As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to generalists on the bench.
Then we discuss the March 2023 SCOTUS opinion Sackett v. EPA, which sided with a landowner against the EPA. The EPA’s jurisdiction in keeping our waters clean extends to the “waters of the United States,” or WOTUS. Can wetlands and unconnected waters be WOTUS? Under the EPA’s “significant nexus test,” the answer was yes. But the Court reversed and replaced the test with a “continuous surface connection” test.
Jennifer explains how the new test may still open the floodgates to more water litigation.
(Neither Jennifer nor Jeff laughed at that pun.)
Jennifer Novak’s biography and LinkedIn profile.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:16
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
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Yeah, and if you find it unhelpful, send it to your opposing counsel. Before we jump into this week's discussion, we want to thank case text for sponsoring our podcast keys Tex is a legal technology company that has developed AI backed tools to help lawyers practice more efficiently since 2013. He's Texas relied on by 10,000 firms nationwide from solo practitioners to analog 200 firms and in house legal departments. In March 2023. Case Tech's launched co counsel, the world's first AI legal assistant counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners to the podcast enjoy special discount on keystrokes basic research at case Techstop comm slash scalp that's case text.com/c A L P. And another benefit of case decks is it doesn't generate fake cases
Tim Kowal 1:23
that is become increasing value as the news of Chet GPT comes across the way Blake's
Jeff Lewis 1:29
Alright Tim, I'm excited today we have the opportunity to welcome Jennifer Novak to the show. At age five Jennifer Novak decided she had two goals to be a lawyer and to be a mom, she's 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 and 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 founded her law firm to be of service to people who understand the importance of environmental laws, but want to 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 a threatened or actual lawsuit brings. Jennifer, welcome to the podcast.
Jennifer Novak 2:27
Thank you. I'm so excited to be here.
Jeff Lewis 2:29
No, we're happy to have you now we're going to talk a little later in the show about what prompted this interview the recent Supreme Court decision and Sackett versus the EPA. Before we wade into those waters, let's get to know a little bit more about you. Was there anything about you wasn't revealed in the bio I just read? Oh, well,
Jennifer Novak 2:45
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 the things I'm passionate about as we keep going today. So I'm happy to keep going.
Jeff Lewis 2:54
Okay, great. Well tell us a little bit about your primary practice area.
Jennifer Novak 2:58
Well, I am an environmental lawyer. My tagline is that when businesses and property owners are accused of polluting, 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 regulations and laws, and to something understandable that people can see applies to their day to day lives.
Jeff Lewis 3:24
So do you have to deal with these issues in state or federal court terms of these environmental cases,
Jennifer Novak 3:29
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.
Tim Kowal 3:42
And Jennifer, I listened to Jeff mentioned your former career or former tenure as the Deputy Attorney General in the California 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? Sure. So
Jennifer Novak 4:00
you know, when you're working for government agency, like DOJ, 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 overburdened some in terms of the 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 because whatever I mean, they're not going to lose their job over this. They're just going to keep going on and to be able to take that balancing and then be able to go into the real The world and explain to people, you hear the things that government is going to be looking for your the arguments that are going to work, here are the things you kind of have to do by law. But where do we draw the line in terms of where the government has overreached?
Tim Kowal 5:13
Yeah, yeah. So now you can be the translator. It's like, what does the government saying to me here?
Jennifer Novak 5:18
Pretty much I like to say I'm a Rosetta Stone between government speak and government concerns and the real world.
Tim Kowal 5:25
Got it? As you are, Jeff.
Jeff Lewis 5:27
Yeah. So let me ask you, I think you find yourself most of the time in federal court, do you have a preference between state and federal court terms where you litigate these environmental issues,
Jennifer Novak 5:36
I think I prefer federal courts 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 in 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 face time 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 1015 minutes at a time, 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.
Tim Kowal 6:35
That's interesting. In your experience, you 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.
Jennifer Novak 6:49
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, you know, 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, were ones where the judge really took that kind of time to get to know who we were what we were there about in federal court. You know, they write their own rules. And so I can't say that there's really one type of experience that we have in there. Yeah, 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 can see the judges calculating in their heads, how much money this type of case is costing.
Tim Kowal 7:34
Yeah, right. Jeff, and I talk on this podcast about sometimes the difference between generalists and specialists and how appellate attorneys usually are generalists, and sometimes pour, you know, a large amount of volume into into very small clay vessels. That is the brains of individuals like Jeff, for 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 tend 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 address the jargon, and the scientific principles that are going to be at play? What are some Do 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 Fact Finder and the judge in your briefs to understand your arguments, if there's if their eyes are gonna tend to glaze over and a lot of the difficult constitutional principles or scientific jargon and principles, we usually do
Jennifer Novak 8:29
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 NEPA circle of regret, you know, but also, I just don't like acronyms. And so for example, in a case, like the one we're going to talk about later, a lot of people will short and clean water act to CWA CWA Well, for me, I will usually shorten it to the act, so that you're reading real words. And hopefully, I've done my job at defining what we're talking about. So that when I have to throw an acronym at 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 EBIT up, 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 socket 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 takes in his spare time and I thought, you know, Jeff would understand right, what you're looking at and what you see versus what legally speaking you're dealing With Jennifer's caption
Tim Kowal 10:01
to every photograph is waters of the United States.
Jennifer Novak 10:05
That is the problem that Justice Thomas has in the second decision. So I hate to keep bringing that one up. But you nailed it.
Jeff Lewis 10:12
So Jennifer, what do you think your clients or opposing counsel or judges might say, is unique about either you or your legal practice or how you approach cases?
Jennifer Novak 10:23
I've been called a straight shooter. So even if I'm working with environmentalists on a pro environment case, or you know, I'm working with people who traditionally represent only defendants, and they're being prosecuted for an environmental issue, I kind of tend to have the same opinions, regardless of which side I'm on, the only question is, given the facts of that situation, or given the policies at stake, where you're drawing the line. So you're not going to tend to find me on one extreme or the other. And I think that helps and trying to navigate what's really at stake, where someone's going to waste time fighting about things that don't really matter. And where you can tell somebody like, Hey, this is actually a really good deal, because it could get a lot worse for you. So I think that helps. And plus, as I mentioned before, we do straddle the line where sometimes we will represent environmental groups. So that gives us a pretty good balanced sense of where I think the law should be.
Jeff Lewis 11:22
Interesting. Okay. Do you have a favorite or best war story from your years in the trenches fighting environmental battles?
Jennifer Novak 11:28
Yeah, I don't know if it's a favorite story. But it certainly is an unforgettable one comes from when I was representing the appellant down in Orange County, the Fourth District Court of Appeal, we were late in the calendar, and we were sitting there suffering through a stuffy courtroom, you know, the cases are dragging on everyone's taking maximum time. And with about three or four cases, still to go before hours, I decided I just got to get up and get my energy back up. And I left the courtroom and I ate a granola bar in the hallway, client of mine came out, we chatted about strategy for a few minutes, I went to the bathroom. And 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, oh my god, I had to go running down the hall in my heels, stop in time to just take one big breath to compose myself. And then I just stride 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 hem and haw, you know, to delay for me. And as I start walking toward the podium, it was almost like, and ladies and gentlemen, it's Jennifer Novak. You know, I go to the podium, and I just made eye contact with each one of the panelists, and then may it please the Court I'm Jennifer Novak. And I represent the appellant and I just started going and as I'm speaking, managed to sneak open my binder to get to a place where I could pick up the argument in case I needed it. And I just kept going. And about 1015 minutes in they stopped they asked me a question I keep going. And one of the justices kept giving me a sigh as if to look at me like I don't know where you just came from or who you are. It was a very surreal experience. But it had a lot of valuable lessons, right? Always be very well prepared. So you can handle any situation on the fly, always keep your composure. And at the end of the day, we won. So it must have worked.
Jeff Lewis 13:30
All right. That's a good one. We'll call that a good story. All right, good, good, good.
Jennifer Novak 13:34
Otherwise, I'm a pretty boring person. I think so I'm glad to have come up with a horror story.
Jeff Lewis 13:38
All right. Hey, so what's one litigation mistake you've either made or that you've seen one of your opponents make that you'll never forget.
Jennifer Novak 13:46
So this was a hard one for me to consider, guys. I think one huge mistake I see is really on behalf of a party or a client. And that is not recognizing that litigation takes time. You to test out different theories to develop evidence to make traction with a 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.
Jeff Lewis 14:18
Yeah, yeah. Good. And do you have a philosophy or a 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?
Jennifer Novak 14:30
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 these 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 going to start second guessing me and making me keep affirming and reaffirming that Yes. This is the way the law works. I won't take up. I can't at this point in time. It's just too much work. Yes. Okay.
Tim Kowal 15:09
No, yeah, life is too short to deal with clients who won't follow their own attorneys advice.
Jennifer Novak 15:14
Exactly. 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 what you can choose. But I'm not just saying this for my health.
Tim Kowal 15:28
Right. Yeah. And you don't want to be in a position later on, where the court has asked you, Miss Novak, why did your client persist on taking this very aggressive approach or this very aggressive position concerning their obligations? And then you're left having to tap dance and say, well, there is an arguable a colorable claim that we can make here. And that's what we're standing on, you know, you don't want to be in those uncomfortable positions. Unless you feel that it's a righteous argument.
Jennifer Novak 15:53
Right. I try to avoid that if I can. Yeah.
Jeff Lewis 15:56
What is your favorite part of your practice? You know, most pellet lawyers will say, you know, sitting in a quiet room and drafting the brief is their favorite part. But in terms of what you do, and how you practice, what is your favorite aspect of your job,
Jennifer Novak 16:07
just given the subject matter, and the fact that it is a relatively new area of law, when we compare it to other things? You know, 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 going to just compare the words of one contract to another, or did I meet the elements of this tort? Or did I meet the elements of this crime is both a challenge and that can make my brain hurt sometimes, but it was also really exciting. And not to mention, it's so applicable to our day to day lives, you know, these issues were really important.
Jeff Lewis 16:46
Interesting, you have any favorite legal writing or briefing tips you want to share with our audience,
Jennifer Novak 16:51
I really tried to steep myself in the research. And I do a lot of my writing in my head, because I just want to 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 what's out there, I think the better the storyteller, you can be you're not just relying on I'm quoting from one case, and then another case. And then here's the plain language of something. I will note that I have heard judges say that they can be easily distracted when they're reading, not necessarily appellate judges, but trial court judges. And for that reason, they really like liberal use of subheadings and indented quotations, because it's easy for them to digest things and little tidbits. And if they just see page upon page of text, they get lost. And so I've definitely have incorporated that into my writing as much as possible when pages allow.
Jeff Lewis 17:45
Well, okay,
Tim Kowal 17:47
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 breadcrumbs and find out what they recalled reading in your brief. Well, and
Jennifer Novak 18:16
I'm not saying hide the ball, I mean, go to the table of contents and read through it. And it should get lay it out point by point by point by point, all the arguments I'm going to make and why I think I'm right. Yeah,
Tim Kowal 18:29
I like it. Jennifer, I
Jeff Lewis 18:30
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 can get out of it, because I gotta tell you, I haven't done anything with that organization, since since they branched away.
Jennifer Novak 18:44
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 the 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, our 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 parts conference. It is a fantastic event if you ever have a chance to go. In addition, we do have things like podcasts and other conferences that we put on and for me The first 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 going to be really contentious, but you know each other as people, and I would put an additional plug for the California Lawyers Association, generally, they're really making a big focus of lawyer wellbeing and mental health issues. So there's a lot of resources there to make sure that we're not burning out and suffering as we traditionally have done.
Jeff Lewis 20:45
Yeah. Okay. That's great. You had me at Yosemite. I didn't hear anything.
Jennifer Novak 20:48
I thought that would appeal to you.
Tim Kowal 20:51
Yeah, I like that idea, like a legal conference by athalon. You know, some hiking and then to go back and sit and be quiet and listen.
Jennifer Novak 20:57
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.
Jeff Lewis 21:06
All right, it's time to dip our toe into the waters and talk about the Sackett case, let's hear a bit about the Clean Water Act. Sackett case, set it up for our audience, use small words, so I can follow you in terms of what was at issue in this case, and what the court decided
Tim Kowal 21:22
and try to tee up a lot more water related jokes for Jeff.
Jennifer Novak 21:27
So at its heart, the second key 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 them. 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 for certain cities to keep trash out of our rivers.
Tim Kowal 23:21
But I want to make sure I'm hearing you right is the idea that we wanted to have a 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 United States, and but that it could travel to the waters of the United States, that would defeat the purpose, right, because you want to clean up the waters of the United States. So 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's going to wind up polluting a water of the United States as traditionally known.
Jennifer Novak 23:53
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 with it, and we want to protect those waters, too. So that's been a source of controversy from both a regulatory standpoint, just a government overreach standpoint, and within the courts for the last few decades, like what do we mean when we're talking about the waters that deserve that level of federal protection? Got it. 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 we may be talking about. And so Saket comes in, you know, as the most recent of the line of these cases. It's interesting in that there's it's a nine oh decision. So even the most liberal of the justices agreed ultimately, with the Sacketts who were challenging The US government's actions, but how they get there is in very different ways. So from a factual standpoint, you have this couple who buys a house back in 2004, I'm sorry, they buy a lot in Idaho. And just from looking at this lot, it seems pretty bare, they intend to fill it in and then build a house on it. And here comes the US government to say you can't do that, because your sight 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 still engages in commerce people come here they visit they can fish they can recreate.
Tim Kowal 25:42
That's priest Lake, yes, therefore, the lake is entirely within Idaho, but it can still be considered a water of the United States.
Jennifer Novak 25:50
Exactly it by the federal government's definition. And because your site drains through various channels to get there, you know, we're gonna consider your site to be part of a network of wetlands.
Tim Kowal 26:03
The Sacketts weren't they weren't dumping directly into priest Lake, they were dumping on their property helped me understand that there was some reference to wetlands that were the Sacketts on a wetland, how does the wetlands context contributing to a polluting and a water of the United States?
Jennifer Novak 26:18
Well, wetlands can be considered a water the United States, traditionally, you're going to see them as that border between, you know, a waterway and dry land, you know, the soggy area where you have a transition can catch erosion, it can 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 priests alike. And for that reason, the Army Corps of Engineers said they're all connected. And they implemented this test called the significant Nexus test. Meaning that what comes off the Sacketts land and what comes off the wetlands can greatly impact this lake. So we want to control what's what they can do on their land. Yeah, ultimately, you know, you can read the way the courts going to go with this when they talk about the fact that it's going to be a modest house. And they note that just by looking at the land of the Sacketts, might not have known that it was going to be designated as a federally protected land. So Army Corps of Engineers 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 the strict 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 if it's not right on a water body. And that's where we end up.
Tim Kowal 27:53
Yeah, and I wonder you mentioned that this was an AI no decision. There was, I believe six joining in the majority written by Justice Alito, and then there were a couple of concurrences, one 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 it Kagan? Justice Kagan? Yes, joined by justices Sotomayor and Jackson, that agreed that the significant Nexus test, you know, was to unworkable, I guess, but would have signed on to a different test. What was the the alternative test that the call it the the liberal bloc would have joined on to the Kagan Sotomayor and Jackson, did they propose a different standard,
Jennifer Novak 28:32
they actually didn't propose a different standard. Interestingly, both their concurrence as well as the one written by Justice Kavanaugh, to which 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 adjacent to it. And really, it's a semantics issue, with the majority saying, well, adjacent means you're like right next to right on top of your touching, and justice Cavanaugh and others noting, well wait a second, adjacent means neighboring nearby, you know, I can affect you, I maybe my house doesn't touch your house. But if we have a yard between us and a fence, we're still adjacent to each other. Interestingly, it was Justice Kagan, who pulls back and starts with the very language of the Clean Water Act that I started with that acknowledgement that the whole purpose of it was to be broad reaching, and was to go back and restore the nation's waters and saying the majority is coming at this like, well, as an example, Justice Thomas's 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 knew all that Congress knew how they had treated the waterways in the past and they wanted to do something really broad really draconian And there's actually legislative history using that terminology. And saying we've got to do something so radical to turn this around. The majority acknowledges that the Clean Water Act has gone far in terms of cleaning up the nation's waters. And then it moves on to talk about states rights, and the government overreach. And there's almost an undercurrent of, you know, in the past, when we've agreed with you, you've then just taken that agreement and gone even farther. So now we have to put our foot down, and we can't let you keep doing that.
Tim Kowal 30:30
I wonder if you think that the the reason that that this was a it was unanimous in the sense of rejecting the significant Nexus test, if you think that the maybe the the shared idea there among all of the justices was maybe like a due process or anti vagueness issue that look, the Sacketts are just moving gravel around on a lot that they purchased to build a single family residential home, modest home, Tim, a modest, modest home, and suddenly they get a visit from the EPA Police telling them, you know, you're potentially in criminal violation of the laws.
Jennifer Novak 31:02
You know, I don't read the concurrences is trying to set a bright line tests so much as saying it's hard to do that, and I don't read them is saying that the government's decision to look a little case by case goes to foreign 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, were watching the Sackett oral argument, that there was almost a disbelief like, no one's talked about Chevron deference. No one's talking about this, you 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 Cavanaugh has 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 we shouldn't be here second guessing that it's just he never comes out and uses the dirty word. He never says Chevron,
Tim Kowal 32:15
yeah, I did a ctrl F through the opinion and find the term Chevron anywhere. I thought this was going to be the opinion that took a hatchet to it.
Jennifer Novak 32:23
No, I think we're waiting on that one to come down next term. Pretty soon.
Jeff Lewis 32:28
What Why is it with all the weighty topics the Supreme Court could take up, you know, abortion guns, why did they take up this case? Do you think?
Jennifer Novak 32:36
Well, like I said, that question of whether the federal government has gone 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 socket decision of the case we call Swank. And that's one where you had farmers out in the middle of nowhere, not near any, you know, navigable water, traditionally, and they would have these pools that got created by rainfall or by springs, 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 pools, therefore, your pools are subject to federal jurisdiction. So in that case, the United States Supreme Court disagreed. But we do see this kind of push pull of 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's 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 over certain things and states get power over everything else.
Jeff Lewis 34:13
Let me ask you, though, like in the case of California's 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 and issue more regulations to protect natural resources in California?
Jennifer Novak 34:34
Some would argue California has already done that. And then some, 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 going to be fine. I will tell you a very significant place where that could change is with respect to say doesn't suits, because the Clean Water Act does have a provision within it that not only can the government and force the Clean Water Act, but in certain circumstances interested citizens can to. And we certainly I've worked both sides of these kinds of cases, both representing businesses who are threatened with these suits, as well as representing environmental groups who feel like a business is being, you know, recalcitrant and a bad actor.
Tim Kowal 35:25
Is that a difference between state and federal 100%? Okay, so under the federal Clean Water Act, no citizen suits
Jennifer Novak 35:32
under 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 citizens supervision there, 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. But more 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 potentially.
Tim Kowal 36:19
So let's go ahead with the California Legislative regulatory protections are may be more robust than federal should the California Legislature if it wants to enhance environmental protection should authorize citizens suits and state courts in California?
Jennifer Novak 36:35
Oh, I can't wait for that fight. That'll be really interesting.
Jeff Lewis 36:40
Interesting. So in terms of your day to day practice, how do you think this case is going and the cases that follow are going to impact your day to day practice?
Jennifer Novak 36:48
It's just gonna make things more complicated, I think is just as Cavanaugh 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 conveyance 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 going to 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. If you look at the Los Angeles River, there's water in there almost every day. But that's not natural rain flow. I mean, that's not its natural river course, that's taking water from water treatment plants, it's being dumped there, urban runoff that's going through it. So even that has been controversial over the years for people have kayaked down the LA River to prove it's quote unquote, navigable, but Justice Thomas would have considered that to be, you know, not the case. Because that traditionally, right, it's not being used to navigate for commerce anymore.
Tim Kowal 37:58
So 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, even though that does seem on the surface, it seems
Jennifer Novak 38:12
I was waiting for Jeff to come in on something like that, Tim,
Tim Kowal 38:15
the continuous surface connection test seems to be easier to apply. But you bring up a wrinkle right off the bat that 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
Jennifer Novak 38:35
it's going to come I may be printing and perhaps not in that situation, because I would submit that if it's been traditionally a stream bed, and it still looks like a stream bed, and you wouldn't walk by it and think it's something else that chances are, 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.
Tim Kowal 39:22
Yeah. All right. So the continuous surface connection test, maybe it's not as simple to apply as it seems on the surface. But it still got to be simpler to apply than the significant Nexus test with its broad multifactor analysis.
Jennifer Novak 39:38
Well, the court thinks the 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 studied and thought of in the past. We do have things that most people might not think of as being particularly significant watercourses, 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 at every level, state, regional, local, federal, most water bodies have somebody who has looked at it studied it decided how we treat it. It's just those people are not the court. And those people tend to not be the lawyers arguing in court. And that's going right back to the Chevron deference. And we have a similar version here in California. And the notion that, if somebody's already 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. You know, Is he right? Should he be questioned?
Tim Kowal 40:47
Just replace one test with another and we paid lawyers were paid to argue both sides that are either side of the of the question. So now we're going to be translating these analyses that we made in the past under the significant Nexus test, and try to graph it onto this continuous surface connection test, I would wager
Jennifer Novak 41:05
it certainly is not going to take any jobs away from water lawyers, that's for sure.
Jeff Lewis 41:11
Yeah, law, although the no majority issued a clear ruling about what the rule is going forward, I think the court did give agency some guidance that it should be narrower and construes the waters and some guidance should be given to property owners and businesses in terms of whether or not they can ever be subjected to the laws in terms of due process. So there Yeah, 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 the act.
Jennifer Novak 41:43
Well, it's funny because I just went on the EPA website this morning. And they're 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 you par for the course over the last eight presidential administrations that even some of its own regulations are still not applicable in some states due to various lawsuits. So that's been what's been going on for a long time, in terms of trying to figure out, can we even have a one size fits all rule? Or, you know, is it going to be as the court 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 going to tell you you can't do it anyway. So see, I agree with you, Jeff, somewhere in there is some common sense.
Jeff Lewis 42:36
And the Sacketts 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? It's I don't know, I left,
Jennifer Novak 42:48
as 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 courts get another shot at this, you know, for some other reason, but I think certainly the argument that they're influencing an interest rate Lake, and therefore the Clean Water Water Act applies, that does seem to be dead in the water.
Jeff Lewis 43:09
Oh, interesting. I gotta tell you, I honestly probably would never have read this case, if he hadn't texted me over the weekend and suggested thanks for bringing it to my attention here. Well,
Tim Kowal 43:20
and before we meet Jeff, for the punch for the last maybe the last water pun of the episode that we'll have to wait and see whether this opens the floodgates to more Clean Water Act abuses. Come on,
Jeff Lewis 43:31
Tim. Nicely done nicely. All right, even as we approach the end of the hour, Tim, did you want to run Jennifer through the gauntlet of the lightning round?
Tim Kowal 43:41
All right, Jennifer, this is the time for our patented copyrighted segment of the show that answers the most pressing questions and pressing questions that vexed appellate nerds around the world. The dreaded lightning round, short responses, one sentence if you can, here we go. Font preference in your briefs and your legal briefs century schoolbook. Garamond Times New Roman or something else? Times New Roman? Times New Roman, we're getting a lot of love for times new roman lately. Okay, wow, two spaces after a period or just one space after a period? Well, since I'm over 40, it's two spaces. I'll 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 use the parenthetical cleaned up ever used it? No. Okay, Jennifer, as
Jeff Lewis 44:40
an environmental lawyer, I'm just gonna suggest cleaned up is a parenthetical you need to look into I mean, it's what you do for a living. It's clean up.
Jennifer Novak 44:46
Yeah, I like to keep it honest. So I'll tell I'll tell you where I'm skipping things or where I've left some words out.
Tim Kowal 44:53
Okay, about the Oxford comma, a serial comma.
Jennifer Novak 44:58
I don't want to get sued. So I have been using it more.
Tim Kowal 45:02
All right, and then the I like to ask this one when you use possessive. So let me give you an example. The possessive of Congress is that Congress apostrophe or Congress's Congress, apostrophe s. It's just an apostrophe, just an apostrophe. Okay. Right. And you How do you pronounce it? Congress's? Okay, so that so the apostrophe makes a noise. We have a split of opinion on on this. Some people say it makes a noise. I say it doesn't make a noise. Okay. All right, you've survived.
Jennifer Novak 45:32
Can I leave you with one little thing that I know is also of importance to appellate lawyers real quick? Yes. To the question of whether oral argument is a waste of time, I'll note my mother was one of the very first certified appellate practitioners in the state of California and definitely believe that you went 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 a court of 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 and your client. So no, it is not a waste of time.
Tim Kowal 46:12
Okay, that's, that lays down a gauntlet and we've talked about Italian California appellate courts, you know, you're asked if you want to invoke your right to oral argument, and, you know, maybe under circumstances, you might say, Oh, we're going to waive it in this context, but But you say it could be tantamount to malpractice to waive it. It's that important.
Jennifer Novak 46:31
Yeah. Plus, I never give up the chance to get FaceTime with a judge.
Tim Kowal 46:35
Yeah, yes. Another you're in good company with that opinion. All right. Well, Jennifer, you survived the dreaded lightning round. Congratulations. You've earned your California appellate law podcast mug look for that. And that would that's gonna wrap up our episode today. Jeff, we want to thank again case tech for sponsoring the podcast each week. We include links to the cases we discussed from case Tech's daily updated database of law, case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case Tech's basic research@haystacks.com slash CALP that's case text.com/c A L P.
Jeff Lewis 47:13
Yeah. If you have suggestions for future episodes, or if you have a water related pod you want to share with us please email us at info at cow podcast.com in our upcoming episodes of pro tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 47:26
Thanks again, Jennifer.
Jennifer Novak 47:27
Thank you really appreciate it. Guys.
Announcer 47:29
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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