And Now For Something Completely Different....

As a warning to the reader, the following has absolutely nothing to do with water. But it is a sufficiently important legal development that I felt compelled to draw attention to it.


Yesterday an 11 member en banc panel of the United States Court of Appeals for the Ninth Circuit handed down a decision in the case United States v. Comprehensive Drug Testing, Inc.. The decision involves an appeal of three orders, from three different District Courts, which variously struck down certain subpoenas and ordered the return of certain property seized by the government.

The facts are very clearly laid out in the decision and I won't rehash them here - suffice to say the majority of the panel felt the government acted improperly. The upshot of the decision is that the Ninth Circuit has issued an unprecedented set of rules regarding warrants and subpoenas for the search and seizure of electronic information. Perhaps the most significant of these rules is that Magistrate Judges must now insist that the government waive the "in plain view" doctrine in digital evidence cases before issuing any warrant or subpoena.

Generally, the "in plain view" doctrine states that the government (i.e. the police, FBI etc.) may seize evidence of a crime that is in plain view. A simple example of the operation of the doctrine is as follows: The police obtain a valid warrant to search the house of a suspect for a gun used in a murder. During the lawful search of the house, they discover illegal drugs. Though the drugs are not included in the warrant, they were in plain view of the officers conducting the search of the house and thus can be seized and used as evidence against the suspect.

This doctrine poses practical problems with respect to the search of commingled electronic data. The Ninth Circuit noted this problem succinctly:

The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents—either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.

Once a file is examined, however, the government may claim (as it did in this case) that its contents are in plain view and, if incriminating, the government can keep it. Authorization to search some computer files therefore automatically becomes authorization to search all files in the same subdirectory, and all files in an enveloping directory, a neighboring hard drive, a nearby computer or nearby storage media. Where computers are not near each other, but are connected electronically, the original search might justify examining files in computers many miles away, on a theory that incriminating electronic data could have been shuttled and concealed there.

The Ninth Circuit's response to this problem, as noted by the dissent, effectively tosses the doctrine out the window when the search involves electronic data. This is a sweeping decision that will have enormous ramifications to the issuance of warrants and subpoenas within the Ninth Circuit, and possibly elswhere if other courts follow suit.

As we move further into the 21st Century ever more of our lives reside as electronic data. The extent to which the government has access to that data may well define civil liberty in the 21st Century. Thus, though it is certainly way off topic for this blog, I recommend you read the decision (and dissents). The decision in particular is written very clearly with a minimum of legalese.

The government is apparently considering appealing the decision to the Supreme Court.

Fiji Water

The evils of bottled water are oft mentioned. The environmental costs associated with the packaging and transportation of water to places that already have plenty of it have received an increasing amount of attention in recent years. To those costs some now add supporting, at least implicitly, a military junta.

A recent article over at Mother Jones takes Fiji Water to task for, among other things, its failure to oppose the military junta which controls Fiji. The company has replied, and Mother Jones has replied to the reply (you can find them both here).

I recommend reading not only the pieces by Mother Jones, but the rebuttal by Fiji Water.

The Harmon Doctrine

I've just read an interesting post by Dr. Peter Gleick on the Harmon Doctrine, its impact on the relations of states and nations, and why the doctrine has been discredited. The post was prompted by the recent statement made by Georgia's governor that Georgia was entitled to use all the water that originates and falls in the state. The statement was made in response to the recent federal ruling that Georgia has been drawing too much water out of the ACF river system.

Not that he needs any validation from me, but I have to agree with Dr. Gleick:

It is time for Georgia, or China, or any water users in places where water is no longer abundant to stop posturing and start discussing how to share our rivers and our groundwater too. Just because you are first on a river, or upstream, or own a piece of land with groundwater does not mean that you have no responsibilities to other users, including non-human users, sharing the same watershed. Your use affects others. We may believe that these water resources are not connected to each other or that the use by one person has no effect on their neighbors or that the first user should have senior rights forever. And in the past this may have worked. But if we continue to use 20th century rules to solve 21st century water problems, conflicts over water will only worsen.

I highly recommend you check it out.

News from Down Under - No Bottled Water for You!

So, after my hiatus resulting from the recent addition to my family, I'm back. And just in time for an interesting little story from down under.

The environmental impact of bottled water has been an issue discussed for some time among those concerned with water and environmental conservation. Recently however the issue has gone rather more mainstream, with a number of local governments and municipalities taking action to encourage the use of public water supplies instead of bottled water.

Thus far, those efforts have largely been restricted to ad campaigns touting the advantages of tap water and resolutions that government entities will no longer purchase bottled water for their employees (and at least one university that won't sell bottled water in campus stores). Until yesterday that is.

The small town of Bundanoon in New South Wales Australia has become what is possibly the first public jurisdiction in the world to ban the sale of bottled water within its borders.

Now, it must be noted that the water bottling industry is not particularly popular in Bundanoon. A Sydney-based beverage company apparently tried to set up a water extraction plant in the town - something that was not appreciated by the locals. It should also be noted that the ban carries no penalties and is being adhered to voluntarily by local shops. Nevertheless, it is an interesting development highlighting spreading awareness of the criticisms that have been leveled at bottled water.

It is also reminiscent of similar recent actions that have been taken to ban plastic grocery bags here in the United States, including the not quite successful effort in my home city of Philadelphia.

So ... will Bundanoon go down in history as the turning point for the battle against the bottled water industry? Probably not. Which is unfortunate, because the name of the town is just so appealing. Imagine the rallying cry, "Remember Bundanoon!"

On a more serious note however, Bundanoon's decision - which was carried by an almost unanimous vote - is one more example of the gathering movement across the world to legislatively act to conserve the environment. While laws to protect the environment are nothing new, the current movement is provocative because it is happening on a local level. If this movement becomes widespread, it may effectively dilute the ability of industry groups to oppose it through lobbying efforts (imagine trying to lobby every town and borough council in the United States, or even a significant number of them). It will be interesting to see how this issue play out over the coming months and years. Until then...

Remember Bundanoon! (I just couldn't resist)

New Arrival!

You may have noticed I haven't posted anything in a while. I assure you it is not out of a lack of interest, but rather because my wife and I just welcomed our first child into the world. Because of this I have been taking a short vacation from blogging which will probably continue for another week or so. I look forward to returning to the discussion of water issues and thank you for your patience in the interim.

Clean Water Restoration Act Unconstitutional?

The Pacific Legal Foundation recently issued a press release putting forth the argument by attorney Reed Hopper that the Clean Water Restoration Act (CWRA) is unconstitutional. (Thanks to Aquafornia for picking this up) Mr. Hopper is the Principle Attorney for the Pacific Legal Foundation, and represented the petitioner (the winning side) in the Rapanos case.

Is Mr. Hopper correct? Pacific Legal’s press release doesn’t contain much specific information on the reasons for his position – so I asked him. In response to an e-mail inquiring into the basis for his position, Mr. Hopper kindly provided me with a copy of his July 17, 2007 testimony before the Subcommittee of Water Resources and Environment. In that testimony he addresses a previous (though substantively identical) version of the CWRA, and discusses the constitutional problems he sees with it.

Mr. Hopper raises two compelling questions in his testimony: 1) whether the inclusion of non-navigable waters within the CWRA exceeds Congress’ authority under the Commerce Clause; and 2) whether the definition of ‘waters of the United States” which extends “to the fullest extent that these waters…are subject to the legislative power of Congress under the Constitution.” is an effective abdication by Congress of its legislative responsibilities. (S. 787, §4(3)).

As Mr. Hopper points out, the Supreme Court has held,

[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

U.S. v. Lopez, 514 U.S. 549, 558-559 (1995)(citations omitted). Under which of these three categories, if any, do non-navigable intrastate waters (and activities that effect them) fit? Mr. Hopper contends that they do not fall within either of the first two categories and thus must fall within the third – that they “substantially affect” interstate commerce – for the CWRA to be constitutional. Mr. Hopper makes a compelling case that they do not, as they facially have nothing to do with interstate economic activities.

As to the argument that Congress is essentially abdicating its legislative responsibilities to the courts, I am not sure that I agree. I do however agree that the language is an explicit invitation for litigation over the “fullest extent” of Congress’ legislative power. But, given the inevitability that the constitutionality of the CWRA will be litigated whether or not the language is there, this is probably an argument of little moment.

If the CWRA is passed into law by Congress I do not doubt that Mr. Hopper, or some other attorney, will have an opportunity to argue these questions before the Supreme Court. But, Mr. Hopper’s position, and the Supreme Court’s decision in Rapanos, leaves me with a question. Is the analysis factually out of date?

The discussion over the constitutionality of the CWRA focuses on water as a means of conveyance, like a road or rail line. This is understandable in the context of the Clean Water Act’s reference to “navigable” waters. But ever increasingly water is considered – first and foremost – a resource. Further, it is a resource that is regularly shipped across state lines by a multi-billion dollar bottled water industry. It is also a resource that the States themselves are fighting over, sometimes to the point of litigation. Water has become a commodity. And it is a commodity that is critical to innumerable industries (see this article for examples).

It is not hard for me to imagine that activities that affect apparently “intrastate” bodies of water or wetlands would have a deleterious effect on the availability of water within a State, and thus affect the pattern of commerce relating to – or dependant on – water. Any individual instance may have a negligible impact overall, but that is irrelevant. In Maryland v. Wirtz, 392 U.S. 183 (1968) the Supreme Court noted, “[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Id. at 197, n. 27. If water is viewed as a pervasive commodity, then an argument can be made that a regulatory statute governing its treatment bears a “substantial relation” to commerce.

Clean Water Closer To Restoration

As readers will be aware from my prior posts (both of which can be found here), a bill entitled the "Clean Water Restoration Act" is wending its way through Congress. Well, as discussed in this New York Times editorial, the bill may start wending a little faster. The Obama administration has written to the House and Senate committees considering the bill urging that they approve the legislation. Some of the urgency may derive from efforts to polish the United States' environmental credentials in advance of the December climate change talks in Copenhagen.