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Leland Frost

Challenging Expansion of Waters of the United States Regulation

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

The National Association of Manufacturers’ (NAM) Manufacturers’ Center for Legal Action (MCLA) is suing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to challenge a new rule that expands jurisdiction over “Waters of the United States.” The EPA’s jurisdiction is limited to “navigable waters,” meaning waters of the United States including the territorial seas, but the EPA has attempted to expand jurisdiction over a staggering range of dry land and water features: large and small; permanent, intermittent or ephemeral; flowing or stagnant; natural or manmade; and interstate or intrastate. The rule exceeds constitutional authority and violates protected individual rights.

The rule will require permits for any unauthorized “discharges” somewhere that qualifies as a water of the United States. The definitions are complex and vague and often require case-by-case determinations by the agencies. Manufacturers that own property that might constitute covered U.S. waters will have to try to determine whether any activities they want to conduct could be subject to the rule, as criminal penalties for negligent violations are up to $25,000 per day and up to a year in prison per violation. The EPA may also impose civil penalties of up to $37,500 per discharge, per day, per offense. These punitive provisions discourage the reasonable and productive use of improvements to land and water features. Read More

MCLA Crosses the Ocean to Defend Manufacturers in the European Court of Justice

By | Manufacturers’ Center for Legal Action, Shopfloor Legal | No Comments

Today, the NAM crossed the ocean to represent U.S. manufacturers before the European Court of Justice (ECJ) and fight against the public disclosure of confidential business information. In 2015, the ECJ granted the NAM intervener status in European Commission v. Stitching Greenpeace. This is significant because intervener status is more difficult to obtain in the European system since it grants the intervener the ability to argue before the court and have its issues addressed on the merits. Furthermore, by allowing our intervention, the court recognized the interest of U.S. industry in this case. It is very unusual that U.S. trade associations appear before the EU courts, and it was far from certain that we would succeed in being admitted.

As way of background, the plaintiffs requested the public disclosure of a massive amount of confidential business information relating to certain pesticides used both in the United States and Europe, including how products were manufactured and their final composition, in order to assess potential environmental impacts. This case has broad implications, not only for the crop protection industry, but also for many, if not all, U.S. chemical manufacturers operating both in the United States and in Europe. The lower court’s ruling leaves two options for companies selling goods in the European Union. Either they accept that their trade secrets will be made public, meaning that their data can be used and abused anywhere in the world by competitors, or they decide not to market their products in the European Union altogether, with obvious adverse consequences for the company and the European Union as a whole. Read More

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