Vol 52-2 Utilities


Texas’ Response to Winter Storm Uri – Structure of Electricity Markets and Risk Management


In February 2021, Winter Storm Uri shocked the electricity market in Texas and caused millions of customers to go without electricity, heat, or running water for days in freezing temperatures.[1] When the power finally came back on, members of the electricity market and individual customers were further shocked by astronomical prices driven by high demand during a period of very short supply.[2] During the 2021 Texas Legislative session, several bills were passed to address the problems made apparent by the winter storm.[3] The Texas Legislature focused on several key areas of improvement. One of the main areas of concern included regulating the structure of the electricity market and implementing risk mitigation strategies for future market disruption. This included implementing changes that required rulemaking procedures by state agencies including the Public Utility Commission of Texas (“PUC”) and the Texas Railroad Commission (“RRC”).[4] While the Texas legislature made significant legislative changes to support the power grid, these changes will take time and may not have a significant impact for several years.[5]

Senate Bill 3 – A Comprehensive Bill

Senate Bill 3 was one of the most expansive bills to address the structure of the electricity market and the mitigation of risk related to future market disruptions.[6] Among other things, it required the PUC to undertake rulemaking procedures to create requirements for the weatherization of power systems.[7] The PUC implemented Phase 1 of these rules to address current market needs.[8] These rules were met by 321 out of the 324 electric generation units and transmission facilities that ERCOT inspected by January 18, 2022.[9] Phase 2 will be a longer process which will elaborate on these rules and take ERCOT’s weather report into consideration.[10] Additionally, a bond issuance was approved to finance weatherization and to support customers who faced abnormally high bills from February 2021.[11] While this financing helps mitigate the up-front cost associated with both weatherization and utility bills, it will increase customer payments in the form of additional utility charges for years to come.[12] 

Senate Bill 3 also required the PUC to undergo rulemaking allocating load shedding among different electrical facilities and categorizing circuits as critical based on historical peak demand.[13] During Winter Storm Uri the power supply could not support the power demand, resulting in involuntary load shedding in the form of rolling blackouts that left many customers without power for days.[14] This was due in part to ERCOT underestimating the severity of the demand.[15] Amended rules regarding involuntary load shedding took effect on January 6, 2022.[16] This bill also required the PUC to enact rulemaking focused on improving emergency planning, lowering the price cap during periods with limited availability, and increasing the strength of penalties for failing to follow regulations.[17] While the PUC undertook rulemaking that reduced the price cap from $9,000/MWh to $5,000/MWh, the reduced cap was not restricted to periods of limited availability.[18] In response to several of the directives in Senate Bill 3 and other legislation related to Winter Storm Uri, the PUC undertook to reform the ERCOT wholesale electricity market in a “Blueprint” that detailed the two-phase reform plan.[19] There were several references to these changes in the January 13, 2022 Blueprint to implement many directives related to reforming the wholesale electricity market as future next steps.[20] While the classification system for violations has been amended to include violations of weatherization requirements,[21] natural gas facilities that are not voluntarily deemed “critical” are exempted from the penalties.[22] Because of this exemption, the natural gas sector and the RRC have drawn criticism from many, including the legislators who wrote Senate Bill 3.[23] While the RRC argues that listing every natural gas facility as “critical” would negatively impact the availability of electricity to everyone else,[24] this argument misses the point. The concern is not whether all natural gas facilities are critical; the concern is whether all natural gas facilities are required to weatherize in case of emergency. 

In addition to these comprehensive changes to the energy market itself, Senate Bill 3 also expanded the governance of the electricity market.[25] While other bills made changes to the existing structure in ERCOT[26] and the PUC,[27] Senate Bill 3 created three new governing bodies to help implement the changes established in the bill. First, the Texas Energy Reliability Council (“TERC”) exists to “(1) ensure that the energy and electric industries in [Texas] meet high priority human needs and address critical infrastructure concerns; and (2) enhance coordination and communication in the energy and electric industries in [Texas].”[28] The bill requires that TERC to obtain utility information related to disasters and mandates that public utilities and gas providers supply any such information.[29] Second, the Texas Electricity Supply Chain Security and Mapping Committee (“TESCSMC”) was created to map the electrical supply chain in Texas, identify critical infrastructure sources, establish best practices for preparing facilities to maintain services in the event of extreme weather, recommend oversight and compliance standards for these purposes, and prioritize service needs to prepare for, respond to, and recover from extreme weather.[30] TESCSMC was required to submit a report related to their newly assigned duties by January 1, 2022 and must complete the map by September 1, 2022. Last, the State Energy Plan Advisory Committee (“SEPAC”) functions to create a comprehensive state energy plan no later than September 1, 2022, in order to identify barriers, provide recommendations to overcome or remove those barriers, and evaluate methods to improve electric service, including ancillary services and emergency response.[31] 

Senate Bill 1281 – Updating Regulation of Transmission Projects

Another significant bill passed to address the structure of the market and mitigate the risk of future disruptions was Senate Bill 1281.[32] One priority of this bill was to expand the exception from obtaining a certificate of convenience and necessity (“CCN”).[33] An electric utility is required to obtain a CCN before building new transmission lines.[34] The previous exception to the CCN requirement applied to transmission lines between substations or customers if (1) the new line did not exceed one mile and (2) affected landowners whose property is crossed gave prior written consent.[35] The new codified exception expanded these criteria to apply when (1) transmission lines do not exceed 3 miles for connections to customers or 2 miles for generation connections, (2) all directly affected landowners give consent, and (3) necessary rights-of-way have been purchased.[36] The previous CCN exception existed in the PUC’s rules, but with the new legislation, the PUC must initiate rulemaking to adopt the new standard.[37] In addition to this expansion, the legislation aimed to refocus the review of proposed projects onto reliability criteria.[38] This included consideration of historical load, forecasted load growth, additional load seeking interconnection, and an analysis of the cost and benefits to consumers.[39] The PUC has not yet opened rulemaking procedures to incorporate these changes. Another goal of this bill was to create a mandatory biennial reliability assessment to be conducted by ERCOT that “consider[s] the impact of different levels of thermal and renewable generation availability; and recommend[s] transmission projects that may increase the grid’s reliability in extreme weather scenarios.”[40] 

House Bill 16 – Protecting Residential and Small Commercial Customers

House Bill 16 aimed to revamp the structure of the electricity market and focused on increasing regulation of certain retail electric products, specifically related to wholesale indexed power products and fixed rate products.[41] An aggregator, broker, or retail electric provider cannot offer wholesale indexed products to residential or small commercial customers, but they may continue to offer these products to other customers as long as they obtain signed acknowledgement of the associated risk from the customer.[42] This restriction helps protect residential or small business customers from the exponential price increases due to wholesale prices in times of extreme demand. In addition to limiting exposure to wholesale indexed pricing, this legislation updated notice requirements regarding the expiration of a fixed rate product.[43] Now, when a fixed rate contract is set to expire, the provider must provide three written notices in evenly distributed intervals during the last third of the contract period and the final notice must include terms for the default renewal product.[44] Any default renewal product must be clearly communicated in the contract and in the final notice, must be month to month, and the customer must be able to cancel at any time without a fee.[45] Failure to comply with the notice requirements results in the provider continuing to provide the fixed-rate product until proper notice is given or the customer selects a different product.[46] The PUC undertook rulemaking procedures to implement the requirements of House Bill 16, and these updated rules became effective as of January 6, 2022.[47]


While the Texas legislature took steps toward solving the problems with the Texas electricity market, the work has just begun.[48] The sheer amount of change required by the legislation will take years to implement, as demonstrated by the multi-phased plans proposed by PUC and ERCOT.[49] While some have claimed that sufficient change has been made to survive the “test” of the 2022 winter season, this most recent winter season did not compare to Winter Storm Uri.[50] The new legislation and regulation resulting from Winter Storm Uri is a significant step in the right direction, but the Texas electricity market has a long way to go to implement these changes and successfully shift the focus of the market to reliability.  


Michelle White is a 3L living in Hutto, Texas. Originally from Wimberley, Texas, she attended Texas A&M University before working for several years in Human Resources in Dallas. She joined TELJ her first semester of law school. During summer of 2022, she worked at Lloyd Gosselink and Naman Howell.


Alisha Mehta is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.


[1] See Joshua Fechter, Texas’ Power Grid Held Up During Last Week’s Winter Weather. Experts Say It Wasn’t Seriously Tested, The Tex.as Tribune (Feb. 8, 2022), https://www.texastribune.org/2022/02/08/texas-winter-weather-power-grid/.

[2] SourceMedia Bond Buyer, Texas Storm Uri, a Year Later: Financial, Political Fallout Lingers, Fidelity (Feb. 7, 2022), https://eresearch.fidelity.com/eresearch/markets_sectors/news/story.jhtml?storyid=202202071242SM______BNDBUYER_0000017e-d4b7-df57-a37e-dcb7abc10001_110.1.

[3] Texas Legislative Response to Winter Storm Uri, Baker Botts (July 7, 2021), https://www.bakerbotts.com/thought-leadership/publications/2021/july/texas-legislative-response-to-winter-storm-uri.

[4] See Tex. S.B. 3, 87th Leg., R.S. (2021); see Tex. S.B. 1281, 87th Leg., R.S. (2021); see Tex. H.B. 16, 87th Leg., R.S. (2021).   

[5] Fechter, supra note 1.

[6] See Tex. S.B. 3, 87th Leg., R.S. (2021).

[7] Id.

[8] 16 Tex. Admin. Code § 25.55 (2022) (Pub. Util. Comm’n of Tex., Weather Emergency Preparedness).  

[9] Final Winterization Report: Texas Grid Ready for Winter Weather Operations, ERCOT (Jan. 18, 2022), https://www.ercot.com/news/release?id=50d48648-2119-1c22-e9e9-a32f57650203 

[10] Pub. Util. Comm’n of Tex., Ord. Adopting New 16 TAC § 25.55 as Approved at the Oct. 21, 2021 Open Meeting, 46 Tex. Reg. 5659, 5698 (2021).

[11] Tex. S.B. 3, 87th Leg., R.S. (2021).

[12] Scott Friedman, What Texas Lawmakers Did (And Did Not Do) to Address the Power Crisis, NBC DFW (June 2, 2021), https://www.nbcdfw.com/investigations/what-texas-lawmakers-did-and-did-not-do-to-address-the-power-crisis/2646711/.

[13] Tex. S.B. 3, 87th Leg., R.S. (2021).

[14] The Timeline and Events of the February 2021 Texas Electric Grid Blackouts, The Univ. of Tex. at Austin, Energy Inst. (July 2021), https://www.puc.texas.gov/agency/resources/reports/UTAustin_(2021)_EventsFebruary2021TexasBlackout_(002)FINAL_07_12_21.pdf.

[15] Id.

[16] 16 Tex. Admin. Code § 25.479 (2022) (Pub. Util. Comm’n of Tex., Issuance and Format of Bills).

[17] Tex. S.B. 3, 87th Leg., R.S. (2021).

[18] 16 Tex. Admin. Code § 25.505 (2021) (Pub. Util. Comm’n of Tex., Reporting Requirements and the Scarcity Pricing Mechanism in the Electricity Reliability Council of Texas Power Region). 

[19] Pub. Util. Comm’n of Tex., Approval of Blueprint for Wholesale Electric Market Design and Directives to ERCOT, Project No. 52373 (Jan. 13, 2022), http://interchange.puc.texas.gov/Documents/52373_336_1180125.PDF

[20] Id.

[21] 47 Tex. Reg. 1226, 1240 (2022) (to be codified at 16 Tex. Admin. Code § 25.8). 

[22] Tex. S.B. 3, 87th Leg., R.S. (2021).

[23] Mitchell Ferman, Texas senators blast regulator for power grid winterization loophole lawmakers wrote into law, The Texas Tribune (Sept. 28, 2021), https://www.texastribune.org/2021/09/28/texas-power-grid-loophole/

[24] Christian Flores, Railroad Commission implements weatherization law after reports and experts raise concerns, CBS Austin (Nov. 30, 2021), https://cbsaustin.com/news/local/railroad-commission-implements-weatherization-law-after-reports-and-experts-raise-concerns#:~:text=Senate%20Bill%203%20requires%20all,of%20%241%20million%20per%20day

[25] Tex. S.B. 3, 87th Leg., R.S. (2021).

[26] Tex. S.B. 2, 87th Leg., R.S. (2021).

[27] Tex. S.B. 2154, 87th Leg., R.S. (2021).

[28] Tex. S.B. 3, 87th Leg., R.S. (2021).

[29] Id.

[30] Id.

[31] Id.

[32] Tex. S.B. 1281, 87th Leg., R.S. (2021).

[33] Id.

[34] Texas Legislative Response to Winter Storm Uri, Baker Botts (July 7, 2021), https://www.bakerbotts.com/thought-leadership/publications/2021/july/texas-legislative-response-to-winter-storm-uri.

[35] Id.

[36] Tex. S.B. 1281, 87th Leg., R.S. (2021).

[37] Id.

[38] Id.

[39] Id

[40] Id.

[41] Tex. H.B. 16, 87th Leg., R.S. (2021).   

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] 46 Tex. Reg. 9233, 9269 (2021) (to be codified at 16 Tex. Admin. Code §§ 25.43, 25.471, 25.475, 25.479, 25.498, 25.499). 

[48] Herman K. Trabish, Texas just dodged a repeat of 2021 outages, but its power sector has a long way to go, analysts say, UtilityDive (Feb. 25, 2022), https://www.utilitydive.com/news/texas-just-dodged-a-repeat-of-2021-outages-but-its-power-sector-has-a-long/618768/.

[49] Id.

[50] Id.

Vol. 52-2 Washington Update

Washington Update

The Most Ambitious Rule Yet?


In December of 2021, the EPA finalized a rule which created “the most ambitious vehicle emissions standards for greenhouse gases ever established,” for light-duty vehicle model years (MY) 23-26.[1] This rulemaking stemmed from an executive order that President Biden signed on his first day in Office, which pledged, 

“to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well paying union jobs necessary to deliver on these goals.”[2]


            To deliver on these presidential promises, the Order requires agency heads to review all agency actions that occurred during the Trump Administration and to, “consider suspending, revising, or rescinding,” any action that might be, “inconsistent with, or present obstacles to,” to the above policy in the Order.[3] In an effort to establish, “ambitious, job-creating fuel standards,” Section 2 of the Order specifically requires agencies to review the Trump Administration’s Safe Affordable Fuel Efficient (SAFE) Vehicles program and gives agencies the ability to re-open the notice and comment process for the SAFE vehicle rule.[4] The Order further required that agencies suspend, revise, or revoke the SAFE rule by July 2021 and consider the views of labor unions, states, and industry in its decision.[5]

The rule incorporates a slew of ambitious goals that are designed to incorporate the Biden Administration’s climate change and environmental justice initiatives and target a highly pollutive industry. Light duty vehicles, which include passenger cars and most SUVs, vans, and pickup trucks, account for almost 60% of greenhouse gas (GHG) emissions in the transportation sector and 17% of total US GHG emissions.[6] The transportation sector is the largest emitter of GHG in the United states and, while work certainly needs to be done to address commercial transportation and to improve access and availability of public transportation, transforming emission standards for light duty vehicles is an important part of lowering emissions and ultimately decarbonizing transportation.[7] 

The EPA has authority to promulgate this rule under Section 202(a) of the Clean Air Act (CAA) which requires it to, “establish standards for emissions of pollutants from new motor vehicles which, in the Administrator’s judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” [8] The EPA must consider the cost of compliance including, “technological feasibility, compliance cost (…) lead time (…) the impacts of potential GHG standards on the auto industry, cost impacts for consumers, oil conservation, energy security (…) other energy impacts [and] safety.”[9] While all factors must be considered, the ultimate purpose of adopting regulations under section 202(a) of the CAA is to address harmful air pollution that can potentially endanger public health and welfare.[10] The agency openly stated that it handled this calculus differently than it did when promulgating the SAFE rule, and explained that it was putting greater weight on emissions reductions (rather than industry considerations) and the resultant public health and welfare benefits in light of the CAA’s clear statutory purpose.[11] This is just one example of the marked difference between the Trump and Biden administrations different approaches to agency duty, environmental regulation, and public health and welfare.  

            The EPA also cites Supreme Court precedent establishing that agencies can change their opinions regarding existing policy, in what might be an attempt to prevent litigation or to just prove again that it has the authority to carry out the actions at hand.[12] Agencies are allowed to change their existing policies as long as they give adequate rationales and properly explain the reasons for said changes.[13] In changing the SAFE regulations the EPA does not even need to provide a more detailed justification; instead, an explanation that would accompany a regulation made from scratch would do.[14] The EPA goes above and beyond this requirement, clearly explaining why it is turning away from the position it held in promulgating the SAFE regulations. 

The EPA’s amended approach, which returns to the original statutory purpose of the CAA, will reduce emissions by 50% more than the original SAFE standards would.[15] The new rule also results in an expected decrease of CO2 by almost 50 grams/mile for MY 2026[16] and helps to avoid over 3 billion metric tons of CO2 as compared to the SAFE rule.[17] The benefits of the program far outweigh the costs as well; the program under the new rule has a net present value of 120 to 190 billion dollars,[18] will reduce gasoline consumption by more than 360 billion gallons (15% of annual consumption),[19] and will result in a total fuel savings of $210 billion and $420 billion through 2050.[20]

The EPA also incorporated a robust environmental justice approach in the promulgation of the new rule. In creating the new rule the agency sought to identify and address the potential, “disproportionately high and adverse human health or environmental effects…on minority populations and low-income populations in the United States,” that the rule might have in order to achieve the, “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.[21] This is in accordance with Biden’s Executive Order 14008 which calls on federal agencies to make achieving environmental justice through the implementation of their programs and actions a priority via a policy, “to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure and health care.”[22] The EPA explains its incorporation of this mission into the new rule as two-pronged. First, the adverse impacts of climate change will be felt more strongly by people of color and low-income communities, as they are especially vulnerable to these changes. By attempting to reduce GHG emissions and the impacts of climate change, these populations will benefit and potentially avoid some of the more disastrous impacts of global climate change. Second, the EPA also mentioned the reduction of non-GHG emissions from the adoption of the new rule. People of color and low income communities are more likely to live in areas with higher levels of air pollution, so the reduction of harmful, non-GHG emissions will also increase efforts to incorporate environmental justice initiatives.[23]

The EPA’s new rule is functionally an overhaul of the Trump Administration’s SAFE regulations. The new rule properly incorporates the CAA’s clear statutory purpose of reducing GHG emissions and prioritizing public health and safety, sets ambitious yet realizable goals for one of the US’s most pollutive industries, sets up future MY regulations on a steadily decreasing path, and incorporates crucial yet generally lacking environmental justice criteria, all while still accounting for industry concerns such as compliance costs, lead time and other relevant factors. The rule also properly explains the agency’s change in reasoning for the new rule and cites strong Supreme Court precedent for its authority to do so. While the rule has not been legally challenged yet, time will what attacks are levied against it in the court, if any. 


Blake Welborn is a 3L from Austin, Texas. He majored in environmental studies at Texas A&M and then taught high school science before coming to Texas Law. He served as a staff editor and then a senior staff editor on TELJ, was a Pro Bono scholar with the Expunction Project during his 2L year, and is a member of Texas Law Review. Blake hopes to work on environmental justice issues in Texas after he graduates.


Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.



[1] EPA Finalizes Greenhouse Gas Standards for Passenger Vehicles, Paving Way for a Zero-Emissions Future, Env’t Prot. Agency (Dec. 20 2021), https://www.epa.gov/newsreleases/epa-finalizes-greenhouse-gas-standards-passenger-vehicles-paving-way-zero-emissions.

[2] Exec. Order No. 13990, 86 Fed. Reg. 7037, 7037 (2021).

[3] Id

[4] Id. at 7041.

[5] Id

[6] Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards, 86 Fed. Reg. 74434, 74490 (Dec. 30, 2021).

[7] Id. at 74446.

[8] Id. at 74436; See also 42 U.S.C.A. § 7521 

[9] Id

[10] Id

[11] Id

[12] Id

[13] Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016)

[14] Id

[15] Supra note 6, at 74437.

[16] Id. at 74440.

[17] Id. At 74444.

[18] Id. at 74443.

[19] Id. at 74498.

[20] Id. at 74437.

[21] Id. at 74444; This is also the definition of environmental justice that the EPA uses. 

[22] Id.; Exec. Order No. 14008, 86 Fed. Reg. 7619, (February 1, 2021). (This executive order in part states that agencies must incorporate environmental justice into their missions, “by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.”) 

[23] Supra note 6, at 74445. (There is evidence, for example, that individuals who live or attend school near a major roadway, and are thus subject to more pollution from said roadway, are more likely, “to be of a nonWhite race, Hispanic ethnicity, and/or low socioeconomic status.”) 

Vol. 52-2 Water Quality

Water Quality


Ownership with Responsibility

The legal treatment and protections afforded to water resources and water quality control in the United States are complex. Water quality is regulated at both the federal and state level, and those regulations are not always consistent with each other. This note focuses on a recent Texas Supreme Court case, Texas Comm’n on Env’t Quality v. Maverick Cnty, which interpreted key language in the rules promulgated by the Texas Commission on Environmental Quality.[1]

The Texas Commission on Environmental Quality (TCEQ) is a state agency with the mission of “[p]rotecting Texas by reducing and preventing pollution.”[2] A primary function of the agency is to issue licenses and permits for the many business owners whose operations effect environmental resources within the state and to promulgate regulations designed to limit negative environmental impact from business operations. Each permit application has a unique review process with various procedures and components.[3] This system is the primary means of regulating the environmentally impactful conduct of businesses within Texas—without the proper permits from TCEQ, businesses cannot continue their operations. Therefore, the successful issuance of a permit or license is critical to any business whose operations fall under the purview of the TCEQ. It also means that challenging a permit or license is the best way for an advocate, who believes the environment is being harmed by certain business conduct, to try and stop operations.

The focus of Texas Comm’n on Env’t Quality v. Maverick Cnty was the renewal of a permit for wastewater being discharged from a coal mine applied for by mine’s owner, Dos Repúblicas Coal Partnerships (DRCP).[4] The primary issue involved the interpretation of the TCEQ rule that “if the facility is owned by one person and operated by another and the executive director determines that special circumstances exist (…) both [should] apply for a permit.”[5] This rule accommodates gives TECQ flexibility to require additional procedures for circumstances where owners are remote from the overall operations of the particular business. Therefore, the TCEQ is allowed to determine those non-owners who actually run the business must also comply with licensing requirements. Since DRCP has hired a contractor “to personally perform the day to day running of the mine,” those challenging the permit argued that both DRCP and the contractor needed to apply for the permit. [6] The court narrowed the issue to “whether DRCP or the contractor is the [coal] mine’s ‘operator’” under the definitions adopted by TCEQ. [7]

The court begins by discussing the lengthy application history of DRCP’s licensing application, showing that DRCP complied with the various procedures, and obtained all the needed consents in order to obtain a license from TCEQ.[8] Furthermore, the court acknowledged that TCEQ had complied with each required step. In reviewing agency actions, the court applies the reasonable basis test, which gives substantial deference to the agency’s actions.[9] Under a reasonable basis standard, the court is not evaluating the substantive correctness of the decision. Instead, the curt is deciding whether there is any legitimate basis for concluding as the regulatory authority did.

Accordingly, applying a textualist approach, the court looked to the literal language of the rules promulgated by TCEQ to determine what should be considered reasonable. The focus was on the definition of “Operator–The person responsible for the overall operation of a facility.”[10] The court acknowledged that although “overall operation” is open-ended and vague, that the court’s “principal goal when interpreting text is not to achieve simplicity or ease of application.”[11] Therefore, the court determined that specifying the meaning of the terms by adding other language such as “personal performance,” as the court of appeals had done, was an error. Adding such a qualifier unacceptably limited the scope of the term.[12] The court reasoned that there are entities that can be “responsible for [the] overall operation of a facility” without doing the day to day work.[13] 

In this holding, the court sticks to a broader, more flexible reading of the rule, which in turn gives TCEQ more discretion in how to apply it. However, the more encompassing the definition of “operator” is, the narrower the circumstances in which an owner and operator will be deemed separate entities. As a result, it is less likely that two licenses will be required in any given situation—making it easier for businesses to legally continue their possibly harmful conduct. 

From a practical perspective, the ruling does allow for a more streamlined application. There are many substantive issues which arise when multiple people or entities are required to obtain licenses which the court did not discuss, as its analysis solely pertained to the text of the rules. For example, contractors may change many times over the course of a business’s life. A lot of added difficulty would come to the businesses if any time it wanted a new contractor, the contractor had to go through the entire licensing process. This could cause the an owner to keep employing a bad contractor, simply because the time and expense of finding a new one to get permitted would be too costly. Once a contractor obtains a license, that could provide substantial negotiating leverage over the owners. Therefore, from a logistical standpoint, it makes a lot of sense maintain an approach that allows an owner to be the “operator” for purposes of licensing, while also contracting out experts to deal with the day-to-day maintenance and running of a facility. Furthermore, the definition does not mean that the owner and operator will always be the same entity. It just gives flexibility in the appropriate circumstances for TCEQ to make such a finding. 

Although this case may feel like a loss for those seeking a harsher licensing policy, it makes sense from both a textualist and realist approach. Those seeking to reform the policies regarding water treatment should do so through legislative or agency advocacy. However, the court showed that unless the circumstances are “unreasonable,” the agency’s decision will likely continue to be upheld. 


Jessica Rosenwasser is a 3L from New York City. She attended Washington and Lee University and joined TELJ during her second year of law school. Jessica will be working for Vinson & Elkins in the New York office after graduation.


Francesca Eick is an Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).


[1] Texas Comm’n on Env’t Quality v. Maverick Cty., No. 19-1108, 2022 WL 413939, at *1 (Tex. Feb. 11, 2022). (This opinion has not yet been released for publication in permanent law reports. Until it has been released, it is subject to revision or withdrawal). 

[2] TCEQ, Mission Statement and Agency Philosophyhttps://www.tceq.texas.gov/agency/mission.html (last visited Apr. 17, 2022). 

[3] TCEQ, Environmental Permitting: Participating in the Process,  https://www.tceq.texas.gov/agency/decisions/participation/permitting-participation/participating, (last visited Apr. 17, 2022). 

[4] Maverick Cty., 2022 WL 413939, at *1.

[5] 30 Tex. Admin. Code § 305.43(a).

[6] Maverick Cty., 2022 WL 413939, at *1.

[7] Id.

[8] Id. at *2.

[9] Id. at *4. 

[10] 30 Tex. Admin. Code § 305.2(24) (2020) (Tex. Comm’n on Env’t Quality, Definitions)

[11] Maverick Cnty., 2022 WL 413939, at 10.

[12] Id.

[13] Id

Vol. 52-2 Water Rights

Water Rights

Mississippi v. Tennessee: A Watershed Decision in State Water Rights


            In Mississippi v. Tennessee,[1] the states of Mississippi and Tennessee disagreed about what rights each state had to the groundwater resources of the Middle Claiborne Aquifer. Mississippi filed an action against Tennessee and, in a novel argument, claimed that Tennessee’s pumping of the groundwater in the Aquifer amounted to a tortious taking of groundwater owned by Mississippi.[2] The United States Supreme Court held that Mississippi did not own the groundwater; rather, the Aquifer’s water resources were subject to equitable apportionment between the states.[3] 


The Middle Claiborne Aquifer is a large freshwater aquifer that underlies eight states, including Mississippi and Tennessee, both of which rely on this water resource daily.[4] Groundwater pumps draw water to the surface, where the water is transported to consumers.[5] The Aquifer is a main source of water for the City of Memphis which, through its utility, draws about 120 million gallons of water per day from Memphis’s more than 160 groundwater wells.[6] All of the wells are drilled straight down and located within Tennessee’s borders, but importantly, some are near the Tennessee-Mississippi border.[7]

Pumping groundwater creates a cone of depression that lowers water levels around the wells. This phenomenon can be controversial when the wells are close to state borders, because the wells—while themselves entirely within state borders—can lower water levels across state lines.[8] Here, Mississippi argued that the City of Memphis’s pumping activities “altered the historic flow of groundwater within the Middle Claiborne Aquifer.”[9] Specifically, Mississippi alleged that Memphis’s groundwater pumping substantially lowered water pressure and decreased groundwater drawdown in the parts of the Aquifer located in Mississippi near the Mississippi-Tennessee border.[10] Mississippi did acknowledge that 30–60 feet of water per year flowed naturally through the Aquifer from Mississippi to Tennessee, but Mississippi contended that Memphis’s pumping “substantially hastened this existing flow.”[11] As a result of the pumping in Tennessee, Mississippi asserted that it was forced to drill deeper wells “and use more electricity to pump water to the surface.”[12]

Rather than filing an original action seeking equitable apportionment—the usual judicial remedy for the apportionment of the shared water resource—Mississippi claimed that the doctrine did not apply because it had a sovereign ownership right to the groundwater beneath its borders.[13] Mississippi therefore sought leave to bring an original action against Tennessee on the basis that Memphis tortiously took “hundreds of billions of gallons of high-quality groundwater owned by Mississippi.”[14] Mississippi sought $615 million in damages.[15] Mississippi also contended that equitable apportionment does not apply to groundwater use.[16] 

Legal Background and Question

            Equitable apportionment is a judicial remedy that seeks to fairly allocate a shared water resource between two or more states, based on the idea that states have an equal right to reasonable use of shared water resources.[17] The United States Supreme Court has applied equitable apportionment to interstate rivers, streams, river basins, and in situations where groundwater pumping has affected the flow of interstate surface waters.[18] Since the Court had never answered the question of whether equitable apportionment applies to interstate aquifers, this case was a matter of first impression.[19] The question in this case, then, was whether equitable apportionment of an interstate aquifer is “‘sufficiently similar’ to past applications of the doctrine to warrant” the application of equitable apportionment.[20]

The Court’s Analysis

            The Court unanimously held that equitable apportionment of the Aquifer was sufficiently similar to past applications such that it warranted application in this case.[21] The Court asserted three primary reasons for its holding.

First, the Court noted that the Aquifer is multistate in character.[22] The Court had only applied equitable apportionment in the past to interstate water resources, and this case unquestionably involved an interstate water resource.[23] Mississippi did not contest the scientific consensus that the “‘Aquifer is a single hydrogeological unit’ spanning multiple states.”[24] 

Second, the Court observed that the groundwater in the aquifer “flows naturally between the states.”[25] This again rendered the aquifer similar to the Court’s past applications of equitable apportionment, which all involved water that flowed naturally across state boundaries.[26] Mississippi argued that the aquifer’s water flow was distinguishable from that of the past applications of equitable apportionment because the aquifer flows “extremely slow[ly].”[27] The Court remained unpersuaded, observing that it had applied equitable apportionment to water resources that sometimes run dry.[28] The Court also stressed that while the speed of the water’s flow may be slow, the volume of the water flowing totaled more than “35 million gallons of water per day, and over ten billion gallons per year.”[29] Thus, the speed at which the aquifer flows failed to distinguish the aquifer from the water resources to which the Court normally applied equitable apportionment.[30]

Lastly, the Court pointed out that the City of Memphis’s pumping activities affected the aquifer underneath Mississippi.[31] Pumping water from the aquifer within Tennessee’s borders reduces groundwater pressure and drawdown miles into Mississippi.[32] “Such interstate effects are a hallmark of [the Court’s] equitable apportionment cases.”[33] For the three reasons stated above, the Court held that the groundwater in the aquifer is subject to equitable apportionment.[34]

Mississippi insisted that it holds “sovereign ownership of all groundwater beneath its surface, so equitable apportionment ought not apply.”[35] The Court disagreed, explaining that while states own the land and waterbeds within their borders, this ownership does not extend to the “flowing interstate waters themselves.”[36] The Court also commented that if states could exercise jurisdiction over all of the groundwater underneath the state, then upstream states could pump aquifers dry and leave downstream states without water.[37]

Mississippi also urged that Tarrant Regional Water District v. Herrmann supported Mississippi’s argument that equitable apportionment should not apply.[38] In Tarrant, the Supreme Court interpreted a compact that two states had negotiated concerning the states’ rights to a water resource.[39] The Tarrant Court did not consider whether equitable apportionment applied in that case, because the dispute was solely governed by the contract.[40] Accordingly, the Court explained that Tarrant was inapposite.[41]

The Court recognized that Tarrant did support the rule that states “may not physically enter another to take water in the absence of an express agreement,” but that was not at issue here—the City of Memphis’s wells were undisputedly within Tennessee’s borders.[42] That some of the aquifer’s water began in Mississippi did not affect the analysis; just as river water may originate in another state, so too may groundwater.[43] While “[t]he origin of an interstate water resource may be relevant to the terms of an equitable apportionment . . . . that feature alone cannot place the resource outside the doctrine itself.”[44] Since Mississippi and Tennessee did not have a contractual agreement about their respective rights to the groundwater, and Tennessee was pumping water in its own state, no rule in Tarrant supported Mississippi’s argument that equitable apportionment should not apply.[45] 

In sum, the Court held that the groundwater in the Middle Claiborne Aquifer was subject to equitable apportionment because it the aquifer was sufficiently similar to the water resources that are customarily subject to equitable apportionment. The Court dismissed Mississippi’s complaint.[46]

Implications for State Water Rights

            As climate change prompts governments to pay closer attention to the use and conservation of water resources, this decision has important ramifications for state water rights. This case appears to stop states from attempting to pump important groundwater resources dry: If Mississippi were able to assert ownership over all of the groundwater within its state borders, then it is in Mississippi’s interest to use as much of that groundwater as possible, lest Tennessee endeavor to do the same. This, of course, would not be a conservation-conscious practice. Equitable apportionment aspires to ensure that states fairly share and preserve water resources. But as the Court noted in this case, states seeking judicial enforcement of equitable apportionment must show real and substantial injury, which is a high bar.[47]

            This ruling also may inspire states to adopt interstate compacts concerning groundwater resources. Because of the cost and difficulties involved in obtaining judicial enforcement of equitable apportionment, a proactive compact is an attractive option for states looking to secure long-term rights to interstate groundwater resources. Predictable judicial enforcement makes compacts reliable and financially prudent. Indeed, the Court in this case explicitly distinguished Tarrant on the grounds that Tarrant was a question of contractual interpretation.[48] The market forces underlying the negotiations of such compacts also give assurance that groundwater resources will be used efficiently by the states that are parties to the compact.


Graham Rex is a rising 3L from Raleigh, North Carolina. He studied Philosophy at the University of North Carolina-Wilmington, and he joined TELJ during his 1L year. Graham wants to practice nonprofit environmental law after law school and he is clerking at Earthjustice in Denver, Colorado this summer. 


Emily Rogers is the Managing Partner of Bickerstaff Heath Delgado Acosta LLP and represents public and private clients in water rights, water quality, utility, and environmental law matters.


Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University School of Law, where she served on the editorial board of the Law Review.




[1] Mississippi v. Tennessee, 142 S. Ct. 31 (2021).

[2] Id. at 38.

[3] Id. at 41.

[4] Id. at 36.

[5] Id.

[6] Id. at 37.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 38.

[11] Id. at 37.

[12] Id. (citing Complaint at ¶ 54(b), Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[13] Id. at 40. 

[14] Id. at 38 (quoting Complaint at ¶ 23, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[15] Id. (citing Complaint at ¶¶ 55–56, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[16] Id. (citing Complaint at ¶ 49, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)). Equitable apportionment seeks to divide rights to an interstate water resource fairly between states. The doctrine will be discussed in detail later in this essay.

[17] Id. at 39 (citing Colorado v. New Mexico, 459 U.S. 176, 183 (1982); Florida v. Georgia 141 S. Ct. 1175, 1180 (2021)).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 39–40.

[23] Id.

[24] Id. at 40 (citing Report of Special Master at 20, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[25] Id.

[26] Id.

[27] Id. (quoting Exceptions Brief for Mississippi at 8, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[28] Id. (citing Kansas v. Colorado, 206 U.S. 46, 115 (1907)).

[29] Id. (citing Hearing Tr. 532–33, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[30] See id.

[31] Id.

[32] Id.

[33] Id. (citing Florida v. Georgia 141 S. Ct. 1175, 1180 (2021)).

[34] Id.

[35] Id.

[36] Id. (citing Wyoming v. Colorado, 259 U.S. 419, 464 (1922)).

[37] Id. at 41.

[38] Mississippi v. Tennessee, 142 S. Ct. at 41 (citing Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614 (2013).

[39] Id. (citing Tarrant, 569 U.S. at 627).

[40] Id. 

[41] Id.

[42] Id. (citing Joint Statement of Stipulated and Contested Facts at 106, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)).

[43] Id. (citing Colorado v. New Mexico, 459 U.S. 176, 181, n.8 (1982); Idaho ex rel. Evans, 462 U.S. 1017, 1028, n.12 (1983)).

[44] Id.

[45] Id.

[46] The Court declined to decide whether Mississippi should be granted leave to file an amended complaint seeking equitable apportionment, because Mississippi never sought equitable apportionment. Id. Since Mississippi expressly rejected equitable apportionment in its pleadings, the Court could not assume that Mississippi would seek equitable apportionment. Id. (citing Complaint at ¶ 38, Mississippi v. Tennessee, 142 S. Ct. 31 (2021)). An equitable apportionment case would require consideration of more evidence, perhaps including “existing uses, the availability of alternatives, practical effects, and the costs and benefits to the states involved.” Id. An equitable apportionment claim might also require other parties to be joined, since other states also depend on the Aquifer’s water resources. Id. at 42. Lastly, a state pursuing equitable apportionment must prove a real and substantial injury. Id.

[47] See Mississippi v. Tennessee, 142 S. Ct. at 42 (citing Idaho ex rel. Evans, 462 U.S. 1017, 1028, n.12 (1983)).

[48] See id. at 41.

Vol. 52-2 Recent Publication

Recent Publication

Shalanda H. Baker, Anti-Resilience: A Roadmap for Transformational Justice within the Energy System, 54 Harv. C.R.-C.L. L. Rev. 1 (2019).


At the core of American legal efforts to advance notions of equity and justice within the environmental sphere lies the ‘environmental justice movement’. The environmental justice movement has evolved alongside the landmark American environmental statutes.[1] Initially a product of legal momentum in the 1960s, the major environmental statutes aspired to new balances between continued economic prosperity and the protection of the environment.[2] The National Environmental Policy Act (NEPA) and the innovative media-based statutes, including the Clean Air Act (CAA) and the Clean Water Act (CWA), were passed relatively swiftly and cohesively in this same early period.[3] 

            As scholars have detailed, initial aspirations to design this balance sought to remedy major equity concerns, including about the material distribution of environmental benefits and burdens.[4] These initial equity aspirations were powerfully informed by lenses of race and class.[5] Yet, these initial equity aspirations were, “ultimately, jettisoned”.[6] Instead, with apparent evidence of diminishing inequality and a growing interest in substantially deregulating major economic sectors, many equity dimensions were discounted.[7] 

            In response to these cuts and to the increasing criticism of arguably inequitably distributed environmental burdens, the US environmental justice movement has grown more prominent. Despite initially lacking major political power and a presence within elite circles, the environmental justice movement continues to advocate for the inclusion of policies to remedy what some activists see as concerning government endorsement of environmental oppression.[8] 

Thus, especially within energy infrastructure planning and the regulation of hazardous materials, the environmental justice movement remains a primary legal, political, and policy framework by which efforts to address environmental inequity are framed.[9] The movement has accordingly found some success—especially in liberal political efforts—incorporating equity concerns within new and existing regulations.[10]

            However, just as the movement persists, as does its struggle, and today parallel literature has developed on ‘energy justice’. The passage of major legal evolutions within environmental, energy, and, more recently, climate law, remains a deeply contested political atmosphere.[11] Increasingly divisive interest groups, political factions, and long-standing economic entrenchment threaten ‘advancement’ by any one movement.[12] Parties to disagreements are increasingly aware of energy law’s sweeping potential to determine economic goals, infrastructure policies, and the flow of financial benefits. This sweeping potential makes energy law-making deeply contested.

            It is in the context that a 2019 publication by Shalanda H. Baker—currently the deputy Director for Energy Justice and Secretary’s Advisor on Equity in the United States Department of Energy but, at the time of publication, Professor of Law, Public Policy and Urban Affairs at Northeastern University School of Law—contributes a theoretical perspective worth noting in the growing ‘energy justice’ literature. Baker’s central thesis revolves around a perspective of ‘anti-resilience’. This perspective develops from a creative argument. 

First, Baker notes that concepts of resilience are increasingly incorporated into energy transition and climate change law-making efforts and frameworks.[13] She traces the history of this incorporation, stemming from concepts of ecosystem resilience to external forces, and evolving into increasingly common sociological and legal formulations of resilience.[14] In these sociological and legal formulations, resilience becomes a “normative good” to be “sought after,” something which reflects a system’s, a community’s, or an infrastructure’s capacity to weather adverse forces and “bounce back” to its prior condition.[15] 

Yet, Baker argues, these subtle invocations of resilience concepts—growing within energy transition and climate change law-making—may inadvertently lead policymakers to “obfuscate” important questions regarding the state of energy-based inequity today.[16] Baker argues that when policymakers uncritically incorporate concepts of resilience as a normative good within legal strategies, they may fail to interrogate subtle dynamics of oppression in existing governance models.[17] In this view, concepts of resilience, while importantly reinforcing a need for strength and recovery potential in vulnerable components of society and infrastructure, nevertheless incorporate a certain acceptance of an arguably inequitable status quo. This status quo, in the energy justice movement’s view, does not exhibit an equitable distribution of benefits and burdens flowing from the ownership of energy resources.[18] In Baker’s view, then, resilience framing deserves greater scrutiny in contemporary law-making efforts. 

One of the most unique elements of Baker’s analysis is its invocation of a historical analysis recently developed within the ‘energy democracy’ movement.[19] In this historical perspective, while today most literature on energy transitions centers around contemporary transitions from fossil fuels to renewable energies, the energy democracy movement views today’s circumstances as one of a series of major industrial transitions.[20] Instead, efforts today to address climate change and manage energy transitions should, in this view, be significantly informed with the lessons of a precursor industrial energy transition, from the Transatlantic Slave Trade to industrialised fossil fuels.[21] 

In this historical reanalysis, the Transatlantic Slave Trade, especially as evolved in American plantation colonialism, saw the first industrial-scale transformations of matter—the “essence of energy”[22]—through the dominated extraction of labor from colored bodies. Using slave labor to transform land, slave economies facilitated race-based governance structures and the colonization of the American continent, thereby consolidating surplus wealth at unprecedented scales.[23] Yet, this view argues, when fossil fuel engineering began to displace slave labor, underlying race-based systems of governance were retained, themselves “resilient” to this initial energy transition.[24] Scholars such as Myles Lennon have argued that, in this way, “the colonial apparatus transformed energy—the ability to change matter—into a commoditized form that made certain lives not matter.”[25]

The central impetus of this perspective on energy justice, then, is to prevent the continuance today of allegedly oppression-based governance and economic models through the upcoming energy transitions to lower-carbon economies and energy infrastructure. In Baker’s view, energy policy represents a legal mechanism with potential to interrogate this alleged underlying dynamic.[26] Indeed, energy democracy activists treat energy policy as a mechanism for the legal reorganization of economic benefits related to energy-based wealth.[27] Energy democracy thus aspires to link “intersectional activism and the technocratic realm of electricity grids and markets.”[28]  Baker’s ultimate vision would see that communities will regain “some measure of control of the energy and environmental resources around them,” access “economic opportunities outside of the colonizing energy industries within their communities,” and incorporate local renewables “through a community-mediated mechanism that reflects the will of the people impacted by the energy system.”[29]

Through an analysis of state and federal energy policies and proceedings, including net metering policy, community energy policy, and Federal Energy Regulatory Commission proceedings on the role of resilience in the nation’s energy grids, Baker argues that such policies embody under-utilized opportunities to facilitate this transferal of energy-based wealth to under-resourced communities.[30] For Baker, such policies, when focused through a lens of “anti-oppression,” could play a prominent role in assisting communities that she describes as ‘sacrifice zones’, such as her hometown of Port Arthur, Texas, which in her view face disproportionate environmental burdens from fossil fuel infrastructure.[31] Baker views her work as “resisting the obfuscation” of entrenched inequity and “engaging in a politics” of transformation, thus positing a theoretical perspective with dimensions in arguably both a transformative politics and a radical epistemology.[32] 

Yet, Baker’s arguments are susceptible to substantial criticisms that may undermine the insight’s potential durability and effect within energy and climate law-making. In particular, as climate and energy policies remain a deeply contested territory, such “transformative” policies centered around an economic redistribution of energy’s benefits are likely to implicate deep veins of political contest, interest groups dynamics, industry trends, and constitutional matters. On the one hand, the movement’s aspiration for transformation risks asking for nothing less than equality of energy’s benefits across American society, and thus the movement may, for some, ask too much. On the other hand, insofar as the movement dreams of economic and political upward mobility largely while retaining today’s core economic and political structures, the movement may, for some, ask too little. Simultaneously, then, the imaginative nature of Baker’s vision arguably makes it politically unrealistic, while a hesitancy to envision an even more radical future may risk undermining, to some, the movement’s conceptual cohesion. Both criticisms may ultimately undermine the movement’s legitimacy, persuasiveness, and potential to achieve durable legal influence.

This acknowledged, there remains something important that readers can undoubtedly retain from Baker’s rigorous analytical exposition, regardless of whether readers agree with her ultimate positions. The recognition that concepts of resilience are often based in an attachment to an a priori state of affairs—which may be uncritically accepted as normatively good—provides policy makers with an additional encouragement to reflect on the values and assumptions guiding their strategies. In this light, Baker’s work makes a considerable contribution to the energy justice literature because it further attunes energy policy to matters of equity and justice—matters which, from many sides, are increasingly regarded as societally worthwhile. Whether through continued historical reflection, analysis of economic distributions, or novel conceptual policy arguments, the energy justice literature continues to provide a unique and interesting perspective on energy policy-making, especially its energy transition dimensions. 

Finally, possible connections to other parallel movements shaping American society, such as Black Lives Matter and renewables proliferation, may make it such that a vision to ‘democratize energy’ may find a foothold in the legal efforts of activists and technocrats alike. There is a deepening recognition that climate change places great legal pressure as much on administrative and property law as traditional environmental and energy law.[33] In this regard, energy policy’s sweeping potential makes it a possibility that climate-driven energy transition policy “traverses a diversity of hopeful terrain that makes it a better site for transformative politics” after all.[34] 

Like many components of energy policy today, though, much will depend on the real decisions made in upcoming years. To what extent Baker’s arguments will be incorporated into upcoming energy policy efforts is, thus, unknowable. Nevertheless, the article’s contribution to energy policy-making literature is rigorously articulated, thoughtfully advanced, and worth considered reflection.


Aaron Ramcharan is a J.D. Candidate, Class of 2022, The University of Texas School of Law and LL.M. Candidate in Global Environment and Climate Change Law, Class of 2022, University of Edinburgh Law School. Aaron joined TELJ in Fall 2020 and serves as Senior Editor. He was born in Edmonton, Alberta, Canada and studied Philosophy at Reed College in Portland, Oregon. After graduation, he will join Baker Botts LLP.


Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.

[1] Jedediah Purdy, ‘The Long Environmental Justice Movement’ 44 Ecology Law Quarterly 809, 812 (2018).

[2] Purdy, supra note 1, at 813.

[3] Purdy, supra note 1, at 812.

[4] Shalanda H. Baker, Anti-Resilience: A Roadmap for Transformational Justice within the Energy System 54 Harv. C.R.-C.L. L. Rev. 1, 13 (2019).

[5] Baker, supra note 4, at 13.

[6] Baker, supra note 4, at 13.

[7] Purdy, supra note 1, at 824.

[8] Baker, supra note 4, at 14.

[9] Baker, supra note 4, at 14; Environmental Protection Agency, ‘Environmental Justice’ (2022), https://www.epa.gov/environmentaljustice (last accessed 20 April 2022).

[10] Kendra S. Sherman, Update on Environmental Justice Initiatives Under the Biden Administration, XII:116 National Law Review (8 Feb. 2022), https://www.natlawreview.com/article/update-environmental-justice-initiatives-under-biden-administration, (last accessed 20 April 2022).

[11] Leah Cardamore Stokes, Short Circuiting Policy: Interest Groups and the Battle Over Clean Energy and Climate Policy in the American States (Oxford University Press 2020) 4.

[12] Stokes, supra note 11, at 6.

[13] Baker, supra note 4, at 22.

[14] Baker, supra note 4, at 20.

[15] Baker, supra note 4, at 2.

[16] Baker, supra note 4, at 26.

[17] Baker, supra note 4, at 26.

[18] Baker, supra note 4, at 23.

[19] Baker, supra note 4, at 10.

[20] Myles Lennon, Decolonizing Energy: Black Lives Matter and Technoscientific Expertise Amid Solar Transitions, 30 Energy Research & Social Science 18, 24 (2017).

[21] Baker, supra note 4, at 11.

[22] Baker, supra note 4, at 11.

[23] Lennon, supra note 20, at 24.

[24] Lennon, supra note 20, at 25.

[25] Lennon, supra note 20, at 19.

[26] Baker, supra note 4, at 19.

[27] Baker, supra note 4, at 19, 26.

[28] Lennon, supra note 20, at 20.

[29] Baker, supra note 4, at 12.

[30] Baker, supra note 4, at 26–27, 31, 33.

[31] Baker, supra note 4, at 5, 9.

[32] Baker, supra note 4, at 6.

[33] Eric Biber, Law in the Anthropocene Epoch, 106 Georgetown L. J. 1, 4 (2017).

[34] Baker, supra note 4, at 13.

Vol. 52-2 Natural Resources & Land Use

Natural Resources & Land Use

Updates on Effect of County of Maui Decision on CWA Litigation


            The Supreme Court’s 2020 opinion in County of Maui v. Hawaii Wildlife Fund communicated a material change in the interpretation of the Clean Water Act’s application to wastewater pollutants. This article reviews the Court’s holding, describes subsequent administrative actions, and reviews recent litigation applying the Court’s holding in lower courts.

County of Maui and Functional Equivalent Test

In 2020 the Supreme Court issued an opinion in County of Maui v. Hawaii Wildlife Fund to determine whether a permit from the EPA is required where a pollutant originating from a point source enters navigable waters via a non-point source.[1] In the case before the Court, a suit was brought for Clean Water Act violations against the County of Maui’s operation of a wastewater reclamation facility.[2] The city’s facility was pumping treated water (the pollutant) hundreds of feet underground into wells that traveled through groundwater into the Pacific Ocean, a navigable water.[3] The court was faced with the issue that a narrow reading of the statute establishes a loophole circumventing the intent of the statute, since groundwater eventually leads to navigable waters.[4] However, too broad of a reading would require permitting in many cases Congress did not intend the EPA to regulate.[5] The court ultimately held that a permit is required when there is a direct discharge or where there is the “functional equivalent of a direct discharge.”[6] To assist in determining whether a discharge is a functional equivalent the court laid out seven factors to be considered: “(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the  amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the  navigable waters, (7) the degree to which the pollution (at that point) has maintained its specific identity.”[7] The Court noted that the first two factors of time and distance are likely to be the most important in a functional equivalent analysis.[8]

EPA Guidance Memorandums

On January 14th, 2021, the Trump administration issued a guidance memorandum on the County of Maui decision. This memorandum is not legally binding. It added an eighth factor: “the design and performance of the system or facility from which the pollutant is released.”[9].  The Biden administration then rescinded the guidance on September 15th, 2021, through another memorandum sent by EPA Assistant Administrator for the Office of Water, Radhika Fox.[10] The September memorandum found the January guidance’s addition of an eighth factor to be inconsistent with the Court’s opinion by introducing an inquiry into the intent of the accused polluter.[11] In addition, the September memorandum stated the EPA will engage in “site-specific, scientific-based evaluations” to determine if discharges meet the functional equivalent standard of County of Maui.[12]

County of Maui on Remand

Since County of Maui, cases involving the use of the functionally equivalent test it articulated have been fact-specific and often require the use of experts.[13] In County of Maui on remand, the District Court of Hawaii, determined that the county had violated the permit requirement of the Clean Water Act by meeting the functional equivalent standard.[14]  The facts the court found most persuasive were the short distance and transit time.[15] The distance was about half a mile from point source to the ocean.[16] The transit time from point source to the ocean had a minimum of 84 days and average of 14 to 16 months.[17] The court also noted no reconsideration was needed due to the inclusion an additional factor, the volume of the discharge, in its analysis.[18] The court did not give weight to the County’s argument that the nitrogen within the wastewater was diluted by the time it reached the ocean.[19] Instead of taking the county’s requested approach of measuring the nitrogen as the pollutant, the court considered the wastewater to be the pollutant.[20]

Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc. 

In the First Circuit, the Longwood litigation immediately felt the effects of County of Maui as it was remanded to comply with the Court’s ruling. The First Circuit vacated its November 2019 decision in Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc., and remanded it to be consistent with the County of Maui ruling[21]. The Longwood case on remand was never decided; it ultimate settled for $369,000 and a replacement of the wastewater treatment facility.[22]

Black Warrior River-Keeper, Inc. v. Drummond Co.

In Black Warrior River-Keeper, Inc. v. Drummond Co., the Alabama Northern District Court applied the County of Maui  functional equivalent test to discharges of acid mine drainage into the Locust Fork of the Black Warrior River to determine if Drummond required a permit.[23] The plaintiff bringing the case presented evidence showing “contaminated groundwater from the lower dam reaches the Locust Fork in as little as 1.5 to 4.4 days.”[24] In addition, the plaintiff was able to show a relatively short distance from the point source to the navigable water, due to the proximity of the lower dam and spillway to the Locust Fork.[25] The defendant Drummond presented no evidence to contradict this data provided by plaintiff.[26] Drummond unsuccessfully attempted to argue the volume of groundwater leaked from the site was an insignificant quantity and therefore would not require permitting.[27] The court granted the plaintiff summary judgment on the matter due to an inability to generate a genuine dispute on the time and distance factors of the County of Maui functional equivalent test.[28]

Cottonwood Env’t. L. Ctr. v. Big Sky Water & Sewer Dist.,

The Cottonwood Env’t. L. Ctr. v. Big Sky Water & Sewer Dist. case involves a scenario in which Big Sky District (defendant) collects treats water for treatment at its Water Resources Recovery Facility (“WRRF”), which is alleged to have polluted runoff flowing through a drain into the groundwater which then flows into the West Fork of the Gallatin River.[29] On February of 2022, the presiding judge in Cottonwood gave both parties several factual questions to be answered in thirty words or less to shed light on how the County of Maui factors apply to the case at hand.[30] After the responses to these questions were received the judge denied both parties’ motions for summary judgement as a question still exists as to whether the WRRF underdrain pipe contributes to the functional equivalent of a direct discharge.[31]

Parris v. 3M Co

The most recent case, Parris v. 3M Co is currently being decided in Georgia and is likely to hinge on the court’s ruling of whether the defendant (Trion) meets the functional equivalent test of County of Maui.[32] Still in the preliminary stages of litigation, Trion has yet to offer any explanation as to why their PFA discharges would not meet the functional equivalent test.[33] The opposing party has yet to produce any evidence, but alleges that Trion’s disposition of PFAs through the groundwater have entered Racoon Creek thereby violating the Clean Water Act.[34] The judge ruled against Trion’s motion to dismiss this matter.[35] As this case moves forward one can expect intense evidentiary discovery in line with similar County of Maui cases.


Jared Mezzatesta is a 3L from New Jersey. He studied Political Economy at the University of Michigan and is passionate about fair housing. He clerked for Weil Gotshal & Manges LLP. 


David Klein is a Principal of Lloyd Gosselink Rochelle & Townsend, P.C. and is the Chair of the Environmental and Natural Resources Law Section of the State Bar of Texas.  David represents public and private clients in water quality, water rights, water districts, and water utility service matters.



[1] Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1468 (2020). 

[2] Id. at 1469.

[3] Id.

[4] Id. at 1474-76.

[5] Id. at 1471-74.

[6] Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1476 (2020).

[7] Id. at 1476-77.

[8] Id. at 1476 .

[9] Env’t. Protection Agency, Recission of January 2021 Guidance Document, “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program” (September 15, 2021) 

[10] Id.

[11] Id.

[12] Id

[13] Allen Matkins, The Still Murky Permitting Requirements Under the Clean Water Act after County of Maui Spawn Highly Fact-Intensive Inquiries, (Mar. 22, 2022) (https://www.jdsupra.com/legalnews/the-still-murky-permitting-requirements-3892744/)

[14] Hawai’i Wildlife Fund v. Cnty. of Maui, 2021 U.S. Dist. LEXIS 202010, *11 (D. Haw. Oct. 20, 2021) 

[15] Id.

[16] Id.

[17] Id.

[18] Id. at *3

[19] Id. at *35

[20] Id.

[21] Conservation L. Found., Inc. v. Longwood Venues & Destinations, Inc., 2020 U.S. App. LEXIS 40697 (1st Cir. Oct. 14, 2020).

[22] Brian Dowling, Cape Cod Resort Settles Green Group’s Clean Water Suit, Law 360 (February 18, 2021), https://www.law360.com/articles/1356425.

[23] Black Warrior River-Keeper, Inc. v. Drummond Co., 2022 U.S. Dist. LEXIS 6046 (N.D. Ala. Jan. 12, 2022).

[24] Id. at *17.

[25] Id. at *17-*18.

[26] Id. at *25.

[27] Id

[28] Id. at *26.

[29] Cottonwood Envtl. Law Ctr. v. Edwards., 2021 U.S. Dist. LEXIS 54922, *4 (D. Mont. March 23, 2021). 

[30] Cottonwood Envtl. Law Ctr. v. Big Sky Water & Sewer Dist., 2022 U.S. Dist. LEXIS 29774, *4-*8 (D. Mont. Feb. 18, 2022).

[31] Cottonwood Env’t Law Ctr. v. Edwards, No. 2:20-cv-00028-BU-BMM, 2022 U.S. Dist. LEXIS 58634, *13 (D. Mont. Mar. 30, 2022). 

[32] Parris v. 3M Co., 2022 U.S. Dist. LEXIS 60043 (N.D. Ga. Mar. 30, 2022).

[33] Id. at *43.

[34] Id

[35] Id. at *100.

Vol. 52-2 Waste



How the Law Regarding Fashion Waste is Developing


Waste in Fashion

When people think of environmental issues, they often first think of climate change. The fashion industry is often overlooked. However, the environmental footprint of fashion is gaining recognition around the world, starting in West Europe. 

“Fast fashion has become the dominant mode of production and consumption” in the fashion industry.[1] The industry consists of three stages: take (the harvesting of raw materials), make (the production of garments), and waste (the wearing and subsequent disposal of garments).[2] The waste generated can be split into two categories, “(1) pre-consumer wastes (such as fiber, yarn, and fabric processing wastes, in addition to the sewn product manufacturing wastes), and (2) post-consumer wastes or end-of-life clothing wastes (discarded at the end of clothes’ useful life).”[3] This waste includes unsold clothes and fabric chemical processing.[4] 

Clothing production and consumption has environmental impacts including land pollution due through fertilizer and pesticide use, water pollution resulting from clothing dyes, air pollution as a by product of the toxic gases that produced during manufacturing, marine pollution due to microfibers that are generated when washing clothes, and biodiversity loss due resulting from fabric particles polluting in the ocean.[5] 

It has been found that the “fashion industry emits 1.2 billion tons of greenhouse gases; releases half a million tons of microplastics into the sea, uses 132 million tons of coal, 900 million cubic meters of water, and a quarter of the world’s toxic chemicals.”[6] “130 billion garments are produced annually, of which 80 billion are sold, yet less than a single percent are recycled.”[7] Further, textile waste is a primary contributor to the rapid depletion of land-fill capacity.[8] The fashion industry effects not only 4% of global carbon emissions, but also impacts water resources, land pollution, and animal biodiversity loss. 

French Law

            France passed an anti-waste law in 2020 that bans designer clothes and luxury goods companies from that destroy unsold or returned items.[9] It requires “producers, importers and distributors, including online firms such as Amazon, to donate unsold non-food goods except those that post a health or safety risk.” [10] This law was put into effect on January 1, 2022.[11] One issue associated with the definition in the French Consumer Code is that the luxury brand’s biggest markets are in the U.S. and China, both of whom do not have bans. “In addition, the Consumer Code has been modified to strongly encourage sale without packaging (bags or other types or containers), or with reusable containers. Retail businesses with a sales area of more than 400 million in revenue, have an obligation to make reusable packaging available to consumers.” [12]

Further, France passed a carbon score law to introduce “mandatory labeling of goods and services.”[13] “According to a set of data released by L’Agence de la Transition é Cologique, the fashion industry is the second largest source of pollution in the world, with an average consumption of 2,700 liters of water per T-shirt (equivalent to 70 showers) and 11,000 liters of water per pair of jeans (equivalent to 285 showers).”[14] France‘s 2021 policy also establishes requirements for labeling and a ban on advertising relating to the marketing or promotion of fossil fuels starting in August 2022. [15] This policy attempts to prompt companies to provide more sustainable products by empowering consumers to make informed decisions regarding the impact of their purchases on the environment. 

France also enacted one of the world’s first laws regarding greenwashing. The law prohibits the inaccurate “use of any wording on a product, its packaging, or in advertising promoting a product or service, indicating that the product, service, or activity of the manufacturer is carbon-neutral or has no negative impact on the climate.”[16] It establishes a legal framework through which companies can be held accountable for misleading claims regarding environmental impacts. Fines can include up to “80% of the false promotional campaign cost, a correction on billboards or in the media, and a 30-day clarification on the company website.”[17] 


State of California

While the United States has yet to pass any legislation directed at the fashion industry’s impact on climate change, California and New York are beginning to indicate an interest in such regulation. Although not directed at the fashion industry’s environmental impact, California has recently enacted legislation designed to curb other harmful practices of the industry. California’s Senate Bill 62, the Garment Worker Protection Act, was signed into law on September 28, 2021. This bill was designed to cover up a loophole in AB 633, enacted in 1999, which “was praised for its aim to prevent wage theft in California’s sweatshop-infested garment industry, the home of the vast majority of garment manufacturing in the U.S.”[18] A major loophole was that it focused on individuals who have been damaged, “by failure of a garment manufacturer, jobber, contractor, or subcontractor to pay wages or benefits”; the acts of a retailer were exempt and that is how many companies were able to bypass the rule.[19] SB 62 states that all garment workers should earn an hourly wage, not less than applicable minimum wage, instead of what was in practice before, workers earning money for what each item of clothing they produce.[20] “A 2016 study by the UCLA Labor Center found that Southern California garment workers earned an average of $5.15 an hour, less than half the minimum wage at the time.”[21] The burden is now be shifted to brand guarantors, contractors, and garment manufacturers to show they did not violate wage laws.[22] 

This new law holds fashion brands legally responsible for the harm done for employees’ unpaid wages and for the manufacturing industry production in general. Garment worker working conditions in California are characterized as terrible. Tzul, a worker in California, described it by stating, “In the summer it’s like hell, and not to mention the steam from the iron is suffocating. It’s hard to describe how it is.”[23] Further, when COVID-19 was at its peak, the factory is full of workers who work in close quarters and cannot work from home. Not only does this law attempt to introduce more regulations on the fashion industry and hope to prevent excess production in manufacturing, but it helps workers’ rights and in recognizing humanity of the workers, “who helped build the fifth-largest economy of the world.”[24]

While not directed at the environmental impacts of the fashion industry, this legislation signals that the state of California is monitoring the industry and is willing to act to mitigate perceived harmful practices. This could foreshadow legislation similar to that recently enacted in France. 


State of New York 

            Assembly Bill A8352/S7428, Fashion Sustainability and Social Accountability Act (Fashion Act), was introduced in New York state on January 7, 2022. If passed by both the Senate and House, it “would require transparency of at least 50 percent of the goods sold from raw materials to shipping regarding their environmental impact.”[25] This would be the “first state in the country to pass legislation that will effectively hold the biggest brands in fashion to account for their role in climate change.”[26] The bill would require companies to disclose where they have the biggest social and environmental impact, make plans to reduce their environmental impact, and disclose their material production volumes.[27] Companies would have 12 months to comply with mapping the 50 percent of the goods sold, 18 months for impact disclosures and, if found to be in violation, would be fined up to 2 percent of their annual revenues.[28] These fines would go to a new Community Fund, used for environmental justice projects in New York, and the attorney general would publish an annual list of companies found to be noncompliant.[29] 

            This legislation reflects the first government regulation of the environmental impact of the fashion industry in the United States, and could serve as a model for other states to follow.


Assessment of Recent Regulatory Action  

California, New York, and France are major producers of clothing. A recent study assessing major national initiatives promoting sustainable fashion anticipates that the different bodies of legislation will have different results. New York State’s regulation is likely to have a large effect on waste treatment and use of secondary raw materials, and a moderate effect on reduction with the source (waste minimization), garment production, and garment design. [30] The California SB 62 bill is likely to have a large effect on garment production and is likely to have a moderate effect on reduction within the source (waste minimization).[31] The French law banning destruction of unsold clothing takes the tie for lead, likely to have large effect on waste treatment and reduction within the source (waste minimization) and likely to have a moderate effect on fashion consumption, garment design, and use of secondary raw materials.[32] Both the New York law and France’s law are likely to have a large effect on 2 out of 6 categories and are likely to have a moderate effect on 3 out of 6, with a total for both of moderate to large effects in 5/6 categories (California bill has a 2/6 moderate and large effect). 


Environmental Concerns and Ways to Help Make a Change

            Typically, the environmental impact of low-cost clothing is not felt at the location of purchase but the location of where the clothing is produced, buried, or incinerated.[33] 

            One way to make a change would be making the broad policy choice to impose a carbon tax on the industry. Conceptually, a carbon tax would be “specifically focused on the greenhouse gas emissions released into the air, establishing a direct connection between the tax and the damage to the environment.”[34] With respect to the fashion industry, such a policy would likely target, “the fashion corporations responsible for greenhouse gas emissions in their production process, rather than a tax applied directly on consumers, notwithstanding their carbon contribution.”[35] Such a policy would incentivize garment makers’ greater use of sustainable practices.

Consumers are the other half of the equation. A study by Sustainability noted that educational campaigns to reduce consumption, among various policy alternatives, are likely to the highest positive impact.[36] Once consumers are more educated on what shapes fashion waste, they are more likely to participate in campaigns such as the “pay up” campaign,[37] a successful consumer-driven campaign that was “created in response to the refusal of fashion corporations to pay textile factories for goods.”[38]  This refusal to pay occurred when the epidemic, COVID-19, hit Europe and the US. During this time is when fashion corporations chose to cancel pre-crisis orders, forcing “factories to incur 40 billion dollars in losses.”[39] “[T]hrough social media, many corporations have pledged to pay for orders…and returned to the factories a total of USD 27 billion.”[40]

Fashion regulation is in its infancy in the US, and, on a broader public level, fashion waste is an emerging environmental concern. For the most part, new laws are of relatively limited scope, applying only to certain companies. The New York bill, for instance, would apply to companies with at least “$100 million in sales annually to include luxury giants LVMH, Kering; American mass producers like PVH, fast-fashion behemoths H&M and Zara parent company Inditex and sports giants Nike and Puma.”[41]. The fashion industry lacks the targeted regulation of other industries with similar environmental footprints, such as chemicals manufacturing. While these two newer laws in the US and the ones in France are helpful, they are most remarkable for the fact that they reflect a new era of likely much larger legal landscape to manage the environmental impacts of the fashion industry, a landscape in which consumers are likely to play a significant role.

Claudia Gutierrez is a rising 3L from Harlingen, Texas. She attended the University of Texas at Rio Grande Valley and joined TELJ her first year of law school. She hopes to work in environmental law upon graduation and has been fascinated with environmental concerns about the sea level rise and increased temperatures in the RGV. Additionally, she will be interning with Save our Springs Alliance during the summer of 2022.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.


[1] Taylor Brydges, Closing the Loop on Take, Make, Waste: Investigating Circular Economy Practices in the Swedish Fashion Industry, J. of Cleaner Production, Feb. 2021, at 1.

[2] Id. 

[3] Rajkishore Nayak, Long Nguyen, Asis Patnaik, and Asimananda Khanadul, Fashion Waste Management Problem and Sustainability: A Developing Country Perspective, at 3-4 (2021).

[4] Id. at 6.

[5] Fashion Industry and its Negative Impacts on the Environment, ENVPK (June 26, 20201), https://www.envpk.com/fashion-industry-and-its-negative-impacts-on-the-environment/.   

[6] Metial Peleg Mizrachi and Alon Tal, Regulation for Promoting Sustainable, Fair and Circular Fashion sustainability 1 (Jan. 4, 2022). 

[7] Id. 

[8] Id. 

[9] Kim Willsher, Landmark French Law Will Stop Unsold Goods From Being Thrown Away, The Guardian (Jan. 30, 2020), https://www.theguardian.com/world/2020/jan/30/france-passes-landmark-law-to-stop-unsold-goods-being-thrown-away

[10] Id. 

[11]   A French Law Prohibits the Destruction of Unsold Goods, Now what? The Fashion Law, Feb. 11, 2022.

[12] Gregory Tulquois & Solène Albouy, France Introduces New Measures to Fight Waste – Significant Impact on Fashion Industry, DLA Piper (Dec. 17, 2021), https://www.dlapiper.com/en/uk/insights/publications/2021/12/law-a-la-mode-edition-

[13] Natalie Huet, France’s New Climate Law has Just Been Approved. So Why are Activists so Unimpressed? Euronews (Dec. 20, 2021), https://www.euronews.com/green/2021/07/20/france-s-new-climate-law-has-just-been-approved-so-why-are-activists-so-unimpressed.

[14] France Will Legislate to Require Clothing and Textiles to be Labeled with “Carbon Emission Score” (Apr. 6, 2021), https://www.sjfzxm.com/global/en/583056.html.

[15] Armelle Sandrin-Deforge Environmental Labels, Greenwashing, and Ecocide Tackled by France’s New Climate Law, Jones Day (Nov. 5, 2021), https://www.jdsupra.com/legalnews/environmental-labels-greenwashing-and-9579889/

[16] Id.

[17] Molly James, France Introduces One of the World’s First Greenwashing Laws, Communicate (Apr. 16, 2021), https://www.communicatemagazine.com/news/2021/france-introduces-one-of-the-world-s-first-greenwashing-laws/

[18] New California law Could Overhaul Abuse-Ridden Garment Manufacturing Sector, The Fashion Law (Sept. 29, 2021), https://www.thefashionlaw.com/california-passes-hourly-wage-mandate-in-a-movie-expected-to-overhaul-garment-manufacturing-sector/

[19] Id. 

[20] Id. 

[21] Suhauna Hussain Brittny, Wage Theft is a Problem for L.A. Garment Workers. A California Bill Aims to Fix it. Again, L.A. Times (Sept. 9, 2021), https://www.latimes.com/business/story/2021-09-03/sb-62-wage-theft-garment-industry-heads-to-vote.

[22] Id.

[23] Id. 

[24] New California law Could Overhaul Abuse-Ridden Garment Manufacturing Sector, The Fashion Law, Sept. 29, 2021 https://www.thefashionlaw.com/california-passes-hourly-wage-mandate-in-a-movie-expected-to-overhaul-garment-manufacturing-sector/.

[25] Roxanne Robinson, Fashion Industry Reacts to New York Sustainability Legislation That Could Upend Transparency Practices, Jan. 11, 2022 https://www.forbes.com/sites/roxannerobinson/2022/01/11/fashion-industry-reacts-to-new-york-sustainability-legislation-that-could-upend-transparency-practices. 

[26] Vanessa Friedman, New York Could Make History With a Fashion Sustainability Act, N.Y. Times, Jan. 7, 2022. https://www.nytimes.com/2022/01/07/style/new-york-fashion-sustainabilty-act.html

[27] Id. 

[28] Id.

[29] Id. 

[30] Mizrachi and Tal, supra note 6, at 9-10.

[31] Id. 

[32] Id.

[33] Id.

[34] Id. at 15.

[35] Id.

[36] Mizrachi and Tal, supra note 6, at 12-14.

[37] Id. at 23.

[38] Id. at 23.

[39] Id.

[40] Id. 

[41] Roxanne Robinson, Fashion Industry Reacts to New York Sustainability Legislation That Could Upend Transparency, Forbes (Jan. 11, 2022), https://www.forbes.com/sites/roxannerobinson/2022/01/11/fashion-industry-reacts-to-new-york-sustainability-legislation-that-could-upend-transparency-practices/?sh=65ba7ea239b3.

Vol. 52-1 Recent Publications




J.B. Ruhl* and Robin Kundis Craig


May 2021



The impacts of climate change are upon us. Recent climate change policy discussion emphasizes adaptation, rather than mitigation. This shift reflects a sober recognition that avoiding 2 degrees (Celsius) of warming, a central goal of climate mitigation efforts, is highly unlikely given the amount of greenhouse gases already emitted and the continued growth of global emissions. Illustrating this point, the Intergovernmental Panel on Climate Change’s most recent (Sixth) Assessment concluded that under any scenario, whether or not global greenhouse gas emissions reach net negative, the global surface temperature will continue to increase until at least mid-century.  Global surface temperature will increase by at least 2 degrees Celsius during the 21st century unless deep reductions in greenhouse gas emissions occur within the next few decades.

While reducing greenhouse gases remains critical to staving off the worst effects of climate change, awareness that a changing climate is our present and future has given rise to more discussion and study of how to best adapt to the impacts of climate change and build climate resilience. Growing evidence, including the recently published IPCC report, show the range of disruptive impacts that varying levels of global temperature rise will bring.  IPCC data indicates that changes in the climate system become larger in direct relation to increasing global warming, including “increases in the frequency and intensity of hot extremes, marine heatwaves, heavy precipitation, agricultural and ecological droughts in some regions, and proportion of intense tropical cyclones, as well as reductions in Arctic sea ice, snow cover and permafrost.”


The key issue of adaptation policy is how to best adapt to a changing climate. The answer to this question depends on determining the baseline assumptions of the scale and severity of climate impacts. This is why meta discussion of the proper adaptation response largely centers on the expected global temperature increase and the local or regional impacts that this temperature increase will bring. Obviously, the climate adaptation measures for 2 degrees of warming will be inadequate if the planet warms by 4 degrees. This concern for basing adaptation measures on inaccurate future temperature rises informs the recently published article, 4°C , written by J.B. Ruhl and Robin Kundis Craig.  Ruhl and Craig caution that adaptation measures based on the goal of limiting warming to 2 degrees are unworkable given that most peer-reviewed climate models now show that 2 degrees of warming will likely be exceeded this century.  While Ruhl and Craig still advocate for a mitigation strategy focused on limiting warming to 2 degrees, they urge policymakers to separately shape their adaptation policy plans based on 4 degrees of warming, at a minimum.  They call this  “dual-minded approach to climate change . . . necessary to simultaneously give the planet the best future possible (mitigation governance) while preparing humanity for the worst of the probable realities (adaptation governance).”

Ruhl and Craig pull together scientific studies to examine what a world of 4 degrees warming may look like. First, Ruhl and Craig note that the impacts of climate change with rising temperatures are nonlinear. By this, they mean that each increment of warming brings multiplying and accelerating impacts, and at some threshold, changes these changes become transformative—“fundamentally altering social-ecological systems into new states of being.”  To illustrate the nonlinearity of climate impacts as the planet warms, the authors cite a 2019 study that looked at 30 different climate change impacts and concluded, among other things, that “the global average chance of a major heat wave increases from 5% in 1981–2010 to 28% at 1.5 °C and 92% at 4°C[.]”

Drawing from studies of climate impacts, Ruhl and Craig suggest that the overlapping and interrelated changes to social-ecological systems at 4 degrees Celsius will result in an utterly new world. Water scarcity, food supply disruptions, increased flooding, loss of land mass to sea level rise, and longer and more intense wildfires are predictable impacts, but the uncertain severity and cascading effects raise added adaptation planning concerns. Increases in forest fires and even drought in low-lying coastal areas will result in the virtually assured mass-migration of human populations. Beyond this, water scarcity could lead to social conflict, meanwhile increased precipitation in areas would result in greater runoff that could overwhelm stormwater infrastructure and wastewater treatment facilities.

While severe impacts of climate change are assured with rising average temperatures, the scale and severity of these impacts and the corresponding human reaction to such effects makes climate adaptation inherently difficult. However, as Ruhl and Craig argue, this makes the need for more robust adaptation measures all the more imperative. In short, the policy goals of adaptation must meet the needs of what would be a significant shift of human populations and their support systems “northward and inward, while simultaneously preserving (or opening up) lands for agriculture, species habitat, and migration corridors.”


The main thrust of Ruhl and Craig’s argument is that a shift in adaptation policy assumptions, commensurate with an expected 4 degrees of warming, will necessitate a shift in conventional climate adaptation policies.  Standard adaptation policy centers on a combination of the “Three Rs” — resistance, resilience, and retreat.  Ruhl and Craig note that this adaptation strategy, which primarily emphasizes resistance and resilience, is incremental and place-based adaptation.

Resistance—also known as protecting, defending, or fortifying—emphasizes building infrastructure to protect human communities.  Sea walls, which physicall resist stormwater surges amid rising sea levels, are a prominent resistance measure,. Resilience includes “social-ecological systems” that build resilience to climate change impacts like heat waves, like improving urban populations’ capacity to withstand heat waves.

Resilience policies, focused on adjustment and management of climate impacts, are designed to increase community capacity to cope with climate impacts where the impacts cannot be resisted or adequately mitigated.  Resilience measures can be wide-ranging. For example, resilience could include subsidizing greater air conditioning installation in older urban housing or, in rural, agrarian context, planting diverse, drought-resistant, crops.

Finally, where resistance or resilience efforts are not adequate, retreat involves leaving areas where the impacts cannot be combatted—think coastal communities leaving areas where sea level rise is unavoidable despite sea walls.  Or even where sea walls stop storm surge, the saltwater may intrude groundwater, impairing the drinking water supply of the community.

After surveying the science of the potential impacts of climate change in a world of 4-degree temperature increase, the authors state that the scope and intensity of these impacts will render the “Three Rs” insufficient to achieve adaptation.  Ruhl and Craig identify the relatively adjunct, secondary focus on adaptation to the primary concern of mitigation facilitated by the emphasis placed on incremental, “in situ” (in place) adaptation strategies like resilience and resistance. This climate policy of the past made sense when the political community hoped that limiting warming to 2 degrees, or even 1.5 degrees, seemed a workable mitigation goal. In light of an increased likelihood that warming will not be limited to 2 degrees, “future proofing” policies will likely be insufficient in many areas of high climate vulnerability.


Ruhl and Craig posit that the associated climate impacts of temperature rise beyond 2 degrees Celsius requires a fourth climate change adaptation policy strategy that focuses on “redesign.”  In short, the “redesign” approach emphasizes radical and sweeping measures to “reconfigure and relocate our nation’s population distribution, land uses, infrastructure, economic and production networks, natural resource management, and other social, ecological, and technological systems.”

This is a radical shift in adaptation policy, and the authors further define what a “redesign” policy is. First, they say it encompasses letting go of intact, in situ adaptation. This is a recognition that 4 degrees of warming will fundamentally alter climate systems and will often require populations to move. For example, while resistance and resilience strategies allow for keeping agriculture in situ but adapting drought-resistant crops or water-conserving irrigation techniques, redesign would likely mean relocating agricultural crop and livestock lands to areas more suitable for these activities in a transformed climate of 4 degree warming. The authors say that “redesign is about designing and facilitating–perhaps even requiring–the relocations and reconfigurations necessary for these adaptations to succeed.”

Second, and, as the authors suggest, more importantly, redesign requires a shift from the “inward-looking” state and local planning of the Three Rs to more “outward-looking,” inter-regional or national planning. This is because 4 degrees of warming will have differential regional impacts that will lead to population migration and require broad-scale planning to manage the acute regional risks that will undoubtedly impact other areas. This “outward-looking” planning allows for a more integrated response rather than disjointed, locally-dependent measures that are often characteristic of resistance and resilience policies.

    Recognizing the incredible challenge of actualizing an adaptation plan of this magnitude, Ruhl and Craig focus the last section of their article on how to conceptualize, plan, and implement redesign adaptation. In summary, the main discussion centers on implementation of redesign adaptation by looking at the high-level tools available to effectuate this broad-scale adaptation policy.


In the last section of their article, Ruhl and Craig pay special attention to how an adaptation strategy centering redesign policies can be planned and implemented. While recognizing the “gross simplification” of “reducing adaptation governance to three top-level modes,” Ruhl and Craig discuss and analyze Laissez Faire, Planning and Prompting, and Preemption and Mandates as the high-level tools for implementing a redesign adaptation policy. The authors note that all of these tools have their pros and cons and should be harnessed together to varying degrees to effectuate redesign adaptation policies that meet the challenges of 4 degrees of warming.

In fact, the authors suggest that the greatest challenge to governance of adaptation redesign is the disruptive and simultaneous changes that temperature increase will involve.  They specifically mention that some impacts, such as sea level rise, will be gradual and linear. These changes are easier to plan for in an adaptation context. But nonlinear changes, such as increased storm intensity, and cascading changes, such as human migration from triggering events, will assuredly be less predictable and difficult to respond to without prior anticipatory planning.  Therefore, all of the tools for implementing a comprehensive adaptation strategy must be harnessed.

Regarding laissez faire tools, the author’s note that “the normal forces of supply and demand may in fact work surprisingly well to push and pull adaptation to a 4°C United States in the right directions.”  They exemplify this by noting that the private insurance industry has been a good indicator of weighing the financial costs and benefits of in situ climate adaptation.  Planning and prodding involve using incentives and disincentives, such as tax subsidies, to motivate redesign adaptation.  Preemption and mandates are the most heavy-handed approach whereby government mandates would intervene to force redesign adaptation.

In looking at the tools, laissez faire is helpful in responding to linear change, but limited when responding to nonlinear changes that tend to be unpredictable. The private market relies on information and predictability, something that 4-degrees of warming will not foster. The article highlights the way that private insurance companies stopped insuring homes in areas vulnerable to Hurricanes and storm surges in the Gulf or wildfires in the West. Similarly, private insurance companies have given up insuring areas of high flood risk. Meanwhile, planning/prodding and preemption/mandates are necessary and effective when used in tandem to ensure that redesign adaptation policies are being adequately implemented in the areas most vulnerable to severe climate impacts. These are the tools most critical to planning for nonlinear and cascading change.

In essence, the article does not delve into overly specific or prescriptive laws to effectuate a redesign adaptation policy. Instead, the authors categorize the modes of change (linear, nonlinear, and cascade change) that 4 degrees of warming will bring on and the governance tools available to implement a redesign adaptation plan. In doing so, Ruhl and Craig provide a high-level conceptual framework for how to utilize these tools to implement redesign-focused adaptation plans that prepare for the massively complex and urgent changes that a world of 4-degrees of warming will likely bring.


Liam Veazey is a 3L from Dallas, Texas, who received his undergraduate degree from St. Francis College Brooklyn. He plans to practice as a public interest attorney in the substantive areas of environmental justice, housing, and community development. Immediately after law school, he will begin a public interest law fellowship at Legal Assistance of Western New York.

Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.


Vol. 52-1 Utilities




In February 2021, winter storm Uri swept from the Pacific Northwest to the East Coast, leaving many in southern states without basic resources like electricity and water.[1] Texas was especially hard-hit, due in part to its lack of winter-weather-capable infrastructure.[2] Two hundred and ten residents died as a result of the storm, due mostly to hypothermia.[3] Millions more lost power for multiple days.[4] Even at the disaster’s beginning, it was immediately clear to electric grid operators within the Energy Reliability Council of Texas (ERCOT) that electricity generation was failing and would be unable to meet soaring demand.[5] Operators ordered distribution companies to shed load, leading to controlled outages[6] that left almost 70% of ERCOT customers without power for an average of 42 hours during the storm.[7]

When state legislators reconvened after the storm, they clamored to pass a torrent of legislation in response to the spectacular failure of Texas’ primary electric grid. Many state politicians blamed renewable sources of energy for the grid’s failure, with a conservative news correspondent even claiming “it seems pretty clear that a reckless reliance on windmills is the cause of this disaster.”[8] Contrary to these claims, however, failures throughout the natural gas supply and generation chain were mostly to blame for the failure in electricity generation.[9] Despite this fact, the legislative response to the grid’s performance during the winter storm keeps one eye pointed toward renewable sources of energy and opens the door to financially penalizing these sources through rulemaking, while neglecting to remediate the issues that resulted in the failure of natural gas facilities and related supply issues. 


Renewables’ Performance During the Storm

            At the peak of the blackouts, the highest amount of unavailable electricity due to generator outages and underperformance was 52,037 megawatts (MW).[10] For comparison, ERCOT has an expected total peak capacity of about 78,000 MW,[11] meaning that during the worst part of the storm, only 33% of the grid capacity was available for use. While all sources of energy failed to some extent during the storm, ERCOT notes that thermal sources—including coal, natural gas, and nuclear—lost nearly twice as many gigawatts of power as renewables.[12] ERCOT had previously prepared a worst-case extreme winter scenario, in which it expected to lose 14,000 MW of thermal resources.[13] In reality, thermal outages were more than twice that high during Uri[14], while demand was also 10,000 MW higher than projected.[15] Meanwhile, renewable energy sources contributed to only 13% of the power outages[16] and, importantly, wind power had only been projected to make up about 7% of ERCOT’s winter grid capacity to begin with.[17] In a post-storm report, an independent director of the ERCOT board stated that “relative to expectations, renewables overperformed, and thermal plants underperformed during the crisis.”[18]

            The across-the-board failures of the grid were due to a lack of winterization, as all types of power generation were left susceptible to freezing.[19] The federal government had previously warned ERCOT about its lack of weatherization after significant blackouts on Super Bowl Sunday in 2011.[20] An analysis from federal agencies after the 2011 blackouts advised power producers and natural gas suppliers in Texas to winterize in order to prevent future weather-related blackouts.[21] Additionally, the report pointed out a regulatory blind spot that left grid operators not knowing what facilities to prioritize when shedding load.[22] Power operators and gas suppliers had the option to file paperwork designating themselves as critical infrastructure, yet many had failed to file the 2-page document.[23] Although the 2011 report urged Texas regulators to correct these problems, power producers and natural gas suppliers were both repeat offenders during winter storm Uri.[24]  Clearly, the state’s response to such warnings has been inadequate. Power companies have complained that low electricity prices provide no incentive to make such improvements, but new laws may finally push generators to make changes.[25] 


Legislative Response

            New law SB 3 stands out from a flurry of new legislation as the most significant bill impacting suppliers of renewable energy. This bill deals with ancillary services, which are additional power resources beyond those needed to meet real-time customer demand that act as insurance in case of an unexpected interruption to the grid. It is imperative that there is at least enough electricity supply to match demand at all times—if demand exceeds supply and causes the frequency of the grid to drop outside its operating range, it can cause physical damage to infrastructure and lead to a complete failure of the grid for weeks.[26] Ancillary services are an important counterpart to nondispatchable sources of energy, or sources that cannot be turned on and off at will. Because wind and solar generation are nondispatchable and variable by nature, ERCOT purchases ancillary services as a back-up in case they fail to generate as much power as expected.[27] Currently, the cost of ancillary services are distributed among consumers,[28] but SB 3, which became effective immediately upon signing on June 8, now shifts at least some of the burden to renewable energy providers.[29] 

            SB 3 amends the Texas Public Utility Regulatory Act (PURA) to require the Public Utility Commission of Texas (PUC) to determine whether existing ancillary services continue to meet the needs of the ERCOT market by reviewing existing services and their costs.[30] This amendment also requires ERCOT to modify the design, procurement, and cost allocation of ancillary services “in a manner consistent with cost-causation principles and on a non-discriminatory basis.”[31] Although this cost allocation appears sound, agencies promulgating such cost-causation principles will face challenges in defining them due to the highly variable nature of consumer demand and the intermittency of non-dispatchable wind and solar generation.[32] New rulemakings could shift the relative allocation of costs of ancillary services either to renewables or across multiple categories of generation, but ultimately the final cost decisions are placed on the regulators defining cost-causation principles.[33]

            The bill also requires the PUC to oversee ERCOT in determining the amount and type of ancillary services needed to ensure reliability during extreme heat or cold events and when intermittent sources of generation like wind and solar are low.[34] This review must be conducted at least annually.[35] ERCOT must procure such ancillary services on a competitive basis and ensure that they are dispatchable, reliable, and capable of continuous use during extreme weather in the season for which the service is procured.[36]

            Lastly, SB 3 requires the PUC to promulgate rules requiring most electricity generation providers to implement weatherization measures.[37] Furthermore, providers of generation that experience “repeated or major weather-related forced interruptions of service” must contract with third-parties to assess their weatherization efforts and must comply with any recommendations in such assessment if ordered to do so by the PUC.[38] This provision will impact both renewable and thermal generators.

            As a separate matter, SB 1281 requires ERCOT to assess the grid’s reliability in possible extreme weather scenarios every other year. These assessments will consider the impacts of both thermal and renewable generation and recommend transmission projects that will increase the reliability of the grid.[39] 

Proposed Railroad Commission (RRC) rulemakings stemming from recent legislation would require facilities all along the natural gas supply chain to file critical infrastructure paperwork or else face a penalty of $2,500.[40] This rule differs from the previous system, under which facilities that wished to be designated as critical were merely encouraged to submit such paperwork on their own initiative.[41] While affected operators would now be required to file critical infrastructure paperwork, they would retain the option to either designate themselves as critical or simply pay $150 and declare they are opting out of the designation if they are not equipped to operate during a weather emergency.[42] Facing the costs of weatherization to ensure operability in weather emergencies, it may be more economical for some facilities along the natural gas supply chain to opt out of the critical designation and allow themselves to be shed during power shortages.  


Problem Solved?

            The mere fact of legislative focus on ancillary services seems to imply that ERCOT’s current level of reliance on non-dispatchable sources like wind and solar is what caused the massive outages during winter storm Uri. In light of this political framing, agencies may choose to allocate a high proportion of ancillary service costs to renewable generators, potentially impacting the growth of the renewable market and in turn limiting the amount of renewable generation the grid relies on. The implication that even low reliance on renewables leads to outages is contrary to the truth that renewable sources overperformed during Uri as compared to expectations while thermal sources drastically underperformed even worst-case scenario projections. 

Because a lack of weatherization is to blame for the gross underperformance of all types of generation during Uri, procuring additional ancillary services is likely not enough to prevent future outages. Even with more such services waiting in the wings, they will not serve their purpose as reliable safeguards if they are not properly weatherized. Priority should be placed on building the resiliency of primary sources of generation rather than on procuring a greater number of equally vulnerable sources. The natural gas supply and generation chain is in most urgent need of weatherization as it makes up the majority of ERCOT’s electricity mix and has proven to be susceptible to extreme cold. While renewable sources also need weatherization, spotlighting them in the conversation distracts from the pressing need to weatherize the thermal sources that provide most of Texas’ electricity. 

Pending rulemakings will determine the extent to which generators will be required to weatherize beyond what market forces acting alone have called for. Proposed rules from the RRC would allow natural gas suppliers to sidestep weatherization by simply opting out of a critical infrastructure designation. The RRC has long been criticized for its intimate ties to the oil and gas industry; recently, the Commission used a list of nominees hand-selected by industry leaders to appoint 4 of its 5 seats to the Texas Energy Reliability Council.[43] It is perhaps then unsurprising that rules proposed thus far by the RRC do little to impose greater regulation or mandate weatherization. 

Only time will tell whether new rules’ resiliency standards combined with ERCOT’s biannual projections of extreme weather events will be adequate to prepare grid operators to manage the next major storm or draught. In analyzing why engineers made bad decisions that led to the Challenger explosion, Astronaut Alan Sheppard said “it’s the human element. I suggest that there’s a complacency there that comes from success.”[44] Perhaps Uri was a wake-up call to Texas’ comfortably complacent energy market. The next storm will reveal whether this session’s slate of legislation answered it sufficiently. 


Alessandra Papa is a 2L studying energy and environmental law. As TELJ’s Symposium Director, she produced the 2022 Symposium on Legal System Changes to Address Climate Change and the Energy Transition in conjunction with the Texas Bar’s ENRLS. She has also been selected to serve as Editor-in-Chief of Volume 53. Alessandra grew up in Fort Worth, Texas and received a B.S. in Geography from Texas A&M. Her background in geoscience informs her legal studies and she looks forward to a career advocating for renewable energy.


Alisha Mehta is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.


[1] Theresa Machemer, How Winter Storm Uri Impacted the United States, Smithsonian Magazine: Smart News (Feb. 19, 2021), https://www.smithsonianmag.com/smart-news/how-winter-storm-uri-has-impacted-us-180977055/.

[2] Id. 

[3] Tex. Dep’t of State Health Servs., Winter Storm-Related Deaths – July 13, 2021, Tex. Dep’t Health & Human Services: News Updates (Oct. 29, 2021), https://dshs.texas.gov/news/updates.shtm#wn.

[4] Machemer, supra note 1.

[5] Peter Cramton, Lessons From the 2021 Texas Electricity Crisis, Peter Cramton: Papers 2 (Sept. 6, 2021), http://www.cramton.umd.edu/papers2020-2024/cramton-lessons-from-the-2021-texas-electricity-crisis.pdf 

[6] Id.

[7] Neelam Bohra, Almost 70% of ERCOT Customers Lost Power During Winter Storm, Study Finds, The Tex. Trib.: Winter Storm 2021 (Mar. 29, 2021), https://www.texastribune.org/2021/03/29/texas-power-outage-ERCOT/.

[8] Aaron Rupar, Fox News Turns Winter Storm Uri Into a Cudgel to Own the Libs, Vox (Feb. 17, 2021, 3:25 PM EST), https://www.vox.com/2021/2/17/22287469/fox-news-winter-storm-uri-windmills-ercot-greg-abbott-hannity-carlson (quoting Tucker Carlson).

[9] Cramton, supra note 5, at 1.

[10] ERCOT, Update to April 6, 2021 Preliminary Report on Causes of Generator Outages and Derates During the February 2021 Extreme Cold Weather Event, Ercot Public 8 (Apr. 27, 2021), http://www.ercot.com/content/wcm /lists/226521/ERCOT_Winter_Storm_Generator_Outages_By_Cause_Updated_Report_4.27.21.pdf 

[11] ERCOT, Quick Facts, ERCOT 1 (Feb. 2018) http://www.ercot.com/content/wcm/lists/144926/ERCOT_Quick_ Facts_2518.pdf 

[12] Katie Shepherd, Rick Perry Says Texans Would Accept Even Longer Power Outages ‘To Keep the Federal Government Out of Their Business’, The Wash. Post (Feb. 18, 2021, 2:09 AM EST), https://www.washingtonpost.com/nation/2021/02/17/texas-abbott-wind-turbines-outages/.

[13] Cramton, supra note 5, at 1.

[14] Id. at 2.

[15] Cramton, supra note 5, at 8. 

[16] Shepherd, supra note 12.

[17] Dionne Searcey, No, Wind Farms Aren’t the Main Cause of the Texas Blackouts, The N.Y. Times (May 3, 2021), https://www.nytimes.com/2021/02/17/climate/texas-blackouts-disinformation.html.

[18] Cramton, supra note 5, at 8. 

[19] Id. at 18.

[20] James Osborne Et Al., Texas Grid Fails to Weatherize, Repeats Mistake Feds Cited 10 Years Ago, Houston Chronicle (Feb. 17, 2021, 2:25 PM), https://www.houstonchronicle.com/business/energy/article/Texas-grid-again-faces-scrutiny-over-cold-15955392.php.

[21] Jeffrey Ball, The Texas Blackout Is the Story of a Disaster Foretold, Texas Monthly (Feb. 9, 2021), https://www.texasmonthly.com/news-politics/texas-blackout-preventable/.

[22] Jay Root, Et Al., This Simple Paperwork Blunder Left Texans Cold During the Deadly Freeze, Houston Chronicle (Mar 18, 2021, 1:31 PM), https://www.houstonchronicle.com/politics/texas/article/Simple-paperwork-blunder-Texans-cold-winter-storm-16032163.php 

[23] Id.

[24]Neena Satija & Aaron Gregg, Ten Years Ago, 241 Texas Power Plants Couldn’t Take the Cold. Dozens of them Failed Again This Year., The Wash. Post (Mar 6, 2021, 9:55 AM),  https://www.washingtonpost.com/nation/ 2021/03/06/texas-power-plants/ 

[25] Osborn, supra note 20. 

[26] Matt Largey, Texas’ Power Grid Was 4 Minutes and 37 Seconds Away from Collapsing. Here’s How it Happened., KUT Austin (Feb. 24, 2021, 3:09 PM CST), https://www.kut.org/energy-environment/2021-02-24/texas-power-grid-was-4-minutes-and-37-seconds-away-from-collapsing-heres-how-it-happened.

[27] S. Res. Ctr., Bill Analysis, Tex. S. 87(R)-87R8893 JXC-F (Tex. 2021), https://capitol.texas.gov/tlodocs/87R/analysis/html/SB01278I.htm

[28] Id. 

[29] Shawn Mulcahy & Erin Douglas, Sweeping Legislation to Overhaul State’s Electricity Market in Response to Winter Storm Heads to Texas House After Senate’s Unanimous Approval, The Tex. Trib.: Tex. Legislature 2021 (Mar. 29, 2021, 7:00 PM CST), https://www.texastribune.org/2021/03/29/texas-senate-electricity-power/.

[30] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0

[31] Id. 

[32] Herman K. Trabish, ‘A Terrible Idea’: Texas Legislators Fight Over Renewables’ Role in Power Crisis, Aiming to Avert a Repeat, Utility Dive: Deep Dive (May 17, 2021), https://www.utilitydive.com/news/a-terrible-idea-fight-over-renewables-role-in-texas-february-power-cri/599842/.

[33] Id. 

[34] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0

[35] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code § 39.159(b)(2)). )

[36] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code §§ 39.159(b)(3) and 39.159(c)(1)). SB 3, amends utility code § 39.159 (b)(3) and (c)(1)

[37] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code § 35.0021(b))

[38] S.B. 3, 87 Leg. (Tx. 2021) https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00003F.pdf#navpanes=0 (amending Utility Code § 35.0021(d-e))

[39] S.B. 3, 87 Leg. (Tx. 2021), https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB01281F.pdf#navpanes=0 

[40] Texas Proposed Gas Regulations for Critical Infrastructure, RCP (Oct. 2021), https://rcp.com/texas-proposed-gas-regulations-for-critical-infrastructure/ 

[41] Root, supra note 22.

[42] Texas Proposed Gas Regulations for Critical Infrastructure, RCP (Oct. 2021), https://rcp.com/texas-proposed-gas-regulations-for-critical-infrastructure/

[43] Erin Douglas, Oil Industry Helped Handpick Members of Texas Advisory Group for Electric Grid Reliability, Emails Show,  The Tex. Trib. (Oct. 21, 2021, 4:00 AM), https://www.texastribune.org/2021/10/21/texas-railroad-commission-power-grid-council/ 

[44] Osborne, supra note 20.

Vol. 52-1 Water Quality

Water Quality


Recission of Guidance Memorandum on County of Maui, Hawaii v. Hawaii Wildlife Fund



The Clean Water Act (“CWA”)[1] establishes the statutory structure for regulating the discharge of pollutants to the waters of the United States and setting surface water quality standards.[2] The National Pollutant Discharge Elimination System (“NPDES”)[3] permit program, created by the CWA in 1972, addresses water pollution by regulating point sources that discharge pollutants to the waters of the United States.[4] Under the program, the discharge of pollutants from a point source into a water of the United States is unlawful and prohibited unless an NPDES permit is authorized.[5]

Typically, an NPDES permit will specify an acceptable level of a pollutant or pollutant parameter in a discharge.[6] The decision whether to seek and obtain NPDES permit coverage resides with the owners or operators of facilities or systems; however, the failure to obtain coverage prior to a discharge exposes the owner or operator to potential civil or criminal enforcement and court orders mandating compliance with CWA permitting requirements.[7] 


County of Maui, Hawaii v. Hawaii Wildlife Fund

Until 2020, federal courts were divided on the question of whether a discharge of a pollutant subject to the CWA occurs when a pollutant is released from a point source and subsequently moves through groundwater, a nonpoint source,[8] before reaching a navigable water in the United States.[9] In other words, the issue was whether a CWA NPDES permit may be required for releases of pollutants from a point source that reach a jurisdictional water through groundwater.[10] 

In 2012, several environmental groups brought action against the County of Maui alleging that the county violated the CWA by discharging a pollutant to navigable waters without the required NPDES permit.[11] The county’s wastewater reclamation facility pumped treated sewage water into the ground through wells from which effluent traveled through groundwater to the Pacific Ocean.[12] The district court found that the county’s actions required an NPDES permit, since the pollution’s “path to the ocean is clearly ascertainable” from Maui’s wells into groundwater and to the ocean.[13] The Ninth Circuit court affirmed the decision on February 1, 2018, stating that pollutants coming from the wells were “fairly traceable from the point source to a navigable water” and that the CWA “does not require the point source itself convey the pollutants directly into the navigable water.”[14] 

In 2018, the County of Maui petitioned the U.S. Supreme Court for certiorari review, which was granted.[15] During oral arguments before the Court in November 2019, an attorney with the U.S. Department of Justice argued based on the Environmental Protection Agency’s (EPA) “Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Release of Pollutants From a Point Source to Groundwater” that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program, “even where pollutants are conveyed to jurisdictional surface waters via groundwater.”[16] The Court rejected the interpretation the EPA articulated in the statement and delivered an opinion on this issue in County of Maui, Hawaii v. Hawaii Wildlife Fund.[17]

In its April 2020 decision, the Court explicitly rejected the Ninth Circuit court’s overly broad “fairly traceable test,” and held that an NPDES permit is required for a discharge of pollutants from a point source that reaches navigable waters after traveling through groundwater either when there is a direct discharge from a point source into navigable waters, or “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”[18] In other words, County of Maui clarified that an NPDES permit is required for a subset of discharges of pollutants that reach a water of the United States through groundwater—those that are the “functional equivalent” of direct discharges to jurisdictional waters.[19] 

The Court’s opinion cited seven factors to consider when determining whether an indirect discharge will require NPDES coverage because it is “functionally equivalent” to a direct discharge, including: (1) the transit time of a pollutant to a navigable water, (2) the distance a pollutant travelled to a navigable water, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable water relative to the amount of the pollutant leaves the point source and is discharged into groundwater, (6) the manner by or area in which the pollutant enters the navigable water, and (7) the degree to which the pollutant at that point has maintained its specific identity when it reaches the navigable water.”[20] 


Guidance Memorandum

Following the Court’s decision, the EPA issued a guidance document near the end of President Trump’s administration on January 14, 2021, entitled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program,” which explained how to apply the Court’s decision.[21] The guidance only addressed discharges of pollutants that reach waters of the United States through groundwater and clarified the CWA permitting requirements for the indirect water pollution on a case by case basis.[22] The previous administration’s guidance placed the “functional equivalent” analysis into context within the existing NPDES permitting framework and identified an additional factor for authorities to consider when evaluating whether and how to perform a “functional equivalent” analysis: “the design and performance of the system or facility from which the pollutant is released.”[23] 

The EPA derived this additional factor from the NPDES permit application forms that contain inquiries concerning design and performance that are routinely considered by permitting authorities in the administration of the NPDES permit program.[24] EPA interpreted language in County of Maui to support the idea that the composition and concentration of discharges of pollutants directly from a pipe or other discernible, confined, and discrete conveyance into a water of the United States with little or no intervening treatment or attenuation often differed significantly from the composition and concentration of discharges of pollutants into a system that is engineered, designed, and operated to treat or attenuate pollutants or uses the surface or subsurface to treat, provide uptake of, or retain pollutants.[25] 

The addition of this factor skewed the “functional equivalent” analysis in a way that could reduce the number of discharges requiring a NPDES permit, thereby diminishing clean water protections.[26] Under the guidance, EPA decided that facilities were less likely to be the “functional equivalent” of a direct discharge for the following reasons: if they are designed and perform with a storage, treatment or containment system such as a septic system, cesspool or settling pond, if they are operating as a runoff management system, such as with stormwater controls, infiltration or evaporation systems or other green infrastructure, or if they operate water reuse, recycling or groundwater recharge facilities.[27] In other words, this means a release is less likely to be the “functional equivalent” of a discharge if it came from a facility or system that was designed not to release pollutants, but to store, contain, or treat them.[28]

Ultimately, under the guidance, if a system was designed to avoid discharges, and generally did so, that would weigh against a CWA violation even if there were some leaks into groundwater that eventually connected with a jurisdictional water.[29] Thus, the guidance had been derided by environmental organizations as creating loopholes for dischargers to evade CWA permitting requirements.[30]


Recission of Guidance Memorandum 

Upon taking office, President Biden signed Executive Order 13990 titled, “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” directing the EPA to “immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions” of the previous administration and to suspend, revise, or rescind those agency actions that “do not protect our public health and the environment.”[31] Although a guidance document does not have the force and effect of law and does not bind the public in any way, through the issuance of one, the EPA intends to provide clarity to the public regarding existing requirements under the law or EPA policies.[32] Pursuant to this Executive Order, EPA conducted a review of the County of Maui guidance document.[33] 

After reviewing the guidance document, EPA’s Office of Water issued a memorandum rescinding the guidance document on September 15, 2021, which was sent to the EPA Regions and Water Division Directors.[34] The EPA explained that in addition to the input from the agency workgroup established to evaluate the guidance, the decision to rescind the guidance was informed by meetings with a broad range of stakeholders, who found that the guidance was inconsistent with EPA’s authority to limit pollution discharges to jurisdictional waters.[35] With this action, EPA is preserving longstanding clean water protections.[36]

The document was rescinded for two primary reasons—substantive flaws and the lack of sufficient interagency consideration.[37] First, the agency is rescinding the guidance based on determining that the additional “design and performance” factor, is inconsistent with the CWA and the Supreme Court decision in County of Maui, because “the additional factor introduces an element of intent that is not reflected in or consistent with the County of Maui decision.” [38] Second, “the guidance was issued without proper deliberation within EPA or with [their] federal partners.”[39]

The withdrawal will likely expand the number of discharges to groundwater that EPA finds are the “functional equivalent of a direct discharge from a point source into navigable waters” and therefore require a CWA permit.[40] The implication for rescinding this guidance document is that even if some design facilities or wastewater systems to avoid discharges, they still could face CWA liability for even small leaks of pollutants into groundwater that eventually connects to a navigable water.[41] The EPA’s Press Office issued a news release in which it indicated that the CWA and a straightforward application of the Supreme Court’s decision provide important protections for the nation’s water by ensuring that discharges of pollutants to groundwater that reach surface waters are appropriately regulated.[42] This action will help protect water quality in lakes, streams, wetlands, and other waterbodies.[43] 

The EPA also reiterated its position that the focus of the Court’s decision in County of Maui is on whether a permit is required to protect surface waters, and not to protect or regulate groundwater itself. [44] Therefore, the existence of a state groundwater protection program that may regulate a discharge does not obviate the need for NPDES permitting authorities to apply the “functional equivalent” factors that the Supreme Court identified in determining whether a discharge from a point source through groundwater that reaches jurisdictional surface water requires an NPDES permit.[45] Such language appears to be intended to address claims made by industry on-going litigation that discharges subject to regulation under state groundwater programs categorically that do not require NPDES permit.[46] Although the analysis will not extend to the state groundwater protection programs for this reason, the recission ultimately indicates that the new administration will take a broader view than the prior administration as to when discharges into groundwater are the “functional equivalent” of a discharge directly into a navigable water.[47]



The EPA stated that it is “evaluating appropriate next steps to follow the recission” of the guidance.[48] In the interim, consistent with past practice and informed by the guiding principles and factors specified by the Supreme Court in County of Maui, EPA will continue to apply site-specific, science-based evaluations to determine whether a discharge from a point source through groundwater that reaches jurisdictional surface water is a “functional equivalent” of a direct discharge and therefore requires a permit under the CWA.[49] Moreover, for the time being, it will continue to make NPDES determinations on a case-by-case basis, which had long been agency practice prior to the issuance of the County of Maui decision.[50] EPA is committed to working with its state co-regulators, Tribes, and local partners to better protect water quality that is essential to public health and thriving ecosystems.[51]


Niha Ali is a 3L at Texas Law and has been a part of TELJ since the Fall of 2019. She grew up in Katy, Texas and completed her undergraduate education in Philosophy with a Business minor at the University of Texas at Austin.


David Klein is a Principal of Lloyd Gosselink Rochelle & Townsend, P.C. and is the Chair of the Environmental and Natural Resources Law Section of the State Bar of Texas.  David represents public and private clients in water quality, water rights, water districts, and water utility service matters.


[1] 33 U.S.C. §§ 1251–1387 (1972).

[2] Summary of the Clean Water Act, U.S. Env’t. Prot. Agency, https://www.epa.gov/laws-regulations/summary-clean-water-act (last updated Oct. 22, 2021). 

[3] 33 U.S.C. § 1342 (1972).

[4] About NPDES, U.S. Env’t. Prot. Agency, https://www.epa.gov/npdes/about-npdes (last updated May 28, 2021).

[5] NPDES Permit Basics, U.S. Env’t. Prot. Agency, https://www.epa.gov/npdes/npdes-permit-basics (last updated Sept. 28, 2021).

[6] Id.

[7] Id.

[8] Basic Information about Nonpoint Source (NPS) Pollution, U.S. Env’t. Prot. Agency, https://www.epa.gov/nps/basic-information-about-nonpoint-source-nps-pollution (last updated July 08, 2021).

[9] See Hawaii Wildlife Fund v. Cnty. of Maui, 886 F.3d 737 (9th Cir. 2018) (discharges through groundwater are subject to CWA permitting where they are fairly traceable to the point source and more than de minimis); See also Upstate Forever v. Kinder Morgan Energy Partners, 887 F. 3d 637 (4th Cir. 2018) (discharges must have a direct hydrological connection between ground water and navigable waters to state a claim under CWA); See also Ky. Waterways All. v. Ky. Util. Co., 905 F.3d 925, 940 (6th Cir. 2018) (discharges through groundwater are excluded from the CWA’s permitting requirements).

[10] Cnty. of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1469 (2020).

[11] Id. at 1469.

[12] Id. at 1465, 1469.

[13] Hawaii Wildlife Fund v. Cty. of Maui, Hawaii, 24 F.Supp.3d 980, 998 (D. Haw. 2014).

[14] Hawaii Wildlife Fund v. Cty. of Maui, Hawaii, 886 F.3d 737, 749 (9th Cir. 2018) (emphasis added).

[15] Cnty. of Maui, 140 S. Ct. at 1469–1470.

[16] 84 Fed. Reg. 16,810, 16,811 (Apr. 23, 2019) (emphasis added).

[17] Cnty. of Maui, 140 S. Ct. at 1465, 1473–1475.

[18] Id. at 1468, 1470, 1476–77 (emphasis added).

[19] Id. at 1468, 1477.

[20] Id. at 1476–77.

[21] 86 Fed. Reg. 6, 321 (Jan. 21, 2021).

[22] Id.

[23] Id.

[24] Id. See e.g., 40 C.F.R. 122.21; NPDES Applications and Forms–EPA Applications, U.S. Env’t. Prot. Agency, https://www.epa.gov/npdes/npdes-application-forms (last updated Apr. 27, 2021).

[25] 86 Fed. Reg. 6,321 (Jan. 21, 2021); Cty. of Maui, 140 S. Ct. at 1476 (“[w]hether pollutants that arrive at navigable waters after traveling though groundwater are ‘from’ a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge”).

[26] 86 Fed. Reg. 6,321 (Jan. 21, 2021).

[27] Id.

[28] Id.

[29] 86 Fed. Reg. 53,653 (Sept. 28, 2021).

[30] EPA Rescinds Maui Guidance, Raises New Questions on NPDES Implementation, Nat’l Ass’n of Clean Water   Agencies (Sept. 22, 2021), https://www.nacwa.org/news-publications/clean-water-current-archives/clean-water-current/2021/09/22/epa-rescinds-maui-guidance-raises-new-questions-on-npdes-implementation [hereinafter NACWA]

[31] Exec. Order 13,990, 86 Fed. Reg. 7,037 (Jan. 25, 2021).

[32] EPA Guidance Documents, U.S. Env’t. Prot. Agency, https://www.epa.gov/guidance (last updated May 11, 2021).

[33] 86 Fed. Reg. 6, 321 (Jan. 21, 2021). 

[34] 86 Fed. Reg. 53,653 (Sept. 28, 2021).

[35] Id.; U.S. EPA Press Office, EPA Rescinds Previous Administration’s Guidance on Clean Water Act Permit Requirements, U.S. Env’t. Prot. Agency (Sept. 16, 2021), https://www.epa.gov/newsreleases/epa-rescinds-previous-administrations-guidance-clean-water-act-permit-requirements.

[36] Id

[37] 86 Fed. Reg. 53,653 (Sept. 28, 2021).

[38] Id.

[39] Id.

[40] EPA Withdraws Trump-era Guidance on When Groundwater Releases Require Clean Water Act Permits, J.D. Supra (Sept. 20, 2021), https://www.jdsupra.com/legalnews/epa-withdraws-trump-era-guidance-on-3442536/

[41] Todd Neely, EPA Rescinds CWA Groundwater Guidance, DTN (Sept. 24, 2021), https://www.dtnpf.com/agriculture/web/ag/news/world-policy/article/2021/09/24/epa-action-groundwater-guidance-act.

[42] U.S. EPA Press Office, supra note 35.

[43] Id.

[44] 86 Fed. Reg. 53,653 (Sept. 28, 2021).

[45] Id.

[46] NACWA, supra note 30.

[47] Neely, supra note 41.

[48] 86 Fed. Reg. 53,653 (Sept. 28, 2021).

[49] Id.

[50] Cnty. of Maui, 140 S. Ct. at 1465.

[51] 86 Fed. Reg. 53,653 (Sept. 28, 2021).

Vol. 52-1 Federal Casenote

Federal Casenote 

United States Fish and Wildlife Services et. al. v. Sierra Club, Inc.


This case arose when the Sierra Club submitted Freedom of Information Act (FOIA) requests for records concerning consultations between the United States Environmental Protection Agency (EPA), and the U.S. Fish and Wildlife Service and National Marine Fisheries Services (together, the Services).[1] The primary document considered by the Court’s decision is a “draft biological opinion” prepared by the Services’ staff pertaining to EPA’s proposal concerning “cooling water intake structures.”[2]

Between 2011 and 2013, EPA promulgated a proposed rule regarding “cooling water intake structures” to minimize potential harm to marine animals that are protected under the Endangered Species Act (ESA).[3] The Services’ prepared a “draft biological opinion” that determined the 2013 rule would still jeopardize the animal populations at risk.[4] As such, decisionmakers at the Services’ determined that more consultation and work with the EPA was necessary to develop a sufficient proposal.[5] Following this, the EPA abandoned its initial 2013 rule and began development on a new proposed rule, which was finalized in 2014.[6] There was never an official draft or final opinion issued on EPA’s 2013 proposal.

Sierra Club sued the Services and claimed that the Services’ invocation of the deliberative process privilege was a way of shielding their draft opinions that ultimately expressed their final view on EPA’s 2013 rule.[7] The Ninth Circuit affirmed, agreeing with Sierra Club’s argument.[8] Judge Wallace dissented on the Ninth Circuit’s opining that “the drafts were part of the ongoing consultation process,” and protected by the privilege which is relevant to the Court’s decision here.[9] 

Court’s Analysis 

The Court began its analysis with the purpose of the deliberative process privilege. Specifically, the Court established that the deliberative process privilege exists to encourage candid discussions between agencies, resulting in an improved decision-making process, and to prevent agencies from operating under a microscope.[10] It follows that the deliberative process privilege must protect documents that are indeed deliberative and pending. The privilege, however, does not extend to a final decision, as the deliberations are complete at that point.[11]

            The fact that a document is not followed by any further drafts or deliberations does not, alone, make the document itself a final document because “[s]ometimes a proposal dies on the vine.”[12] This is what happened with the Services’ “draft biological opinion” on the EPA’s 2013 rule–it died on the vine.[13] In making this determination, the court pointed to various factors regarding the Services’ “draft biological opinion” on EPA’s 2013 proposed rule.

First, and most importantly, the Court pointed to the fact that the Services’ never formally approved or adopted the opinion, nor did they send the EPA their opinion on the proposed 2013 rule as is typical practice when for draft and final biological opinions.[14] The Court actually pointed to this as a further indication that the “draft biological opinion” at question in this case was more likely a “draft of a draft” because of the Services’ internal determination that further work needed to be done before even issuing a draft opinion.[15]

Next, the Services and the EPA had an agreement to allow for further changes following the circulation of the “draft biological opinion” to the EPA.[16] Because the drafts were allowed to change following EPA’s opportunity to comment, then the “draft biological opinion” could not have exhibited the agencies’ final decision on the matter and as such, was deliberative.[17]

Moreover, in determining the finality of an opinion, courts must examine whether the opinion led to any “direct and appreciable legal consequences” as is a necessary result of an agency’s final opinion on a matter—the practical consequences of a decision is not indicative of an opinion’s finality.[18] Here, there were no legal consequences of the Services’ internally, unapproved draft opinion—nothing from the draft opinion made its way into practice either at the Services or at the EPA, nor was either agency tied to anything within the draft opinion.

The Court confirms, nonetheless, that agencies cannot simply “stamp every document ‘draft,’” to protect their decisions, because the inquiry that the courts make is a functional inquiry rather than a formal one.[19]  In other words, the court will have to examine the facts of each individual case to make a determination as to whether or not a “draft” opinion is indeed considered by the agency to be “draft,” or if it is rather a final opinion and thereby not protected by the deliberative process privilege. The Court does not indicate how future courts should make this determination. 

 Implications of the Decision 

The Supreme Court’s decision broadens the scope of what is considered a “draft” document for the purposes of applying the deliberative process privilege. However, the Court left the scope of the decision rather open-ended, meaning that it will come down to the district and appellate courts to determine what documents fall under the exclusion. In turn, this will likely lead to circuit splits in how to treat certain kinds of documents under deliberative process privilege. Following such a split, forum-shopping may arise as a concern.

As the Court indicated in the decision, courts will have to examine exactly how an agency treats a document to see if it reflects its final view on the subject in question and if the document results in any appreciable change to the legal requirements or actions of an agency. For example, a proposed rule that an agency informally adopts that alters how the agency responds to a situation could be seen as final, even if there was no “final opinion” issued concerning the adoption of the new rule. 

This will likely result in an increased strain on the judiciary, requiring a case-by-case review and determination as to whether a document is indeed a “draft” and thus protected by the deliberative process privilege or if the agency treated the document as final by publishing the rule or by enforcing the changes required by the rule, and, as such, not protected.

            Regardless, the decision provides agencies with more freedom in their use of the deliberative process privilege to protect draft work product. This could very likely increase internal deliberations within agencies and increase the candor of intra-agency discussions regarding forthcoming rules or decisions. Furthermore, agencies may be more willing to increase their solicitation of public comments and input since internal deliberations on such comments will be protected, even when pulling together a draft opinion in response to public comments. However, as the Sierra Club suggested, this is a double-edged sword as this increased candor and usage of the deliberative process privilege could result in government agencies being less forthcoming in working with non-agency groups.[20] This is especially true if an opinion results in the abandonment of the proposed rule and further intra-agency deliberations, as in the case of the proposed rules in US Fish and Wildlife v. Sierra Club.


Amy Rodriguez is an Assistant Attorney General for the State of Texas. Her work centers on counseling state agencies on prosecution and defense litigation strategy. She is a 2017 graduate of the University of Texas School of Law.

Evan Kudler is a 2L who joined TELJ in his fall 1L year. He is from El Dorado Hills, California and studied Economics at the University of California, Santa Barbara for undergrad. Before coming to law school, he worked at Pacific Gas & Electric Company in San Francisco working on the decarbonization effort of the electricity sector. He will be joining Baker Botts Environmental litigation group this summer before he goes off to get his LLM in Global Environment and Climate Change Law at the University of Edinburgh in the fall. He hopes to focus his work on the intersection between environmental justice and climate change.

 [1] U.S. Fish and Wildlife Service et. Al. v. Sierra Club, Inc., 141 S. Ct. 777, 784-85 (2021) [hereinafter “US Fish and Wildlife”].

[2] Id. at 785.

[3] Id. at 784.

[4] Id.

[5] Id.

[6] US Fish and Wildlife, supra note 1, at 784.

[7] Id.  at 785.

[8] Id. (holding that the “draft biological opinions…represented the Services’ final opinion that the EPA’s 2013 proposed rule was likely to have an adverse effect on certain endangered species.”).

[9] Id.

[10] See id.; see also Department of Interior v. Klamath Water Us­ers Protective Assn., 532 U. S. 1, 8 (2001) (determining in relevant part that “officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.”).

[11] US Fish and Wildlife, supra note 1, at 786.

[12] Id. “[Dying] on the vine” simply means that the rule was neither denied or approved, and, for the case herein, the Services did not officially adopt an opinion nor was an opinion issued to EPA on EPA’s proposed 2013 rule.

[13] Id. at 788

[14] Id.

[15] Id.

[16] US Fish and Wildlife, supra note 1, at 787.

[17] Id.

[18] Bennett v. Spear, 520 U.S. 154, 170, 178 (1997) (holding that a final biological opinion “leads to direct and appreciable legal consequences…[when it] alters the legal regime to which the action agency is subject.”).

[19] US Fish and Wildlife, supra note 1, at 788.

[20] Sierra Club warns that there is a risk of agencies overusing the term “draft” for purposes of protecting internal deliberations, even if the agency practically intends for such an opinion to be a final decision.

Vol. 52-1 Water Rights

Water Rights

Brazos River Auth. v. City of Houston, 628 S.W.3d 920 (Tex. App.—Austin 2021, pet. filed)


This case arose over a dispute from the right to construct and operate a reservoir on Allens Creek.[1] The City of Houston sued the State of Texas and the Brazos River Authority (“BRA”), seeking to block the implementation of a new law that would force the City to sell its water rights in the proposed Allens Creek Reservoir to the BRA for up to $23 million by the end of 2021.[2] Specifically, the site of the proposed reservoir is a tract of about 9,5000 acres located in Austin County near the confluence of Allens Creek and the Brazos River.[3] This site was designated “a site of unique value for the construction of a dam and reservoir on Allens Creek” and “that construction and development of the Allens Creek Reservoir project” would be “in the public interest and would constitute a beneficial use of the water.”[4]

For over two decades, the City and the BRA have jointly held a water-appropriation permit authorizing them to construct the reservoir and to use the impounded water.[5] In 2019, however, the Texas State Legislature passed House Bill (H.B.) 2846, which instructed Houston to enter into a contractual agreement with the BRA to transfer its entire interest in the proposed reservoir, including its permit rights, to the Authority.[6] H.B. 2846 was intended to encourage development of the reservoir by transferring the City’s entire interest in the reservoir and all rights to the BRA.[7]

        Houston responded by suing the State of Texas and the BRA, asserting that H.B. 2846 is invalid on multiple grounds.[8] The district court granted declaratory relief, finding that H.B. 2846 is “unconstitutional, void, and unenforceable” because it violates the Texas Constitution’s prohibition of retroactive laws, local or special laws, and the forced sale of government property.[9] In a separate order, the district court sustained Houston’s evidentiary objections in part and overruled them in part.[10] The State and the BRA appealed the decision.[11]

 The Third Court of Appeals’ Decision and Discussion

The Texas Third District Court of Appeals upheld the lower court’s decision to protect the City of Houston’s interest in the unbuilt reservoir by striking down a state law and declaring it unconstitutionally retroactive based on its impairment of Houston’s water rights.[12]  

First, the appellate court discussed why H.B. 2846, as a later-enacted and more specific statute, controls regardless of a conflict with the Local Government Code.[13] Next, the court examined the constitutional challenges to H.B. 2846 and elaborated on its conclusion that there was a failure to demonstrate an overriding public interest in violating the water rights of the City in the unbuilt reservoir.[14] Despite a presumption that the statute was valid, the court construed H.B. 2846 “as a whole” to determine that it had retroactive effect.[15] Thus, the analysis turned to whether the law was unconstitutionally retroactive.[16]

The City argued the law is unconstitutional in part because it violates prohibitions on retroactive laws and on forced sales of municipal property that have a public use.[17] On the other hand, the BRA argued that H.B. 2846 is in the public interest because it is necessary to discharge the legislature’s constitutional duty to conserve the state’s natural resources.[18] In its decision, the appellate court relied on the three-factor test established in a 2010 Texas Supreme Court decision, Robinson v. Crown Cork & Seal Co., to review whether a statute violates the state’s constitutional prohibition on retroactive laws under the following factors: (1) the nature and strength of the public interest served by the statute; (2) the nature of the prior right violated by the statute; and (3) the extent of the impairment.[19]

Although the court agreed that constructing the reservoir is in the public interest, concerns regarding the law remain unaddressed and, according to the majority, “nothing in the record supports a conclusion that H.B. 2846 resolves these concerns.”[20] The conclusion is bolstered by the fact that H.B. 2846 itself does little to advance construction of the reservoir without further action from the Legislature or the Commission.[21] Ultimately, the majority determined the legislature lacked justification to retroactively apply the state statute to Houston’s interest in the unbuilt reservoir because the legislation served a minimal public interest while having a significant impact on Houston’s settled property rights.[22] Therefore, even though H.B. 2846 could serve a compelling interest, the court concluded the statute was unconstitutionally retroactive in balancing the law’s “purpose against the nature of the prior right and the extent to which the statute impairs that right.”[23]

In affirming the trial court’s judgment and granting declaratory relief, the court found H.B. 2846 to be “unconstitutional, void, and unenforceable.”[24] However, dissenting Justice Melissa Goodwin said that the legislature’s action should carry a presumed constitutionality and require Houston to demonstrate the need to strike down the law.[25] Justice Goodwin points to the City of Houston’s failure to do so, and questioned Houston’s proof of its vested water rights in the reservoir because it received permits for the project’s development decades earlier but failed to move forward on construction.[26] Additionally, although Justice Goodwin admits to the questionable policy reasons behind the legislation, her dissent notes that the law’s constitutionality should be evaluated, rather than its policy.[27]

Implications of the Decision

This court’s decision restores the City of Houston’s interest in the Allens Creek reservoir project and affirms the state prohibition against retroactive statutes. This decision appears to be an obstacle to the legislature’s ability to take away rights and property from a city and transfer those interests to another governmental entity. This decision could be used in the future to prevent the legislature from using its powers to require the involuntary transfer of property from a city to another governmental entity. The court’s application also reinforces the Robinson factor test established by the Texas Supreme Court and provides insight into the courts’ decision-making process on issues involving the constitutionality of retroactive statutes.[28]

It remains to be seen how durable this finding, and its implications, will be—the State of Texas and the BRA filed petitions for review with the Texas Supreme Court on October 15, 2021.

Carlo Lipson is a second-year student at the University of Texas School of Law. He joined TELJ in the Spring of his 1L year, and has enjoyed being a part of the journal and learning about the many current environmental law issues and policies. Carlo is from San Francisco, attended undergrad at the Claremont Colleges outside of Los Angeles, and is planning to return to California after law school.

Emily Rogers is the Managing Partner of Bickerstaff Heath Delgado Acosta LLP and represents public and private clients in water rights, water quality, utility, and environmental law matters.           

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University School of Law, where she served on the editorial board of the Law Review.


[1] Brazos River Auth. v. City of Houston, 628 S.W.3d 920 (Tex. App.—Austin 2021, pet. filed).

[2] Id. at 925.

[3] Id. at 923.

[4] Id.; Act of May 22, 1999, 76th Leg., R.S., ch. 1291, § 1.01, 1999 Tex. Gen. Laws 4426, 4426 (S.B. 1593).

[5] Brazos River Auth., 628 S.W.3d at 922.

[6] See id.; See Act of May 16, 2019, 86th Leg., R.S., ch. 380, § 1, 2019 Tex. Gen. Laws 688, 688 (H.B. 2846).

[7] Brazos River Auth., 628 S.W.3d at 924.

[8] Id. at 925.

[9] Id. at 922.

[10] Id. at 925.

[11] Id.

[12] Id. at 936.

[13] Id. at 927; See Tex. Loc. Gov’t Code Ann. §§ 272.001(a), 552.020 (West 2019).

[14] Brazos River Auth., 628 S.W.3d at 936.

[15] Id. at 928.

[16] Id.

[17] See id. at 928.

[18] See Tex. Const. art. XVI, § 59(a); See Brazos River Auth., 628 S.W.3d at 929.

[19] Id. at 929; see Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 145 (Tex. 2010).

[20] Brazos River Auth., 628 S.W.3d at 930.

[21] Id. at 931

[22] Id. at 936.

[23] See id. at 931.

[24] Id. at 936.

[25] See id. at 937.

[26] Id. at 930.

[27] See id. at 945.

[28] See id. at 929.

Vol. 52-1 Natural Resources & Land Use

Natural Resources & Land Use

NPS Responses to Overcrowding in National Parks Post-Lockdown


            As the federal government and states have loosened COVID-19 lockdown restrictions and allowed greater opportunity for recreation, National Parks (Parks) have become increasingly inundated with visitors. The National Parks Service (NPS) has reported severe congestion in many of the nation’s most popular Parks, echoed by major news outlets and Park visitors.[1] This overcrowding has done more than just diminish the experience of visitors—it has harmed the Parks’ natural resources.[2] NPS has implemented a reservation system, capped the number of visitors and cars allowed in each Park, and levied additional fees, but these policies have not been uniformly applied and overcrowding remains an issue.[3] 

            The actions taken by NPS over the last year to minimize overcrowding raise concerns over the potential conflict with NPS’s legal mandate under the National Parks Service Organic Act (Organic Act) and its ability to levy additional fees under the Federal Land Recreation Enhancement Act (FLREA). 

 Overcrowding National Parks – Before, During, and After Lockdown

            Even before the pandemic, Parks were frequently overcrowded to the detriment of both recreation and conservation.[4] In 2019 alone, over 327.5 million people visited the nation’s 400 Parks, marking a 2.9% increase from 2018.[5] That is consistent with the relatively steady increase in visitation over NPS’s lifespan.[6] This continued growth compounds the concerns of scholars, who have described visitation rates as intolerably high as early as 2009.[7]  

            During the COVID lockdown, starting in March 2020, most Parks closed through the end of April, with many staying closed over the summer as well.[8] These closures decreased visitation by more than 100 million compared to 2019, with varied drops depending on each State’s lockdown guidelines. [9] Nevertheless, most of the Parks that saw a precipitous drop in visitation saw their attendance return to 2019 levels or higher by Fall of 2020.[10] Nearly half of all recreational visitors in 2020 were concentrated in the nation’s top twenty-three most popular Parks, forecasting the overcrowding that has become the norm for Parks in 2021.[11]

            While the 2021 visitation statistics for all Parks are unavailable (NPS attributes the delay to the pandemic) there have been widespread reports of overcrowding and a few targeted statistics about visitation increases in select Parks.[12] In early June, an NPS spokesperson warned that NPS was “anticipating one of [their] busiest summers ever in the most popular destination—Nationals Parks[.]”[13] This prediction has proven accurate. As the superintendent of the Grand Teton National Park noted in late August, “[e]very month except one has been record setting in terms of visitation numbers since the August before.”[14] The nation’s most popular Parks like Acadia, Grand Canyon, Joshua Tree, and Yellowstone, are bearing the brunt of this surge and the damage that comes with it.[15] 

            The high concentration of visitors at these Parks have pushed NPS to attempt to diffuse recreational visitors over the other 400 Parks in America.[16] Encouragement, however, has not been enough to solve overcrowding. NPS has also taken direct measures to curtail access to the Parks with the highest congestion. NPS has instituted reservation systems on recreation.gov to cap the amount of daily visitors and balance visitation over the course of the day.[17] Some Park administrators, rather than implement a reservation system, simply set a cap for either the number of people or the number of cars allowed in the Park or particular areas.[18] In some cases, NPS has instituted additional fees to bring motor vehicles onto Park grounds or to roam backcountry areas.[19] 

 Legality of NPS Responses

            According to NPS’s legal mandate under the Organic Act, the Service “shall promote and regulate” use of the Parks “to conserve the scenery, natural and historic objects, and wildlife . . .  and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[20] This language has commonly been read to create dichotomous goals for NPS: to promote the public’s recreational enjoyment of the Parks and to leave the Parks unimpaired for future generations.[21] These goals have occasionally conflicted, most notably regarding the use of motorized vehicles on Park grounds.[22] Where enjoyment of the Parks has clashed with NPS’s requirement to preserve the Parks’ relatively unimpaired condition for future generations, NPS has repeatedly attempted to balance the two concerns, resulting in legal challenges to NPS decisions.[23]

            NPS and the courts have clarified that while both promoting recreation and preserving natural resources must be accounted for in NPS decisions, the latter takes supremacy.[24] As long as NPS considers promoting enjoyment of the Parks, courts grant broad deference to enact policies that limit the impairment of natural resources.[25] Given this broad deference, it is unlikely that the reservation systems or visitor caps would be deemed arbitrary and capricious since these decisions are meant to limit overcrowding. Furthermore, as balancing the visitor rates across all Parks will decrease congestion, improve views, and decrease noise pollution, doing so should also promote the enjoyment of the Parks for all recreation visitors.[26]

            The fee increases, on the other hand, will be subject to the FLREA’s requirements. As long as the Park in question follows the procedure for increasing a fee outlined by the FLREA, the increase will likely not be found arbitrary and capricious.[27] Under the FLREA, Parks interested in levying additional fees must “provide the public with opportunities to participate in the development of or changing of a recreation fee.”[28] Although an “opportunit[y] to participate” is not defined in the statute, NPS has an internal (albeit non-binding) fee-collection manual that details the steps a Park needs to follow.[29] In the case of a fee increase at the Great Smokey Mountains National Park, undergoing a notice and comment period, coupled with direct notice to chambers of commerce and public officials, satisfied the FLREA.[30] As such, as long as any Park interested in a fee increase satisfactorily “provide[s] the public with opportunities to participate[,]” in the same vein as the Great Smoky Mountains National Park, then the fee increase will likely not be ruled arbitrary and capricious.


            Overcrowding remains a serious concern at National Parks which, given the increasing rate of visitors over the last thirty years, will remain a concern unless NPS fundamentally changes the way it regulates visitation. The implementation of reservation systems, hard caps on visitors, and additional fees are all important steps, but more are necessary. 

            To further encourage Americans to visit some of the lesser-known and visited Parks, Congress recently allocated approximately $1.7 billion to NPS over the next five years to repair and modernize the transit systems in and around Parks.[31] Furthermore, in 2021, the Department of the Interior will invest $1.6 billion to “address critical deferred maintenance projects and improve transportation and recreation infrastructure in national parks . . . ” alongside other public land projects.[32] In theory, these repairs will provide visitors better access to the parks and other public lands, reducing emissions and congestion in some of the most visited parks.[33] Whether this will be enough to functionally alleviate some of the issues associated with NPS’s estimated $12 billion repair backlog remains to be seen.[34]

Adam Greiner is a third-year law student at the University of Texas School of Law. Before coming to Texas, Adam went to undergrad in his home state of Virginia at the College of William and Mary, where he studied History and Global Business. Adam has been a staff editor for the Texas Environmental Law Journal since the beginning of his second year, and is interested in working in mass tort and complex commercial litigation after he graduates.

Francesca Eick is an Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

 [1] See, e.g., Brody Ford, National Parks Are So Crowded That Congress Is Getting Involved, Bloomberg, July 29, 2021, https://www.bloomberg.com/news/articles/2021-07-29/national-parks-are-so-crowded-that-congress-is-getting-involved; Allison Pohle, National Parks Are Overcrowded and Closing Their Gates, Wall St. J., June, 13, 2021,   https://www.wsj.com/articles/national-parks-are-overcrowded-and-closing-their-gates-11623582002; Khristopher J. Brooks, After a Year of Pining, Visitors are Overcrowding National Parks like Yellowstone and Yosemite, CBS News, June 18, 2021, https://www.cbsnews.com/news/national-parks-overcrowding-yellowstone-yosemite/. 

[2] See Kyle Paoletta, Give the People What They Clearly Need: More National Parks, N.Y. Times, August 28, 2021, https://www.nytimes.com/2021/08/28/opinion/national-park-nature.html (quoting Cameron Stoley, superintendent of Yellowstone National Park, on the effect of the spike in visitation post-lockdown: “You put a million more people a year in Yellowstone — what does that mean when you’re emptying 2,000 garbage cans five times a day instead of three?” he said. “What does a million more people flushing toilets five times a day do to wastewater?”). 

[3] Benjamin Beddoes, Shenandoah National Park Looks to Address Overcrowding, WHSV, (Oct. 15, 2021, 5:18 PM), https://www.whsv.com/2021/10/15/shenandoah-national-park-looks-address-overcrowding/ (quoting Shenandoah National Park’s superintendent on overcrowding at Old Rag mountain hiking trails: “[w]hat we would like to do is set a cap of 800 people a day, see how that works out[]”).

[4] Andrew R. Chow, National Parks Are Getting Trashed During COVID-19, Endangering Surrounding Communities, TIMES, (July 22, 2020 3:19 PM), https://time.com/5869788/national-parks-covid-19/.; National Parks Service, Visitation Numbers, Feb. 25, 20221, https://www.nps.gov/aboutus/visitation-numbers.htm.

[5] Visitation Numbers, supra note 4.

[6] Id

[7]  See Id.; (327,516,619 – 285,579,941) and (41,936,678 ¸ 327,516,619 * 100); Richard J. Ansson, Jr. & Dalton L. Hooks, Jr., Protecting and Preserving Our National Parks in the Twenty First Century, 62 Mont. L. Rev. 213, 214 (2001) (arguing the need for large scale reform to cope with the increasing overcrowding problem at National Parks); Richard J. Ansson, Funding Our National Parks in the 21st Century: Will We Be Able to Preserve and Protect Our Embattled National Parks?11 Fordham Envtl. L. J. 1, 2 (1999) (Noting the increasing problem of overcrowding at National Parks, suggesting increased funding to NPS).

[8] Abraham J. Miller-Rushing et al., COVID-19 Pandemic Impacts on Conservation Research, Management, and Public Engagement in US National Parks, 257 Biological Conservation 1, 3 May 2021.

[9] Id.

[10] Id. at 4. 

[11]Visitation Numbers, supra note 4.; Mai Tran, ‘It’s Not Sustainable’: Overcrowding is Changing the Soul of US National Parks, The Guardian, Sept. 10, 2021, https://www.theguardian.com/environment/2021/sep/10/


[12] Pohle, supra note 1.; Brooks, supra note 1.; Paoletta, supra note 2.

[13] Brooks, supra note 1.

[14] Paoletta, supra note 2.

[15] Id.

[16] Alicia Johnson, US National Parks are Overcrowded – Here’s What Experts Say to do Instead, Lonely Planet, (June 25, 2021), https://www.lonelyplanet.com/articles/overcrowding-at-us-national-parks.

[17] Greg Iacurci, National Parks are Booming. That May Ruin Your Next Trip, CNBC, (Aug. 22, 2021 8:00 AM), https://www.cnbc.com/2021/08/22/national-parks-are-booming-that-may-ruin-your-next-trip.html.

[18] Michael Charboneau, All the Major Closures and Restrictions at National Parks Due to COVID-19, Men’s J., https://www.mensjournal.com/adventure/national-parks-closures-covid-19/.

[19] National Parks Service, Entrance Fees by Park, Sept. 28, 2021, 

https://www.nps.gov/aboutus/entrance-fee-prices.htm.; National Parks Service, 2021 User Fees Increase Proposal, Sept. 27, 2021, https://www.nps.gov/shen/planyourvisit/2021-user-fees-increase-proposal.htm (detailing fee increase proposal for sake of public comment period for Shenandoah National Park). 

[20] 54 U.S.C.A. § 100101.

[21] See S. Forest Watch, Inc. v. Jewell, 817 F.3d 965, 972 (6th Cir. 2016)

[22] See, e.g., Bluewater Network v. Salazar, 721 F. Supp. 2d 7, 21 (D.D.C. 2010) (granting in part plaintiff’s challenge to the reintroduction of jetskis to two national parks); S. Utah Wilderness All. v. Dabney, 222 F.3d 819, 821 (10th Cir. 2000) (holding that NPS’s final rule barring the use of motorized vehicles in a portion of the Canyonlands National Park was based on a permissible construction of the Organic Act).  

[23] See, e.g., Wilkins v. Sec’y of Interior, 995 F.2d 850, 853 (8th Cir. 1993) (finding NPS’s decision to remove wild horses from Ozark River National Parks to not be arbitrary and capricious as they relied on evidence that the horses’ continued presence would potentially impair the perpetuation of the Park’s natural resources.). 

[24] See S. Utah Wilderness All. v. Nat’l Park Serv., 387 F. Supp. 2d 1178, 1183, 1199 (D. Utah 2005).

[25] Id. at 1194.

[26] See Tran, supra note 11. 

[27] See S. Forest Watch, 817 F.3d at 970-74.

[29] S. Forest Watch, 817 F.3d at 972.

[30] Id.

[31] Infrastructure Investment and Jobs Act of 2021, H.R. 3684, 117th Cong. § 11101(3)(B)(ii) (2021).   

[32] Department of the Interior, Interior Invests $1.6 Billion to Improve Infrastructure on Public Lands and Tribal Schools, Apr. 4, 2021, https://www.doi.gov/news/interior-invests-16-billion-improve-infrastructure-public-lands-and-tribal-schools (funding made possible by the National Parks and Public Land Legacy Restoration Fund established in 2020 by the Great American Outdoors Act).

[33] Id.; National Parks Conservation Association, Congress Passes Bipartisan Infrastructure Bill to Help Build Back and Strengthen National Parks and Communities, Nov. 5, 2021, https://www.npca.org/articles/3002-congress-passes-bipartisan-infrastructure-bill-to-help-build-back-and. 

[34] Marcia Argust, Cost of Unaddressed National Parks Repairs Grows to Nearly $12 Billion, Pew Trusts, (Apr. 9, 2019, 7:11 AM),   https://www.pewtrusts.org/en/research-and-analysis/articles/2019/04/09/cost-of-unaddressed-national-park-repairs-grows