requests often reveal key facts and illegal decision-making that the defendant agencies try to keep from the public eye. FOIA is a critical tool for accessing these records. Recently, we’ve run into FOIA roadblocks and turned to the courts. Earthrise has two new FOIA suits in active litigation and several more under investigation. This is a change for Earthrise, as we have historically focused on helping our clients directly challenge harmful agency actions or inactions. However, federal agency intransigence when responding to our clients’ FOIA requests directly harms our clients’ ability to both participate in agency decision-making processes and bring direct challenges against the agencies. “The government is shutting the door to the public at all levels of its decision-making. We need to keep it open for our clients,” said Earthrise Staff Attorney Nina Robertson.
On behalf of the National Parks Conservation Association (“NPCA”), Earthrise filed a FOIA request in 2016 seeking records related to the Forest Service’s Special Use Permit that would give the U.S. Navy access to forest roads and the ability to expand jet training above and near Olympic National Park. NPCA has long been concerned about Navy jets flying over the Park and is worried that the increase in jet noise will further harm visitors’ experience of the Park (which contains the Hoh rainforest, one of the quietest places in the continental U.S.) and harm wildlife. After almost a year of agency delay, NPCA’s only option was to sue. In March, Earthrise filed a FOIA complaint on behalf of NPCA in the U.S. District Court for the District of Columbia. Shortly thereafter, the Forest Service disclosed thousands of pages of important records. We think NPCA is entitled to more, and we are currently briefing the case.
Northwest Environmental Advocates ("NWEA") has also sought Earthrise’s assistance in a FOIA matter related to endangered species and water quality standards. When EPA approves state changes to water quality standards, it must consult with the U.S. Fish and Wildlife Service ("FWS") and ensure that those changes do not jeopardize endangered species. To understand the substance and progress of those consultations, NWEA filed a FOIA request seeking information about FWS’s ESA analysis. Months later, FWS disclosed only a handful of irrelevant records and sat on NWEA’s appeal of that decision. With Dave Bahr as our co-counsel, Earthrise filed a FOIA complaint against FWS on behalf of NWEA. The complaint, filed in the U.S. District Court for the District of Columbia, alleges that FWS failed to disclose documents to which NWEA is entitled and failed to conduct a proper search for records, among other FOIA violations. The government will answer our complaint in the coming weeks.
If our lawsuits are successful, NPCA and NWEA will gain critical information about the government’s decisions that affect our national parks and forests, our water quality, and endangered species. This will enable them to inform their members and the public about the threats posed to the environment and submit informed public comments. It will also help our clients build a better case against the agencies should they need to sue. Looking forward, as the government attempts to keep the public in the dark, Earthrise expects to litigate more FOIA cases on behalf of its clients.
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In this issue- Stormwater pollution in Massachusetts and Oregon
- Government accountability and FOIA litigation
- Staff Changes
- Alumni spotlight
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| Please consider becoming a monthly donor of Earthrise to help sustain our important work!
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Welcome to Earthrise's 2017-2018 class! We are excited to be working with, teaching, and learning from this great group of students this year.
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| Earthrise Alumni Spotlight
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We at Earthrise are very proud of the amazing work our alumni are doing. Three Earthrise alumni—Brett VandenHeuvel, Executive Director and Riverkeeper (‘05), Lauren Goldberg, Staff Attorney (‘08), and Miles Johnson, Clean Water Attorney (‘12)—work at Columbia Riverkeeper, in Hood River, Oregon. They work together and use their legal background and skills to achieve Riverkeeper's mission to protect and restore the water quality of the Columbia River and all life connected to it, from the headwaters to the Pacific Ocean. This year Brett was awarded Lewis & Clark Law School’s Distinguished Environmental Law Graduate Award in recognition of the significant contributions that he has made to the environmental and natural resources law field. We asked them a few questions about their work at Riverkeeper:
Describe a successful case or other victory that you've had at Riverkeeper of which you are particularly proud.
Brett VandenHeuvel said, “With the help of Earthrise and many students along the way, we won a 10-year battle against two huge fracked gas expert terminals (LNG) on the lower Columbia River near Astoria. This victory is special because it took ten years of creative land use lawsuits, ballot initiatives, federal challenges, state legislation, and-most importantly-years of community organizing, to defeat the fossil fuel giants. I also made lifelong friends and learned many lessons along the way.”
What do you like most about working at Riverkeeper?
Lauren Goldberg said, “Tackling important issues with a creative team of lawyers, community organizers, and scientists. I also have the privilege of working with incredible people who live on the frontlines of massive fossil fuel infrastructure projects—from coal export to oil-by-rail to fracked gas refineries. Their dedication to community, clean water, and strong salmon runs inspires me.”
How did your work with Earthrise prepare you for your job at Riverkeeper?
Miles Johnson said, “In addition to forging the relationships that helped me get a job at Riverkeeper, Earthrise provided me with a supportive but challenging environment to begin litigating the CWA, the ESA, and the APA.”
Congratulations to Brett, Lauren, and Miles for their outstanding environmental advocacy work, and best of luck to them as they keep fighting the good fight!
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Earthrise is excited to welcome three new staff members!
In July, Karen Russell joined the Earthrise team as our Budget and Finance Manager. Since 2006 Karen has worked as a Nonprofit Consultant advising organizations on all aspects of nonprofit organizational management, with a focus on financial management and accounting. From 1990 to 2006 Karen worked in a variety of roles at WaterWatch of Oregon. As Interim Executive Director Karen was responsible for all aspects of fundraising, budgeting, staff management and working closely with the organization’s board of directors. As Senior Staff Attorney Karen was a constant presence before the Oregon Water Resources Department, pushing the agency at every opportunity to reform long-held water policies that ignore the needs of fish and other instream users. Karen is a graduate of the University of Washington (B.A. 1985) and Lewis & Clark Law School (J.D. 1990). Karen also teaches Water Law as an Adjunct Professor at Lewis & Clark Law School and an Environmental Law and Policy course at Lewis & Clark College.
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| In August, Earthrise welcomed our newest Legal Fellow, Kathryn Roberts. Kathryn is a graduate of Western Oregon University (B.S., summa cum laude 2013) and Lewis & Clark Law School (J.D., magna cum laude 2017). During law school Kathryn was a member of the school’s National Environmental Moot Court team her second and third years, where her team won Best Brief in 2016 and she tied for Honorable Mention, Best Oralist in 2017. She earned a certificate in Environmental and Natural Resources Law and was inducted into the Cornelius Honor Society on graduation. Kathryn is already busy working on Clean Water Act, Clean Air Act, and NEPA cases at Earthrise.
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| Finally, in October, Alex Davis joined the staff as our Program Assistant. Alex studied Philosophy at the University of Oregon (B.S. 2016). During his time in Eugene he worked for the University’s Zero Waste Program and was active in several environmental student organizations. Before coming to Earthrise he worked as a legal assistant at an intellectual property law firm. At Earthrise, Alex wears many hats—from assisting attorneys on litigation, to working on development and communications.
We also want to thank Joy Keen and Claire Valentine-Fossum for their hard work for Earthrise for several years. Both Joy and Claire left Earthrise this summer, and we wish them the best of luck in their new pursuits!
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