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Actually @toakraka

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Actually @ToaKraka


				

User ID: 2125

throwaway20230125

Actually @toakraka

1 follower   follows 0 users   joined 2023 January 25 13:50:16 UTC

					

Actually @ToaKraka


					

User ID: 2125

Tuesday's Supreme Court opinion bears a surprising resemblance to the environmental rigmarole that I described in my previous posts (1 2 3).

  • Scenario 1: The state DEP (Department of Environmental Protection) gives to the state DOT (Department of Transportation) a permit saying that DOT can't pave near floodways, because that might cause flooding. DOT obeys the paving restriction. Even if flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT cannot be punished by DEP for that flooding, because it obeyed the restrictions of the permit. (I'm not quite sure what form such punishment would actually take. Are different arms of the same government allowed to impose fines on each other?)

  • Scenario 2: DEP gives to DOT a permit saying that (1) DOT can't pave near floodways, because that might cause flooding, and (2), if flooding occurs, DOT will be punished. DOT obeys the paving restriction. If flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT can be punished by DEP for that flooding, even though it did nothing wrong.

Scenario 2 sounds ridiculous, right? Well, keep reading.

  • Scenario 3: The federal EPA (Environmental Protection Administration) gives to San Francisco a permit saying that SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted. SF obeys the discharge restriction. Even if the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF cannot be punished by EPA for that pollution, because it obeyed the restrictions of the permit.

  • Scenario 4: EPA gives to San Francisco a permit saying that (1) SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted, and (2), if the ocean becomes polluted, SF will be punished. SF obeys the discharge restriction. If the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF can be punished by EPA for that pollution, in the amount of multiple billions of dollars, even though it did nothing wrong.

The Supreme Court now has ruled, by a bare majority of five to four, that the Clean Water Act does not authorize the EPA to issue the permit that is described in scenario 4. More specifically:

  • The text of the Clean Water Act passed by Congress says that a permit can contain, not just "effluent limitations", but also "any more stringent limitation that is necessary to meet the water-quality standards". "Effluent limitations" obviously permits scenario 3. The question before the Supreme Court is whether "any more stringent limitation" permits scenario 4.

  • The five-justice majority decided that, in this context, when Congress wrote "limitation" into the Clean Water Act, it meant that the EPA needed to tell San Francisco specifically what to do in order to avoid penalties (e. g., "your discharge into the ocean must not be polluting"), rather than just vaguely gesturing (e. g., "the ocean must not become polluted while you are discharging into it").

  • The four-justice minority disagrees with this assessment, and thinks that the word "limitation", regardless of context, can permit the EPA to make San Francisco responsible for the water quality of the ocean, rather than just for the water quality of what it discharges into the ocean. Direct quote: "A doctor could impose a 'limitation' on a patient's diet by telling the patient that she must lose 20 pounds over the next six months, even if the doctor does not prescribe a specific diet and exercise regimen. 'Limitations' can be general as well as specific, and general limitations can call for more specific ones."

IMO, legally the argument could go either way, but practically scenario 4 obviously is unfair and the majority's decision makes a heck of a lot more sense.

(I have put this comment in the culture-war thread because of articles like this one: "Supreme Court Rules the Clean Water Act Doesn't Actually Require That Water Be Clean")

I don't think it's presumptuous to assume that most Americans understand what road markings mean. (Insert joke about the drivers in your least-favorite state.)

My state's driver manual:

  • Explicitly mentions double solid white lines and broken white lines.

  • Doesn't mention single solid white lines (outside of the separate context of shoulders—MUTCD § 3B.09), but they're pretty rare, outside of (1) construction zones, where they typically are accompanied by "stay in lane" signs anyway, and (2) intersection approaches, where changing lanes is forbidden under state law, as mentioned in a different part of the driver manual.

  • Doesn't mention dotted white lines, but IMO an attentive motorist (or new motorist and former passenger) should have noticed the growing prevalence of these lines over the past decade.

Unexpected follow-up to my 2023 post:

As you probably know if you are an American, under the MUTCD (Manual of Uniform Traffic-Control Devices), generally speaking:

  • The longitudinal lines that separate lanes traveling in the same direction are white. (§ 3B.06 ¶ 01)

  • A double solid white line indicates that crossing the line is prohibited. (¶ 12)

  • A single solid white line indicates that crossing the line is discouraged. (¶ 06)

  • A broken (dashed) white line (12-foot segments separated by 36-foot gaps) indicates that crossing the line is not discouraged or prohibited. (¶ 05)

  • A dotted white line (3-foot segments separated by 9-foot gaps) separates a through lane from an auxiliary lane that will diverge or end soon. One might say it indicates that crossing the line is encouraged, so that you don't accidentally get stuck in an auxiliary lane when you want to be in a through lane (or vice versa). (§ 3B.07)

The dotted line was not made mandatory until the 2009 edition of the MUTCD, so roadway authorities still are in the process of updating existing stripes. The project that I described in my 2023 post included a large interchange, in which I changed quite a few existing stripes from broken to dotted. After the project passed out of my hands and into the hands of the bigwigs and the Construction people, I largely forgot about it. We had to draw up a several-sheet addendum, because the pavement recommendation had expired and the updated version was significantly different; we had to draw up a one-sheet change of plan, because the Structures people accidentally told us to pave over a bridge that shouldn't be paved over; and the project's resident engineer had some questions regarding (1) utility coordination and (2) whether a bunch of cooking oil that had leaked from a restaurant's dumpster into the roadway would negatively affect the pavement treatment's adhesion to the existing surface. But that was it.

Fast-forward to this week. The project presumably was completed a while ago, though I don't recall specifically when. The project area is quite close to my office, but I never had any reason to drive through it since completion—until today, purely by chance. As I drive, I think to myself: "Hey, where are all the dotted lines that I drew on the plans?"

  • The resident engineer is supposed to ensure that the contractor adheres to the plans. But apparently he dropped the ball here.

  • After "substantial completion", the resident engineer is supposed to call the designer out for a field visit so that the designer can approve the work for "final completion" or point out any problems that need to be fixed before it can be approved. But the resident engineer never did that, either.

It presumably is way too late for this error to be fixed, so I don't know whether my boss will bother to explain the situation to the resident engineer's boss. But at least it isn't my fault.

This throwaway account is constrained to comment only on matters that are related to civil engineering.

Barrett writes the dissent joined by the three liberals (is this a common lineup? I thought Barrett was normally more libertarian than Roberts)

Here's Blackman of the Volokh Conspiracy on Barrett's "slide to the left".

Okay, "SF can't discharge untreated sewage beyond the limits prescribed in this permit (which are made necessary by its combined sewer system) into the ocean".

The only time I can recall seeing them is on the tolled express lane of I-85 in Georgia.

This throwaway account may lose its reason for its own separate existence in a few years. Until that time, however, its existence will remain separate.