In Episode 93 of The Wendel Forum (originally aired on March 23, 2013, on 960 KNEW AM radio), show moderator Bill Acevedo, chair of Wendel Rosen’s sustainable business practice group, welcomes Mark Massara, general counsel and vice president of social responsibility for O’Neill Wetsuits.
Massara grew up in Santa Barbara and witnessed first hand the devastation caused by the 1969 Union Oil spill along the coast. As a result, he decided early on that he wanted to be involved in preventing degradation of coastal resources.
After graduating from law school, Massara joined the Surfrider Foundation (the first non-profit dedicated to coastal conservation) to work on a massive case against pulp mills dumping pollution into prime a surf area. The case involved 40,000 violations of the Clean Water Act, making it the largest water pollution case in the US at the time. During that three-year litigation, Massara watched the Surfrider Foundation grow from a few hundred members to 50,000.
In 1991, he joined the Sierra Club, directing the organization’s coastal programs. In that role, he enjoyed a “front-row seat on the most pressing environmental law questions in the US.”
Three years ago, Massara moved to O’Neill Wetsuits, a company founded 60 years ago. As vice president of social responsibility, Massara works to protect and enhance coastal resources in the areas where the company does business. In particular, O’Neill Wetsuits is devoted to teaching children about coastal conservation in the Santa Cruz region. The company has donated a building, built a laboratory and buses children in for educational programs.
Massara has dedicated his career to protecting the California coastline. In what ways is coastal preservation important to you?
Listen to the interview with Massara: Episode 93 of The Wendel Forum (27:45 mins; mp3)
O’Neill Wetsuits Website: http://www.oneill.com
Surfrider Foundation Website: http://www.surfrider.org
Sierra Club Website: http://www.sierraclub.org
960 KNEW AM Radio website: http://www.960KNEW.com
Bill Acevedo’s online profile: http://www.wendel.com/wacevedo
March 22, 2012
(Note: Thank you to guest blogger, Wendel Rosen Environmental Partner Bruce Flushman, for this update on an important U.S. Supreme Court decision that came out yesterday.)
The Environmental Protection Agency and U.S. Army Corps of Engineers have lost one of their most significant levers in regulating wetlands under the Clean Water Act. Wednesday, in Sackett v. Environmental Protection Agency, et al. , the United States Supreme Court ruled unanimously that landowners have the right to seek judicial review before being forced to comply with enforcement orders.
In this case, the EPA issued a compliance order asserting that landowners violated the Clean Water Act because they filled wetlands on their land without obtaining a permit. The EPA relies on these compliance orders and the threat of significant fines (up to $37,500 a day) to “urge” landowners to comply quickly with such orders. These landowners fought back, claiming their property was not a wetland, but, under previous rulings, they had no way to challenge the EPA’s unilateral wetland claim. That is, the landowners had a Hobson’s choice of complying with an order with which they did not agree or risking the expense of a defense of and possible imposition of significant penalties if EPA filed and successfully prosecuted an enforcement action.
With this ruling, landowners can now confront the government’s interpretation of what constitutes a wetland under the Clean Water Act by challenging the agency’s basis for demanding compliance.
While the Supreme Court didn’t agree with the landowners’ broader claim of a due process violation, it held that the landowners could challenge the government’s claims under the Administrative Procedure Act (APA); the APA provides for challenges to agency decision making.
In sum, the EPA and the Corps will likely face challenges to their unilateral determination of the scope of the jurisdiction. And, while the case focused on the Clean Water Act, it may affect the use of administrative compliance orders under other statutes, such as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).