Environmental Law Outline

Environmental Values and Policies

Two elements of human development have been regularly linked to increasing environmental concerns: population growth and technological change

Some characteristics more common to modern environmental problems than to historical environmental concerns:

uncertainty of mechanism and effect potentially catastrophic effects collective risks irreversibility controllability

Modern response to environmental problems have had beneficial effects, however the early successes targeted the problems that were the easiest to see and resolve (e.g. burning rivers). National health standards still have not been met and science continues to reveal new problems.

The environment has been labeled a consensual issue, because agreement on its importance is so widespread

Critics of environmental policy argue that:

it has failed to deliver on many of its promises it has ignored some significant issues almost entirely it has accomplished its goals at too high a cost to other values (e.g. property

rights, economic growth) environmental law has taken laudable environmental goals and pursued them

too far

Themes of “Next Generation” environmental law studies:

1. environmental policy must be sensitive to the costs as well as the benefits of environmental regulations, and must choose policy instruments flexible enough to permit localized determinations where possible

2. the structure of environmental law needs reform, it should move beyond single-media or single species approach and adopt a more holistic and longer-term consideration of environmental threats

3. urges reassessment of the allocation of responsibilities between federal, state and local governments

Ecological Perspectives

The science of ecology seeks to understand the functioning of ecosystems, both

1

on a small scale and on a grand scale.

Its main premise is the interdependence of everything

Homeostasis: the quality of returning to a self-sustaining equilibrium after being disturbed, unless the disturbance is too great

Carrying capacity: the extent of disruption an ecosystem could absorb and still rebound

Two ecological rule of thumbs:

1. seemingly simple actions typically will have non-obvious and unintended consequences that may culminate in a threat to ecosystem stability

2. smaller actions have less drastic consequences on functioning ecosystems than larger actions

Ecologists seek to live in harmony with nature, not at odds with it.

New ecology

Myth of the balance of nature: Nature, undisturbed by human actions, will remain constant, and this constant state is the most desirable

New ecologists argue that in nature variation rather than constancy is the rule and that scientists should seek to better understand the dynamic nature of ecological systems.

Common Pool Resources

Tragedy of the commons: people tend to overuse environmental resources because they are available without cost to us, so the price mechanism does not make us aware of the harm we are causing to other humans or the environment.

History of Environmental Law

Six Stages in the history of US environmental law:

1. The Common Law and Conservation Era, Pre 1945

legislation was left to sate and local governments whose public health or nuisance laws were poorly coordinated and rarely enforced

Congress only acted when a public heath problem was particularly visible or obvious

2. Federal Assistance for State Problems, 1945-1962

federal programs were premised on the notion that environmental problems were the responsibility of state and local governments

2

national concern began to grow

3. The Rise of the Modern Environmental Movement, 1962-1970

rise traced to Silent Spring book which talked about pesticides accumulating in the food chain

environmental groups form increased concern over the environment

4. Erecting the Federal Regulatory Infrastructure: 1970-1980

explosion of federal legislation (CWA, CAA, RCRA, CERCLA) EPA formed Nixon signs the National Environmental Policy Act (NEPA)

5. Extending and Refining Regulatory Strategies, 1980-1990

initial laws are broadened and strengthened “Hammer” provisions are included into laws in order to force agencies to

adopt regulations

6. Regulatory Recoil and Reinvention, 1991-present

Republican congress attempts to weaken the environmental laws

EARLY COMMON LAW

Common law relied largely on nuisance law doctrines to resolve environmental law controversies

Private nuisance actions focus on invasions of interests in the private use and enjoyment of land

Public nuisances were common law crimes that involved offenses against the state arising from actions that interfered with public property

Two approaches to nuisance:

Threshold: whether action meets a certain threshold, if it does then it is considered a nuisance and must be enjoined /damages

Balancing: consider whether the activity creating the nuisance is valuable to society, does the gain outweigh the loss

Note: a slap lawsuit is when a company files suit against a plaintiff in order to retaliate and tie up his legal resources

Private Nuisance

Private nuisances: nontrespassory invasions of another’s interest in the private use and enjoyment of land. Elements:

3

must have a property right there is an invasion which results in sufficient harm causation action must be intentional and unreasoanble or unintentional and otherwise

actionable under the rules of negligence or reckless conduct or abnormally dangerous conduct

The damage in a private nuisance case is to an individual (or a few individuals) as contrast to a public harm

Liability is only imposed in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances w/o at least compensation

In early times, nuisance laws were used as zoning devices, in that industry was kept away from homes

However, as the industrial age progressed, courts were less inclined to issue injunctions against the industrialists and would only allow money damages

In Madison v. Ducktown Sulphur, Copper and Iron Co.(Tenn, 1904), nearby landowners sought an injunction to stop pollution emanating from copper smelters. The court agreed that injury had been shown and that damages were a matter of right but that an injunction was a matter subject to the courts sound legal discretion. Fearful that an injunction would destroy industry in the state the court allowed damages but no injunction. (Ct employed the balancing approach)

Public Nuisance

Public nuisance: an unreasonable interference with a right common to the general public.

In determining whether interference with a public right is unreasonable, courts consider whether the conduct:

1. involves a significant interference with the public health, safety, comfort, or convenience

2. is act illegal

3. is of a continuing nature or has produced a long lasting effect on the public right that the actor has reason to know is significant

For a private citizen to assert a claim based on a public nuisance they must show that they have sustained a special injury.

The doctrine was most often used to prosecute those who obstructed public highways, fouled public waters, or omitted noxious fumes.

Two early S.CT decisions involve public nuisance actions by state authorities against out of state polluters:

4

In Missouri v. Illinois, Chicago built a canal to divert its raw sewage into the Mississippi River. Missouri filed a common law nuisance action seeking to enjoin the discharges. The court reviewed much evidence but concluded that the evidence was inconclusive as the experts did not agree and a number of Missouri cities discharged pollution into the river and may be causing the health problems. The court concludes that the evidence is insufficient to establish a case of public nuisance.

Reverse golden rule: in a transboundary pollution case, the affected state cannot demand that the source state adhere to a higher standard than the affected state applies to its own citizens

In Georgia v. Tennessee Copper Co., the state of Georgia brought a common law nuisance action against the smelters, who were located across the border in Tenn. Here the evidence was much clearer as the fumes destroyed a large swath of forest and crops. The court agreed to issue an injunction and seemed to reason that when there is a clear public nuisance and a sovereign brings suit, the court is more likely to issue the injunction.

TEXAS

In Meat Producers, Inc. v McFarland, P alleged that a neighboring cattle feeding facility emitted disagreeable odors that amounted to a private nuisance. The issue was whether the facility emitting the odors amounted to a nuisance justifying recovery of permanent damages to adjacent land by reduction in market value. The court held that it was nuisance and that such damages were recoverable.

Private nuisance (TX): a condition which substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance of persons of ordinary sensibilities attempting to use and enjoy it. (an offensive odor in itself is sufficient)

Measure of damages = reduction in market value

In 1982, the TX legislature passed the Right to Farm Act, Tex. Agric. Code Ann. §251:

states that its purpose is too limit the circumstances under which ag operations may be considered a nuisance or subject to regulation

regulation includes zoning restrictions

the act imposes a one year statute of limitations on nuisance actions brought against an ag operation that has lawfully been in operation, provided the conditions complained of have not substantially changed

The Act codifies the cases where courts refused to enjoin an activity where the plaintiffs had moved to the nuisance.

National Environmental Policy Act (NEPA)

5

NEPA mandated a significant change in the decision-making procedures used by federal agencies

§101 establishes as the continuing policy of the federal government the use all practical means to create and maintain conditions under which man and nature can exist in productive harmony

§102(c) requires all federal agencies to prepare an environmental impact statement (EIS) on major federal actions significantly affecting the quality of the environment.

§102(2)(e) requires all federal agencies to study alternates to actions involving unresolved resource conflicts

§102 of NEPA requires that all federal agencies include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

1. the environmental impact of the proposed action,2. any adverse environmental effects which cannot be avoided should the proposal be

implemented,3. alternatives to the proposed action,4. the relationship between local short-term uses of man's environment and the

maintenance and enhancement of long-term productivity, and5. any irreversible and irretrievable commitments of resources which would be involved

in the proposed action should it be implemented.

In Calvert Cliffs Coordinating Committee v. United States Atomic Energy Commission, P argued the rules adopted by the Commission failed to satisfy the rigor demanded by NEPA. The rules stated that a detailed report would “accompany” an application but would not be considered by the licensing board. The court holds that an agency must – to the fullest extent possible under its statutory obligations – consider alternatives to its actions which would reduce environmental damage. Consideration of environmental matters must be given more than just a pro forma ritual. Environmental issues must be considered at every important stage in the decision-making process concerning a particular action. This landmark case established that NEPA would not be reduced to mere bureaucratic red tape.

What happens if the EIS is perfect, the project is clearly an environmental disaster, but the agency decides to ahead anyway? Is there a substantive review of their decision?

In Strycker’s Bay Neighborhood Council Inc. v. Karlen, the P’s sought to enjoin the construction of a low-income housing project. The P’s felt that HUD did not fully consider the environmental impacts involved. HUD found that development of an alternative location would result in an unacceptable delay. The appellate court held that delay could not be an overriding factor in HUD’s decision. The S. Ct. held that once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences. Here HUD considered the environmental consequences.

The court implies that NEPA imposes no substantive duties on agencies.

6

“major federal action”

An EIS must be prepared for proposals for legislation and other major federal actions significantly affecting the quality of the human environment. (legislative EIS’s are rarely performed)

If an agency determines there is no significant impact, then they won’t need to do an EIS (this is called a FONSI – finding of no significant impact)

The agencies consideration cannot be arbitrary and capricious

What are major federal actions: “actions which may be major and which are potentially subject to federal control and responsibility” Includes private projects that require federal approval or funding as well as federal programs, policies, and rules.

The most difficult questions in determining whether there is a “proposal for major federal action” have been the appropriate timing and scope of the review that NEPA requires.

In Kleppe v. Sierra Club, the club argued that the Dept. of Interior could not allow further development of federal coal reserves in the Northern Great Plains w/o preparing a comprehensive EIS on the entire region. At the time there was no proposal for an action of regional scope, only local actions. In order to warrant an EIS, there must be a major federal action for the region. Mere contemplation of certain action is not sufficient to require an impact statement. The moment at which an agency must have a final statement ready is at the time at which it makes a recommendation or report on a proposal for federal action. (Sutton says the agency should start on an EIS when it begins to allocate resources for the project) However, the notes indicate that sometimes related actions in a region may be so interrelated as to require an EIS for the whole region.

In Thomas v. Peterson, the Forest Service planned to construct a road and approved timbers sales. It claimed it did not need to prepare an EIS, because each of the actions considered individually has an insignificant environmental impact. The court disagrees and states that if two separate actions are so interrelated they must be considered collectively. Connected and cummulative action must be considered together: (here, the proposed and timber sales are both connected and cumulative)

Connected actions are actions that:

1. automatically trigger other actions which may require environmental impact statements

2. cannot or will not proceed unless other actions are taken previously or simultaneously

3. are interdependent parts of a larger action and depend on the larger action for their justification

Cumulative actions: actions which when viewed with other proposed actions have cummulatively significant impacts

7

In Sierra Club v. Peterson, P alleged that the oil and gas leasing program violated NEPA, because no EIS was prepared prior to the action. The Forest Service concluded that no EIS was required at the leasing stage since very few exploratory operations result in the discovery and production of gas. A decision of “no significant impact” can only be overturned if the decision was arbitrary, capricious, or an abuse of discretion. However, the courts must ensure that the agency took a “hard look” at the environmental consequences of its decision. NEPA requires federal agencies to determine at the outset whether their major actions can result in significant env impacts. An EIS is required when the “critical agency decision” is made which results in irreversible and irretrievable commitments of resources of an action that will affect the environment. Here, since the Dept. did not choose to retain authority to preclude all surface disturbing activities, an EIS must be prepared at the point of commitment – when the leases are issued. Alternatively, the Dept. could have deferred preparation of the EIS if it reserved the right to preclude any surface disturbing activities in the leases.

“significantly affecting the quality of the human environment”

The crucial threshold question for NEPA’s EIS requirement is whether a proposed action is likely to significantly affect the quality of the human environment.

In Hanly v. Kleindienst, the issue was whether an EIS had to be prepared for the construction of a jail and related facilities as an annex to the federal courthouse. The GSA prepared an EA and concluded that the detention center would not have a significant effect on the environment. The court sets out two factors for deciding whether a major federal action will “significantly” affect the quality of the human environment:

1. the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it (adding one more factory to area full of factories)

2. the absolute quantitative adverse environmental effects of the action itself, including the cumulative harms that results from its contribution to existing adverse conditions or uses in the affected area (is that one additional factory the one that breaks the camel’s back)

Federal agencies must develop a reviewable environmental record even for the threshold (whether it is significant) question. Furthermore, before a threshold determination is made, the responsible agency must give notice to the public and allow them to submit relevant facts which might bear on the decision (does not require a full-fledged hearing). Court basically says you need an EIS if there is a controversy or uncertainty. Plus, agencies must develop some minimal procedural requirements to record the findings (so court can review a FONSI = a finding of no significance)

The dissent notes that after this decision an EA will be required even when everyone knows that the proposed action will not significantly affect the human environment. This could result in a waste of time and money.

8

NEPA is not limited to the human environment

Hanly shows that the effects of urbanization (i.e. traffic, crime, etc.) are a part of the human environment and therefore fall within NEPA’s jurisdiction.

Is the EIS Adequate?

Each EIS must include:

a summary explanation of the purpose and need for the proposed action description and comparative assessment of the alternatives have to consider no action as an alternative description of the environment that will be affected analysis of the environmental consequences alternatives

Does not have to include:

cost-benefit analysis worst case scenario

NEPA requires that agencies assess and consider alternatives to proposed actions

In Vermont Yankee, the court consider whether NEPA required the Nuclear Regulatory Commission to reopen the proceedings (public hearings) to consider energy conservation measures as an alternative to construction of the plant. The court stated that the concept of alternatives must be bounded by some notion of feasibility. The agency cannot possibly consider every possible alternative. At the time the EIS was drafted in this case, energy conservation was not a serious concern. While the concept of alternatives is an evolving one (as other alternatives and concepts are better understood), the decision must be reviewed in light of the info available at the time. Moreover, comments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. (agency dose not have consider every “ought to be” or “pie in the sky” comment)

The agency does have to consider “no action” as an alternative, however burden is on intevenor to bring forth specific info about energy conservation

Quality of Analysis in an EIS

In Sierra Club v. US Army Corps of Engineers, P’s argued that the final EIS was deficient because it erroneously characterized an area of the Hudson River it planned to fill as a “biological wasteland”. The agency made this conclusion despite no literature to support its finding, and expert warnings to the contrary. The court concluded that the FEIS did not reasonably adequately compile relevant information with respect to fisheries impact. The court held that a

9

decision made in reliance on false information, developed without an effort in objective good faith to obtain accurate information, cannot be accepted as a “reasoned” decision.

The court’s ruling is narrow. The court states that a court cannot overturn an agency decision if the agency has:

1. conducted adequate compilation of relevant info2. analyzed the info in a reasonable fashion3. not ignored pertinent data4. made disclosures to the public

What is the obligation of agencies to supplement their EIS’s?

In Marsh v. Oregon Natural Resources Council, the court held that the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: if there remains “major federal action” to occur, and if the new information is sufficient to show that the remaining action will ‘affect the quality of human environment” in a significant manner or extent not already considered, a supplement EIS must be prepared. Standard of Review: as long as the agency’s decision not to supplement the EIS was not arbitrary or capricious it should not be set aside.

NEPA review:

applies to international actions that the US is involved in treaties may require EIS’s if there is a final agency action (sending the treaty

to Congress) EIS does not have to include a cost-benefit analysis or the worst case

scenario EIS must consider no action as an alternative

NEPA framework

The process begins with and “environmental assessment” (EA), which is a brief analysis of the need for an EIS. The EA must consider alternatives to the proposed action. If the agency decides not to prepare an EIS, it must make a “finding of no significant impact” (FONSI) available to the public. This finding is subject to judicial review using the arbitrary and capricious standard (Court will want to review a record, if record is insufficient court may require a new EA) and court will take a “hard look” at the agency decision.

If agency does decide to prepare an EIS, it must determine the scope of the EIS and the significant issues to be discussed in the EIS.

Rule: An EIS is required for a major federal action that significantly affects the human environment

In order to decide in there should be an EIS go through the triggers

7 triggers for NEPA analysis:

10

(1) Major (must be big – any substantial commitment of resources – monetary oo otherwise)

(2) Federal (CEQ regulations include private corps that use federal funding, plus agency rule-making, but excludes administrative actions) some federal agency has power to control the action

(3) Action (an irretrievable commitment of resources)(4) Significantly (look at the context)(5) Affecting (directly or indirectly)(6) Human(7) Environment (human environment is broad and includes anything that

affects humans)

Note: socio-economic effect alone is not an impact on the human environment (like going out of business)

Note: If the potential effects on the environment are too speculative or remote they will not be significant (like subjective fear of nuclear reactor disaster)

Elements: Timing (has there been an irretrievable commitment of resources or a permit application)

Scope (is there interconnectivity or a cumulative effect)

Significance (is there controversy or possible potential effects on the environment)

Summary of NEPA: NEPA requires an EIS when an agency has made a report on a proposal for a major federal action with a substantial environmental impact. In deciding whether any EIS is required, the most difficult question to answer has been whether there will be a substantial environmental impact. Once it has been concluded that an EIS is required, the next question is the scope of the EIS. The S.CT. has mad=e it clear that the answer to this question is to be found by determining the precise scope of the agency proposal which is under consideration. The alternatives to that proposal and the environmental impact of the proposal must be discussed in detail.

CERCLA (Comprehensive Environmental Response, Compensation and Liability Act)

Otherwise known as “Superfund”

Deals with the problem of cleaning up unused or abandoned H/W disposal sites.

The core of CERCLA is its liability provisions and its authorization to EPA to spend monies from the Superfund for removal operations and remediation operations, targeted at longer term solutions, including decontamination solutions

The main purpose of CERCLA is to make spills or dumping of hazardous substances less likely through liability

11

Dual goals: prevent environmental contamination and ensure that it is cleaned up when it occurs

4 basic strategies of Superfund:

(1) information gathering(2) specifying federal authorities to respond(3) the fund that is the source of money for clean ups(4) strict liability scheme

CERCLA makes a broad class of parties liable for the costs of responding to the release, or the substantial threat of release, of “any hazardous substance”

Definitions:

Definition of facility is broad

"facility" means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.

"release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act or, for the purposes of section 9604 of this title or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 7912(a)(1) or 7942(a) of this title, and (D) the normal application of fertilizer.

Covered persons:

1. owner/operators2. past owners/operators3. persons who arranged for disposal4. persons who transports

Hazardous Substances

The term incorporates by reference the identified dangerous substances under the other acts. (broad definition)

12

For example, the term includes H/W under RCRA (listed and characteristic hazardous wastes), toxic water pollutants under CWA, hazardous air pollutants under CAA

The Act is designed to prevent and cleanup releases of hazardous substances.

The Act excludes federally permitted releases – if a release of a hazardous substance is under a federal permit then it is not a violation of CERCLA (D’s will sometimes use this as a defense)

The release of a substance that does not happen to fall within CERCLA’s broad definition of hazardous substances can still generate a CERCLA response if it presents “an imminent and substantial danger”

Liability Provisions of CERCLA

An action will fall under Superfund if:

1. it is a hazardous substance2. there is a release3. there is a response cost

In US v. Olin Corp., the D argued that (1) enforcement of CERCLA violated the Commerce Clause and (2) that CERCLA was not intended to have retroactive application

(1) Commerce Clause: The commerce clause empowers Congress to regulate intrastate activities that substantially affect interstate commerce. CERCLA is valid as applied because it regulates a class of activities (disposal of hazardous waste on-site) that substantially affects interstate commerce (improper waste disposal increases the costs of handling waste, chemical contamination increases agricultural losses)

(2) Retroactivity: Since CERCLA contains no explicit statutory command regarding retroactive application of its cleanup regime, courts must look to congressional intent. By imposing liability upon former owners and operators, Congress manifested a clear intent to reach conduct preceding CERCLA’s enactment.

Responsible parties

Potentially responsible persons under CERCLA:

1. owner/operators2. past owners/operators3. persons who arranged for disposal4. persons who transports

OWNERS

13

In New York v. Shore Realty Corp., the state brought suit to get Shore to clean up the property. Shore argued that he is not a responsible party as he neither owned the site at the time of the disposal nor caused the presence of the release at the facility and that he is entitled to an affirmative defense. The court held that CERCLA unequivocally imposes strict liability on the current owner of a facility from which there is a release or threat of release, without regard to causation. Moreover, he cannot assert a defense because he knew about the dumping. Plus, the threat of a release was still present.

Defenses to CERCLA: causation by …

1. an act of God2. an act of war3. acts or omissions of a third party other than an employee or agent of

D or one whose act or omissions occurs in connection with a contractual relationship with D

Note: A tenant or lessee is considered an owner and is a potentially responsible person

Innocent Purchaser Problem

CERCLA was amended to clarify that innocent purchasers of contaminated property can assert the third party defense if they can establish that:

1. they did not have actual or constructive knowledge of the presence of hazardous substances at the time the land was acquired

2. they are a government entity acquiring the property through involuntary transfer or

3. they acquired the land by inheritance or bequest

To establish lack of constructive knowledge the purchaser must have undertaken all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice ( title search, visual inspection)

Cheap price might give purchaser constructive notice

OPERATORS

Even a party who does not own a facility can be held liable as an operator

Employees can be held personally liable as operators

The following case concerns the liability of a parent corporation for a facility owned by a subsidiary

In US v. Bestfoods, the court stated that as a general rule a parent corporation is not liable for the acts of its subsidiaries, unless the corporate veil is pierced.

14

CERCLA imposes direct liability on operators. Hence, a parent corporation may be directly liable for its own actions in operating a facility owned by its subsidiary. An operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations. The focus should be on the relationship between the parent and the facility (rather than the relationship between the parent and subsidiary). Mere dual directorship is not enough to give rise to direct liability. Examples of when a parent may be liable:

when the parent operates the facility in the stead of its subsidiary or alongside the subsidiary in some sort of a joint venture

an agent of the parent with no hat to wear but the parent's hat might manage or direct activities at the facility

that a dual officer or director might depart so far from the norms of parental influence exercised through dual officeholding as to serve the parent, even when ostensibly acting on behalf of the subsidiary in operating the facility

4-4-4-3 RULE of CERCLA:

There are four elements of a section 107 claim, four categories of PRP’s, four categories of response costs, and three defenses

four elements of a section 107 claim: 1. a release or threatened release2. of a hazardous substance3. from a facility4. which causes the incurrence of a response cost

four categories of PRP’s: 1. present owners/operators2. former owners/operators at the time of the disposal3. arrangers4. transporters

four categories of response costs: 1. removal or remedial actions not inconsistent with NCP2. any other necessary costs of response3. damages to injury to natural resources4. health assessment or studies

three defenses: 1. act of God2. act of war3. acts of unrelated third parties

Categorical defenses:

innocent landowner defense inheritance

15

local government who involuntarily acquire property through its sovereignty

certain lenders

GENERATORS

CERCLA imposes liability on nonnegligent generators of hazardous substances that are released.

The following case address the nature of generator liability:

US v. Aceto,

Facts: The EPA sought to recover over $10 million in response costs incurred in cleaning of a pesticide formulation operation (now bankrupt). D was a manufacturer of pesticides who sent his technical grade pesticides to the formulators who processed it to produce a commercial product. In the process, pesticides were spilled. The govt. alleges that D is liable because, by virtue of their relationship with the formulator, they “arranged for” the disposal of hazardous substances. D argues that they only contracted for the processing of a product, not the disposal of waste.

Holding: CERCLA is a given a broad interpretation. The goal of CERCLA is that those responsible should pay for the cleanup. Persons cannot escape liability by contracting away their responsibility or alleging that the incident was caused by the act or omission of a third party. Here, the formulator was performing a process on products owned by D for D’s benefit and at their direction; waste is generated and disposed of contemporaneously with the process. Hence, D “otherwise arranged for” the disposal of waste and is responsible. Court says a specific intent to arrange for disposal is not required. But see 7th Circuit (“arranged for” does imply intentional action) and 11th Cir (adopts a policy of totality of the circumstances where intent is one factor)

Strict, joint, and several liability

Even though references to strict liability are not in CERCLA, courts have almost uniformly found that CERCLA imposes strict, joint, and several liability on RP’s. Reasons why include:

avoiding clean up delays acknowledging that many sites are owned by insolvent companies involves the release of abnormally dangerous substances

The following address’s whether liability should be apportioned among generators:

In O’Neil v. Picillo, thousands of barrels of hazardous that were dumped on a farm, ended up catching on fire an creating a big mess. The govt. sought to recover cleanup costs and went after 35 D’s. Most of them settled but two claimed that their contributions to the disaster were insubstantial and that it was unfair to hold them jointly and severally

16

liable. The court states that damage should only be apportioned if the defendant can demonstrate that the harm is divisible. Here, only a small amount of barrels could be positively attributed to D’s and it was uncertain whether any of the unidentifiable barrels belonged to D. Here, D had the burden to account for the uncertainty and failed to do so.

Note: Two CERCLA provisions mitigate the harshness of the joint an severally liability:

De minimis settlements : EPA is directed to offer early settlements to D’s who the agency believes are responsible for only a small portion of the harm.

Contribution : courts may allocate response costs among liable parties. If a party has settled with the EPA it may not be joined in any subsequent contribution actions.

Liability: Amount and Allocation

CERCLA’s National Contingency Plan recognizes two types of responses to hazardous waste sites:

(1) short-term removal actions designed to alleviate immediate dangers to public health or the environment and

(2) longer-term remedial actions designed to provide a permanent remedy to the maximum extent practicable. Most of the money typically goes into remediation. Liable parties under CERCLA must account for these costs.

Steps of the Superfund Process:

1. Sites are ranked on the Hazardous Ranking System. The most hazardous sites are placed on the Superfund list.

2. A Remedial Investigation/Feasibility Study (RI/FS) is conducted. The EPA must consider what remedial steps should be taken. It must consider the cost effectiveness of the actions proposed.

3. The EPA issues a Record of Decision. It draws conclusions as to what remedial actions will be taken based on the RI/FS. It also sets forth the standard of cleanup. (Hazardous sites next to schools, neighborhoods, over underground aquifers, etc. must be cleaned more thoroughly than a site in the middle of the desert.) Cost effectiveness seems to be the overriding concern in the selection of most of the remedial alternatives proposed.

In allocating liability among parties joined in a contribution action the court have applied the Gore factors. These factors were introduced by Senator Al Gore, but were not passed by Congress. However, they have been adopted by the courts.

1. The ability of the parties to demonstrate that their contribution can be distinguished.

17

2. The amount of the hazardous substance involved.3. The degree of toxicity of the hazardous substance.4. The degree of involvement by the parties in generation, transportation,

treatment, storage, or disposal.5. The degree of care exercised by the parties taking into account the

characteristics of the hazardous substance.6. The degree of cooperation by the parties with government officials to

prevent harm.

THE RCRA REGULATORY PROGRAM

RCRA is a comprehensive environmental statute under which the EPA is granted authority to regulate solid and hazardous wastes

RCRA and the H/W program is a “cradle to grave” management of H/W

RCRA employs the manifest system to track waste

The act established a system for identifying and listing hazardous wastes, standards for generators and transporters of H/W and for operators of TSD’s, a permit system to enforce these standards, and a procedure for delegating to states the administration of the permitting program.

The statute is centered upon requirements that facilities utilizing hazardous materials obtain permits, and maintain proper records of the treatment, storage and disposal of hazardous substances.

RCRA has five distinct, interrelated objectives:

1. make land disposal of wastes far safer than it had been previously

2. technology forcing – requires TSD’s to employ the best available technologies

3. waste reduction

4. minimize direct regulation of the production processes

5. encourage recycling

Note: You have to have a permit to be a TSD facility. However, when the statute was first enacted it provided for an Interim status that allowed companies to continue to operate. However, the companies would get interim status and then never apply for a permit. Congress has since phased out interim status.

RCRA is divided into two major parts: (1) subtitle C, a regulatory program covering hazardous solid wastes, and (2) subtitle D, a largely non regulatory program to encourage states to improve their management of non-hazardous substances.

Subtitle C has five major elements:

Identification Tracking

18

Permitting Restrictions and Controls Enforcement and Compliance

To be regulated under RCRA a substance must be a solid waste, only solid wastes that are hazardous are subject to regulation under sub title C.

Note: The HASLA amendment to RCRA eliminated the small quantity generator exception (which put a lot of small businesses out of business) and required liners

What Substances are “Solid Wastes”?

RCRA has a number of exceptions: domestic sewage, industrial point sources, irrigation return flows, nuclear materials, and basically things that are inherently product like (you can have paint sit on your shelf as inventory)

To determine what a hazardous waste is under RCRA, you must first determine what is a solid waste.

Solid Waste: means any garbage, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid semisolid, or contained gaseous material resulting from industrial, commercial …

The basic problem in determining whether something is a solid waste is ascertaining what is meant by the phrase “other discarded material”

Under the EPA’s definition, other discarded material is any material that is:

1. abandoned2. recycled or3. considered inherently waste-like

Abandoned: no intent to put it to further beneficial use; four types of abandonment

1. burning or incineration2. disposal (have someone come pick it up or throw it away)3. accumulating, storing or treating it in lieu of its original intended use4. otherwise applied to land in lieu of its original intended use

The following case deals with whether certain materials used in recycling might fall within RCRA’s jurisdiction:

In American Mining Congress v. EPA, Industry reps challenged the EPA's final rule amending definition of "solid waste" to establish agency's authority to regulate secondary materials reused within an industry's ongoing production process. Under the final rule, if a material constitutes "solid waste," it is subject to RCRA regulation unless it is directly reused as an ingredient or as an effective substitute for a commercial product, or is returned as a raw material substitute to its original manufacturing process. (the latter category is known as the "closed-loop" exception.) The reps argue that that EPA's authority under RCRA is limited

19

to controlling materials that are discarded or intended for discard. They further argue that EPA's reuse and recycle rules, as applied to inprocess secondary materials, regulate materials that have not been discarded, and therefore exceed EPA's jurisdiction. The court agrees and holds that, in light of the plain language of the statute and congressional intent, that EPA need not regulate "spent" materials that are recycled and reused in an ongoing manufacturing or industrial process. These materials have not yet become part of the waste disposal problem; rather, they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.

It is not a hazardous waste if its going to be immediately reused or is not part of the problem.

Identifying “Hazardous Waste”

The extensive regulatory standards prescribed by subtitle C of RCRA are applicable to solid wastes that are hazardous, which include: (1) wastes specifically listed as hazardous, (2) wastes that exhibit any of the four hazardous characteristics, and (3) wastes mixed with or derived from a listed waste

1. Listed Waste : its an identified hazardous waste and is in a list and given a number, there are four categories of listed wastes:

“F” hazardous from nonspecific sources“K” hazardous from specific sources“P” acutely hazardous chemical products“U” Non-acutely hazardous chemical products

2. Characteristic Waste : does material have any of the characteristics of hazardous waste:

ignitability corrosivity toxicity reactivity

3. Mixture rule : when a listed hazardous waste is mixed with a solid, liquid, or semisolid material, the resulting mixture is also a hazardous waste. ( the EPA did not want dilution to become a solution)

4. “Derived from” rule = wastes derived from from the treatment, storage or disposal of a listed wastes are deemed to be a H/W (example: if you put H/W in an incinerator, the ash that is left over is H/W)

The mixture and derived from rules were struck down (EPA did not give adequate notice or opportunity for comment) but were later reinstated.

Note: Characteristic wastes are not subject to the mixture and derived from rules unless the resulting waste still exhibits one of the characteristics.

The following case deals with incinerator ash and the household waste exception:

20

City of Chicago v. Environmental Defense Fund

Facts: It was discovered that ash from municipal waste incinerators often flunked the EPA’s toxicity test. The 1980 EPA regulations provided a “waste stream exemption” for household waste, which covered that category of waste from generation through treatment to final disposal of residues. Those regulations did not exempt the ash if the incinerator burned anything in addition to household waste. In 1984 Congress added to RCRA the “Clarification of household waste exclusion.” The issue is whether the ash – which would have been considered H/W under 1980 regulations because the facility is burning more than just household waste – is now subject to regulation under subtitle C.

Holding: The court holds that the ash is subject to subtitle C regulation. The court reasons that the facility itself is not subject to Subtitle C regulation but the ash is. Moreover, the statutory language does not even exempt the facility in its capacity as a generator of H/W. While a resource recovery facilities management activities are excluded from Subtitle C regulation, its generation of toxic ash is not. (The facility is not considered a TSD facility, but is still a generator. SO the amendment excempts them from the rigors of TSD status.)

Avoiding TSD Status

Recycling: the recycling process itself is exempt from RCRA (as long as no storage is involved)

Closed loop exemption: if spent material is reclaimed and returned to the original process and the entire process is closed through interconnected tubes and pipes, the material will not be a RCRA (even if you cannot have a closed lop system you can still recycle w/o being a TSD facility by storing the waste less than 90 days, but you still are a generator)

Use NPDES permit to discharge waste (but still have to comply with CWA regulations)

Seek to have the H/W delisted

Check for new and unpublished EPA interpretations of regulations (might be favorable)

Subtitle D and the Regulation of “Non-hazardous” Waste Disposal

Subtitle D addresses solid wastes that are not considered hazardous (and household waste that may be hazardous but is exempted under subtitle C)

More than 20 times more solid waste falls under the jurisdiction of subtitle D

These wastes are only subject to its “open dumping” ban and the EPA’s minimum standards for municipal landfills

In 1984, most landfills were unlined and sat over aquifers

21

Nonhazardous waste landfills can pose substantial threats to human health and the environment:

prior to RCRA hazardous wastes were often sent to these landfills a lot of household waste contains hazardous substances midnight dumping

Landfills are now required to perform groundwater monitoring

When designing a landfill, consideration must be given to; floodplains, endangered species, surface waters, air criteria, and safety

Has open dumping ban – no new open dumps are allowed and old ones must be worked on

RCRA outline:

(1) Is it a solid waste?

If yes, Is it a subtitle C hazardous waste or a subtiltle D non-hazardous waste?

is it a listed or characteristic waste? does the mixture rule apply? does the derived from rule apply?

(2) What exemption might apply?

(3) Is there a generator?

(4) Is there a transporter?

RCRA and CERCLA interaction:

Both are statutes that govern H/W

RCRA regulates the management of H/W

CERCLA regulates the disposal of H/W

CERCLA definition of H/W is more comprehensive and broad and includes the RCRA definition of H/W

WATER POLLUTION CONTROL

Today the biggest problem is nonpoint source pollution

The first act to control water pollution was the River and Harbors act of 1899, it was mainly designed to prevent interference with navigation

Principal federal laws addressing water pollution:

22

Clean Water Act prohibits all unpermitted discharges into the waters of the United States of pollutants from point sources

Ocean Dumping Act prohibits all dumping of waste in the ocean except where permits are issued

Oil Pollution Act makes owners of vessels discharging oil liable for cleanup costs

Coastal Zone Management Act: offers federal financial assistance to states that adopt federally approved coastal management plans

Safe Drinking Water Act regulates contaminants in drinking water supplied by public water systems

Clean Water Act

Congress enacted the Clean Water Act to restore and maintain the chemical, physical, and biological integrity of the nations waters.

The heart of the CWA is §301’s requirement for nationally uniform, technologically based limits on point source discharges administered through a national permit program

1. National Standards

The act establishes national standards for water quality (Water quality standards). Beyond a certain point the pollutant threatens health. The question is often; How much pollution can you put into a water body before its is polluted?

There are effluent limitations on the pollution/waste water dumped into a stream.

The limitations are national standards, but they are based on the ability of the polluter to control and limit the pollution (it is a technology based standard)

Plants must use the Best Practicable Technology (BPT)/Best Available Technology (BAT) that is economically achievable

There are also pretreatment standards: the plant has to have sufficient works on site to treat the water before it gets to the public treatment works

2. Point source pollution

The permit system applies to point source pollution

There are two types of pollution: point and non-point

Point source: you can point to the source (e.g. a pipe )

Non Point Source: not easily identified, runoff

Discharge requires an NPDES permit, no discharge can be made without a permit

23

There are industry standards for each type of industry (EPA sets different effluent limits)

3. Dredge and Fill permits

The act says that before you can dredge or fill a wetland area you have to get a permit from the corps of engineers

“wetlands” are controlled by federal permits

4. Oil and Hazardous substance discharge

There is mandatory reporting if the discharge is above the threshold amount

5. Categories of Pollutants:

(1) Priority pollutants – is a list of toxic chemicals (have to use BAT)(2) Conventional pollutants – pH, fecal coiliform (BCT required)(3) Non-conventional pollutanst

NOTE: Under the Water and Air Acts, negligent conduct is a crime, there are knowing violations and “knowing endangerment” violations. Both Acts also have provision for citizen enforcement; gives citizens the authority to bring suit against violators

Scope of Federal Authority to Regulate Water Pollution

CWA prohibits unpermitted discharges of pollutants to “navigable waters”

Navigable waters: waters of the US, including the territorial seas

The term “waters of the US” has a very broad meaning under the act, and the term “navigable” is of little import. The CWA is limited in jurisdiction to “navigable waters” because Congress found the authority to regulate the waters on the basis of the commerce clause. Only navigable waters can affect interstate commerce. However, courts often construe “navigable” broadly to effectuate the broad objectives of the Act.

The following case concerns whether wetlands adjacent, but not physically connected to, surface waters were part of the “waters of the US”:

In US v. Riverside Bayview Homes, Inc., D owned a marsh near the shores of a lake and began to fill it in in order to build a housing development upon it. The Corps argued that the property was an adjacent wetland covered by the regulations and therefore required a permit. The court states that Agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with expressed intent of Congress. Congress choose to define water covered by the act broadly and intended to allow regulation of waters that might not satisfy the traditional tests of navigability. We cannot say that the Corps' judgment on these matters is unreasonable, and we therefore conclude that a definition of "waters of the United States"

24

encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act. Because respondent's property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case. Corps definition of waters as including wetlands adjacent to navigable waters, even if not inundated or frequently flooded by the navigable water, was reasonable under the statutory authority

Adjacent wetlands play a key role in maintaining the “waters of the US”

Regulated activities must substantially affect interstate commerce US v. Lopez

The following case has two distinct parts:

US v. Wilson: D’s were convicted of knowingly discharging fill material and excavated dirt into wetlands without a permit The defendants challenge the authority of regulation (defining waters of the United States to include those waters whose degradation "could affect" interstate commerce) to extend jurisdiction of the Clean Water Act to the four parcels in question. They claim that their property was not adjacent to waters of the United States and that any wetlands that may have been involved were too remote from navigable waters to be under the jurisdiction of the Clean Water Act. They observe that the wetlands involved here were "more than ten miles from the Chesapeake Bay, more than six miles from the Potomac River, and hundreds of yards from the nearest creeks." The government argues that the wetlands involved in this case "were [as a factual matter] clearly adjacent to streams which flow into the Chesapeake Bay" and therefore "were properly regulated pursuant to the Commerce Clause." The court held that in instructing the jury in this case, the district court extended the application of the Clean Water Act substantially beyond the regulations that had been approved in Riverside, instructing the jury that waters of the United States included adjacent wetlands "even without a direct or indirect surface connection to other waters of the United States." This instruction intolerably stretches the ordinary meaning of the word "adjacent" and the phrase "waters of the United States" to include wetlands remote from any interstate or navigable waters. (the court looked for a surface connection between the waters)

Note: Isolated wetlands are not covered unless there is some substantial connection w/ interstate commerce. There has to a nexus or substantial affect

Fill: putting something in for the purpose of replacing the waters with dryland or raising the bottom of the waterway.

Side-casting: depositing excavated material from wetland drainage ditches next to the ditch

In US v. Wilson,(one judges opinion; is not binding law)the question was whether “side-casting” violated the CWA. The CWA prohibits the discharge (any addition) of a pollutant into the waters of the US, which includes wetlands. Here, D was a land developer who was draining the wetlands in order to build houses. The govt. argued that the “side-casting” process itself constituted a discharge of a pollutant. The court held that while “side-casting” moves excavation dirt from

25

one particular locus in the wetland to another, it does not involve the addition of any material to the wetland.

“Point Source” Discharges of Pollutants

Under the CWA, it is a felony to knowingly discharge a pollutant from a point source into a navigable water of the United States without, or in violation of, an NPDES permit.

Point source: any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, discrete fissure, or landfill leachate collection system from which pollutants are or may be discharged

Discharge: any addition of any pollutant to navigable waters (includes all waters of the US, the waters do not have to be navigable in fact) from any point source, discharge includes surface runoff which is collected or channeled by man

In NRDC v. Castle, NRDC challenged authority of the EPA to exempt categories of point sources from permit requirements of the CWA. (exemptions include irrigation return flows, storm sewers containing storm run-off) The EPA’s rationale for these exemptions is that in order to conserve the Agency's enforcement resources for more significant point sources of pollution, it is necessary to exclude these smaller sources of pollutant discharges from the permit program. The court holds that the wording of the statute, legislative history, and precedents are clear: the EPA Administrator does not have authority to exempt categories of point sources from the permit requirements of § 402. while technological or administrative infeasibility of such limitations may warrant adjustments in permit program it does not authorize Administrator to exclude relevant point sources;

where numeric effluent limitations are infeasible, permit conditions may proscribe industry practices that aggravate problems of point source pollution as well as require monitoring and reporting of effluent level; and

a number of administrative devices, including general or area permits are available to aid EPA in practical administration of NPDES program, and

FWPCA, however tight in some respects, leaves some leeway to EPA in interpretation of that statute and affords agency some means to consider matters of feasibility.

In US v. Plaza Health Laboratories, the defendant took vials of blood infected with Hepatitis-B and threw them into the Hudson River. The defendant was convicted of knowingly discharging pollutants form a point source without a permit. The defendant argues that the definition of point source does not include discharges that result form the individual acts of human beings. The court agrees and holds that the CWA does not expressly recognize a human being as a point source. The court reasoned that the CWA targets industrial and municipal production of pollutants and its criminal provisions do not reach actions such as those done by the defendant

Variances

26

FDF (fundamentally different factors) variance: EPA allows adjustment of the category wide standards for plants that could demonstrate the existence of “fundamentally different factors” compared with the industry norm

In the 1977 Amendments to the CWA Congress authorized some modifications of effluent standards in §§ 301(c), (g). These modifications could be based on economic or water quality grounds. However, along with these provisions Congress included §301(l) which prohibits modifications of effluent standards applicable to toxic pollutants.

A variance is not a modification or exemption but is a fine-tuned application of the EPA regulations. It allows the EPA to consider unique factors applicable to atypical plants. In some cases national standards may not be appropriate, hence an FDF variance allows flexibility.

In Chemical Manufacturers Association v. NRDC the NRDC argued that § 301(l) precluded FDF variances as applied to toxic pollutants. The court held that § 301(l) only precludes “modifications” of effluent standards on the basis of economic feasibility and water quality. In contrast, the FDF variances are corrective devices by which the EPA may adjust the effluent standards when it discovers that relevant factors were left out in the initial determination of those standards. As such, FDF variances are available for toxic pollutants also.

Effluent Limitations

Standards are based on technology

§301 requires that effluent limitations reflecting different levels of technology – BPT, BCT and BAT, depending upon the type of pollutant and the deadline for attainment – “shall be achieved” by dischargers.

Industry has to get NPDES permits which sets the effluent limitations

In Company has permit which allows it to discharge X,Y and Z, can a citizen file suit if company discharges A? No, permit shield provision would apply.

Water Quality Standards

States are required to establish water quality standards for surface waters

Water quality standards, Two components:

(1) designated uses: represent the purposes for which each water segment is to be protected (e.g public water supplies, fishing, swimming, agriculture)

(2) water quality criteria: reflect judgements concerning the degree of protection from individual pollutants that is necessary to attain designated uses

When combined with designated uses, water quality criteria yield what are called “water quality standards”, limits on ambient concentrations of pollutants in particular classes of water.

27

EPA has required that at a minimum, water quality standards must meet the “fishable/swimmable” goal unless that would result in “substantial and widespread economic and social impact”

States have the primary role in establishing water quality standards (which must be approved by the EPA)

States and tribes must adopt water quality criteria that specify maximum ambient levels of pollutants that will ensure that waters can be used for their designated purposes.

Water quality standards vary from state to state. Some are more lenient than others. That is fine and the EPA can approve of such standards as long as they are scientifically defensible and protective of designated uses.

In International Paper, lake shore property owners in Vermont brought a private nuisance action against a paper mill across the lake in New York (complained about stench generated form pollution). D argued that the CWA preempted state common law actions. The court held that: (1) Clean Water Act preempted Vermont nuisance law to extent that that law sought to impose liability on New York point source, but (2) Act did not bar aggrieved individuals from bringing nuisance claim pursuant to law of source state.

Once everyone is permitted (for a particular body of water) you can add up what industry is dumping to get the Total Maximum Daily Load. The agency can ten see if the TMDL matches the Water Quality Standards. If not they can start ratcheting back the permittiable levels of discharge (as permits come up for renewal) and new planst may not be able to get permits.

Application of Water Quality Standards to Interstate Pollution

EPA now requires permits to ensure compliance with the water quality standards set by downstream states

In Arkansas v. Oklahoma, the city of Fayetteville, Arkansas was issued an NPDES permit by the EPA for its new sewage treatment plant pursuant to the CWA. According to permit specifications, the Illinois River, which borders both Arkansas and Oklahoma, was to receive effluent discharge with specific limitations from this new point source However, the spring-fed waters of that river were already in a severe state of degradation in violation of Oklahoma's current WQS. Subsequently both Arkansas and Oklahoma challenged the EPA Administrator's rulings in issuing the permit The EPA had determined that the new permit must comply with Oklahoma's WQS, but further found that since there was no detectable impact on Oklahoma's waters, the permit should be issued. Arkansas challenged the EPA's authority to require compliance with Oklahoma's more stringent WQS. The Court held that the EPA has the authority to require such compliance with downstream states' WQS, and that the EPA had reasonably used a detectable impact standard to determine that Arkansas' discharge would not violate Oklahoma's WQS

EPA has broad discretion in setting standards.

28

Wetlands Protection and the §404 Permit Program

The CWA establishes a separate permit program, in addition to NPDES, to govern discharges of dredge and fill material.

§404 requires all dischargers of dredge and fill to the waters of the US to obtain a permit from the Army Corps of Engineers

The following case challenges the Tulloch rule which defined “discharge of dredged material” to include “any addition, including any redeposit, of dredged material, including excavated material, into the waters of the US”

Redeposit occurs when material removed from the water is returned to it; when redeposit takes place in substantially the same place as the initial removal it is termed “fallback”

In National Mining Association v. Army Corps of Engineers, NMA argued that the definition of “discharge of dredged material” exceeded the scope of the Corps’ regulatory authority under the Act by regulating “fallback”. They specifically argue that discharge means the addition of any pollutant to navigable waters and that fallback cannot be said to constitute the addition of anything. The court agrees and holds that the straightforward statutory term “addition” cannot reasonably be said to encompass the situation in which material is removed from the waters of the US and a small portion happens to fall back. (no addition then no discharge) The court recommended that the agencies draw a bright line between incidental fallback on the one hand and regulable redeposits on the other and suggests that such a line would receive deference.

The court notes that the Rivers and Harbor Act of 1899 make it illegal top excavate or fill the navigable waters of the US w/o the Corp’s approval. But that act only covers waters subject to the ebb and flow of the tide or those susceptible for use to transport interstate or foreign commerce.

Note: The Tulloch Rule was designed to prevent developers from simply draining wetlands as an end run around the §404 permit process.

The §404 Permit Process

§404(b)(1) guidelines provide that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative … which would have less adverse impact on the aquatic ecosystem …”

The guideline define an alternative as “practicable” if it is “available” and “capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes”

If alternatives are available the permit is to be denied w/o further inquiry

The developers bear the burden of proving that there are no alternatives available

THE CLEAN AIR ACT

29

The Act establishes comprehensive sets of measures to control outdoor air pollution throughout the nation.

The centerpiece of the law involves controlling the six conventional pollutants. Through the EPA, the federal government establishes national ambient air quality standards (NAAQSs) for these pollutants. State governments decide how the numerous existing sources within their jurisdictions whose emissions contribute to the ambient levels of these pollutants ought to be controlled in order to meet those NAAQSs for their jurisdictions.

§109 of the CAA requires the EPA administrator to set primary NAAQSs at the level “which in the judgement of the Administrator, based on the ambient air quality and allowing an adequate margin of safety, are requisite to protect the public health

NAAQSs have been developed for Sulfur Dioxide, Carbon monoxide, Ozone, Nitrogen dioxide, PM10 (particulate matter), and Lead. These are the only ones on the list and each has policy reasons for being there (must know for test)

Parts of the country that continue to exceed the NAAQSs are classified as nonattainment areas and additional conditions are imposed on many polluting activities in an attempt to move them towards compliance.

NESHAPS govern hazardous air pollutants and require an ample margin of safety (which is a stricter standard)

Areas that have high levels of air quality are classified according to a prevention of significant deterioration (PSD) program

National Ambient Air Quality Standards

The goal of the CAA is to achieve air quality levels throughout the country that protect the public health and welfare.

The goal is implemented by setting national ambient air quality standards (NAAQSs) and then having the states decide how to control local pollution sources so as to meet those standards.

§109 of the CAA requires the EPA administrator to set primary NAAQSs at the level “which in the judgement of the Administrator, based on the ambient air quality and allowing an adequate margin of safety, are requisite to protect the public health

The Clean Air Act requires EPA to promulgate and periodically revise national ambient air quality standards ("NAAQS") for each air pollutant identified by the agency as meeting certain statutory criteria. See Clean Air Act §§ 108-09.

In Lead Industries Association v. EPA, LIA argued that (1) the EPA must consider the economic impact of the proposed standard on industry and the technological feasibility of compliance in determining the allowance for margin of safety and (2) the EPA must show that the effects on which the standards are based are clearly harmful to public health. The court held that (1) §109 speaks only of protecting public health and welfare, the EPA was not required or

30

allowed to consider economic or technological feasibility in setting the air quality standards; (2) there is no requirement that the effects be clearly harmful, the standards should allow an appropriate margin to protect against affects which have not yet been uncovered of whose significance is a matters of disagreement

Revising NAAQSs

EPA is required to review and revise its air quality criteria and the NAAQSs at five-year intervals

EPA has been reluctant to revise its NAAQSs because of the enormous admin burden such revisions would generate

Scientific uncertainty has been the principal rationale used by the EPA when it has declined to revise NAAQSs

Non Delegation and the NAAQSs

For each pollutant, EPA sets a "primary standard"--a concentration level "requisite to protect the public health" with an "adequate margin of safety"--and a "secondary standard"--a level "requisite to protect the public welfare."

The criteria EPA has announced for assessing health effects in setting the NAAQS for non-threshold pollutants (ones that have some possibility of some adverse health impact (however slight) at any exposure level above zero): EPA basically considers severity of effect, certainty of effect, and size of population affected

In 1997 EPA lowered the ozone standard and added a new standard for fine particles of 2.5 microns or less (PM2.5)

The new NAAQSs were immediately challenged:

In American Trucking Associations v. EPA, a number of small business petitioners argued that that EPA has construed §§ 108 & 109 of the Clean Air Act so loosely as to render them unconstitutional delegations of legislative power. The court held that construction of Clean Air Act on which EPA relied in revising NAAQS for ozone and particulate matter (PM) effected unconstitutional delegation of legislative power, necessitating remand to allow EPA to develop permissible construction, in that EPA failed to articulate intelligible principle channeling its application of factors used to determine degree of public health concern associated with ozone and PM, and none was apparent from Act, essentially leaving EPA free to set NAAQS without limits on its discretion. Although the factors EPA uses in determining the degree of public health concern associated with different levels of ozone and PM are reasonable, EPA appears to have articulated no "intelligible principle" to channel its application of these factors; nor is one apparent from the statute. The non-delegation doctrine requires such a principle. The court remands the case in order to allow the agency to come up with some binding standards.

31

Note: The above case was from the D.C. Circuit. There is a provision in the CAA that gives the DC Circuit exclusive jurisdiction over the CAA, so its decisions are nationally binding.

Other factors the agency might (or that others suggest they should) consider are background levels (like of ozone which naturally occurs) and sensitive populations (people who have asthma are particularly sensitive to substances in the air)

Implementation

CAA is a technology forcing statute in that it forces technology to be developed in order to comply w/ NAAQSs

NAAQSs define the minimum acceptable levels of air quality to be achieved throughout the nation for the criteria air pollutants. The EPA promulgate s the NAAQSs, but the states have the responsibility of developing a state implementation plan (SIP)

To develop an acceptable SIP state must: determine existing levels of the pollutants in each AQCR within states boundaries, provide for emissions limits, monitoring and enforcement programs, compliance timetables, ect. (must come up with a plan on how to attain national standards)

Upon EPA approval, the SIP becomes federally enforceable

§110 authorizes EPA to promulgate national ambient air quality standards for ozone and five other pollutants. Areas that do not meet the minimum level of air quality mandated by these national standards are considered to be "nonattainment areas." The degree of nonattainment is classified as marginal, moderate, serious, severe, or extreme. If a state has an area within it that EPA has classified as being in nonattainment with respect to ozone (or one of the five other regulated pollutants), the state must devise and implement a "state implementation plan" Section 110 governs the interplay between the states and EPA with respect to the formulation and approval of such State Plans. The basic procedure is that "each state determines an emission reduction program for its nonattainment areas, subject to EPA approval, within deadlines imposed by Congress. Should a state fail to submit an implementation plan, or should its plan fail to provide the required reductions in air pollution, certain penalties-- some mandatory, others at EPA's discretion--may follow The noncomplying state may, for instance, be prevented from spending federal highway money in nonattainment areas. This sanction becomes mandatory if the state fails to implement an adequate State Plan within 24 months of EPA's finding that the state's proposed plan is deficient. At that same point, EPA must impose a "federal implementation plan" on those areas of the state in nonattainment.

In Union Electric Co. v. EPA, Missouri had adopted a SIP that required substantial reductions in emissions of SO2 A number of utilities argued that the EPA should not have approved the plan because it required the utility to do what was technologically and economically impossible. The court states that Congress intended claims of economic and technological infeasibility to be wholly foreign to the Administrator's consideration of a state implementation plan. The States may adopt such more rigorous emission standards, and the Administrator must approve plans containing them if the minimum federal requirements are satisfied. The proper forum for such complaints is before the state agency.

32

Note: EPS shall approve a SIP as long as it meets the CAA requirements.

The Federal Role

"SIP call"--EPA's declaration that a state's implementation plan is substantially inadequate and must be revised

EPA is authorized to call for a SIP revision whenever it finds that an existing plan is “substantially inadequate to attain or maintain the relevant NAAQSs, to mitigate interstate transport of pollution, or otherwise comply with the act.

In the following EPA issued a SIP call for twelve northeastern states and sought to get them to adopt the Ca. Program:

In Virginia v. EPA, the court determined that the EPA’s SIP call effectively ordered the adoption of CA standards (as other options were so impracticable as to be no option at all). The court states that under the CAA the EPA decides the “ends” (NAAQSs) and the states are responsible for the “means.” Each state determines an emissions reduction program for its nonattainment areas, subject to EPA approval, within deadlines imposed by Congress. Court holds that the EPA may not, under section 110, condition approval of a state's implementation plan on the state's adoption of a particular control measure.

Federal Implementation Plans

If the state fails to implement an adequate State Plan within 24 months of EPA's finding that the state's proposed plan is deficient, EPA must impose a "federal implementation plan" on those areas of the state in non-attainment.

EPA has been reluctant to do so and has some option short of writing an FIP:

Conditional approval: can condition its approval on state promulgating revisions as long as the SIP’s deficiencies are minor and can be corrected within one year

Can apply a series of sanctions: suspend federal highway funds, increase pollution offset rates required for new sources

Incentive-Based techniques for improving air quality

Offsetting: refers to emissions from one source being offset by emissions from a source at another location, is a requirement for obtaining a new construction permit within non-attainment areas

Bubbling: refers to placing multiple co-located emissions sources under an imaginary bubble and then treating the total emissions emerging from the bubble as the amount that has regulatory significance (the idea is that plant managers will know better how to achieve any stipulated amount of emissions reduction than regulators)

33

There is a national market set up for SO2 allowances. The system is based on a system of allowances that can be banked or sold by emitters. each allowance is equivalent to one ton of emissions.

Interstate Acid Deposition

Acid deposition is a major environmental concern and is primarily associated with sulfur emissions which are due mainly to coal burning power plants

The sulfur content of coal burned by utilities depends upon the geological origin of the coal: whereas coal mined in the western United States has the lowest sulfur content, almost all of the coal mined in the "Illinois Basin," including most of Illinois and parts of Indiana and western Kentucky, has a relatively high sulfur content.

1990 amendments to CAA created a Title IV program to deal with acid deposition. It places a cap on emissions and is an incentive bases pollution reduction strategy.

The 1990 Act implemented an innovative market-driven approach to emissions regulation, allowing for the free transfer of emissions "allowances." The Act is aimed at reducing emissions efficiently and allows utilities to meet the standards in the cheapest manner possible. To comply with the new emissions limitations, utilities now have a choice of the following strategies: (1) installing pollution control devices; (2) using low-sulfur coal; (3) purchasing allowances to emit sulfur dioxide; (4) switching to another fuel; (5) closing down certain units; (6) offsetting emissions at one plant by over-complying at another; or (7) adopting some combination.

Most utilities have switched to low-sulfur coal

In Alliance for Clean Coal v. Bayh, Indiana adopted a law that encourages utilities to use high-sulfur coal by providing economic incentives. The Alliance argued that the act unjustifiably discriminated against interstate commerce (it that it seeks to protect the regional industry). The court says that the State Act discriminated against interstate commerce in violation of commerce clause of federal Constitution. The Act was basically a protectionist measure and was not justified by any legitimate and compelling governmental interest.

Ozone discussion:

Ozone blocks UVb – ozone holes allow UVb to pass through and be absorbed by humans

Normally ozone occupies the Stratosphere and breaks down incoming UVb

UVb (from sun) is absorbed by O3 (ozone) which breaks down to O2 and O they then reform O3 and the process continues

34

However, CFC’s alter the normal process. They find their way up to the stratosphere and also absorb Uvb, the CFC then breaks down to Cl and FC

The problem is that Cl will pair up with the loose O (free radical oxygen) which prevents the normal reformation of O3

CFC’s (at least in America) have been replaced w/ HFC’s (which breaks down to Halogen and FC), but Halogen does the same thing that Clorine was doing. So the “solution” is now the problem

RISK ASSESSMENT

The Benzene decision: OSHA sought to reduce the exposure level of benzene to 1ppm (but had no real evidence other than “less is better”). The industry challenged the agencies attempt and argued that a cost-benefit analysis was required. The court holds that the agency must first make the threshold determination that a risk exists (place burden on agency to show that the workplace is unsafe). Court says then you decide what risk is significant (safe does not equal risk-free).

Although the agency has no duty to calculate the exact probability of harm, it does have an obligation to find that a significant risk is present before it can characterize a place of employment as “unsafe”

OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty. Although the agencies finding must be supported by substantial evidence, the agency to regulate on the basis of the “best available evidence”

Risk Assessment Techniques

There are four principal steps in the process:

Hazard identification: Is the item under study casually linked to particular health effects?

Does-response assessment: What is the relationship between the magnitude of exposure and the probability that the health effects will occurs?

Exposure assessment: What is the level of exposure of humans (or the environment) to the hazard?

Risk characterization: What is the overall magnitude of the risk?

Risks can be characterized either in quantitative or qualitative terms:

Quantitative risk assessment generally specify either the total numbers of people likely to experience the adverse effect or the likelyhood that any one individual exposed to the hazard would suffer the adverse effect.

Note: almost all risk assessments are plagued by inadequate data

35

FIFRA Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

Purpose: regulate the sale and distribution of pesticides

The act governs regulation of pesticides and is a risk-balancing statute

It prohibits the marketing of pesticides that are not registered with EPA

Before a new pesticide can be registered with EPA, the agency must review information about the risks and benefits of the product

§3 Registration of pesticides: requires all pesticides to be registered (applicant must demonstrate that pesticides will not cause unreasonable adverse effects on the environment)

§6 provides for automatic cancellation after five years unless registrant requests that it be reregistered.

Authorizes EPA to cancel registration if pesticide is found generally to cause “unreasonable adverse effects on the environment”.

EPA may suspend the registration of any pesticide pending completion of formal cancellation hearings if the agency determines that suspension “is necessary to prevent an imminent hazard to human health”

If EPA determines that an immediate suspension is necessary “to prevent an imminent hazard during the time required for cancellation” the suspension can take effect immediately

The Administrator must consider the impact of the action on agricultural commodities, retail food prices, and otherwise on the agricultural economy

States may not impose regulations in addition to or different from those required by FIFRA

Pesitcide: (1) any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest, and (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or disiccent (dryer)

A substance or mixture of substance is a pesticide under the act if it is intended for preventing, destroying, repelling or mitigating any pest

Because a product has other uses, does not preclude a registration requirement

The Toxic Substances Control Act TSCA

Policy: avoid environmental and health problems by front-end regulation of chemical production and use

36

§5 of the act requires a manufacturer to give notice to the EPA before manufacturing a new chemical substance, or manufacturing or processing any chemical substance for a “significant new use”

§4 empowers the EPA to require testing by manufacturers of substances on finding that such testing is necessary because there is insufficient data to predict the chemicals effects

The Safe Drinking Water Act SDWA

The SDWA authorizes EPA to limit contaminants in public drinking water supply systems that have at least 15 service connections or that regularly serve at least 25 individuals

The EPA is instructed to establish heath-protective goals for contaminants in drinking water, which are termed maximum contaminant level goals (MCLGs)

The MCLGs are the level at which no adverse health affects occur and is the level of quality we really want.

The real standard, however is MCL (maximum contaminant levels) which are set as close as “feasible” to levels of MCLGs, the agency has to consider costs.

The Emergency Planning and Community Right-to-Know Act

Purpose: to support emergency planning by local governments and to provide citizens and local governments with information about potential community-based chemical hazards (to allow community to prepare for a possible emegency)

Congress adopted legislation requiring comprehensive emergency planning and the reporting of chemical release

§301 requires the establishment of state response commissions and local emergency planning commissions, which must develop comprehensive emergency response plans

The most significant requirement of EPCRA is §313, which requires annual reporting of releases of toxic chemicals

Owners and operators of certain facilities must (1) submit an annual report of releases of toxic chemicals and (2) must inform citizens about chemicals located in their communities, by submitting to state and local authorities information about toxic chemical inventories, usages, manufacture, and release.

The annual results are called the Toxic Release Inventory (TRI)

The information generated by the reporting requirements must be made available to the public through a national computerized database

The availability of info about release has enabled the public to put substantial pressure on companies to reduce emissions. The TRI give the industries a string incentive to protect or repair their reputations by reducing their release.

37

The TRI has helped EPA adjust its regulatory priorities by revealing that some chemicals are released in far greater quantities that the agency had anticipated

THE REGULATORY PROCESS

The regulatory process is the arena in which law is translated into policy

Most environmental regulations are promulgated through informal rulemaking (although pesticide cancellation hearings under FIFRA still involve formal adjudicatory hearings

Informal rulemaking proceedings are governed by the Administrative Proceeding Act (APA) which requires that agencies provide: (applies to federal agencies that have rule making authority)

(1) public notice in the Federal Register of proposed rule-making actions

(2) an opportunity for the public to submit written comment

(3) publication of final rules in the federal Register accompanied by a concise statement of their basis and purpose

The above requirements are based on due process notions which require notice and comment

Most rule-making is informal, agencies only use formal rule-making if required to by statute (de-listing pesticide requires formal hearings)

Timeline of informal federal rulemaking (ANPR = advanced notice of proposed rule)

Citizen petitions

or agency ANPR PR draft PR Final Ruleinitiates process

comments comments comments

Despite the minimal procedural requirements, it has become enormously difficult for regulatory agencies to issue regulations through informal rule-making. Fear of judicial reversal has caused agencies to bend over backwards to supply detailed justifications for their actions.

The President and Congress often seek to influence agency decisions. The following case address the legal bounds on executive and congressional oversight of the rule-making process:

In Sierra Club v. Costle, some environmental groups claimed that EPA’s new standards for coal-fired plants had been weakened by eleventh hour intervention of President Carter and his staff. The issue was whether such oral communications with the White House must be documented on the rule-making

38

record. (if order to facilitate judicial review of everything the agency to into consideration in making its decision) The court held that the EPA does not have to docket every policy session involving the president and EPA officials during the post-comment period unless the EPA bases the rule on information or data arising form that meeting. The court recognizes that the political process can affect the outcome in a way the courts cannot police but Congress did not intend a purely technocratic unaffected by political considerations.

Judicial Review and the Regulatory Process

The major federal environmental statutes specifically authorize judicial review of agency action taken pursuant to them

Threshold requirements for agency review:

standing to sue in order to have standing P must have:

1. Injury-in-fact2. injury within the “zone of interest”3. Injury can be remedied by the court (redress requirement)4. Injury is traceable to the challenged action

ripeness – the action must be ripe for review by the courts

1. Whether agency action will not be disrupted by judicial review at this point

2. Whether rights o consequences will be determined from the agency action

exhaustion – P’s must have exhausted all admin procedures. Court will look at :

1. Degree of P’s injury2. Need to protect agency functions3. Applying agency experience will be helpful to the court through the

agency record4. judicial economy

What is the standard of review?

The APA specifies a relatively deferential standard of agency review: §706 provides that courts are to overturn agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”

With the enactment of NEPA courts began a period of greater scrutiny of agency action characterized as the “hard look” doctrine: (court gives hard look at agency decision to see if agency gave hard look)

1. Has the agency relied on factors Congress intended?2. Has the agency considered important aspects of the problem?3. Does the agency’s explanation fit the evidence?

39

4. Is the decision so implausible that it could not be explained by agency expertise?

Then in ’78, Vermont Yankee mandated greater judicial deference to agency procedural decisions.

In Chevron USA v. NRDC, the issue was whether EPA's decision to allow States (under the CAA) to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble" is based on a reasonable construction of the statutory term "stationary source." In response the court sets out a two-part test: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is (2) whether the agency's answer is based on a permissible construction of the statute. The court concludes that Congress did not have a specific intention of the applicability of the bubble concept and that the EPA’s use of the concept is a reasonable policy choice. It’s interpretation represents a reasonable accommodation of competing interests and is entitled to deference.

Two step test:

(1) Is the statute ambiguous (look at plain meaning and then look at legislative intent)?

(2) Did agency take a reasonable action?

The above test gives the court a lot of room to offer deference

General rule: When an agency makes a decision, the agency needs to have a record to review and the agency decision must be reasonable

How to determine if a P is entitled to judicial review of an adverse agency decision:

Does P meet the threshold requirements?

(1) does he have standing(2) is issue ripe(3) has he exhausted all agency remedies

If P is entitled to judicial review, must then decide what standard of review applies?

Look to see if there are any standards in the enabling statute If no standards then APA §706 “arbitrary and capricious” standard is used

40

Finally the decision has to be based on a record and reasonable analysis of the record.

Land Use Controls and Regulatory Takings

The 5th amendment o the US Constitution provides that “private property shall not be taken for public use, without just compensation”

Takings require compensation, regulations do not

Remedy for a “taking” (even a temporary one) is damages; “monetary compensation”

There are two categories of regulatory actions that are always takings (no need for case-specific inquiry):

(1) permanent physical occupations are always takings(2) where regulation denies all economically beneficial or productive use of land

As a general rule property may be regulated to a certain extent, but if the regulation goes too far it will be recognized as a taking (the question is how much is “too far”)

Virtually every form of land use regulation that effects property values has been challenged as a taking of private property

In Penn Central: the city designated grand central terminal as a landmark, Penn wanted to build an office building above the terminal, commission refused the plans and Penn argued that the application of the landmarks law constituted a takings. Specifically Penn argued : (1) airspace was a property interest and the (2) the operation of the law has significantly diminished the value of the site. Ct. said law does not interfere w/ Penn’s primary expectations concerning the use of the parcel (still functions as a railroad terminal) and that they have not been denied all use of the air rights since they have been made transferable. The court held that Landmarks Law has not effected a "taking" of appellants' property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties

New standard: did regulation interfere with investment backed expectations

Transferable development rights: (TDRs) this approach severs development rights from other rights in land and treats them as a separate item, the right to develop is restricted at the conservation site but owners of the restricted land are given TDRs that can be used for development, beyond what would otherwise be permitted, in transfer areas

Modern revival of regulatory takings jurisprudence

First Evangelical: established temporary taking – “fair value for the use of the property during such period”

41

Keystone: (1) the more drastic the reduction in value of the owner’s property the more likely a taking is to be found but (2) where the state is acting to prevent a harm to the public, the courts will be very reluctant to invalidate the regulation as a taking

Nolan: land use regulation does not effect a taking if it substantially advances a legitimate state interest

In Lucas v. South Carolina, state enacted act to protect coastline from erosion. The act bars owners of lots on the beach from building permanent structures. P bought a lot for one million and intended to build houses on it, he now argues that the Act deprived him of all economic use of his property and is therefore a taking. The state argued that South Carolina was merely exercising its police power to prevent harm to the public and that such regulation of “harmful or noxious use” does not require compensation. The court holds that, even if the state is trying to protect the health and safety of the public, if P has been deprived of all economically viable use a “taking” has occurred.

Note: Very rarely is there a 100% taking of all property value, like in Lucas

PRESERVATION OF BIODIVERSITY

Biodiversity: the variability among living organisms from all sources, including terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species, and of ecosystems

The Endangered Species Act is the cornerstone of US efforts to conserve biodiversity.

In National Association of Home Builders v. Babbitt, a fly, which habitat consisted of two counties, was placed on the ES list. The county govt. was stopped from enlarging a road intersection as it would lead to a taking of the fly (term take includes significant habitat degradation) in violation of the ESA. The county argued that the federal government does not have the authority under the commerce clause to protect the fly’s habitat because it did not bear a sufficient relationship to interstate commerce. The court held that held that application of Act's prohibition against taking of endangered species to endangered species of fly was proper exercise of Commerce Clause power to regulate use of channels of interstate commerce. Moreover, application of Act to endangered species of fly was constitutional exercise of Commerce Clause power to regulate activities substantially affecting interstate commerce, in that it (1) prevented destruction of biodiversity and thereby protects the current and future interstate commerce that relies upon and (2) the provision controls adverse affects of interstate competition.

The Act empowers the Secretary of the Interior (the Secretary) to list species as either "endangered" or "threatened" based on any of the following factors:

(1) present or threatened destruction of a species' habitat or range; (2) its overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; (5) or other threatening factors (natural or manmade).

42

An endangered species is one "in danger of extinction throughout all or a significant portion of its range."

A threatened species is one which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range

Civil and criminal penalties may be imposed for violations of the Act.

§1540 (b) Criminal Violations: “Any person who knowingly violates” a provision of the act or a regulation.

Under the regulations it is unlawful to (1) “take” and endangered species or (2) carry and transport an endangered species illegally taken

“Take” includes harassing, harming, killing, capturing, or collecting

Determination of jeopardy: (3 step process outlined in Thomas v. Peterson)

1. Informal inquiry: whether threatened or endangered species “may be present”

2. Biological assessment – to determine whether such species is “likely to be affected”

3. Formal consultation with FWS – which results in a biological opinion – is the species jeopardized by the proposed action?

§ 7 requires all Federal agencies to take “such action as is necessary to insure that actions authorized, funded, or carried out by them do not result in the destruction or modification of [a] critical habitat area [of an endangered species].”

§7 provides for review of all federal actions that may affect endangered species and section 7(a)(2) prohibits those actions that are found to “jeopardize” the existence of any such species.

In TVA v. Hill the Secretary of the Interior listed the snail darter (a small fish) as an endangered species. In addition, the Secretary found that the snail darter only lives in a portion of the Little Tennessee River which would be completely inundated by a reservoir that would be created by the federally-funded Tellico dam which was already near completion. Accordingly, the Secretary declared the area the “critical habitat” of the snail darter. The plaintiffs brought suit to enjoin the completion of the dam and the impoundment of the reservoir as a violation of the ESA. The Supreme Court upheld the issuance of a permanent injunction declaring that an examination of the language, history, and structure of the ESA “indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” The Court admitted that the injunction will result in a waste of millions of dollars spent in the Tellico Dam project, but held that it supersede the “incalculable value” of an endangered species.

Note: TVA was a clear repudiation of the balancing approach favored by the economics perspective. An enormous amount of money had already been spent on the dam and little work remained to be done, but the court held that these factors were simply irrelevant. In

43

response to TVA, Congress amended the ESA to provide an escape hatch in the form of a special committee (commonly called the “God committee”) which can override §7 if there are no reasonable alternatives to agency action, the benefits clearly outweigh those of compliance with the statute, and the action is in the public interest and has at least regional significance.

In Thomas v. Peterson the plaintiff’s sought to enjoin the Forest Service’s construction of a timber road in a former National Forest roadless area for failure to comply with the Endangered Species Act in considering the effects of the road and timber sales on the endangered Rocky Mountain Gray Wolf. The Forest Service argued that the failure to conduct a biological assessment was an insignificant procedural violation and should not support an injunction enjoining the completing of its project. The court held that the violation was significant because the procedural requirements of ESA were necessary to ensure compliance with its more substantive provisions. The court analogized a failure to conduct a biological assessment under ESA to a failure to conduct an environmental impact statement under NEPA.

Protection against Private Action: section 9

ESA also provides listed species some protection against private actions.

Section 9 prohibits any person (including any corporation or other private entity, and any government agency) from taking, selling, importing, or exporting any protected species

In Palilia v. Hawaii, some imported sheeps and goats were harming trees which an endangered species of bird, depended on for food. The SEc of Interior defined “harm” as an act which actually kills or injures wildlife. The state argued that this was an indirect effect on the bird and hence was not a “harm” as defined by the Sec of Interior. The court held that a finding of “harm” does not require a showing of death to individual members of a species, but rather only “an adverse impact on the protected species.” Court concluded that the habitat modification was preventing the population from recovering.

Section 10 of the ESA provide some flexibility for “incidental takings” The section authorizes the Sec. To permit incidental takings associated with private action if the actor prepares a habitat conservation plan (HCP) to minimize the impact of the taking and assures that it will not appreciably reduce the likelihood of the survival and recovery of the species. (for example one developer was allowed limited housing development of 13% of a butterfly habitat by enacting a plan to permanently protect the other 87%)

In Babbitt v. Sweet Home Chapter, the Sec defines "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife." Respondents, persons and entities dependent on the forest products industries and others, challenged this regulation on its face, claiming that Congress did not intend the word "take" to include habitat modification. The court held that Secretary's definition of "harm," within meaning of ESA provision defining "take," as including "significant habitat modification or degradation that actually kills or injures wildlife" was reasonable. The court reasoned that Secretary's interpretation was supported by (1) ordinary understanding of word "harm," (2)

44

broad purpose of ESA to protect endangered and threatened wildlife, and (3) provision authorizing issuance of permits for otherwise prohibited takings which are incidental to otherwise lawful activities, and legislative history established Congress' intent that "take" apply broadly to cover indirect as well as purposeful actions.

Note on private actions: The federal government cannot tamper with an individuals property rights (they can tell you what to do with animals) they cannot tell a private landowner what to do with the plants on his own land. So if you own land on which there is an endangered, you can chop it down w/o fear of violating the ESA. However, if you violate state law in destroying the plant (say by trespassing on neighbors property) you will be liable under the ESA.

ENVIRONMNETAL ENFORCEMENT

The EPA has a Self-Policing policy whereby companies can file requests for relief in cases giving rise to potential criminal violations.

The Self-Policing Policy criteria require clear efforts on the part of the disclosing entity to discover, disclose and correct the shortcomings that gave rise to the violations.

There are nine conditions:

1. Discovery of the violation through an environmental audit or due diligence

2. Voluntary discovery (as opposed to a required monitoring procedure)

3. Prompt disclosure (within 10 days)4. Discovery and disclosure independent of government or

third party plaintiff (includes a whistleblower)5. Correction and remediation (within 60 days)6. Prevent reoccurrence7. No repeat violations8. Other violations excluded9. Cooperation

Tools of enforcement: (in order of severity/formality)

1. Informal action letter : advise regulated entity of what they should be doing

2. Notice of violation : formal warning, if entity remedies violation no further action is taken

3. Administrative order : formal order requiring entity to come into compliance

4. Civil suits : agency seeks injunction in federal court

5. Criminal charges (if applicable under statute)

45

NOTE: In the administrative actions the EPA exerts a great amount of influence and settlements are likely. However, when civil suits arise, the Department of Justice takes jurisdiction and the EPA loses much of its influence.

Problem: a lot of entities see compliance penalties as a cost of doing business and are simple “waiting to be caught”. They know EPA has limited resources, and take their chances on being caught.

As a result, EPA will reduce fines if there is voluntary compliance

Penalty policies: civil penalties are calculated based on the gravity of the offense, the economic benefit of delayed compliance, the willfulness of the offense, and the violators past compliance and cooperation with enforcement authorities.

The trial court has a lot of discretion in setting the penalty

Citizen Enforcement

Environmental laws allow 3 types of citizen suits:

(1) Citizen enforcement actions : allow private parties to act a private attorney generals to supplement government enforcement

(2) Deadline suits : allow citizens to challenge agencies failure to meet a statutory deadline. Designed to ensure that regulations implementing the environmental statutes are issued

(3) The federal environmental laws also include judicial provisions that authorize citizen suits to review the legality of agency actions

Under the CWA, in absence of federal or state enforcement, private citizens may commence civil actions against any person “alleged to be in violation of” the conditions of either a federal or state NPDES permit. If the citizen prevails in such an action, the court may order injunctive relief and/or impose civil penalties payable to the US Treasury.

However, no action may be commenced:

A. Prior to sixty days after the P has given notice of the alleged violation to the Administration, the State, and the violator or

B. if the Administrator or the Sate have commenced a civil or criminal action

The purpose of the notice provisions is to allow compliance.

The following case addresses the issue of whether citizens can bring enforcement actions under CWA on the basis of wholly past violations. (answer is NO)

In Gwaltney of Smithfield, Ltd v. Chesapeake Bay Foundation, the foundation brought suit against D for violating its permit conditions. However, D upgraded its facilities and its last permit violation occurred several weeks before the

46

Foundation filed its suit. D argued and the S. CT agreed that citizens may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation. The harm sought to be addressed by the citizen suit lies in the present or the future, not in the past. Thus, a citizen suit cannot be brought for a wholly past violation unless the plaintiff could show a reasonable likelihood that a past violator will violate again.

The most natural reading of “to be in violation” is a requirement that citizens allege a state of either continuous or intermittent violation.

However, a citizen can bring suit for good faith allegations of intermittent or on-going violations.

Note: The CWA has been a popular vehicle for citizen suits because it was easy to prove that a violation occurred by using D’s own discharge monitoring reports (DMRs)

Remember in order to have standing to sue the Plaintiff must show:

(1) Injury-in-fact(2) Injury can be remedied by the court (redress requirement) and that(3) Injury is traceable to the challenged action

Moreover, under the mootness doctrine, citizen suitors lack standing to seek civil penalties for violations that have been abated by the time of the suit.

What happens if D goes into compliance while the suit is pending? is the issue moot?

Mootness = there is nothing left to be decided. For a finding of mootness, D has to show there is no possibility that the violation will reoccur.

In Friends of the Earth v. Laidlaw Environmental Services, D ‘s discharges exceeded the permit limits nearly 500 times and FOE brought suit. The last violate doccured before the D.Ct judgemnet was entered. The D.CT found for FOE and assessed a civil penalty. D argues that FOE lacked standing in that there was (1) no injury in fact and (2) no redressibility (since civil penalties are only paid to the goveremennt and would not redress any injury P’s have suffered) D also argued that the case (3) became moot once the defendant voluntarily complied with the terms of its permit.

The S.Ct held that (1) P has to show that members made use of the area affected or lost resources because of D’s discharges. Actual use followed by deprivation because of D’s actions constitutes “injury-in-fact.” Here, P offered sufficient evidence of members who once used the environment but now can’t (2) Moreover, civil penalties may serve as an alternative to an injunction, to deter future violations and thereby redress the injuries that promoted a citizen suitor to commence litigation (3) defendants voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.

If relief sought will deter future conduct, that is a form of redress

Plaintiff has to have standing for each part of the relief they want.

47

P has to show that members made use of the area affected or lost resources because of D’s discharges. Actual use followed by deprivation because of D’s actions constitutes “injury-in-fact”

CITZEN SUITS – TEST OUTLINE

Things to look for:

(1) Is it a past, present or continuos violation?

If wholly past violation, then citizen has no standing (Gwaltney) If they come into compliance prior to suit, a citizen can bring suit for

good faith allegations of intermittent or on-going violations If they come into compliance while suit is pending, this will not suffice

to moot the suit unless it is absolutely clear that the point is moot (Laidlaw)

(2) Is there an injury?

Must have an injury in fact – actual use followed by deprivation “Injury” is injury to the environment and to the person Redressibilty includes civil penalties payable to the government

(3) Must show violation of standard (under applicable statute)

Under CWA – did they violate permit Under EPCRA – did company fail to report toxic emissions Under RCRA you do not have to allege a violation of a standard if you

can show imminent danger

How do you check for compliance?

Under EPCRA – check computer database on WWW

Under other Acts – can get access to info (permit/reporting) via FOIA

Permit Shields

§402 of the CWA contains a “shield provision” that defines compliance with an NPDES or SPDES permit as compliance with §301 for the purpose of the CWA’s enforcement provisions.

In Atlantic States Legal Foundation v. Eastamn Kodak, the issue was whether a private group may bring a citizen suit to stop the discharge of pollutants not listed in a valid permit issued under the CWA. Here, Kodak had a state permit (SPDES) to discharge 25 pollutants but was also discharging some other pollutants. Atlantic brought suit and argued that §301 of the CWA prohibits the discharge of any pollutants not authorized under the permit. The court holds that Polluters may discharge pollutants not specifically listed in permits under state or

48

national pollutant discharge elimination system (SPDES) (NPDES), so long as they comply with appropriate reporting requirements and abide by new limitations when imposed on such pollutants.

Environmental Justice

Environmental justice issues arise whenever a facially neutral practice produces a disparate impact on a minority group when compared with the general population

It is argued that minorities have been expose to disproportionate health or safety risks from known hazards such as chemical waste dumps or environment polluting industrial sites

The inequities can be procedural (use English to communicate with non-English speaking people), Geographical (benefits and burdens of waste disposal are in different locations) and Social (institutional racism)

Legal Theories for ENV justice:

US Constitution, Equal protection (P must defendant acted with racially discriminatory intent)

Title VI of the civil Rights Act (“no person should be subject to discrimination under any program receiving federal funds”)

Executive order 12.898 (requires that each federal agency make achieving env justice a part of its mission)

EPA “Interim guidance for investigating complaints challenging permits”

Includes claims of discrimination concerning any program, activity, grant or permit program

Properly pleaded complaint:

1. in writing, signed, with contact info2. Describes alleged discrimination (whether it is an intentional

action or has the effect of discrimination on the basis of race, color, or national origin)

3. Filed within 180 calendar days of the alleged discriminatory acts

4. Identifies the EPA recipient responsible for the action

International Environmental Law

International law depends largely on negotiations and political relationships to define the rights and responsibilities of sovereign states

International env law is “soft law” and Enforcement depends less on “legal” sanctions and more on “moral” suasion or fear of diplomatic retribution.

49

The clearest and most significant source of international environmental law is agreements between sovereign states.

International treaties or conventions are akin to contracts in that they derive their legal force from the consent of the parties.

In US, in order to have force of law treaties must be ratified by Congress

There are conventions, treaties, and protocols

Montreal Protocol

multinational approach to env concerns agreement to phase out CFC’s by 2000 driven by science

Rio Earth Summit

framework convention on global climate change goal was to reduce to 1990 levels under-developed countries always argue that developed countries were able

to use cheap energy and they should be able to as well

Kyoto Protocol

1997 – to address anthropogenci CO2 agreed to 5% reduction below 1990 levels in period 2008 to 2012

Protection of the Global Atmosphere

Ozone depletion and global warming are the two principal problems cased by pollution of the global atmosphere

(1) OZONE DEPLETION

CFC’s remain in the atmosphere for up to a century or more

(2) GLOBAL WARMING

Buildup of carbon dioxide and other gasses has led to “Greenhouse” effect

CO2, CFCs, and methane have an effect comparable to glass of a greenhouse – they allow visible light to pas through but trap the heat (infrared) radiated back from the earth.

The rapid increase in the atmospheric concentrations of greenhouse gasses is directly caused by man’s actions

Combustion of fossil fuels release most of the CO2

50

Burning trees has the double effect of releasing CO2 by reducing the amount removed from the atmosphere (as trees store CO2)

The use of fossil fuels is increasing far more rapidly in developing countries than in industrialized countries.

Warmer temperatures could exacerbate air pollution, increase the severity of tropical storms, and change the world in other unexpected ways.

There needs to be a balance between the heat coming in and the heat leaving

Natural gas is considered better than oil and coal because of its hydrogen to carbon ratio (but most developing countries have little natural gas and a lot of coal)

GATT and WTO

GATT (General Agreement on Tariffs and Trade) is a treaty whose aim is to ensure the unencumbered flow of international commerce – the treaty was transformed into the WTO (World Trade Organization) in ’94

Parties can challenge, through WTP review, national measures (including ENV regulations) that constitute unjustified non-tariff trade barriers

GATT insulates health and ENV regulations from attacks as trade restrictions as long as they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade

Purpose Of GATT is to allow more free trade, Under GATT you cannot impose restrictions to protect your own product

Who are the players? (in ENV law)

governments the public non-governmental parties (NGO’s) these include; ENV groups, civil rights

groups and other special interest groups

The Marine Mammal Protection Act bans the importation of commercial fish which have been caught with methods that result in incidental killing or injury of marine mammals

After the US imposed a ban on tuna from Mexico, Mexico asked GATT council to hear its case

The panel said that the US was trying to require Mexico to comply with a standard that the y could not know (as kill limits were fixed to US takings)

There are exceptions to GATT: to protect human/animal life and for conservation measures but only if all other options are exhausted first

51

A nation can attempt to affect conservation outside its territorial jurisdiction if it does not try and force change

Note: National security measures overrides any international agreement

Bi-lateral agreements can be more specific whereas multilateral agreements are broader

NOTES

The most important principle is Free trade

NAFTA created awareness of the ENV problems along the border and led to the formation of NGO’s in Mexico

You cannot go into other countries and decide their ENV policies, it is up to each sovereign to decide their own policies

Law of nations: universally accepted environmental standards or norms (there are none)

Every nation does not have the same standards or protections as the US (most have little or no ENV protection)

Public pressure is one of the most effective ways to regulate ENV concerns – raise public awareness so that they will pressure companies into compliance

Principles:

Bias for free trade in GATT/NAFTA You cannot use treaties to force ENV law on other countries (unless the laws

are intended to protect shared resources – if it has something to do with the commons – prevent depletion of global resources)

economic protectionism will not be allowed

Commerce Clause Limitations

Federal regulation has reduced the supply of municipal dumps and landfills and has increased the cost of land disposal facilities.

New land-based waste disposal capacity is a scarce commodity, as a result many states and cities ship their waste to other states.

Some states have attempted to place limits on the importation of waste

In Philadelphia v. New Jersey, a New Jersey law prohibits the importation of most solid or liquid waste which originated outside the state. The parties in the case disputed whether the purpose of the restriction was economic favoritism toward local industry or environmental protection of the states resources from overuse. The court did not resolve this dispute and said that “the evil of protectionism can reside in the legislative means as well as legislative ends” Here the goal of protecting the environment is legitimate but the means are

52

illegitimate. Whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, this law violates this principle of nondiscrimination.

The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.

Quarantine laws directed against out-of-state commerce are OK as the very movement of such things risks contagion and other evils

Rule: a law is discriminatory if it taxes a transaction or incident more heavily when it crosses sate lines than when it originates entirely within the state

53