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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 Wins Interim Victory in Lawsuit to Improve Oregon’s TMDL Program
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| It doesn’t take a rocket scientist to figure out that polluted waters will never fully be cleaned up without a plan to reduce pollution throughout the watershed. And it turns out that is exactly what the Clean Water Act requires: under Section 303(d) of the Act, states must develop a clean-up plan for every “impaired” waterbody that fails to meet one or more water quality standards for the protection of aquatic life or human health. Those plans are called total maximum daily loads (TMDLs) and they are required to contain pollutant load allocations for point and nonpoint sources that contribute to the impairment. When Congress passed the modern-day Clean Water Act in 1972, it anticipated that all impaired waters nationwide would have a TMDL in place and be well on the way to becoming pollution-free within a decade.
That was the theory, anyway… Here we are, 50 years later, and most states (including Oregon and Washington) have more impaired waters than ever before, while TMDL programs languish in a morass of technical complexity and bureaucratic gridlock. A key reason is that the Clean Water Act lets states take the first crack at writing TMDLs; the U.S. Environmental Protection Agency’s (EPA) duty is only to approve or disapprove TMDLs once they are submitted by the state. But there is no legal hook for clean water advocates to compel states to develop TMDLs faster, and EPA has historically been loath to step in, even in the face of seriously floundering state TMDL programs.
Earthrise currently represents Northwest Environmental Advocates (NWEA) in two separate but related cases against EPA seeking to improve and accelerate the TMDL programs in Oregon and Washington. In the Oregon case, Earthrise recently obtained an important early victory, successfully opposing EPA’s motion to dismiss and establishing some helpful caselaw along the way. In an opinion and order dated April 4, 2022, Judge Marco Hernandez of the District of Oregon made two important rulings, both of which we believe to be the first such holdings in the country: First, he held that EPA’s approval of Oregon’s recently submitted “TMDL Priorities and Schedule” was a stand-alone final agency action subject to judicial review under the Administrative Procedure Act—even where the claim does not attack EPA’s approval of Oregon’s impaired waters list. Second, he held that EPA had a nondiscretionary duty under its own regulation, 40 C.F.R. § 130.7(d)(1), to determine a state’s TMDL schedule, and that EPA’s failure to undertake that duty was subject to review under the Clean Water Act’s citizen suit provision. Judge Hernandez’s opinion clears the way for litigation on the merits of each of NWEA’s claims.
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| | Audubon Alaska Brings Earthrise Student to Alaska to Present Research
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Matt on Hartney Bay in Cordova, Alaska
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| Every year, at the beginning of May, professional and amateur birders assemble in Cordova, Alaska for the Copper River Delta Shorebird Festival to witness one of the truly magnificent gatherings of migrating shorebirds anywhere in the world. This year, the human visitors included one of our own, former Earthrise student Matt Campa ('22). Matt, who began his time with Earthrise as one of our summer clerks in 2021, spent most of his Earthrise year working on wetland issues for Audubon Alaska. As Matt approached the end of his last law school semester, Audubon's David Krause, made Matt an offer he couldn't refuse. He invited Matt to Alaska to present some of his legal research, done under Senior Staff Attorney Kevin Cassidy's supervision, and attend the Shorebird Festival in Cordova as Audubon's guest.
Matt jumped at the chance, with this to say, “the opportunity to witness such an amazing spectacle of natural wonderment—one I had been working so hard to protect—was far too sweet a deal to consider passing up.”
So, on the first weekend in May, Matt packed his winter gear—temperatures in Cordova still hovered in the high 30s and there was plenty of snow on the ground—and headed north. While there, Matt observed copious shorebirds and also presented his wetland work to a diverse group of conservationists and lawyers, emphasizing the importance of public commenting on the proposed dredge and fill operations.
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| In this Issue- Keeping Washington's Waters Clean
- TMDLs in Washington and Oregon
- Earthrise Student travels to Alaska to present for a client group
- New Summer Clerks
- An Earthrise Field Trip to Eastern Oregon
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| Welcome to the newest member of the Earthrise family, Ryan Michael Comerford Evans. Ryan was born on March 24th. Lia and Ryan are both doing well. Ryan even joined one of our recent staff zoom meetings. Congratulations Lia, John, and Ryan!
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| Protecting Washington's Waters
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| Earthrise recently secured a victory for Washington waters and aquatic species on behalf of Northwest Environmental Advocates. At the end of 2021, Judge Marsha Pechman of the Western District of Washington ruled that EPA's denial of NWEA's petition to update water quality criteria intended to protect Washington's aquatic species from toxic pollutants was arbitrary and capricious. EPA has 180 days to make a new decision on the petition. Read more about the victory here.
Earthrise attorney Lia Comerford and co-counsel (and alum) Bryan Telegin at Bricklin & Newman LLP represent NWEA in the lawsuit. Many current and former Lewis & Clark students provided invaluable support on the case, including Michael Benjamin Smith, Jenny Davies, Dylan Sollfrank, Rico Vinh, Eddie Kelinsky, Victoria Frankeny, Destiny Shelton, Alex Houston, Audrey Leonard, and Victoria White.
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Join Us on September 17th
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| | After a few delays and changes due to coronavirus, we finally have a date to celebrate Earthrise's 25-year anniversary in person. Please join us on September 17th at Sellwood Park to celebrate 25 years of the clinic. While we are no longer facilitating a hike or bike event beforehand, we encourage everyone to get out and stay active however they would like. Ticket information and more details to follow.
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Another summer in Wood Hall means another great crop of Earthrise summer clerks. This year we hired (left to right) Lydia Dexter, Greg Allen, Devon Guyer, Casey Bage, and Caitlin Stiltner. Caitlin already spent the academic year in the clinic. We look forward to working with everyone else through the fall and spring, as well as this summer. All clerks have started and are working on public lands matters, clean water litigation, our long-running case to protect critically imperiled California Condors, East Coast projects regarding transmission lines and protecting Massachusetts rivers, NEPA commenting, and more. We have already started our summer tradition of weekly potluck "PEACnic" lunches, and look forward to keeping our dockets full with the help of these amazing students throughout the summer.
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| Earthrise Students and Staff Enjoy a Year-End Field Trip
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Earthrise students and Annie (Tom's dog) take a break while hiking the South Fork of the Crooked River.
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Thank you to conservationist and Earthrise client and supporter, Otto Keller for inviting us out to his Eastern Oregon property for a two-day camping trip. At Otto's property outside of Paulina, Oregon Earthrise students and staff spent two nights camping, hiking, cooking, and relaxing around campfires along the South Fork of the Crooked River. We were thrilled that we were able to take the students out to enjoy one of the beautiful areas we have fought to protect.
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Tom, Sam (Tom's other dog), and Earthrise students near the end of their Crooked River Hike.
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