While a 2L at the University of Utah S.J. Quinney College of Law, Jason Steiert was invited to present his paper at the American Water Resources Association (AWRA) Utah Section Conference on May 14, 2013.
Based on Steiert’s April 11 presentation of the paper at AWRA’s student writing competition, he was one of two students invited to make a 12-minute presentation at AWRA’s statewide conference. He is the second College of Law student to win this competition in their category. The first was Jamie Carpenter in 2011.
In the following interview, Steiert reflects on how he became interested in water law, the specifics of his paper, and how his professors worked with him to develop effective arguments.
Congratulations on having your paper selected as a finalist for the AWRA competition. What is it about?
Thank you. The paper is titled Temporal Expansion of Clean Water Act Section 404(c) Authority: Can the EPA Retroactively Protect Our Nation’s Waters From Mountain Top Coal Mining? The Clean Water Act requires permits to discharge pollutants or materials into the nation’s waters. Specifically, Section 404 of the Clean Water Act requires permits to discharge “dredge or fill” material into the nation’s waters. Section 404 is unusual because Congress delegated authority to two federal agencies: the Army Corps of Engineers and the EPA. Under this provision, the Corps issues permits and the EPA can “deny, restrict, prohibit, or withdraw” any of the specified disposal sites in the permit if they are having or will have an unacceptable adverse effect on the environment. This authority is often referred to as the “404 veto authority.” In 2010, the EPA decided to “withdraw” two out of three permitted disposal sites at the Mingo Logan mountain top coal mine in West Virginia. This was the first time since the Clean Water Act amendments of 1972 that EPA had withdrawn a permitted disposal site after the start of mining operations (EPA has used the veto authority to prohibit disposal sites before permit issuance without much challenge). In fact, the Mingo Logan mine had been operating for almost three years. Mingo Logan brought suit against the EPA and basically alleged that EPA does not have the authority to retroactively prohibit permitted specified disposal sites. About a year ago, the D.C. District Court agreed with Mingo Logan and held that EPA cannot prohibit disposal sites after a permit has been issued. My paper argues that this case was wrongly decided based on the legislative and regulatory history, principles of statutory interpretation, and a Chevron analysis.
What inspired you to write on this topic?
Last fall, I attended the Rocky Mountain Mineral Law Foundation conference on the Water-Energy Nexus in Denver. One of the presenters discussed the Mingo Logan case and the unusual section 404 provision of the Clean Water Act. At the time, I was taking Environmental Law from Professor Adler and we had recently read Chevron USA v. NRDC which basically establishes great deference to agency interpretation of congressional statutes for rule-making. I was intrigued by the court’s ruling and curious as to why the court did not give deference to EPA’s interpretation. I read the Mingo Logan case for myself and found that it would be a fascinating research topic. I wrote an extensive paper for my Environmental Law class and then upon Professor Adler’s recommendation, cut it down for submission to the AWRA.
The selection of your paper for presentation is your second honor in river-related scholarship. Has this had any effect on your plans post-graduation?
The Western United States is an arid place and many argue that the scarcity of water will only increase over time. Competition for this scarce resource is complicated by the fact that Americans need fossil fuel resources for energy — a very water-intensive endeavor. I like to fly-fish, camp, and spend time in and around rivers. So on one hand, I want to protect these resources as best I can. However, I also consume energy generated by fossil fuels. Therefore, I am interested in pursuing a career that helps to manage the balance of water and energy needs.
How did your training/coursework/tutelage at the College of Law help prepare you to write and prepare this paper?
The Environmental Law class helped me to understand the language and legal implications of section 404. In addition, my professors, especially those with a natural resource/environmental focus, are accessible to discuss legal issues and willing to help refine student writing for effective arguments. The opportunity to develop, write, and refine legal arguments with some of the premier scholars of natural resource and environmental law is something that makes me feel honored to attend the S.J. Quinney College of Law.