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Welcome to the California Appellate podcast.
A discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court.
And now your hosts, Tim Cole and Jeff Lewis.
Welcome everyone.
I am Jeff Lewis and I'm Tim powal.
Both Jeff and I are certified appellate specialist and as Uncertified podcast hosts, we try to bring our audience of trial and appellate attorney some legal news and perspectives they can use in their practice.
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Tim, I'm excited.
Today we have the opportunity to Welcome Jennifer Novak to the show at each 5.
Jennifer Novak decided she had two goals to be a lawyer and to be alone, which is proud to have achieved both.
She is a second generation California female attorney who has practiced litigation across a broad spectrum of fields since 1996.
As a deputy attorney general with the California Department of Justice, Jennifer handled cutting edge legal issues in matters valued in the hundreds of millions and billions of dollars on behalf of the people of the State of California.
Now back in the private sector, she found her law firm to be a service to people who understand the importance of environmental laws.
Wanna keep the regulatory process fair for those who take compliance seriously based upon her experience representing clients ranging from Fortune 500 and national companies to retirees who operated manufacturing businesses decades ago, she understands the stress and uncertainty that it threatened or actual lawsuit brings.
Jennifer, welcome to the podcast.
Thank you.
I'm so excited to be here.
So happy to have you.
Now we're gonna talk a little later in the show about what prompted this interview of the recent Supreme Court decision in Sackett versus the EPA before we wait into those waters, let's get to know a little bit more about you.
Was there anything about you that wasn't revealed that the bio?
I just read.
Oh well, there's a lot about me that isn't in one bio, Jeff, but I think you'll get a sense of who I am and and the things I'm passionate about is we keep going today.
So I'm happy to keep going.
OK, great.
Well, tell us a little bit about your primary practice area.
Well, I am an environmental lawyer.
My tagline is that when businesses and property owners are accused of polluting and we can clean up the legal mess.
But that's a little simplistic.
We do a lot of work both for environmental groups as well as the regulated community, and really I feel like our talent is translating very complicated, you know, regulations and laws into something understandable that people can see, applies to their day-to-day lives.
So, do you happen to deal with these issues in state or federal court in terms of these environmental cases, they tend to arise mainly in federal court these days.
However, sometimes we are still in state court, especially when I was working for the government and government agencies would get sued.
That's where we ended up in state court.
And Jennifer, I listened to Jeff mentioned your former career or former tenure as a deputy Attorney general in the according to Department of Justice, can you talk to us a little bit about how you were able to parlay that experience representing the government and now your private practice representing manufacturers and other private interests in these environmental disputes?
So when you're working for government agency like DOJ, you know you have a whole wide range of clients at these various agencies and they're really experts in their field and they're the ones who day in day out, have to be dealing with the practical effects and also the mission of any one particular agency.
So it was fascinating because on one hand we'd be constantly attacked by environmental groups for not going far enough to protect the environment.
On the other hand, my clients would be attacked by cities and businesses who felt as if they were really being restricted too much and it was overburdensome in terms of regulation.
So it was interesting to learn how to speak government, understand the things that government agencies are concerned with, the things they're not, that concerned with.
They don't care if you come from a big fancy law firm and you're threatening litigation. Cause whatever I mean, they're not gonna lose their job over this.
They're just gonna keep going on and to be able to take that balancing and then be able to go into the real world and explain to people you hear the things that government is gonna be looking for.
You're the arguments that are gonna work.
Here are the things you kind of have to do by law, but where we draw the line in terms of where the government is overreached.
Yeah, so now you can be the translator.
It's like, what is the government saying to be here much?
I like to say I'm a Rosetta stone between government speak and government concerns and the real world got it as you were, Jeff.
So let me ask you, I think you find yourself most of the time in federal court.
You have a preference between state and federal court terms where you litigate these environmental issues.
I think I prefer federal court simply for the reason that they take more time to actually read through the issues and understand them.
They have more resources to be able to do that, not to mention if it's a situation where discovery issues are at play, it does help that you have the initial disclosures of federal court and you can't play hide the ball quite as much.
But that being said, I find that if a judge has not been faced with environmental issues before, you really do need a lot of FaceTime for them to get comfortable with how environmental law varies from what they're used to day in, day out, the burdens of proof are different.
The assumptions are different.
The science is very heavy and state court would afford me that opportunity to at least get in there and 10:15 minutes at a time.
They start working on them to the point where they understood I was the credible source and could translate their day-to-day lives into what I was trying to get them to do from an environmental perspective, that's interesting.
And your experience, you've found that state court judges tend to be a little bit more teachable.
Is that what I was hearing?
They're giving you more opportunity to educate them on what all these terms mean, what the jargon means, what the science is behind the claims and defenses.
That was true.
I don't know that that was their intention, but when they keep dragging you in for status conferences, when you you are suggesting a bifurcation of trials.
So you're not jamming up their courtroom too much at a time.
That's what tended to happen, and the cases where I did better say at a trial court level, where once where the judge really took that kind of time to get to know who we were and what we were there about federal court.
You know, they write their own rules.
So I can't say that there's really one type of experience that we have in there.
For the most part, they just don't like a lot of the big, complicated environmental cases because you're staring at 20 or 30 lawyers and you know you can see the judges calculating in their heads how much money this type of case is costing.
Yeah, right.
Jeff and I talked on this podcast about sometimes the difference between generalists and specialists and how appellate attorneys usually are generalists and sometimes poor.
You know a large amount of volume into into very small, you know clay vessels that is the brains of individuals like Jeff or me.
But we're, you know, in our defense, we can use that to be more relatable to the panel of appellate justices who likewise, and to be generalists and not specialist.
How do you?
You mentioned some ways that in trial courts, sometimes if they give you more opportunity to speak and use that opportunity to to address the jargon and the the scientific principles that are gonna be at play, what are some you have any other techniques that you use?
Do you put like a glossary in your briefs?
How do you get the reader that you're the factfinder and the judge in your briefs to understand your arguments?
If there's, if their eyes are gonna tend to glaze over at a lot of the difficult constitutional principles or scientific jargon and principles we usually do, try to include glossary.
Because probably more so than any other area of law I've encountered, we are very acronym Heavy.
I mean, you're talking sequin?
Neither circular brick red you know, but also I I just don't like acronyms and so for example in a case like the one we're gonna talk about later, a lot of people will short clean Water, Act CWA, CWA.
Well, for me, I I don't usually shorten it to the act so that you're reading real words, but hopefully I've done my job at defining what we're talking about so that when I have to throw an acronym that you, because otherwise it would be simply way too burdensome and take up too many pages for me to keep using long terminology over and over again.
I'm still minimizing the techie part of it.
But more importantly, it's making sure you're telling the story in a way that anybody can understand it.
You don't have to be steeped in this particular area of law to get some of the concepts, and then you try to relate it to people's lives.
And so, for example, when I was thinking about the Sackett decision today, you know, one of the controversies is you can be in the desert and look around and see it as dry.
But you may actually be looking at areas that are designated as federally protected waters when it rains.
And I thought, you know, Jeff and some of the photographs, he talks in his spare time, but I thought, you know.
Yeah, I'll come and say you're looking at and what you see versus what link we speaking you're dealing with.
Jennifer is captioned to every photograph is waters of the United States.
That is a problem that Justice Thomas has in the second decision, so I hate to keep bringing that one up.
But you nailed it.
There was more is all.
What do you think of your clients?
Doesn't counselor judges by, say, is unique about either you or your legal practice, or how you approach cases?
I've been called a straight shooter, so even if I'm working with environmentalists on a pro environment case or, you know, working with people who traditionally represent the defendants and they're being prosecuted for an environmental issue, I can't like to have the same opinions regardless of, you know, side I'm I'm on.
The only question is, given the facts of that situation, given the policies that state where you're drawing the line, so you're not going to find them one extreme the other, I think that helps trying to navigate what's really at stake, clear some ways going to the waste time, fighting about things that don't make it.
And you know where you can tell somebody like sexually or feel like you could deal what you've does.
It could get a lot worse for you, so I think that helps.
And plus, as I mentioned before, we do straddle the line or sometimes.
Traffic shaping fundamental groups.
So that gives us a pretty good balance sense of where I think the law should be.
OK, give a favorite or best war story from your years of the trenches fighting.
Yeah, I don't.
Princesa favorite story, but it certainly is.
The unforgettable one comes from when I was representing the appellant down in Orange County, the 4th District Court of Appeal.
We were late in the calendar and we were sitting there suffering through a stuffy courtroom.
You know the case of drinking?
Everyone's taking maximum time and with about 3 or 4 cases still to go before hours, I decided I just gotta get up and get my energy back up and I left the courtroom and I added for Nola try the hallway, find a mine came out.
We chatted about strategy for a few minutes.
I went to the bathroom as I'm washing my hands about to leave the bathroom.
The door bursts open and one of my clients screams.
They've just called your case.
Ohh my God, I had to go running down the hall in my views.
Stop in time to just take one big breath to compose myself, and then I just straight into the courtroom and I had a friend representing an intervening party.
Who was kind enough to have carried my binders up to the podium and he's starting to kind of ham and Hong, you know, to delay for me.
And as I start walking towards the podium, it was almost like a family was in Japan and it's Jennifer Novak.
You know, I got my phone out and I just made icontact with each of the panelists.
And then it's the Support and you wanna send them back.
And I represent the appellate and I just started going and as I'm speaking managed to sneak open my mind through to get to a place where I could pick up the argument in case I needed it.
And I just kept going?
Fast 1015 minutes and then we stopped and they asked me a question.
I keep going and one of the jumpers is kept giving me a side eye as if to work people like I just don't know where you just here for example, the Inquiries.
It's a very surreal experience.
When I came out, had a lot of valuable lessons, right.
Always be very well prepared.
So you can handle any situation I wanted to see something.
Composure and at the end of the day we what so it must have worked.
My God.
Yeah, I mean that's a good one.
We'll call that a good story.
Alright, good.
Good, good, good.
Otherwise, I'm a pretty boring person.
I think so.
I'm glad to have come up with a more story.
OK, I've lived here.
For what?
One letter came out.
They keep either made or they have seen one of your opponents make.
Yeah, you'll. Yeah.
Yeah, in a moment.
So this one for me to consider guys, I think one huge mistake I see is really on behalf of a party or client and that is not recognizing that litigation takes time.
To test out different theories to develop evidence to make traction with the court, you just can't wave a wand and have the judge rule your way because you think you're right.
And I have seen clients who won't fully engage in the process.
Then they then don't get the results that they want, so I would call that a huge mistake.
Yeah, good.
And do you have a philosophy or creed that you live by in your practice and are there cases or clients that you won't accept or arguments you will not make?
So I am not a yes man.
There are certain people who want to hear what they want to hear, or as I try to explain to them that especially in an environmental regulatory scheme, they are subject to the issues and they do have obligations.
And if I think that you have to engage in a certain course of action, both legally speaking and because it's good for you, I'm going to tell you.
And if I sense that a client is gonna start second guessing me and making me keep affirming and reaffirming that, yes, this is the way the law works, right?
I won't take up.
I can't at this point in time it's.
It's just too much work.
Yeah, we life is too short to deal with clients who won't follow their own attorneys advice.
I've been doing this for a while now, people, so you know you can trust me if I'm your lawyer to steer you right, or at least to give you options.
From which you can choose.
But I'm.
I'm not just saying this for my health, like.
And you don't wanna be in a position later on where the court is asking is Novak, why did your client persist on taking this very aggressive approach or at this very aggressive position concerning their their obligations and then you're left having to tap dance and say well, there is an arguable colorable claim that we can make here.
That's what we're standing on.
You know you want to be in those uncomfortable positions.
No, you don't, unless you feel that it's a a righteous argument. Right?
I try to avoid that if I can.
What is your favorite part of your practice?
Most pellet Lawyers will say, you know, sitting in a quiet room and drafting the brief as their favorite part.
But in terms of what you do and how you practice, what is your favorite aspect of your job?
Just give him the subject matter and the fact that it is a relatively new area of law where we compare it to other things might be our major federal environmental laws are only about 50 years old, and the science means the regulatory scheme is constantly changing.
So there's never a dull moment.
You always have to learn something new and it's very different from.
I'm gonna just compare the words of 1 contract to another.
Or did I meet the elements of this towards?
Or did I meet the elements of this crime?
It is both a challenge and that can make my brain hurt sometimes, but it does also really exciting and not to mention it's so applicable to our day to day lives.
You know these issues are really important.
Do you have any favorite legal writing or briefing tips you want to share with our audience?
I really try to steep myself in the research and I do a lot of my writing in my head because I just wanna think about it and Mull it over and see what makes sense.
So to me, the more you're comfortable with this area of law and how the case is apply and and what's out there, I think the better the storyteller you can do, you're not just relying on.
I'm quoting from one case, and then another case, and then here's the plan.
Language is something I will note that I had heard judges say that they could easily distracted when you're reading, not necessarily appellate judges, but trial court judges, and for that reason they really like and substance up headings and indented foundations because it's easy for them to digest things in little tidbits.
And if they just see page upon page of text, they get lost and so I definitely have incorporated that into my writing as much as possible.
When page is allowed, I feel like that's all I like that I like that a lot.
I try to use subheadings liberally for the same reason that when you're digesting a lot of briefs and then you come back and back to your first point about doing a lot of the writing in your head, and I think judges, maybe they do some of the analyzing in their head and it comes back to them later.
Oh yeah, they there was this point that that was made somewhere.
And where do I find it?
Through these undifferentiated mass of paragraphs, you know after paragraph, with no headings or subheadings, if you add a lot of those headings, they could retrace the bread crumbs and find out what they recalled reading in your brief.
Well, and I'm not playing hand the ball and go to the table of contents and read through it and it should, you know, lay it out point by point, by point, by point, all the arguments I'm gonna make and and why I think I'm right.
Yeah, I like it.
I know you're involved in the California Lawyers Association, which branched off from the State Bar a few years back.
Tell us about your involvement with the association.
What Lawyers to get out of it, because I gotta tell you, I haven't done anything with that organization since they branched away.
Well, it's not that much different since they branched away, except they're no longer considered a government agency and we have a lot more flexibility in what we can do.
So I got involved with the environmental law section probably about 10 years ago.
I'm a little late to the game in terms of my practice area, but I joined their executive committee pretty much right off the bat.
I served as the chair for our organization, which represents about 2700 environmental lawyers, professors, law students, consultants, people who, just like environmental issues and among the activities we do for law students, or we have a diversity and inclusion fellowship program that awards scholarships to students for summer work.
We have a writing competition and a negotiations competition that we run with multiple publications which give people opportunities to write and publish.
In addition, are you know main event is an annual conference at Yosemite every October, which brings together thought leaders and professors and politicians and authors.
And it's part hiking and enjoying Yosemite and Part Conference.
It is a fantastic event if you ever have a chance to go.
In addition, we do have things like podcast and other conferences that we put on and for me, all this time I showed up at one of these events.
I'm staring at former clients, opposing counsel colleagues.
It was a one stop shop like a high school reunion or something, and it just reminded me that especially in our field, we're pretty congenial and we get along well and it's nice to be able to have those relationships when you're sitting across the table from somebody on a case later on, that's gonna be really contentious.
But you know each other as people and I would put in additional plug for the California Lawyers Association generally, they're really making a big focus of lawyer well being and mental health issues.
So there's a lot of resources there to make sure that we're not burning out and suffering.
And as we traditionally have done, yeah.
That's great.
You had me at Yosemite.
I didn't hear anything, but I thought that would appeal to you.
Yeah, I like that idea.
Like a legal Conference by Athlon, some hiking and then go back and sit and be quiet and listen well.
You know when you're at the breakfast line and you see a Supreme Court Justice right next to you loading up, you know, his plate.
It's not a bad place to be.
Yeah, alright.
It's time to dip our toes into the waters and talk about the Sackett case.
Let's hear a bit about the Clean Water Act.
The Sackett case set it up for our audience.
Use small words so I can follow you in terms of what was that issue in this case and what the court decided and try to tee up a lot more water related jokes for Jeff.
So at its heart, the second decision, which was just decided by the United States Supreme Court deals with this question of which waters we're going to consider to be protected under federal law and where the federal government can extend its authority.
The Clean Water Act is really from 1977 and the whole purpose of it was to deal with this question of, you know, the nation's waters had degraded to the point where literally rivers are catching on fire.
Fish are dying.
You can't drink water from some places and where you had some states exercising their right to crack down and clean up pollution, it doesn't help if the state across the river from you is liberally allowing people to dump whatever they want to dump all your individual efforts are going to go by the wayside.
So by enacting law at a federal level, what Congress was trying to do is to restore and maintain the nation's waters so that they were fishable, drinkable, swimmable, with the goal of doing this by 1985 and.
First and foremost, it made it illegal to dump pollutants into waters of the United States.
Unless you agree to some level of regulation now on an individual basis, obviously no one's coming after you for chucking something into the ocean.
But when they started looking at traditional sources of pollution, things like sewage spills, industry, having chemicals go into the water, big trash dumps they thought they could attack this by looking at some of those historic sources of pollution.
And then starting to clamp down on regulating that, the more we know about sources of pollution, the more refined that has gotten to the point where we really are putting trash ordinances in certain city.
They keep trash out of our rivers, but I want to make sure I'm hearing you right.
Is the idea that we wanted to have an expansive enough definition of waters of the United States so that if there's dumping in some area that’s not technically a Water of the Unites States but that it could travel to the waters of the United States, that would defeat the purpose. 

Because you wanna clean up the waters of the United States.
But it has to be expansive enough to prevent pollution through whatever means, even if it's through a tributary far down line.
But if you if you dump in it, it's going to wind up polluting a water of the United States as traditionally known by now.
And that's not necessarily the language of the Clean Water Act itself so much as that very practical reality that it's not just the ocean.
You've got things leading to the ocean that carry pollutants.
This with it and we want to protect those waters too.
So that's been a source of controversy from both the regulatory standpoint, just a government overreach standpoint and within the courts the last few decades.
And what do we need when we're talking about the waters that deserve that level of federal protection?
Better so with that in mind, it's hasn't really been settled for the entire time that we've been talking about the Clean Water Act.
And there are multiple attempts by the US Supreme Court to figure out a definition.
It's hard to have a one size fits all definition for every potential tributary that you may be talking about.
And so Sackett comes in as the most recent of the line of these cases.
It's interesting in that there's a 9 out decision, so even the most liberal of the justices agreed.
Ultimately, with the Sackets and we're challenging the US government's actions, but how they get there is in in very different ways.
So professional standpoint, you have this couple who buys a house back in 2000.
I'm sorry they buy a lot in Idaho and just from looking at this lot seems pretty bare.
They intend to fill it in and then fill the house on it.
And here comes the US government to say you can't do that because your site drains kind of down this road across a road into a ditch and that ditch ultimately goes to a lake.
Even though this lake doesn't cross state lines, we think it's still engages in commerce.
People come here, they visit.
They wish they can recreate Priest Lake.
Therefore, the lake is is entirely within Idaho, but it could still be considered a water of the United States.
Exactly by the federal government's definition.
And because your site drains through various channels to get there, you know we're going to consider your site to be part of a network of wetlands, right?
So the sacketts weren't they weren't dumping directly into Priest Lake.
They're dumping on their property.
Help me understand they're there was some reference to wetlands that were the seconds on a wetland.
How is the the wetlands Santa text contributing to a polluting in a water of the United States wetlands can be considered a water.
The United States, traditionally you're going to see them as that border between a waterway and dry land.
You know the soggy area where you have a transition to catch erosion, go purify the water.
That leaves land before it goes into the federal water.
With respect to the Sacketts, they were part of a drainage system of which the system of wetlands also existed and contributed into Priest Lake, and for that reason the Army Corps of Engineers said they're all connected and they implemented this test called significant Nexus test, meaning that what comes off the Sackett's land and what comes off the wetlands can greatly impact this lake.
So we want to control what's they can do, all their land.
Ultimately, you know you can read the way the corn's going to go with this.
When they talk about the fact that it's going to be a modest house, they note that just by looking at the land of the sockets might not have known that it was going to be designated as a federally protected land.
So Army Corps of Engineers have told them they had to stop with their fill.
They were going to have to submit a work plan to restore it.
They could be subject to criminal penalties if they refuse, and it's this combination of district liabilities that come with environmental laws, laws, the significantly high penalties you could face if the government wants to impose them and then balance that with the rights of private property owners to build on their land.
It's not right on a water body.
That's where we end up.
And I wonder, you mentioned that this was a Nino decision there was I believe 6 joining in the majority written by Justice Alito.
And then there were a couple of concurrences 1 by Justice Thomas, who joined by Gorsuch, which I assume would have gone even further than the majority.
And then another written by.
I can't remember.
Was that Kagan?
Justice Kagan, joined by Justices Sotomayor and Jackson, agreed that the significant Nexus test, you know, was two unworkable, I guess.
But would have signed on to a different test.
What was the the alternative test that the call it the the the liberal block would have joined on to the the Kagan, Sotomayor, and Jackson.
Did they propose a different standard?
They actually didn't propose a different standard.
Interestingly, both their concurrence as well as the one written by Justice Kavanaugh to wish the three justices who are the most liberal also signed on, you know, really went back to the text of the Clean Water Act to say that the terminology is adjacent.
We're talking about not just the navigable water body itself, but waters that are, and wetlands that are in jacent to it.
And really, it's just amantis issue with the majority saying well, adjacent means you're like right next to right on top of your touching and justice Kavanaugh and others noting, well, wait a second.
Adjacent means neighboring nearby.
You know, I can affect you.
I maybe my house doesn't touch you or house, but if we have a yard between US and a fence, we're still adjacent to each other.
Interestingly, it was just as Kagan, who holds back and starts with the very language of the Clean Water Act that I started with, that acknowledgment that the whole purpose of it was to be broad reaching and was to go back and restore the nation's waters and saying, yeah, the majority is coming at this, like, well, as an example, just as Thomas concurrence goes way back to the 1800s with a lot of his case discussion about what it meant to be navigable way back when.
And Justice Kagan says, you know, Congress and view all Congress knew how they had treated the waterways in the past.
And they wanted to do something really broad.
Really draconian.
There's actually legislative history using that terminology and saying if you gotta do something so radical and turn this around, do you want the acknowledges that the Clean Water Act has gone far in terms of cleaning up the nation's waters?
And then it moves on to talking about states rights and you know, the government overreach and there's almost an undercurrent of in the past when we've agreed with you, you've then just taken that agreement and gone even further.
So now we have to put our foot down and we can't let you keep doing that.
I wonder if you think that the the reason that that this was an almost unanimous in the sense of rejecting the significant Nexus test.
But if you think that the maybe the the the shared idea there among all of the justices was maybe like a due process or anti bigness issue that looked the sockets are just moving gravel around on a lot that they purchased to build a single family residential home, what is term Tim?
A mod is Tom is Tom and suddenly they get a visit from the EPA police telling him, you know, you're potentially in criminal violation of the laws.
You know, I don't read the concurrences as trying to set a bright line test so much as saying it's hard to do that, and I don't read them as saying that the government's decision to look a little case by case goes too far and lacks due process.
But that kind of brings us to a bigger issue, which is this one of agency deference, and it's never mentioned in the entire opinion.
And what's interesting is as people in my world watching the Sackett oral argument, that there was almost a disbelief like no one talked about Chevron difference, no ones talking about this because there's a little bit of an undercurrent throughout the majority opinion where they they talk about the agency going too far and acting as if an agency has no idea what it's doing.
Justice Kavanaugh's concurrence talks about real world implications and how those should have been taken into account before.
We simply have judges making rules and in a sense that's kind of what he's saying is that this has been looked at by people who understand the implications of what they're trying to do and how they're interpreting the law and that we shouldn't be here second guessing that it's just he never comes out and uses The Dirty word.
He never says shut off.
Yeah, I did a control F through the opinion.
Did not find the term Chevron anywhere.
I thought this was going to be the opinion that took a hatchet to it.
No, I think I'm waiting on that one to come down next term, right pretty soon.
But why is it with all the weighty topics the Supreme Court?
It could take up, you know, abortion guns.
Why did they take up this case?
Do you think well, like I said, the question of whether the federal government is going too far and what it's trying to regulate within the environmental arena actually is one that that does rear its head every decade or so.
There's mentioned in the Sackett decision of the things become Swank, and that's one where you had farmers out the middle of nowhere, not near any navigable water traditional way and they would have these poll that got created by rainfall and by sprayings sitting on their private property not bothering anyone.
But migratory birds would use those pools as they flew over, and so the federal government said, well, the migratory bird rule is that the birds are Interstate.
You know that arguably is within our jurisdiction.
They stop in your pool, therefore your pools are subject to federal jurisdiction.
So in that case, the the United States Supreme Court disagreed.
But we do see this kind of push pull of the the US Supreme Court deciding that the government is going too far and there's definitely a lot of discussion in both the majority opinion as well as Justice Thomas concurrence about how if we use the significant Nexus test test, then everything is pretty much connected to everything else and the government can control everything.
And then where would we be in terms of states having the primary rights?
And then kind of taking this to an extreme level and saying that just can't be the case.
So really, Congress intended this to be very narrow.
The federal government can only have power with certain things, and states get power over everything else.
Let me ask you though, like in the case of California waters and natural resources, to the extent that the Supreme Court has now kind of narrowed or retracted the jurisdiction of the EPA here and the Clean Water Act, does that give room for California to be more proactive at issue, more regulations to protect natural resources in California?
Then, when Archie, California is already done that and then so we are pretty strong in terms of our regulatory scheme here.
But so if you do Google this, if you do a deep dive into what this means for the quality of our waters, you will see a lot of people opining that, hey, this is California.
We're gonna be fine.
I will tell you a very significant place where that could change is with respect to citizen suits, because the Clean Water Acts does have a provision within it that not only can the government enforce the Clean Water Act, but in certain circumstances interested citizens can too and you know, certainly I've worked both sides of these kinds of cases, those representing businesses who are threatened to these suits as well as representing environmental groups who feel like a business is being the recalcitrant in a bad actor.
Is that a difference between state and federal 100%.
OK, so so under the federal Clean Water Act, no citizen suits the federal Clean Water Act.
Yes, citizen suits, but if you are trying to enforce a state law for the same thing, there's no citizen supervision there.
Who you'd have to use more traditional methodologies, in which case, yeah, in which and that.
And so that is a key distinction, as if some of these water bodies lose the ability to bring a citizen suit, you know, now there's not the same incentive to be enforcing from a private standpoint before.
Importantly, the state of California has become very reliant on citizen suits to help supplement its own enforcement scheme.
So there's cases that the government won't take on because they know environmental groups will come in and step in if the JURISDICTION isn't there, you're gonna see fewer of those lawsuits potential.
They'll send us.
There was a California legislative regulatory protections, or maybe more robust than federal should the California legislature, if it wants to enhance Environmental Protection, should it authorize citizen suits and state courts in California?
Ohh, I can't wait for that fight.
That'll be really interesting.
So in terms of your day to day practice, how do you think this case is going in the cases that follow are gonna impact your day to day practice.
It's just gonna make things more complicated.
I think it's just, as Kavanaugh noted, the Supreme Court isn't really creating a bright line rule.
It's just complicating things even further.
So you know, for example, 81% of the streams in the Western United States are what we would call intermittent or seasonal.
You can.
They're dry almost all the time, unless it rains or you're using them as a convenience for something else.
So is that a continuous flow?
You know, if it even if it goes into a navigable water body from there, are we really gonna be having a fight over what?
You know what is connected to what at this point and how often it has to be full of water.
Do you look at the Los Angeles River?
There is a water.
They're almost everyday, but that's not natural.
Rain slow.
I mean, that's not its natural river course.
That's, you know, taking water from water treatment plants.
That's being dumped there.
All urban runoff of going through it, so even that has been controversial over the years for people of kayaked down the LA River to prove its, quote, unquote.
Navigable, but Justice Thomas would have considered that to be not the case, because that's traditionally right.
It's not being used to navigate for commerce anymore, so the the significant Nexus test, which is now disavowed under the the Sackett case, has been replaced by the continuous surface connection test.
But you're saying that that even though that does seem on the surface, it seems that I was waiting for Jeff to come in on something like that, Tim, continuous surface connection test seems to be easier to apply, but you bring up a wrinkle right off the bat.
But yeah, what happens with these seasonal bodies of water?
How continuous does it have to be to be continuous surface connection under the continuous surface connection test, so that is going to be one of the litigated issues to wait for?
It's gonna come.
I maybe printing it perhaps not in that situation, cause I would submit that if it's been traditionally a stream bed and it still looks like a stream bed and you will walk by it and think it's something else, that chance is all we should be calling it.
You know a tributary and giving it that same level of protection.
But when we do have other areas where if you look at a map, you'll see blue line streams.
That means they're federally designated streams throughout the desert.
Throughout other areas, it's going to be a lot of hoops and you're going to have to go through a lot more to prove that a water body deserves that kind of protection, whereas the whole point of the Clean Water Act and the way it was written was to make it as easy as possible to have these regulations and to protect these waters and to enforce the laws.
Alright, so the continuous surface connection test.
Maybe it's not as simple to apply as it seems on the surface, but it's still gotta be simpler to apply than the significant Nexus test, with its broad multifactor analysis.
O the court thinks a significant Nexus test is just everything.
Everything's connected to everything and you know, and I would submit that this is also where you do look at what an agency has has studied and and thought of in the past.
We do have things that most people might not think of as being particularly significant water courses, but maybe historically, yes, it did have fish or it was used for transportation before we diverted all the water and built cities around it.
There's and every level state regional Falcon federal.
Most water bodies have somebody who has looked at it, stated excited.
How he treated just those people are not.
But the court people and to not be able Lawyers arguing in court.
And that's going right back to the difference.
A similar version, California and the nose found that somebody's only looked at this and thought about how we should treat something.
Do we pay attention to that?
Do we not pay attention to that?
You know, if Joe off the street can decide that it doesn't look like it's a water body to me, so I can do whatever I want with it.
Is he right?
Should he be questioned?
Yeah, don't replace one test with another, and we paid Lawyers.
You know, we're paid to argue both sides that are either side to be of the question.
So now we're gonna be translating these analysis that we made in the past under the significant Nexus test and try to grab it on to this continuous surface connection test.
I feature it certainly is not going to take any jobs away from water Lawyers.
That's for sure.
Yeah, look, all of the, you know, majority issued a clear ruling about what the rule is going forward.
I think the court did give agencies some guidance that it should be narrower and how it construes the waters and some guidance should be given to property owners and businesses in terms of whether or not they could ever be subject to the laws in terms of due process.
So there.
I would expect to see the agency come forward with something to replace the continuous surface connection test.
That's a little narrower, and yet still tries to comply with.
Yeah, that's funny, because I just went on the EPA website this morning and you know, they've acknowledged that some of their interpretations are on hold pending, you know, determination of what Sackett means or doesn't mean.
But they also know par for the course.
So we're last 8 presidential administrations that even some of its own regulations are still not applicable in some states due to various lawsuits.
So that's, you know, been what's been going on tonight in terms of trying to figure out, can we even have a one size fits all rule you know, is it gonna be as the port fears that you have to apply to an agency to tell you what they think?
If they opine on it after you've paid the money and then chances are 75% of the time they're gonna tell you you can't do it anything.
So yeah, I agree with you.
Just somewhere in there is common sense in the sockets now I guess can move forward with building their house so long as the Oregon State authorities don't come in and try to regulate the construction right side left.
I read the opinion is remanding and saying you know kind of consistent with the holdings of the case.
I don't know if the federal court get another shot at this, you know, for some other reason.
But I I think certainly the argument that they're influencing an Interstate Lake and therefore the clean Water Water Act implies that does seem to be dead in the water.
I gotta tell you, I honestly probably would never have read this case if you had texted me over the weekend suggested that this is a topic.
So thanks.
Thanks for bringing it to my attention.
They're well and I'll be Jeff to the punch for for the last maybe the last water pun of the episode that we'll have to wait and see whether this opened the floodgates to more Clean Water Act abuses that come on, Tim.
Nicely done.
Nicely done.
Alright, as we approach the end of the hour.
Tim, did you wanna run Jennifer through the outlet of the Viking round?
Alright, Jennifer, this is the time for our patented copyright it segment of the show that answers the most oppressing questions and pressing questions that VEX appellate nerds around the world.
The dreaded Lightning round short responses.
One sentence.
If you Tan here we go bot preference in your briefs in your legal brief century Schoolbook, Garamond Times New Roman, or something else as they really times new Room.
We're getting a lot of love for times new Roman lately.
OK wow.
Two spaces after a period or just one space after a period of time over 48.
It's two space.
Allow it.
I have to ask this on just behalf and because it's been a hot topic, have you ever used the citation parenthetical cleaned up?
If you're ever quoting something that removes ellipses or internal quotation marks or citations instead of identifying everything that you're omitting, some practitioners and judges used the parenthetical cleaned up.
Never used it. No. Jennifer.
As an environmental lawyer, I was just gonna suggest cleaned up is a parenthetically, you need to look into.
I mean, it's what you do for a living.
It's clean up.
Yeah, I I'd like to keep it honest.
So I'll I'll tell.
I'll tell you where I'm skipping things or where I've left some words out.
OK, good.
About the Oxford comma theory of comma, I don't want to get sued, so I have been using it more.
And then the I like to ask this one, when you use possessives.
So I mean give you an example.
The possessive of Congress is that Congress apostrophe or Congresses Congress apostrophe S it's just an apostrophe.
Doesn't apostrophe OK, right?
And you, how do you pronounce it?
OK, so that so the apostrophe makes a noise.
We have a split of opinion on on this so people say makes a noise.
I say it doesn't make a noise.
OK, alright, you've survived.
Can I leave you with one little thing that I know is also important to appellate lawyers? Real quick?
To the question of whether oral argument is a waste of time, so my mother was one of the very first certified appellate practitioners in the state of California and definitely believes that you've been on the briefs.
However, my former boss and mentor, the late Norman Epstein, once told me that it was tantamount to malpractice to skip oral argument.
Because you deprive of court and the ability to really test out the truth.
And if they have questions and you're not there to answer them, then you're doing a real disservice to both the court, your client, so you know it is not a waste of time.
Cats that lays down a gauntlet.
We've talked about how in California appellate courts, you know, you're asked if you want to invoke your right to to oral argument and, you know, maybe under circumstances you might say, oh, we're gonna wave it in this context.
But but you say it could be tantamount to malpractice to way, but it's that important.
Yeah, I'm trying to.
I never give up the chance to get FaceTime with the judge.
Yes, another.
You're in good company with that opinion.
Well, Jennifer, you survived the dreaded lightning around.
Congratulations, you've earned your California Pellet Law podcast mug.
Looked for that and that. What?
That's gonna wrap up our episode today, Jeff.
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Thanks again, Jennifer.
Thank you.
Really appreciate it guys.
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