FWW v. Pennsylvania Department of Environmental Protection


Clean Water

The Clean Water Act is one of the United States’ most successful environmental laws, in large part because it requires permits that impose strict pollution limits on sources like factories and wastewater treatment plants. These permits are the cornerstone of the statute, but this success is now being threatened by a water pollution “trading” approach that allows polluters to purchase pollution credits in lieu of meeting their own permits’ discharge limits.

In Pennsylvania, the state has implemented trading on a large scale and is allowing facilities like Keystone Protein, a slaughterhouse, to avoid meeting pollution limits mandated by the Chesapeake Bay cleanup plan and instead purchase credits. This approach lets major polluters off the hook, undermines transparency, and makes it all but impossible for citizens to enforce permit requirements – it is also illegal.

The Clean Water Act and EPA’s regulations say nothing about pollution trading because it is contrary to the very purpose and structure of the law. This has prevented citizens from challenging trading to date. But EPA has allowed states to move forward with trading despite the lack of express authority or any EPA rules. Food & Water Watch is leading a landmark case seeking to have water pollution trading declared illegal under the Clean Water Act and put an end to the practice. We are challenging the pollution trading provisions in Keystone Protein’s Clean Water Act permit, and our case was recently heard by the Pennsylvania Commonwealth Court.

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Our Amicus Brief for Jaqueline Taylor v. Detroit


Clean Water

In September of 2020, Food & Water Watch and For Love of Water (FLOW), through local counsel Constitutional Litigation Associates, P.C., filed a “friend of the court” brief in Jacqueline Taylor et al., v. City of Detroit et al.a groundbreaking lawsuit that seeks to prevent water shutoffs in Detroit until the city establishes a customer affordability program.

From our senior staff attorney, Zach Corrigan:

“We’re proud to join with local allies in support of the landmark lawsuit to challenge water shutoff policies in Detroit, and potentially across the nation. In the midst of a deadly pandemic, city policies kept Detroit residents from washing their hands, flushing their toilets and cleaning their homes. The policies have caused disastrous consequences for the predominantly Black and poor residents of Detroit. 

People have a liberty interest in bodily integrity that is protected by the U.S. Constitution, and this right includes not depriving people of the water that they need for drinking, sanitation, and hygiene. It simply makes no sense to say that the Constitution would protect people from gross governmental recklessness resulting in the mass contamination of people’s water with toxic lead, such as in the city of Flint, but not when officials turn a blind eye to the serious health problems in turning residents’ water off altogether.

People’s right not to be deprived of the water they need… is deeply rooted in the history and traditions of this nation. It is imbued in case law defining the duties applicable to water utilities and in other contexts, such as the treatment of prisoners. Courts have expressly and repeatedly recognized the importance of ensuring people are not deprived of the water necessary for life and health.”

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Food & Water Watch v. United States Environmental Protection Agency


Food System

To put it simply, the Environmental Protection Agency’s (EPA) permit in Idaho violates federal law and will let industrial-scale livestock operations off the hook. That’s why in June of 2020 Food & Water Watch and Snake River Waterkeeper filed suit against the EPA in the federal Court of Appeals for the 9th Circuit for violating the Clean Water Act by allowing factory farms to avoid mandatory pollution monitoring.

While this is an Idaho-specific permit, the groups believe that a legal win could have national impact. The CAFO General Permit is meant to ensure that factory farms comply with pollution restrictions that protect waterways for recreation, fishing, wildlife, and other uses. 

In Idaho alone, there are several hundred factory farms that produce vast quantities of pollutants like E.coli, nitrogen, phosphorus, pharmaceuticals, and heavy metals. This industry, which remains largely unregulated, has contributed to the 2,000 miles of streams and rivers that are now considered impaired by pollutants commonly associated with factory farm waste. 

The federal Clean Water Act is meant to control pollution from CAFOs and other “point source” dischargers through a National Pollutant Discharge Elimination System (NPDES) permit that relies on self-monitoring and reporting of discharges.

EPA has let CAFOs off the hook with the Idaho General Permit by failing to include meaningful pollution monitoring requirements.

“Factory farms have flocked to Idaho to take advantage of lax oversight and industry-friendly politicians, with the predictable results of more pollution, degraded lakes and rivers, and fewer sustainable, small-scale family farms. EPA’s permit will allow this pollution to continue unabated by making it all but impossible to hold CAFOs accountable for illegal pollution, in clear violation of the Clean Water Act and EPA’s own regulations.” 

Tyler Lobdell, Staff Attorney for Food & Water Watch

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Food & Water Watch v. United States Environmental Protection Agency


Climate and Energy

Immediately after being sworn in as the President, Joe Biden signed Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis”, that directed the EPA to review and potentially rescind Trump’s rollback of methane regulation requirements, which carved out massive regulatory exemptions for the oil and gas industry.

Given that Food & Water Watch is currently engaged in coalition litigation to fight this rule, the new Administration did not feel it was prudent to proceed with briefing this case before the court if they were planning to move ahead with a repeal of this illegal rule. As such, this case has been held in abeyance pending review of this regulation by the new administration and the new Administrator of the EPA.

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Food & Water Watch v. Colorado Oil & Gas Association


Climate and Energy

Following an adverse decision from the Colorado District Court, litigation concerning Longmont, CO’s local ban on fracking has been appealed to the Colorado Court of Appeals due to the trial judge’s failure to acknowledge the drastic legislative changes that were passed since this issue was litigated before the Colorado Supreme Court in 2016. These changes to Colorado’s Oil and Gas Conservation Act expressly stated that there was no longer state pre-emption of local land use ordinances and that municipalities may regulate surface activities to protect public health and welfare. 

The initial brief was submitted to the appellate court on February 19, 2021, and argues that the law now allows municipalities to ban local land uses through municipal ordinances that protect public health, as such the Longmont ban on fracking is no longer in conflict with state law as fracking involves significant surface activity and land uses that threaten public health and safety. Briefing and oral arguments will continue through 2021.

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Food & Water Watch NEPA Litigation


Climate and Energy

Over the past 50 years, the National Environmental Policy Act (NEPA) has become the cornerstone of U.S. environmental law, and nations worldwide have replicated its model.

NEPA requires federal agencies to consider the environmental impacts of their actions, including direct action by an agency or the permitting of private activity (like when an agency issues a permit for a private company to frack). The primary decision-making agency must do an environmental assessment of the project. If it imposes a significant impact, then a more in-depth environmental impacts statement is required. That next step is a collaborative process where meaningful involvement from affected communities and stakeholders is absolutely vital because they typically have the most knowledge of the local conditions and history.

Trump’s administration tried to skirt this by changing the way the White House Council for Environmental Quality (CEQ) interprets its function, and by silencing those who are meant to be participants in the process. We fought back in court but this case is paused until April 15, 2021 — we expect the Biden Administration to announce that they will be rescinding the Trump NEPA regulations due to their facial illegality. 

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Food & Water Watch v. United States Department of Agriculture


Food System

On January 13, 2020, we joined three other plaintiffs in bringing suit against the U.S. Department of Agriculture for issuing New Swine Inspection System (NSIS) rules that undermine pork-safety inspection in slaughter plants.

“There is no gray area here. The new rules curtail the ability of federal inspectors to detect serious food-safety problems and expose those who consume such pork products to serious health threats like salmonella. It’s easy to read between the lines with these new rules: the USDA is letting the wolf guard the hog-house. Food safety is one of the most important protections in our country and gifting the slaughter industry self-regulation powers will mean pork eaters in this country will be facing higher threats of disease.”

Zach Corrigan, Senior Staff Attorney at Food & Water Watch

Prior federal law required that meat inspectors critically examine every animal for conditions (as dangerous as septicemia and salmonella) before and after slaughter.

The new rules prevent such inspection and hand over these duties to the slaughter companies alone. They also give up federal control over removing contamination from carcasses to the slaughter companies without any minimum training requirements for slaughter-plant employees.

At the same time, the new NSIS rules lifted prior limits on slaughter-line speeds that were in place to prevent foodborne illnesses, hospitalizations, and deaths. Even with these line-speed limits, contaminated pork may cause as many as 1.5 million cases of foodborne illnesses, 7,000 hospitalizations, and 200 deaths in the United States each year. 

The potential for even greater harm to public health is clear.

You can read the full filing here. A monthly donation of any amount keeps us going to bat against the agencies that should protect all of us!

Food & Water Watch v. Federal Energy Regulatory Commission


Climate and Energy

In a 2017 decision, the U.S. Court of Appeals for D.C. Circuit ordered FERC to meaningfully consider the ‘downstream’ greenhouse gas emissions of pipeline projects — essentially the combustion activities associated with fossil fuel gas facilitated by these pipelines.

FERC has devised a loophole to get out of that requirement. This allows the commission to place a massive thumb on the regulatory scale in favor of the fossil fuel industry by disregarding the most consequential environmental issue of our time. 

Is This Federal Agency Ignoring Required Environmental Reviews?

Winning this case would force FERC, the primary regulator of fossil gas for the world’s largest gas producing nation, to meaningfully consider the broader impacts of fossil fuel infrastructure development on the global climate. It would give vulnerable frontline communities a powerful new tool to stop the dirty energy projects that are making them sick. 

Want to read more about this case? Check out our article by our staff attorney Adam Carlesco.

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