Professor Mank Quoted in Tennessean News Story on Environment Battle
Federal regulators have weighed in on a long-running lawsuit alleging that the city of Franklin’s sewage treatment plant has illegally polluted the Harpeth River — a rare move, some said, that reflects the case’s broader significance.
In a brief filed last week by the U.S. Department of Justice on behalf of the Environmental Protection Agency, regulators roundly rejected claims by the city that a local environmental group couldn’t sue in federal court over alleged sewage discharge permit violations, which include allowing untreated waste to flow into the river and failing to properly monitor the condition of the water.
Though the city relies on those claims in asking for the lawsuit to be moved down to state, rather than federal, court, the brief concluded that “those arguments fail.”
The brief added that enforcement of the provisions of that permit, which allows the city to pump treated wastewater into a protected waterway, is “squarely within the scope” of a federal pollution mitigation program and that citizens can sue over alleged violations.
Franklin City Administrator Eric Stuckey said the city stands by its claims that state — not federal — court is the right place to make arguments about whether the city has been complying with its permit.
He emphasized that the brief doesn’t say anything about the lawsuit’s allegations and that neither state nor federal regulators have cited the city for violations.
Rather, it’s just a question of “where is the appropriate venue to have this discussion.”
“We think we have made good faith efforts to comply (with the permit),” he said.
But the Harpeth River Watershed Association, which filed the lawsuit, said the EPA’s decision to get involved in the lawsuit speaks volumes.
The association “appreciates the rare step the U.S. Department of Justice and the U.S. Attorney’s Office in town took … to confirm that citizens like us may indisputably enforce a law designed to protect public health and the environment,” board president Matt Dobson said in a statement.
“We have renewed optimism that our efforts will result in improving the water quality to meet state-required standards for this Tennessee gem that belongs to everyone,” he said.
Anne Davis, a staff attorney with the Southern Environmental Law Center who is representing the association in the case, added in a statement that she was unaware of any other cases in which the EPA decided to file a similar statement.
It’s a move, she said, “that highlights the gravity of Franklin’s attempts to undermine the Clean Water Act.”
Though the document, a friend of the court brief, isn’t a binding ruling, it makes a strong statement that probably will catch a judge’s attention, said Brad Mank, a University of Cincinnati College of Law professor specializing in environmental law.
And it’s unusual for the EPA to get involved at this stage in the case, he said.
Typically, he said, federal regulators hold off until a case has reached an appeals court, where a ruling could have the weight of precedent.
Mank said he couldn’t speculate why the EPA would choose to weigh in now.
However, he said, it’s possible that the federal agency is “trying to clarify the law” — about who’s allowed to sue over water pollution issues and in which court — without waiting until a case goes through a lengthy appeals process.
Furthermore, he said, it makes a difference whether the case is heard in state court or federal court: State court judges, who are elected to regular terms, could be more sympathetic to the city’s arguments and they may be less accustomed to hearing highly complex environmental cases.
Federal judges, by contrast, have lifetime tenures.
Still, Mank emphasized, “it’s complicated” because each federal environmental law is different.
A U.S. Department of Justice spokesman said the agency wouldn’t comment beyond what was in the brief.
Franklin city officials said that attorneys are working on a more detailed response to the brief to be filed within a 21-day deadline.
Professor Mank’s Articles Accepted for Publication
Congratulations to Professor Brad Mank, who recently received notice that two of his articles have been accepted for publication. Standing to View Other People's Land: The D.C. Circuit's Divided Decision in Sierra Club v. Jewell, will be published in Volume 40 of the Columbia Journal of Environmental Law (2015). Volume 18 of the University of Pennsylvania Journal of Constitutional Law will feature Prudential Standing Doctrine Abolished or Waiting for a Comeback?: Lexmark International, Inc. v. Static Control Components, Inc., sometime in 2015 or 2016.
Professor Bettman’s judicial decisions cited by the Supreme Court of Ohio
In State v. Radcliff, Slip Opinion No. 2015-Ohio-235, issued by the Supreme Court of Ohio on January 28, 2015, and authored by Chief Justice Maureen O’Connor, the court cited with approval a concurring opinion written by Professor Bettman when she was a judge on the First District Court of Appeals. In Radcliff the state high court held, with admitted reluctance, that in the absence of statutory authority, a trial court does not have inherent authority to seal the criminal record of an offender who has been pardoned by the governor. The excerpt from Bettman’s opinion, which begins at paragraph 35 of the majority opinion, urges the legislature to liberalize the expungement (this term has been changed to the word “sealing”) statutes to help those deserving of a fresh start.
Read the entire opinion online at State v. Radcliff, Slip Opinion No. 2015-Ohio-235, You can also read more about the entire issue of judicial record sealing in this post from Professor Bettman’s blog on the Supreme Court of Ohio.
Professor Solimine’s Article Cited by the US Supreme Court.
The U.S. Supreme Court issued a unanimous opinion January 21, 2015 in Gelboim v. Bank of America Corp. On the last page of the Court’s opinion, authored by Justice Ruth Bader Ginsburg, you will find the following reference to authority: "See generally, Solimine, Revitalizing Interlocutory Appeals in Federal Courts, 58 Geo. Wash. L. Rev. 1165 (1990)."
Congratulations, Professor Solimine.
Solimine’s Article Now in Print
Professor Michael Solimine’s article, The Fall and Rise of Specialized Federal Constitutional Courts, is now in print in17 University of Pennsylvania Journal of Constitutional Law 115 (2014).
Professor Sperino's Article Published in OSU Law Journal
Professor Sandra Sperino’s Let's Pretend Title VII is a Tort is now in print at 75 Ohio State Law Journal 1107 (2014).
Bettman’s Legally Speaking Ohio Blog Cited by FindLaw
Kudos to Professor Marianna Bettman and her Legally Speaking Ohio blog, which was recently mentioned on FindLaw for Ohio v. Clark, Darius, a case from the Ohio Supreme Court which was taken up by the Supreme Court of the United States. The writers of FindLaw noted that the Legally Speaking Ohio blog was a resource for information on the case. It was number 4 on the FindLaw list.
Professor Solimine Cited in Election Law Expert’s Blog
One of the country’s most well-known authorities on national and state election politics and blogger on legislation, Professor Rick Hasen at the University of California Irvine School of Law, commented on Professor Michael Solimine’s newest article “Rethinking District of Columbia Venues in Voting Rights Preclearance Actions,” recently published in the Georgetown Law Journal. Professor Hasen noted he looked forward to reading it (Solimine’s article). “Michael leads the field in his writing on election law procedure.”
Welcome to A New Year
A highpoint for me every year is welcoming our new students to the College of Law – sharing in their excitement, commemorating with them the start of their careers, and celebrating the good things about law and the legal profession that make both essential to a civil and prosperous society.
And Monday, August 18th was as good as it gets. We welcomed the Class of 2017 – a group of 75 students (a smaller class than usual, as is happening at law schools across the country). Impressive, engaged, and rich with promise, they range in age from 21 to 50 and come from 13 states (and birthplaces in at least seven different nations). Alumni of 43 different undergraduate institutions, they majored in 26 different undergraduate fields of study.
We also welcomed five transfer students to the Class of 2016, as well as two exchange students from our New Zealand partner, the University of Canterbury School of Law. And we welcomed 12 LL.M. students who hail from eight nations. Our long-storied law school, now in its 182nd year, is delighted to welcome all these new members into the fold. We are now even stronger.
It’s an exciting year ahead. There are victories to be won in moot courts, trial and negotiation competitions, and transactional meets. Law reviews to publish and influential scholarship to produce. Hundreds of clients to serve in our clinics. Law to learn and skills to hone in our classes. Major lectures and events – including a boundary-spanning program this October from the Center for Race, Gender and Social Justice – that you won’t want to miss. Milestones to mark, including the Ohio Innocence Project’s 10th anniversary and the Urban Morgan Institute for Human Rights’ 35th.
We’ll continue to excel – and get even better – at providing an outstanding legal education. (Did you know the College was recognized nationally for the strength of its experiential learning and practical training?) We’ll provide that outstanding legal education as affordably as possible. (Did you know the College ranks 25th in lowest average graduate student debt, and recently was recognized nationally for value?) We’ll continue to do it all with great spirit and an enviable sense of true community. (Did you know that the College was the only college at UC to attain 100% participation in the recent Faculty/Staff fundraising campaign, and leads UC’s west campus colleges with the highest percentage of alumni fundraising participation?)
Speaking of spirit, community, and the exciting year we’ve begun: The SBA kicked off the year with a Day of Service on September 6, bringing together students, faculty, staff, and alumni in community service projects throughout our city. A great time was had by all. Let’s continue that trend they’ve started.
Best wishes for a great year,
Lou Bilionis, Dean and Nippert Professor of Law
Professor Moore Invited to Participate at Criminal Defense Forum
Congratulations to Professor Janet Moore, who was invited to participate as one of 12 national experts on a new national working group on indigent criminal defense reform in early September. The working group is supported by the U.S. Department’s Bureau of Justice Assistance.
Professor Moore’s scholarship focuses on the legal and political conditions that empower stakeholders to obtain greater transparency and accountability from criminal justice systems.
Read more about Professor Moore:
From the Courtroom to the Classroom Janet Moore focuses on Policy Reform