I. ENVIRONMENTAL VALUES

Environmental Problems, Environmental Justice and the Rationale for Collective Action

Read (1) pp. 1-23 and 26-31 in the casebook NEPA § 101, pp. 973-974 in the Statutory and Case Supplement pp. 1-2 of the Statutory and Case Supplement, and

Info from slides EPA Definition of “Environmental Justice”:

o “Environmental justice”: “The fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies.”

o “Fair treatment”: “No group of people, including racial, ethnic, or socioeconomic group should bear a disproportionate share of the negative consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local and tribal programs and policies.”

Executive Order 12898 (p.19)o §1-101: Agency Responsibilitieso §1-102: Creation of Interagency Working Group on

Environmental Justiceo §1-103: Development of Agency Strategieso §2-2: Federal Agency Responsibilities for Federal Programso §6-609: Judicial Review

History of the Environmental Justice Movemento 1979 first lawsuit challenging dump siting on civil rights

groundso 1982: Warren County, N.C. PCB landfill protestso 1983: GAO Study on Hazardous Waste Siteso 1987: UCC Commission for Racial Justice Reporto 1991: First National People of Color Environmental Leadership

Summito 1992: National Law Journal enforcement study

In re Louisiana Energy Services (1997) (p.20)Stage of Screening

ProcessNumber of Sites Under

ConsiderationPercentage of Affected

Population African-American

1 78 28.35%2 37 36.78%3 6 64.74%4 1 97.1%

Bob Kuehn’s Taxonomy of Environmental Justice

o Distributive Justice: fairness in the distribution of benefits and burdens

o Procedural Justice: fairness in procedures by which policy decisions are made

o Corrective Justice: correcting for past injusticeso Social Justice: expanding the concept of environmental justice

to embrace larger inequities in society

Cost-benefit Analysis, Ecosystem Services and the Tragedy of the Commons. Read pp. 31-43, and 49-60 in the casebook.

From slides Ethyl Corporation v. EPA (D.C. Cir. 1976)

o “Where a statute is precautionary in nature, the evidence difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge, the regulations designed to protect public health, and the decision that of an expert administrator, we will not demand rigorous step-by-step proof of cause and effect. Such proof may be impossible to obtain if the precautionary purpose of the statute is to e served.”

II. ENVIRONMENTAL LAW: A STRUCTURAL OVERVIEW

The Common Law Roots of Environmental Law: Private and Public Nuisance. Read pp. 61-88 in the casebook.From slides The Common Law Roots of U.S. Environmental Law

o Aldred’s Case (1611) (p.65): even nontrespassory invasions can be actionable as nuisances

o Tenant v. Goldwin (1702) (p.65): sic utere principleo Bamford v. Turnley (1862) (p.65): overrules Hold v. Barlow

(1856) to hold that the lawfulness of an activity is no defense to nuisance liability

o St. Helens Smelting Co. v. Tipping (1865) (p.66): copper smelter held liable for damage to trees and crops

o Sturges v. Bridgman (1879): nuisance liability depends on the character of the neighborhood

Baltimore & Potomac R.R. Co. v. Fifth Baptist Church (1883: There are many lawful and necessary occupations which, by the odors they engender or the noise they create, are nuisances when carried on in the heart of a city… No permission given to conduct such an occupation within the limits of a city would exempt the parties from liability for damages occasioned to others, however carefully they might conduct their business.”

What remedy should courts impose for private nuisances?

o Smith v. Staso Milling (2nd Cir. 1927): court enjoins some activities, but not others

o The Coase Theorum and Boomer v. Atlantic Cement Co. (NY 1970): imposition of a conditional injunction

Interstate Public Nuisance Cases in the Supreme Courto Missouri v. Illinois (1906) (p.77)o Georgia v. Tennessee Copper (1907)o New York v. New Jersey (1921)o Wisconsin v. Illinois (1929)o New Jersey v. City of New York (1931)o Illinois v. City of Milwaukee (1972) & City of Milwaukee v.

Illinois (1981 Lessons from the History of the Ducktown Litigation (Georgia v.

Tennessee Copper)o The Supreme Court recognized that states have a right to

protect their citizens from substantial harm caused by pollution originating in another state.

o Courts were reluctant to shut down economically important enterprises, but the threat of doing so created incentives for the development of improved technology to control pollution

o The Court established a kind of equitable remedy requiring the smelter to use the “best available control” technology to control transboundary emissions

Georgia v. Tennessee Copper Co. (1907)Facts: Copper smelter in Tennessee was spewing pollution across state lines into Georgia.Holding: A state has an interest in the earth and air within its domain.

The Rise of the Regulatory State, Environmental Federalism, Environmental Legislation and Preemption of Federal Common Law.

Read (1) pp. 88-104 in the casebook “Environmental Legislation in Historical Perspective” on pp. xii-xv of

the Statutory and Case Supplement, American Electric Power v. Connecticut on pp. 1123-1128 in the

Statutory and Case Supplement. Slides Six Stages in History of U.S. Environmental Law

o 1. Pre 1945: Common Law and Conservation Eraso 2. 1945-1962: Federal Assistance to Stateso 3. 1962-1970: Modern Environmental Movemento 4. 1970-1980: Erecting Regulatory Infrastructureo 5. 1980-1990: Improving regulatory Strategieso 6. 1991-2009: Reinvention and Legislative Gridlock

Federal Environmental Legislationo National Environmental Policy Act (NEPA)-1970o Clean Air Act (CAA)- 1970o Clean Water Act (CWA)- 1972o Federal Insecticide, Fungicide & Rodenticide Act (FIFRA)- 1972o Endangered Species Act (ESA)- 1973o Safe Drinking Water Act (SDWA)- 1974o Toxic Substances Control Act (TSCA)- 1976o Resource Conservation and Recovery Act (RCRA) – 1976o Comprehensive Environmental Response, Compensation, and

Liabilit Act (CERCLA)- 1980o Emergency Planning and Community Right-to-Know Act

(EPCRA)- 1986o Oil Pollution Act (OPA)- 1990

Important Features of the Federal Environmental Lawso The laws generally seek to establish comprehensive, national

regulatory programso They generally authorize federal agencies to set national

standards to be implemented by states through delegated authority.

o They generally authorize citizen suits against: (a) agencies for failure to perform mandatory duties and (b) violators of the environmental laws

o The laws employ a wide spectrum of approaches to regulation Illinois v. City of Milwaukee (p.87)

o Facts: Illinois seeks to sue four Wisconsin cities and Milwaukee City & Count Sewearge Commission for discharging 200 million gallons of raw or barely treated sewage into Lake Michigan daily.

o Milwaukee I Decision (1972): Court refuses Illinois leave to file a bill of complaint. However, Justice Douglas said, “It may happen that new federal laws and new federal regulations may in time preempt the field of federal common law of nuisance.” [CWA was enacted in following October]

o Milwaukee II (1981): International Paper v. Ouellette (1987) (p.101)

o Facts: Post Milwaukee II Supreme Court Decisions

o Middlesex County Sewerage Authority v. National Sea Clammers Ass’n (1981): neither CWA nor Ocean Dumping Act create implied private right of action for damages. Federal common law of nuisance fully preempted for water pollution.

o Exxon Shipping Co. v. Baker (2008): CWA does not preempt private claims for punitive damages for water pollution caused by reckless conduct.

Connecticut v. American Electric Power o Facts: Eight states, NYC, and land conservation groups filed

suit against four electric power companies and the TVA (the largest sources of GHG). The lawsuit alleged that the utility companies, which operate facilities in 21 states, are a public nuisance because their carbon-dioxide emissions contribute to global warming. The companies argue that only the ePA can set emissions standards.

o Trial Court Holding (S.D.N.Y. 2005): Trial court dismisses common law nuisance action over GHG emissions as a nonjusticiable “political question”

o 2nd Circuit Holding (2009): It is not a political question, plaintiffs have standing to sue, and the suit is not preempted by the Clean Air Act.

o Supreme Court Holding (2010): Reversed. The Clean Air Act and the EPA action the act authorizes displace any federal common-law right to seek abatement of CO2 emissions from fossil fuel fired power plants.

Comer v. Murphy Oil, USA (5th Cir. 2009)o Facts: Action against oil companies arguing that their

contribution to climate change increased Hurricane Katrina damage.

o Holdings: Not a political question, state law action not preempted by federal law, plaintiffs have standing to sue

Native Village of Kivalina v. ExxonMobil Corp. (N.D. Cal. 2009)o Facts: Residents of small coastal village in Alaska seek $400

million in damages from 24 oil companies and powerplants due to climate change.

o Holding: Court dismisses the case as nonjusticiable “political question.”

State Standing, Environmental Federalism, and Forms of Collective Action. Read (1) pp. 104-119, 125-139 in the casebook, (2) Oil Pollution Act §1002(a) & (b) on p. 916 of the Statutory and

Case Supplement, and (3) Oil Pollution Act §1004(a) on p. 919 of the Statutory and Case

Supplement.Slides Article III §2 “Case or Controversy” Requirement

o “The Judicial Power shall extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority… to Controversies to which the United States shall be a Party.”

Standing Requirements:o I. Constitutional Elements

1. Actual or Threatened Injury-in-Fact 2. Traceable to the Challenged Action 3. Redressable by Judicial Action

o II. Prudential Restrictions 1. Prohibition of Third-Party Standing 2. Generalized Grievances (taxpayer) 3. “Zone of Interest” Requirement

Evolution of Injury Concept of Standing Doctrineo Initial focus was on common law notions of “legal injury” to

regulated industrieso New questions raised by enactment in 1960s and 1970s of

regulatory statutes to protect more diffuse interest of consumers, environment

o Sierra Club v. Morton (1972): aesthetic injury to persons who alleged an interest in the subject matter is sufficient, as long as there is close enough connection between person and allegedly harmful act.

Should trees have standing?o Yes, according to William O. Douglas

Massachusetts v. EPA o Standing issues:

Actual or threatened injury-in-fact (harm to public health, coastal resources, water supplies, agriculture and ecosystem)- is it sufficiently imminent?

Traceable to the challenged action- are defendants’ emissions of GHGs a significant contributing cause to climate change?

Redressability- can judicial action redress the harm plaintiffs allege?

Is this a “generalized grievance” that affects everyone equally and thus precludes standing?

o Justice Roberts’ Dissenting Opinion: Three Models of Federal-State Relations in Environmental Law

o Federal government supplies only financial assistance while encouraging states to regulate- old approach, now largely confined to land use issues

o Cooperative federalism (federal agency sets standards but states may qualify to issue and enforce permits subject to federal supervision)- predominant approach

o Preemption of state standards by federal law- rare in federal environmental law (e.g., mobile source provisions of CAA, products regulated under TSCA and FIFRA pesticide labeling)

Constitutional Authority for Federal Regulation

o Can the DSA constitutionally prohibit private parties from harming the endangered Delhi Sands Flower-Loving Fly which is found only in two California counties?

o Does it depend on what activity harms the fly? Construction of a hospital? Children riding dirt bikes?

III. PREVENTING HARM IN THE FACE OF UNCERTAINTY (started on class 6)

I. Risk Regulation in the Face of Uncertainty: How Precautionary Should Regulatory Policy?a. Principle: We are always better off when we prevent harm

instead of compensating afterwards, but we still need reliable predictors that something is harmful

b. Before an agency or court is authorized to regulate a substance a threshold finding must be made that relates to the harmful potential of the substance or product to be regulated

i. Ethyl Corp established that there are two variables: magnitude of harm and probability of harm occurring

ii. Can be satisfied by high probability of lesser harm or lower probability of a greater harm

c. importance of the burden of proofi. Shifting the burden of proof to the polluters once a

reasonable risk threshold has been passed

Reserve Mining Company v. EPA (8th Cir. 1975) (p.185)Facts: Large mining plant was dumping asbestos fibers into Lake Superior. Plaintiffs tried to shut down the operation even though they did not know how the asbestos fibers caused harm when consumed rather than inhaled (multiple tests had been inconclusive).Holding: The plant needs to stop dumping, but not immediately. Engaged in a balancing test: based on the record, the probability of danger is low. However, if the hypothesis is correct, the health consequences would be huge. There is also major harm in closing down a major economic center. Therefore, the company should be given time to figure out a new disposal method.Ethyl Corp. v. EPA (D.C. Cir. 1976)Facts: EPA decided that lead in gasoline presented a substantial risk of harm and ordered reductions in the lad content of gasoline. Decision was based on several suggestive but inconclusive studies. Lead manufacturers claimed the statute required EPA to have “proof of actual harm” before it could order limits.Holding: Where a statute is precautionary in nature (like CAA), the evidence difficult to come by, uncertain or conflicting ecause it is on the frontiers of

scientific knowledge, the regulations designed to protect the public health, and the decision that of an expert administrator, the court will not demand rigorous step-by-step proof of cause and effect. If the Administrator’s conclusions are rationally justified he may engage in a risk assessment that, if rational, will form the basis for health-reglated regulations under the “will endanger” language of section 211.

II. Statutory Authority for Regulating Risksa. Complex array of statutory authorities address risks presented

by toxic chemicalsi. TSCA: gives EPA authority over any chemical substance

or mixture (other than regulated by FIFRA of FDA)ii. FIFRA: governs EPA regulation of pesticides

iii. SDWA: contaminants in public drinking water systemsiv. CAA: hazardous air pollutantsv. CWA: toxic water pollutants

b. Differ in extent to which they require review or approval prior to manufacture or use of substances

i. FDCA: approval of marketingii. TSCA: EPA must be notified 90 days prior to manufacture

of a new chemical or the application of an old chemical to a significant new use

iii. “Standard setting laws”: require agencies to establish standards limiting toxic emissions, controlling worker exposure to toxics, or mandating warning labels on products

1. OSHA, SDWA, TSCA, CAA and CWAc. “How safe is safe” under the statutes:

i. Risk-benefit balancing statutes: require that regulators balance the threat to public health against the cost of regulation when setting regulatory standards

1. TSCA, FIFRAii. Feasibility-limited standards (subset of Technology-

based standards): direct that threats to health be regulated as stringently as feasible

1. OSHA, SDWAiii. Health-based statutes: standards be based exclusively on

concerns for protecting public health 1. NAAQS of CAA, FDCA

d. Statutes differ in amount and kind of evidence that must be hsown before a substance can be regulated and in the type of controls that they authorize regulators to impose

i. Outright prohibitions on manufacture or use of certain chemicals (TSCA, FIFRA, FDCA)

ii. Authorize establishment of emission standards or ambient concentration limits (CAA, CWA, OSHA)

iii. Restrictions on use and labeling, warning, or reporting requirements (TSCA)

iv. Table on p.245III. Risk-Benefit Balancing Approaches

a. Quantitative risk assessments (QRA) are, to the maximum extent possible, used to evaluate proposed rules to reduce exposure to toxic substances

i. QRA anticipates adverse health effects and environmental effects in terms of their dollar values

1. Very controversial and difficult to doii. Problems and uncertainties

1. Uncertaincies of data2. Necessity of making assumptions liking data to

policy-related conclusions3. Decision making on the “frontiers of science”

iii. Criticism of QRA1. Very expensive to do2. Information- starved3. Feature manipulation of data4. Are impacted by political pressure5. Produce little abatement

b. Example: Toxic Substances Control Acti. Grants EPA broad authority to regulate the manufacture,

processing, distribution, use, or disposal of any chemical substance ona finding that there is a reasonable basis to conclude that such an activity presents or wil present an unreasonable risk of injury to health or the environment

ii. In determining whether a substance poses an unreasonable risk, TSCA explicitly requires EPA to make findings for benefits of various uses of the substance, availability of substitutes for it, and reasonably ascertainable economic consequences of regulation

iii. EPA must regulate “to the extent necessary to protect adequately against such risk using the least burdensome requirements”

iv. QRAs are routinev. Principal Provisions (p.248)

c. EPA’s effort to ban asbestos under §6 of TSCAi. EPA announcement (1989)

1. Lay out all the risks of asbestos and conclude that it is an unreasonable risk to human health

2. Substitutes exist, and the rule includes an exemption for instances in which technology hasn’t

advanced sufficiently by the time of a ban to produce substitutes

ii. Corrosion Proof Fittings v. EPA (5th Cir. 1991): A total ban on asbestos did not consider less costly alternatives

Read (1) pp. 181-198 & 243-252 in the casebook, (2) §211(c)(1)&(2) of the Clean Air Act on p. 652 of the Statutory and

Case Supplement. How Safe Is "Safe"?: Cost/Benefit Balancing and the Asbestos Ban and Regulation by Revelation.

(1) pp. 252-264, 311-319 & 323-331 in the casebook and (2) §§6(a)&(c)(1) of the Toxic Substances Control Act, on pp. 86-87 of the Statutory and Case Supplement.

IV. REGULATING WASTE MANAGEMENT

I. History of Waste Disposala. Early Stage: Local responsibility

i. Most wastes were dumped without treatment wherever it was convenient. Waste management was considered a local responsibility

ii. Government did not consider the environmental consequences of toxic waste disposal

iii. Many assumed nature could assimilate the wastes without harm

b. Congress enacted regulatory legislation in the 1970s:i. Clean Air Act (1970)

ii. Clean Water Act (1972)iii. Ocean Dumping Act (1974)iv. Resource Conservation and Recovery Act (1976)

1. Added Subtitle C: provided for comprehensive regulatory program to ensure that hazardous waste was managed from cradle to grave

v. Comprehensive Environmental Response, Compensation and Liablity Act (1980)

1. This is a misnomer because there was no victim compensation scheme

vi. Emergency Planning and Community Right-to-Know Act (1986)

II. Federal Laws regulating waste managementa. Ocean Dumping Act: bans dumping of waste in the ocean

without a permit, later amended to ban ocean garbage dumpingb. RCRA: requires EPA to regulate hazardous waste management

from cradle to gravec. CERCLA: creates “superfund” and procedures for cleaning up

dumpsites, imposes strict liability for cleanup costs

d. Pollution Prevention Act: establishes preferred hierarchy of waste management practices

i. 1. Source reduction: design production processes to prevent creation of waste in the first place

ii. 2. Recycling: to the extent you can prevent creation of waste, recycle it

iii. 3. Treatment: ensure it won’t cause any long term environmental hazard

iv. 4. Disposal: last option

Statute Waste Managem

ent Objective

Pollutants/wastes

Covered

Regulatory

Approach

Basis for Controls

Primary Transfer

s to another Medium

Clean Water Act

Protect and improve surface water quality

All discharges to surface waters, including 126 priority toxic pollutants.

Performance standards (emissions limits); ambient standards

Technology with health-based backup

Sludge to land; air emissions from treatment plant and sludge incineration

Marine Protection Research and Sanctuaries Act

Limit dumping into ocean

All wastes except oil and sewage in the ocean

Use restrictions (prohibited unless done with permit)

Balancing, with health-based backup

Safe Drinking Water Act

Protect public drinking supply

Contaminants found in drinking water and wastes injected into deep wells

Ambient standards, design and performance standards

Technology

Clean Air Act

Protect and improve air quality

All emissions to air

Ambient standards; performa

Health: technology

Sludge and incinerator

nce standards (emissions limits)

residues to land

Resource Conservation and Recovery Act

Control hazardous and solid wastes; encourage waste reduction and recycling

Hazardous and solid wastes

Use restrictions, design and performance standards; information disclosure

Health Air through incineration; water through sewage treatment plants

Comprehensive Environmental Response, Compensation and Liability Act

Cleanup of abandoned hazardous waste sites; emergency response

Release or threatened release of hazardous substance

Performance and design standards

Health, with cost-effectiveness constraint

Air through volatilization, incineration, and dust

Surface mining control and reclamation Act

Control pollution from surface coal mines

Surface coal mining wastes

Performance standards

Health (or environment)

Releases to water

Nuclear Waste Policy

Control disposal of high-level radioactive wastes

Commercial high-level radioactive waste

Use restrictions

Health (or environment)

Low level radioactive waste policy act

Control disposal of low-level radioactive wastes

Cmmercial high-level radioactive waste

Use restrictions

Health (or environment)

Uranium mill tailings

Manage uranium

Uranium mill tailings

Performance

Health (or

Air from dust

radiation control

mill tailings

standards

environment

Toxic substances control act

Prevent unreasonable risk from chemical substances

Wastes from production or use of industrial chemical substances

Use restrictions

Balancing

III. The Resource Conservation & Recovery Acta. Main point: RCRA is largely regulatory statute because EPA can

tell generators, treatment, or transporters of hazardous waste how to treat it

b. Jurisdictional term: “solid waste” (§1004(27)) and “hazardous waste” (§1004(5))

i. “Solid Waste”: defined in §1004(27) to included “any garbage, refuse, 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, mining and agricultural activities, and from community activities.”

ii. “Hazardous Waste”:1. Listed waste: waste streams that are specifically

listed as hazardous by EPA2. Wastes that exhibit hazardous characteristics

(toxicity, corrosivity, reactivity, and ignitability)3. Mixture rule: wastes mixed with a listed waste4. Derived-from rule: wastes derived from a listed

waste5. **Problem: it is usually left up to the producer to

decide whether a waste was hazardous or notc. Overview

i. Enacted in 1967 to prevent environmental damage from improper management of hazardous waste

ii. Requires EPA to issue regulations identifying hazardous waste and governing management of it from cradle to grave

iii. Bans export of hazardous waste unless the country receiving waste has consented or adopted treaty

d. Structurei. Subtitle C: Hazardous Waste

1. §3001: Identification and listing of hazardous waste

a. Can be from a waste stream that is specifically said to be hazardous (always a hazardous waste)

b. Or that exhibits a characteristic of a hazardous waste (remains hazardous only so long as it exhibits toxicity, reactivity, corrosiveness or ignitability

2. §3002: Regulation of generators3. §3003: Regulation of transporters4. §3004: Regulation of treatment, storage and

disposal of facilities (TSDs)5. §3005: Permit requirement for TSDs

ii. Subtitle D (§§4001-4010): applies to all non-hazardous solid waste (mostly municipal garbage)

1. §7002: Citizen suit provisions2. §7003: gave EPA the authority to bring suit to halt

imminent & substantial endangerment (many fewer suits today as a result of CERCLA)

e. Initial Implementation of RCRA by EPAi. EPA found it extremely difficult to develop clear

regulations identifying which wastes were hazardous. EPA issued its RCRA regulations only after the EDF brought a lawsuit

ii. The initial regulations did not require most facilities handling hazardous waste to use new technology to control releases

iii. EPA eventually realized that in all cases where wastes are dumped on land they eventually will leak out in ways that damage the environment

iv. Amended in 1984 by banning land disposal of untreated hazardous waste and adding hammer provisions (incentivized industry to push for EPA regulations to avoid hammer provision)

f. Note on gaseous waste:i. If something comes out of production as a gas (it is a gas

in its natural state), it is subject to regulation under CAA, not RCRA

ii. Solid waste cannot be gasified in order to bypass RCRAg. Recycled Materials

i. AMC I: EPA exceeded its authority by including recycled materials in its definition of solid waste

ii. AMC II: AMC I only applied to closed loop. Sludge stored in unlined surface impoundment could be regulated

under RCRA when company said that at some point they intended to recycle it.

iii. In 2008, EPA amended its regulations defining “solid waste” to create a “generator controlled exclusion” and a “transfer based exclusion” (if you transfer materials for recycling to someone else and you can show they are useful for recycling purposes, it is not subject to RCRA)

h. Problems with RCRA programi. Difficulties in identifying hazardous waste (requirements

for testing wastes to determine if they meet hazardous characteristics are vague)

ii. Exemptions may leave many hazardous substances unregulated (household wastes, recycling, and wastes dumped in sewers are exempt)

iii. Extent of regulation does not vary with the degree of hazard- either a waste is hazardous and its management is strictly regulated or it is not hazardous and it is largely unregulated

i. Read (1) pp. 338-341 & 343-366 in the casebook 2) RCRA Legislative History Timeline and Outline of Principal

Provisions of the Solid Waste Disposal Act on pp. 300-301 in the Statutory and Case Supplement, and

(3) Solid Waste Disposal Act §§ 1004(5) & (27), pp. 305-306 and 307 in the Statutory and Case Supplement.

American Mining Congress v. EPA (D.C. Cir. 1987) (p.356)Facts: EPA amended its definition of solid waste to include recycled materials. The definition did not include raw materials, but did include anything else. If it was a closed loop, where a material goes straight back into production process, it won’t be regulated. However, if it sits around for a while it should be regulated because there is potential for danger. Holding: The court applied Chevron and found that the term “solid waste” is unambiguous. RCRA was enacted to deal with solid waste disposal, not ongoing manufacturing process. Therefore EPA exceeded its authority.Mikva Dissent: We should defer to the expert agency here. If EPA sees this as part of the problem, it should be dealt with. The plan of the producer to ultimately use the material has nothing to do with whether or not it is causing an environmental danger while stored.

IV. CERCLAa. Basic principles

i. Direct extension of common law principles of strict liability for abnormally dangerous activities

ii. Modeled on Clean Water Act’s oil spill liability programiii. The core of the act is its liability provisions and its

authorization to EPA to spend monies from the Superfund for removal operations (short-term action to address immediate hazards) and for remediation operations (long-term solutions, including decontamination)

iv. EPA is authorized to incur expenses respondingto imminent threats to health and the environment under removal authorites, but can only spend money on remediation for sites that it has placed on the National Priority List (§§104, 105)

v. §105 instructs EPA to place at least 400 sites needing cleanup on the initial NPL and to prepare a National Contingency Plan for dealing with hazardous waste cleanup

vi. state governments and federal authorities can engage in joint cleanup

vii. EPA has the authority to order private parties to undertake actions to abate actual or potential releases of hazardous substances in order to prevent imminent and substantial endangerment.

viii. Superfund1. Originally funded through tax on chemical

feedstocks and petroleum. Tax expired in 1995 and hasn’t been reauthorizd.

2. Lack of new funds has been slowly starving program for funds for cleanups that are not paid for by potentially responsible parties

b. Main purpose: to make spills or dumping of hazardous substances less likely through liability

c. Principal Provisions§101. Definitions: the term “hazardous substance” is defined in 101(14); “release” is defined in section 101(22)§103. Notification Requirements : requires reporting of releases of hazardous substances to the National Response Center.§104. Response Authorities: authorizes the president to undertake removals or remedial actions consistent with the National Contingency Plan to respond to actual or potential releases of hazardous substances.§105. National Contingency Plan: requires establishment of a National Priorities List (NPL) of facilities presenting the greatest danger to health, welfare, or the environment based on a hazard ranking system (HRS) and requires revision of National Contingency Plan (NCP)§106. Abatement Orders: authorizes issuance of administrative orders

requiring the abatement of actual or potential releases that may create imminent and substantial endangerment to health, welfare, or the environment.§107. Liability: imposes liability on (1) current owners and operators of facilities where hazardous substances are released or threatened to be released, (2) owners and operators of facilities at the time substances were disposed, (3) persons who arranged for disposal or treatment of such substances, and (4) persons who accepted such substances for transport for disposal or treatment. These parties are liable for: (a) all costs of removal or remedial action incurred by the federal government not inconsistent with the NCP, (b) any other necessary costs of response incurred by any person consistent with the NCP, (c) damages for injury to natural resources, and (d) costs for health assessments. Creates exemptions for innocent purchasers, bona fide prospective purchasers, and de micromis contributors. §111. Superfund: creates a Superfund which can be used to finance governmental response actions and to reimburse private parties for costs incurred in carrying out the NCP.§113. Judicial Review and Contribution: bars pre-enforcement judicial review of response actions and abatement orders, and authorizes private actions for contribution against potentially responsible parties.§116. Cleanup Schedules: establishes schedules for evaluating and listing sites on NPL, commencement of remedial investigation and feasibility studies (RI/FFs) and commencement of remedial action.§121. Cleanup Standards: establishes preference for remedial actions that permanently and significantly reduce the volume, toxicity, or mobility of hazardous substances and requires selection of remedial actions that are protective of health and the environment and cost-effective, using permanent solutions to the maximum extent practicable; requires cleanups to attain level of “legally applicable or relevant and appropriate standard, requirement, criteria or limitation” contained under any federal environmental law or more stringent state law.§122. Settlements: sets standards for settlements with potentially responsible parties.

d. Liability Provisionsi. Definition of “Hazardous Substance”

1. Very broadly defined2. Includes just about every toxic substance other

than petroleum --hazardous waste subject to regulation under subtitle C of RCRA, toxic water pollutants regulated under section 307 of the CWA, hazardous air pollutants under section 112 fo the CAA, imminently hazardous chemicals regulated under §7 of TSCA, substances other than oil that have been designated as hazardous of

CWA, and additional substances as designated by EPA

3. Petroleum (including natural gas and crude oil) are specifically exempted [they are covered instead by §311 of CWA]

4. Also gives CERCLA jurisdiction over substances not listed in any categories of hazardous substances if it is a pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare

ii. Definition of “Release”1. 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 [§101(22)]

2. Specifically exempts:a. Application of pesticides registered under

FIFRAb. Exempts “federally permitted releases”

(which includes discharges authorized by permits issued under CWA, RCRA, Ocean Dumping Act, SDWA, CAA, AEA and certain fluid injection practices for producing oil or natural gas.

iii. Constitutional challenge: impermissible retroactive legislation

iv. Responsible parties1. Owners

a. Innocent Purchaser?i. New York Shore Realty: owners who

purchased after the time of disposal are still liable unless the realeases and threats of release were caused solely by the tenants or Shore took precautions against foreseeable acts

ii. 1986: SARA (Superfund Amendments Reauthorization Act) created a defense for innocent land purchasers if they can establish that [response to fairness claims]

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 gov’t entities acquiring the land through involuntary transfer

3. they acquired the land by inheritance or bequest

iii. In determining whether purchaser satsifed “all appropriate inquiry” criteria, courts were originally supposed to consider:

1. Purchaser’s specialized knowledge or experience

2. Relationship of purchase price to value of uncontaminated property

3. Reasonably ascertainable information about the property

4. Obviousness of the likely presence of contamination

5. Ability to detect such contamination by inspection

iv. EPA established final rule establishing standards and practices for AAI:

1. Purchasers need to retain services of an environmental professional

a. Individual with training in conducting environmental audits

b. EP must submit written report of findings

2. Interviews with past and present owners

3. Many other due diligence measures

v. This exception is not necessarily available under state Superfund statutes

vi. 2002: Congress created §107(r): exempts bona fine prospective purchasers from owner or operator liability if they satisfy all the requirements of §107(r)

b. Passive Liability: Are owners who engage in no active conduct relating to disposal themselves but who owned the land at a time when wastes deposited on the land before their ownership continued to leak or spill onto the land?

i. No: US v. CDMG: The words used to define dispoal are active; to acknowledge passive owner liability would vitiate innocent disposal purchaser defense

ii. Yes: Nurad: not recognizing a passive owner would mean that an owner could avoid liability by standing idle while an environmental hazard resters on the property

2. Operators3. Arrangers: §107(a)(3)

a. “any person who by contract, agreement, or otherwise arranged for dispoal or treatment, or arranged with a transporter for transport for dispoal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances”

b. Imposes liability on non-negligent generators of hazardous substances

c. This creates a power incentive for such persons to ensure that wastes are managed carefully – generators now must select treatment and disposal options and monitor their implementation with care

d. Initially there was circuit split over arranger liability

i. Aceto : Pesticide manufacturers shipped raw materials to Aidex, who mixed products and sold them. Manufacturers were liable for Aidex facility cleanup because they knew that spills of raw materials were an inherent part of the formulation process.

ii. Government’s case is satisfied once it has proved that

1. A generator shipped hazardous substances to the facility

2. Hazardous substances like those present in the generator’s waste were found at the facility

3. There had been a release of hazardous substances at the site

iii. Detrex : “arranged for” implies intentional action, so a truck spill on the way to the facility doesn’t count (they didn’t hire the truckers to spill chemicals)

iv. South Water Management Dist : totality of the circumstances approach

v. 3rd Circuit: most important factors are:

1. ownership or possession2. knowledge3. control

e. Supreme Court resolved issue to hold that an entity qualifies as an arranger when it takes intentional steps to dispose of a hazardous substance (Burlington Northern)

i. Knowledge alone is insufficient to prove that an entity “planned for” the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product.

ii. In order to quality as an arranger, Shell must have entered into the sale of D-D with the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods described in the statute

iii. Shell’s insistence that B&B improve their maintenance shows that they did not intend for such spills to occur

f. Exemptions for arrangers:i. Superfund Recycling Equity Act:

exempts arrangers and transporters

who arrange for recycling of recyclable materials

1. Requires proving a number of conditions have been met, and is denied to anyone who had an objectively reasonable basis to believe that the materials would not be recycled

ii. Small Business Liability Relief and Brownfields Revitalization Act: “de micromis” generators or transporters

1. People who contribute less than 110 gallons of liquid materials or 200 pounds of solid materials

2. Part of which must have occurred before April 1, 2001

3. Doesn’t apply if President determines that the hazardous substances contributed significantly to the response costs or if person seeking to qualify for the exemption impeded the response action or committed a crime

4. SBLRBRA: §107(p) exempts homeowners, certain small businesses, and certain nonprofits from liability for generation of MSW

iii. Arranger liability can attach to parties who do not have an active involvement in the timing, manner, or location of disposal. However, there must be some nexus between the potentially responsible party and the disposal of the hazardous substance that is premised upon the potentially liable party’s conduct with respect to the disposal or transport of hazardous wastes.

New York v. Shore Realty Corp. (2nd Cir. 1985) (p.402)Facts: Shore Realty bought a property that they knew was occupied by

tenants who were illegally operating a waste storage facility. They argued that they were not liable under CERCLA because they neither owned the site at the time of disposal nor caused the presence or the release of the hazardous waste. Claims they are not covered by 9607(a)(1) because that could not have been intended to cover all owners, because that would render the word “owned” in 9607(a)(2) redundant.Holding: §9607(a)(1) unambiguously imposes strict liability on the current owner of a facility from which there is a release or threat of release, without regard to causation. Accepting Shore’s argument would open a huge loophole (would allow the owner of a site to avoid liability by purchasing the site after the dumping had happened). Not covered by the affirmative defense in 9607(b)(3) because they were aware of the nature of the tenants’ activity.Burlington Northern & Santa Fe Railway Co. (2006) (p.421)Facts:Holding:

Read (1) pp. 393-397, 401-408 & 418-428 in the casebook, (2) edited excerpt from General Electric Co. v. Jackson posted under

“Ch. 4 Updates” on the casebook website (www.erlsp.com), (3) CERCLA Legislative History Timeline and Outline of Principal

Provisions of CERCLA on pp. 402-403 in the Statutory and Case Supplement, and

(4) §§ 101(14), 101(22), 107(a)&(b), and 101(35) of CERCLA, on pp. 405-406, 408-409, 434-435, and 410-411of the Statutory and Case Supplement.

V. AIR POLLUTION CONTROL

I. Clean Air Acta. Major Provisions

TITLE I§108: Requires EPA to identify “air pollutants” anticipated to endanger public health or welfare and to publish air quality criteria.§109: requires EPA to adopt nationally uniform ambient air quality standards (NAAQSs) for criteria air pollutants§110: requires states to develop and submit to EPA for approval state implementation plans (SIPs) specifying measures to assure that air quality within each state meets the NAAQSs.§111: requires EPA to establish nationally uniform, technology-based standards for major new stationary sources of air pollution – New Source Performance Standards (NSPSs)§112: mandates technology-based standards to reduce listed hazardous air

emissions from major sources in designated industrial categories, with additional regulation possible if necessary to protect public health with an “ample margin of safety.”

*This is a separate program for hazardous pollutants. For pollutants that are carcinogens, etc., EPA is to regulate not just to provide an adequate margin for safety, but for an ample margin for safety of human health.*at first EPA was nervous this was too stringent so they only regulated 6 things. But in 1990 Congress named 178 specific chemicals that will be deemed to be hazardous air pollutants to be dealt with by maximum achievable control technology. If, after applying MACT, there is still a 1 in 1 million risk, EPA decides whether to continue

Part C: specifies requirements to prevent significant determioration of air quality (PSD) for areas with air quality that exceeds the NAAQSs.Part D: specifies requirement for areas that fail to meet the NAAQS (nonattainment areas)TITLE II: requires EPA to establish nationally uniform emissions standards for automobiles and light trucks that manufacturers must meet by strict deadlines.TITLE III§304: Authorizes citizen suits against violators of emissions standards and against the EPA administrator for failure to perform nondiscretionary duties§307: Authorizes judicial review of nationally applicable EPA actions exclusively in the U.S. Court of Appeals for the D.C. CircuitTITLE IV: creates a system of marketable allowances for sulfur dioxide emissions from power plants and major industrial sources to reduce acid precipitationTITLE V: requires permits for all major industrial sources with state administration and federal oversight.TITLE VI: establishes a program for controlling substances that contribute to depletion of stratospheric ozone.

b. History of Clean Air Acti. 1970: Clean Air Act was the first of the regulatory

statutesii. targeted mobile sources

1. required 90% reduction in pollution from mobile sources within 5 years

2. forced radical technological innovation3. possible because the political situation was

different: both parties were trying to prove that they were greener

iii. Problems with initial implementation:1. It said nothing about what to do in areas where the

air quality was pristine enough so that it already

complied [Sierra Club argued that EPA had a duty to slow down deterioration in pristine areas

iv. Clean Air Amendments of 19771. Wrote into the Act the way in which EPA was

implementing2. Areas of the country which are in attainment are

classifiedv. Problems with CAA after 1977

1. Grandfathering in existing sources was a premise of CAA. But then utilities had an incentive to operate old sources for as long as possible and tried to update through “routine maintenance”

vi. Provisions of the 1990 Amendments:1. Title IV: created cap and trade program for SO2

that cause acid rain that gave initial allowancesc. State-Federal Roles

i. Federal: EPA establishes national ambient air quality standards for criteria pollutants

ii. State governments then 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

1. Each state’s set of regulations to meet the NAAQSs is called its state implementation plan (SIP)

iii. SIPs must be submitted to EPA, which approves their adequacy to accomplish statutory requirements

iv. If state does not prepare an SIP that meets the requirements fo the act, EPA must prepare a federal implementation plan (FIP) that ensures the NAAQSs will be met

v. SIP must avoid interfering with the efforts of other states to achieve compliance with NAAQSs

d. What is an “air pollutant” that may be regulated under the Clean Air Act?

i. Statutory definition: “any physical, chemical, biological, radioactive… substance or material which is emitted into or otherwise enters the ambient air.”

ii. Mass v. EPA: 1. EPA argued it did not have the authority to

regulate GHGs because they are not air pollutants. Congress is aware of climate change: if they had wanted EPA to regulate GHG they would have said so in the 1990 amendments (largely based on FDA v. Brown & Williamson Tobacco Corp.)

a. Supreme Court rejects EPA’s argument that they do not have authority to regulate GHG

i. This is not FDA v. Brown & Williamson because they would not have to ban the product entirely, like they would have had to with tobacco

ii. EPA regulation was not preempted by DOT’s mandate to deal with tailpipe emissions

2. EPA’s second argument: even if they could regulate it, they won’t because of judgment that this would not be

e. Nonmobile sourcesi. Up to the federal government

ii. All state authority to regulate mobile sources is preempted by federal statute, except California

iii. States can create Transportation Control Plans (TCPs)f. Fuel Content

i. EPA authorized to restrict or prohibit the use of any fuel additive that “causes, or contributes, to air pollution which may reasonably be anticipated to endanger the public health or welfare” (§211(c))

g. Alternative Vehiclesi. California has Zero Emission Vehicle standards hasn’t

created ZEV but have been technology forcingii. Other states can adopt CA’s program (otherwise

preempted by federal statute) but must adopt any revisions CA makes

Massachusetts v. EPA (2007) (p.509)Facts: EPA argued they did not have the authority to regulate GHG and if they did they declined to do so.Holding: The broad definition of air pollutant forecloses the EPA’s reading- they have authority. And they can only decline to exercise authority if they make a judgment on scientific endangerment, not just because of political strategy (cannot be divorced from statutory text).

Read (1) pp. 499-528 in the casebook and (2) Clean Air Act Legislative History Timeline and Outline of the

Principal Provisions of the Clean Air Act on pp. 504-507 of the Statutory and Case Supplement.

II. National Ambient Air Quality Standardsa. Establishing NAAQS

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

ii. supposed to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air”

iii. Early problems establishing NAAQS1. Scientific data lacking or inconsistent2. Even as we do more studies, experts disagree on

meanings3. Questions left open by the text:

a. What is a health effect? – any change in blood chemistry, or only hanges proved to have an adverse effect on bodily functions

b. What constitutes “adverse”?c. What population should be used as the

measure of effects?4. Regulatory burden in establishing NAAQSs is so

demanding that EPA has incentives to avoid making frequent changes or to promulgate new standards

a. Whenever EPA promulgates or revises an ambient standard, every SIP must be amended and reviewed

iv. Current NAAQSs on p.5531. Primary Standards: to protect the public health

“allowing an adequate margin of safety”2. Secondary Standards: to “protect the public

welfare from any known or anticipated adverse effects” of air pollution

3. Concentrations of pollutants specified by the standards are expressed in terms of averages over different periods of time

v. CAA requires NAAQS to be set based on public health considerations alone, without balancing those considerations against the costs of meeting them

1. Lead Industries Ass’n : The Administrator should take precautionary measures and is not limited to setting limits that are supported by medical consensus. As long as there is evidence in the record which substantiates Administrator’s

conclusions about the health effects on which the standards were based, she can err on the side of caution.

vi. Economic criticism: justifying uniform standards as efficient would have to assume that the costs of a given level of pollution and a given level of control are the same across the nation, but this is clearly not the case.

b. Revising NAAQSsi. EPA is required to review and revise its air quality

criteria and the NAAQSs at five year intervals [§109(d)]ii. EDF v. Thomas : court cannot dictate to EPA whether or

how the NAAQSs should be resvised. But the Administrator must make some decision regarding the reviewion of the NAAQSs that would be subject to judicial review. By publishing revised creitera documents [about sulfur oxide], EPA triggered a duty on its part to address and decide whether and what kind of revision is necessary.

iii. EPA has been reluctant to revise NAAQSs because of the enormous administrative burden such revisions would generate

1. State must prepare a revised SIP and then submit it for EPA approval

iv. EPA usually cites to scientific uncertainty in declining to revise NAAQSs

v. How much protection should NAAQSs afford sensitive populations?

1. LIA: air quality standards must also protect individuals who are particularly sensitive to the effects of the population [asthmatics, emphysematics]

Lead Industries Association v. EPA (D.C. Cir. 1980) (p.554)Facts: EPA wanted to set lead limits lower than what was currently known to be the trigger for adverse health affects. Holding: This is permissible because Congress directed the Administrator to allow an “adequate margin of safety.” The Administrator not limited to acting to prevent health effects that are known to be clearly harmful. The Administrator is entitled to err on the side of caution as long as there is evidence in the record which substantiates his conclusions about the health effects on which the standards were based. Whitman v. American Trucking Ass’ns (2001) (p.564)Holding: The text of §109(b) unambiguously bars cost considerations from the NAAQS-setting process.

Read (1) pp. 546-573 in the casebook and (2) Clean Air Act §§108 & 109 on pp. 522-524 of the Statutory and

Case Supplement.

VI. CONTROL OF WATER POLLUTIONI. Introduction to the Clean Water Act and the Scope of Federal

Jurisdiction. a. Statutory Authorities

i. Clean Water Act: prohibits all unpermitted discharges into the waters of the United States of pollutants from point sources, imposes effluent limitations on dischargers, and requires statewide planning for control of pollution from nonpoint sources.

ii. Ocean Dumping Act: prohibits all dumping of wastes in the ocean except where permits are issued by EPA (for non-dredged materials) or by the U.S. Army Corps of Engineers (for dredged materials). Permits are conditioned on a showing that the dumping will not unreasonably degrade the environment

iii. Coastal Zone Management Act: provides financial assistance to encourage states to adopt federally approved coastal management plans; requires federal actions in coastal areas to be consistent with state programs. Amended in 1990 to require states to adopt programs to control nonpoint sources of coastal water pollution.

iv. Oil Pollution Act: Makes owners of vessels discharging oil liable for costs of cleanup; establishes an Oil Spill Liability Trust Fund to pay response costs; and imposes minimum design standards to prevent spills by vessels operating in U.S. waters.

v. Safe Drinking Water Act: regulates the quality of drinking water supplied by public water systems; establishes a permit program regulating the underground injection of hazardous waste, and restricts activities that threaten sole-source aquifers.1. Cheney loophole: defines underground injection by excluding

hydraulic fracturing activities [hydraulic fracturing cannot be regulated by existing federal environmental laws]

vi. RCRA and CERCLA: considerable relevance for groundwater protection and remediation

b. Predecessor to CWA: Federal Water Pollution Control Act of 1954 (gave money to the states to deal with water pollution)

c. Goals of the CWAi. Very ambitious goals

ii. Two permit programs:1. §402: Discharges of pollutants in navigable waters2. §404: governs dredged or fill material

iii. Anytime a federal permit is required for a project, the Federal government asks the state to certify water quality

d. The structure of the CWA§101 Goals: Declares national goals of fishable/swimmable waters by 1983 and the elimination of pollutant discharges into navigable waters by 1985.§301 Effluent Limitation: Prohibits “the discharge of any pollutant” (defined in §502(12) as the addition of any pollutant (as defined in §502(12) as the addition of any pollutant to navigable waters from any point source or to the waters of the ocean or contiguous zone from any point source other than a vessel) except those made in compliance with the terms of the Act, including the permit requirements of section 402. Imposes multi-tiered effluent limitations on existing sources whose stringency and timing depends on the nature of the pollutant discharged and whether the outfall is directed to a water body or a publicly owned treatment works (POTW)§302 Water Quality Related Effluent Limitations: Authorizes the imposition of more stringent effluent limitations when necessary to prevent interference with the attainment or maintenance of desired water quality.§303 Water Quality Standards & TMDL’s: Requires states and tribes to adopt and to review triennially water quality criteria and standards subject to EPA approval, to identify waters where effluent limits are insufficient to achieve such standards, and to establish total maximum daily loads (TMDL’s) of pollutants for such waters.§304 Federal Water Quality Criteria and Guidelines: Requires EPA to adopt water quality criteria and guidelines for effluent limitations pretreatment programs, and administration of the NPDES permit program.§306 New Source Performance Standards: Requires EPA to promulgate new source performance standards reflecting best demonstrated control technology.§307 Toxic and Pretreatment Effluent Standards: Requires dischargers of toxic pollutants to meet effluent limits reflecting the best available technology economically achievable. Requires EPA to establish pretreatment standards to prevent discharges from interfering with POTWs.§309 Enforcement Authorities: Authorizes compliance orders and administrative, civil, and criminal penalties for violations of the Act.§319 Nonpoint Source Management Programs: Requires states and tribes to identify waters that cannot meet water quality standards due to nonpoint sources, identify the activities responsible for the problem, and prepare management plans identifying controls and programs for specific sources.§401 State Water Quality Certification: Requires applicants for federal licenses or permits that may result in a discharge into navigable water to obtain a certification from the state in which the discharge will occur that it will comply with various provisions of the Act.§402 NPDES Permit Program: Establishes a national permit program, the national pollution discharge elimination system (NPDES), that may be administered by EPA or by states or Indian tribes under delegated authority

from EPA.§404 Dredge and Fill Operations: Requires a permit from the Army Corps of Engineers for the disposal of dredged or fill material into navigable waters with the concurrence of EPA unless associated with “normal” farming.§505 Citizen Suits: Authorizes citizen suits against any person who violates an effluent standard or order, or against EPA for failure to perform a nondiscretionary duty.§509 Judicial Review: Authorizes judicial review of certain EPA rulemaking actions in the U.S. Court of Appeals.§518 Indian Tribes: Authorizes EPA to traet Indian tribes as states for purposes of the Act for tribes that have governing bodies carrying out substantial governmental duties and powers.e. Scope of Federal Authority to Regulate Water Pollution

i. Jurisdictional term: “navigable waters” (defined in §502(7) as “the waters of the United States, including the territorial seas.”

ii. Courts are split about whether EPA can regulate discharges to groundwater or deep well injection of wastes in order to protect surface waters. Definitely not when wells are not connected to surface waters. EPA has declined to assert jurisdiction.

iii. Navigable Waters 1. Riverside Bayview: should be understood broadly to effectuate

the purposes of the act2. EPA and Corps definition:

a. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

iii. Which are or could be used for industrial purposes by industries in interstate commerce

b. After SWANCC, EPA and ACE issued joint memo that SWANCC, “squarely eliminates CWA jurisdiction over isolated waters that are intrastate and non-navigable, where the sole basis for asserting federal jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross state lines in their migrations.”

3. “Significant Nexus” test: To constitute “navigable waters” under the Act, a water or wetland must possess a “significant nexus” to

waters that are or were navigable in fact or that could reasonably be so made

United States v. Riverside Bayview Homes, Inc. (1985) (p.653)Facts: Respondent wanted to fill its wetlands that are continguous to a lake. Holding: Applied Chevron deference and found that Army Corps of Engineers had §404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. The word “navigable” is of “limited import” and Congress evidenced its intent to regulate at least some waters what would not be deemed “navigable” under the classical understanding of that term. The “significant nexus” between the wetlands and the navigable waters made it permissible to include wetlands that abutted on navigable waters in the statutory term “navigable waters.”Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) (p.658)Facts: Abandoned sand and gravel pit turned into two ponds that migratory birds visited. Army Corps of Engineers asserted jurisdiction when owners wanted to turn it into a landfill. They relied on the “Migratory Bird Rule” that they had promulgated.Holding: Isolated ponds wholly located within Illinois do not fall under §404(a)’s definition of “navigable waters” because they serve as a habitat for migratory birds. This would give the term “navigable” no effect whatsoever. There is no Chevron deference because there is no ambiguity: Congress did not intend what ACoE did.Rapanos v. United States (2006) (p.661)Holding: The phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance s “streams… oceans, rivers and lakes.” The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. Only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the Act. Wetlands that only have an intermittent hydrologic connection to waters of the US do not satisfy the “significant nexus” test.Kennedy Concurrence: The plurality and dissent did not apply the significant nexus test. The case should be remanded for proper consideration of the nexus requirement. Wetlands possess the requisite nexus if they, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.”

d. Statutory references: Clean Water Act Legislative History Timeline and Principal Provisions of the Clean Water Act on pp. 762-763 in the Statutory

and Case Supplement, and Clean Water Act §§ 301(a), 404(a) & 502(6)&(7) on pages 818, 886 and 896 of the Statutory and Case Supplement.

II. Regulation of Point Sources of Water Pollution, Effluent Limits, Water Quality Standards and Total Maximum Daily Loadings.

a. §301(a): “the discharge of any pollutant by any person shall be unlawful” except in compliance with certain sections of the Act, including the permit requirements of section 402 (discharge of pollutants) and section 404 (discharge of dredged or fill material)

b. Section 502(12) defines a discharge of a pollutant to include any addition of any pollutant to navigable waters from any point source” or “to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.”

c. Defining “Addition of Any Pollutant”i. Tulloch Rule: excavation activities producing any incidental

redeposit of dredged materials, however temporary or small. Challenged in National Mining Association v. Army Corps of Engineers

National Mining Association v. Army Corps of Engineers (D.C. Cir. 1998) (p.671)Facts: Army Corps of Engineers promulgated the Tulloch Rule which said that if you do any dredging, they presume it will result in incidental redeposit. The Corps accepted the notion that this constituted a discharge, so a permit would be required. The trade association argued that incidental fallback is not a discharge so therefore it cannot be regulated. The Corps/EPA say that it is a pollutant because it can have a negative environmental impact.Holding: The Court rejects EPA’s decision because there is no dredged material. Any incidental fallback is not a net addition. Borden Ranch Partnership v. Army Corps of EngineersFacts: Man used deep ripping equipment to punch holes in clay pan to drain wetlands constitutes adding a pollutant. Holding: Normal farming activities are exempt from §404. However, this was not normal farming activities/ he wasn’t trying to drain for a legitimate farming purpose.

ii. What is a “point source”1. “any discernable, confined and discrete conveyance” (sucha as a

pipe, ditch, channel or tunnel) “from which pollutants are or may be discharged

2. the point source need not be the original source of the pollutant; it need only convey the pollutant to “navigable waters” (Miccosukee)

NRDC v. Costle (D.C. Cir. 1977) (p.684)Facts: EPA wanted to exempt because it would be hard to come up with

actual limits. They want to save their money and time for big sources that matter more. Holding: Finds for NRDC but says that EPA can do other things to lessen the burden, such as general permits.U.S. v. Plaza Health LaboratoriesQuestion Presented: Is a person a point source?Holding: Legislative history makes clear that Congress wanted to go after big sources, not individuals like a kid throwing a candy wrapper into the ocean.Dupont v. Train (1977)Holding: EPA needs to start issuing permits even if they don’t have numerical effluent limits established yet

3. Unitary Waters Testa. Traditional test: pollutant must be added or introduced to the

navigable waters from the outside world. Mere transfer or movement of pre-existing pollutants form one water body to another not an addition of pollutants

b. This is to be addressed on remand in MiccosukeeMiccosukeeFacts: Florida had a diversion program for flood protection. Pipes moved water.Holding: The pipes are a point source, even though they don’t add pollutant themselves. Unitary Waters idea was not developed at lower level, so should be addressed on remand.

III. Water Quality Standardsa. Process for setting them:

i. States and tribal authorities identify designated uses for each body of water within jurisdiction

ii. After consulting EPA’s water quality criteria, states and tribes promulgate water quality standards and submit them to EPA for approval.

iii. States and tribes must review and revise their water quality standards every three years.

b. WQ Standards and Designated Usesi. Supposed to meet fishable/swimmable goal unless that would result

in substantial and widespread economic and social impactc. Problems with WQ Standards:

i. Limitations of toxicity testingii. Depends on where you sample the water to determine how toxic it

is/ what toxins are presentd. Total Maximum Daily LoadsPronsolino v. Nastri (9th Cir. 2002)Issue: Whether or not a body of water that fails to meet water quality

standards entirely as a result of non-point source can be subject to TMDLHolding: It is up to the state to deal with the problem of when a water body fails to meet water quality solely as a result of non-source point pollution. EPA can say that water quality standards are being violated, but they cannot directly regulate the non-point sources.

Read (1) pp. 670-678, 683-690, 698-701, 714-719, 739-748 in the casebook and

(2) §§ 402(a), 502(12) and 502(14) of Clean Water Act on pp. 880 and 896 in the Statutory and Case Supplement.

The Miccusukee Case – Behind the Scenes during the Litigation. Read pp. 678-683 of the casebook, the FOE v. SFWMD Cert Petition (you do not need to read the

Appendices), the FOE v. SFWMD Response Brief, and the FOE v. SFWD Opposition Brief by the Solicitor General (all three of these briefs are posted in a folder that follows this section of the Courseware website).

VII. LAND USE REGULATION

Regulatory Takings Overview Categories of per se takings

o 1. If the government requires an owner to suffer a permanent physical invasion of her property it must provide just compensation (Loretto)

o 2. A regulation that completely deprives an owner of all economically beneficial use of her property, except to the extent that background principles of nuisance and property law independently restrict the owner’s intended use of the property (Lucas)

If it doesn’t fit in one of these two categories, look to Penn Central test (weigh three factors when looking at all facts and circumstances)

o Character of the government actiono Degree to which it harms investment backed expectationso Extent of economic burden that it imposes on property

Regulatory takings claims very rarely surviveLand Use and the Environment, Federal and State Regulations and Introduction to Regulatory Takings.

Read pp. 769-799 in the casebook.Village of Euclid v. Amber Realty Co. (1926) (p.784)Kelo v. City of New London (2005) (p.786)Pennsylvania Coal v. McMahon (1922) (p.794)Penn Central Transportation Co. v. City of New York (1978) (p.795)

Holding: When a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment backed expectations, and the character of the government action.Loretto v. Teleprompter Manhattan CATV Corp. (1982) (p.798)

The Modern Revival of Regulatory Takings Jurisprudence.

Read (1) pp. 799-824 in the casebook. Some regulations may so unreasonably limit the property owner’s

rights that it should not be outcome determinative if they but it after the regulations (Palazzo)

Courts now follow O’Connor’s concurrence in Palazzo: when the owner bought the land in relation to the enactment of the regulation is evaluated as part of the investment-backed expectation factor in the Penn Central test

o Scalia had argued that there isn’t a problem with the developer getting a windfall, that is just smart business. This is not followed.

Keystone Bituminous Coal v. DeBenedictis (1987) (p.799)Facts: Identical to Pennslyvania CoalHolding: A law restricting the exercise of mineral rights was not a taking because it was designed to protect public health and safety by preventing subsidence of surface areas. Distinguished Pennsylvania Coal because there was no basis for finding htat the law made it impossible for the company to profitably engage in its business or that it had unduly interfered with investment backed expectations.First English Evangelical Lutheran Church v. County of Los Angeles (1987) (p.799)Facts: California law made invalidation of the law the only remedy for a takings violation.Holding: While invalidation of an ordinance could make any taking a temporary one, the Constitution “requires that the government pay the landowner for the value of the use of the land during this period.”Nollan v. California Coastal Commission (1987) (p.799)Facts: Nollans wanted to build a small house on beachfront property that was in between two public beaches. Commission granted the permit conditioned on the Nollans’ granting the public an easement to pass along property. Holding: The permit condition was unconstitutional because it did not serve the same governmental purpose as the development ban, and therefore did not meet the nexus test between the condition and the justification for the

ban. Lucas v. South Carolina Coastal Community (1992) (p.801)Facts: Lucas bought beachfront lots but was not allowed to build on them because of risk of hurricane damage and beach erosion.Holding: Created a new categorical taking for when all economic value is lost.Note: This almost never applies because it is Palazzo v. Rhode Island (2001) (p.814)Facts: Palazzo came into possession of waterfront land after the state had designated it as coastal wetlands that could not be developed without a permit.Holding: Rejected the notion that post-regulation acquisition of property serves as an automatic bar to regulatory takings claims. Also rejected RISC’s ruling that case was not ripe (because he could still appeal for permit) because it was clear from oral argument that Rhode Island was not going to give him a permit.

Regulatory Exactions, Evolving Conceptions of Property Rights and Judicial Takings

Regulators sometimes condition approvals of development projects on the developer’s agreement to do something to provide benefits to the public

If you ask an owner to do something as a condition of a permit, there must be a nexus between the dedication and the construction that satisfies the rough proportionality test (Dolan)

The rough proportionality test is satisfied by quantifying findings for individualized determination about the nature and extent of the environmental impact of the development. This finding should then be compared with what the city is asking the private owner to give up. (Dolan)

Government action must substantially further state purpose (Agins). However, the test in Agins (“substantially advances”) is not a complete test. In Lingle, O’Connor holds that a regulatory takings argument must also consider the burden on the landowner, therefore the only options for evaluating a taking are Loretto, Lucas, Penn Central, or Nollan/Dolan nexus tests.

Dolan v. City of Tigard (1994) (p.833)Facts: Store owner wanted to expand and pave parking lot. City conditioned permit on making the area near a creek (which flooded regularly) public and allowing a bike/ pedestrian path.Holding: There is a nexus, as the prevention of flooding and concern about traffic have a nexus to the requested action (unlike Nollan). However the nexus does not satisfy “rough proportionality” so the city loses. The runoff problem could be dealt with in less troublesome ways, and forcing the owner

to give up a part of her property to the city is too essential a component of property ownership to be relatively necessary.Agins: Lindle v. Chevron (2005) (p.845)Holding: Overrules “substantially advances” test of Agins. Holds that the only ways to have a regulatory taking are through Loretto, Lucas, Penn Central, or Nollan/Dolan analyses. Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (1160 SCS)Facts: Florida put new sand on beach to prevent erosion and then claimed that the new stretch of beach was public property. FL law provided that the state could erect no structures and gave homeowners absolute right of access over strip. Owners sued, arguing that there was a judicial taking when the FL Supreme Court ruled that they hadn’t lost anything.Holding: Court upholds Florida Supreme Court decision and splits 4-4 on whether there can be a judicial taking (Constitution does not say that it has to be Congress or Executive taking the land to make it a taking).

VIII. ENVIRONMENTAL IMPACT ASSESSMENT Read (1) pp. 857-869, 870-872, 887-897 in the casebook, (2) NEPA Legislative History Timeline and Principal Provisions of

NEPA on pp. 971-972 of the Statutory and Case Supplement, (3) §102 of NEPA on pp. 974-975 in the Statutory and Case

Supplement.

I. Introduction to NEPAa. Structure of NEPA

Structure of NEPA§101: establishes as the continuing policy of the Federal Government the use of all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.§102(2)(C): requires all federal agencies to prepare an environmental impact statement (EIS) on major federal actions significantly affecting the quality of the environment. The EIS must include a detailed statement of environmental impacts, alternatives to the proposed action and any irretrievable commitments of resources involved.§102(2)(E): requires all federal agencies to study alternatives to actions involving unresolved resource conflicts§201: requires the President to submit to Congress an annual Environmental Quality Report§202: establishes a three-member Council on Environmental Quality (CEQ) in the Executive Office of the President§204: outlines the duties and functions of CEQ including annual reporting

on the condition of the environment, information gathering, and review and appraisal of federal programs and activities.

b. The regulatory target of NEPA is federal agencies, not private industry. The goal of NEPA is to make it the job of every federal agency to factor environmental considerations into their decision making process.

c. Jurisdictional terms:i. “major Federal actions”

ii. “significantly affecting the quality of the human environment”

d. Other requirements/ reasons for strength:i. Requires EIS

ii. Created CEQiii. Gives incentive to make accurate predictions because a

company will be on the hook for environmental damage beyond what they forecast

e. Judicial Review of NEPA (as laid out in Calvert Cliffs)i. Courts cannot reverse a substantive decision on its

merits, under §101, unless the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values

ii. However, if the decision was reached procedurally without individualized consideration and balancing of environmental factors- conducted fully and in good faith- it is the responsibility of the courts to reverse. [NEPA allows for substantive discretion, but has strict standard of compliance for procedure]

Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Agency (D.C. Cir. 1971) (p.860)Facts: AEC issued regulations that required permit applicants to prepare an environmental report to accompany their applications. However, the AEC took the position that it did not have to consider the report unless parties raised specific challenges to it during the licensing process. CCCC argued that AEC’s regulations violated NEPA because they did not require the agency independently to assess environmental impacts.Strycker’s Bay Neighborhood Council, Inc. v. Karlen (1980) (p.864)Facts: HUD prepared EIS and acknowledged that they did not pursue some alternative locations for a low income housing facility because it would create an unacceptable delay. Holding: HUD did consider the environmental consequences of its decision, which is what NEPA requires. Therefore, their decision is sound.

II. When Must An Environmental Impact Statement Be Prepared: “EIS must be prepared for proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.”a. “Proposals for legislation and other major federal actions”

i. legislative EISs have rarely been performed1. final action by the President (such as NAFTA

treaty) is not judicially reviewable because he is not an agency

ii. “Major Federal Action”1. applies to private projects that require federal

approval as well as federal programs policies, an drules

2. CEQ Regs definition: “actions with effects that may be major and which potentially subject to Federal control and responsibility.”

3. Action may include a failure to act by responsible officials if that failure would be reviewable under the APA or applicable law

4. Typical categories:a. Adoption of official policyb. Adoption of formal plansc. Adoption of programsd. Approval of specific projects

5. Government’s decision to follow temporary course of inaction is not an action

6. If the government provides a minimal amount of funding and has no real control over the project (ex. DOE providing 10% of funding for international research project), it is not an action

b. “Significantly affecting the quality of the human environment”i. Does it meet the “Significance test” of Hanly?

1. Will it create new environmental harms, compared to current use

2. Will it cause environmental harms, regardless of current use

Hanly v. Kleindienst (2nd Cir. 1972) (p.887)Facts: Residents and businesses in Manhattan filed suit to force the government to prepare an EIS for the construction of a jail and related facilities. 2nd Circuit required an EIS for the detention center and Test: Whether a major federal action will “significantly” affect the quality of the human environment the agency in charge should normally be required to review the proposed action in light of at least two relevant factors: (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, and (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.Holding: Before a preliminary or threshold determination of significance is made the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency’s threshold decision.

ii. Procedure for determining whether to prepare an EIS1. Agencies must affirmatively develop an reviewable

environmental record to support the determinations that their actions would not “significantly affect the quality of the human environment” (from Hanly and other litigation ) this has become an environmental assessment

2. CEQ Categories/ Procedures:a. If it is a proposal that normal requires an

environmental impact statement presumptively requires an EIS

b. If it is a statement that normally does not require either an environmental impact statement or an environmental assessment presumptively do not require EIS (categorical exclusion)

c. Falls in neither category agency should prepare an EA to make the determination of whether or not to prepare an EIS on the basis of the results of that assessment.

i. EA shows no impact FONSI1. If this is without precedent or

similar to one that normally requires preparation of EIS, the agency must make FONSI available for public review for 30 days before final determination

ii. EA shows impact EIS3. Environmental Assessment (from CEQ regs)

a. Include brief discussions of the need for the proposal, of alternatives, of environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted [mini EIS]

b. Purposes:i. Provides the basis for the agency’s

determination whether to prepare an EIS

ii. When the agency concludes an EIS is not required, the EA is the vehicle for the agency’s compliance with NEPA’s other requirements

Levels of NEPA ReviewCategorical Exclusion: A CE is a category of actions established in the department or agency procedures for implementing NEPA, or established in legislation, that are expected to not have individually or cumulatively significant environmental impacts. Typically, a CE is concluded with the determination that a proposed action is included in the category of actions and there are no extraordinary circumstances that indicate environmental concerns merit further environmental review.Environmental Assessment: When a CE is not appropriate and the agency has not determined whether the proposed action will cause significant environmental effects, then an environmental assessment is prepared. If, as a result of the EA, a finding of no significant impact (FONSI) is appropriate, then the NEPA review process is completed with the FONSI, otherwise an EIS is prepared.Environmental Impact Statement: The most intensive level of analysis is the environmental impact statement which is typically reserved for the analysis of proposed actions that are expected to result in significant environmental impacts. When an EIS is prepared, the NEPA review process is concluded when a record of decision (ROD) is issued.

iii. Determining the “significance” of actionCEQ Regulations: how to interpret “significantly”

(a)Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:(1) Impact that may be both beneficial and adverse. A significant

effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, parklands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial

(5) The degree to which the possible effects on the hman environment are highly uncertain or involve unique or unknown risks

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historic resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal State, or local law or requirements imposed for the protection of the environment

iv. Judicial review of agency determination not to prepare EIS: “arbitrary and capricious”

c. What “effects” must be considered?i. CEQ Regs: “Effects includes ecological (such as the

effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social or health, whether direct, indirect or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.”

ii. NEPA only applies if the harm has a sufficiently close connection to the physical environment.

1. This is similar to the doctrine of proximate cause from tort law

2. Courts must look to the underlying intent in order to draw a managemable line between those causal changes that may make an actor responsible for an effect and htose that do not

3. Rule of reason: ensure that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decision making process. Where the EIS would serve “no purpose” in light of NEPA’s regulatory scheme as a whole, no rule of reason would require an agency to prepare an EIS (DOT v. Public Citizen)

Metropolitan Edison Co. v. People Against Nuclear Energy (1983) (p.897)Facts: Surrounding community opposed restarting a nuclear power plant on Three Mile Island because of psychological effects.Holding: NEPA does not require agencies to evaluate the risk that restart of the nuclear power plant that is companion to the damaged Three Mile Island reactor would harm the psychological health of the surrounding community. Department of Transportation v. Public Citizen (2004) (p.898)Facts: Bush said he would lift moratorium on Mexican motor carriers operating in the US as soon as FMCSA (Federal Motor Carrier Safety Administration) established regulations for the new carriers. FMCSA prepared an EA concerning the environmental impacts of increased safety checks (such as roadside inspections), but not the general effect of the increased number of trucks in the US.Holding: FMCSA lacks discretion to prevent the cross-border operations that would have the environmental impact. Therefore, the entry of the Mexican trucks is not an “effect” of its regulations, so it doesn’t need to do an EIS for that effect.Center for Biological Diversity v. National Highway Traffic Safety Administration (9th Cir. 2008) (p.903)Facts: NHTSA prepared an EA for new fuel economy standards but made FONSI after concluding that the changes in GHG emissions caused by the standards would have little effect on the overall problem of climate change. Petitioners argued that they should have prepared an EIS that considered effects on climate change before establishing new fuel economy standards.Holding: NHTSA’s failure to consider benefits of reducing carbon emissions is arbitrary and capricious. There was no evidence to support NHTSA’s conclusion that the appropriate course was not to monetize or quantify the value of carbon emissions reduction at all. Aslo, they did an inadequate assessment NEPA violation.Note: Challenges like this tend to not get very far. This one would have gone to the Supreme Court, but Obama raised CAFÉ standards.

d. Analysis in uncertainty: What must agencies do to assess adequately effects that are highly uncertain?

i. Sierra Club v. Siegler: Fifth Circuit required the Army Corps of Engineers to prepare a “worst-case analysis” to assess the effects of a total cargo loss by a supertanker

ii. CEQ has since promulgated regulations on incomplete or unavailable information. These regulations are entitled to “substantial deference.”

§1502.22 Incomplete or Unavailable InformationWhen an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and there is incomplete or unavailable information, the agency shall always make clear that such information is lacking.

(a)If the incomplete information relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the EIS.

(b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are nto known, the agency shall include within the environmental impact statement:(1) A statement that such information is incomplete or unavailable;(2) A statement of the relevance of the incomplete or unavailable

information to evaluating reasonably foreseeable significant adverse impacts on the human environment;

(3) A summary of existing credible scientific evidence which is relevant to evaluating the ereasonably foreseeable significant adverse impacts on the human environment; and

(4) The agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. For purposes of this section, “reasonably foreseeable” includes impacts which have catastrophic consequences, even if their probability is low, provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.

III. Problem Exercise: “to what extent should a project’s impact on GHG emissions and climate change be considered in an EIS?”a. Five different kinds of impacts must be considered

i. Direct operational effectsii. Electricity purchased

iii. Transportationiv. Construction materials/ equipmentv. Impact of climate change on project itself

IV. How well does NEPA work?

a. Has provided environmental lawyers with a strategic tool that has been used at times to slow down and sometimes stop development projects

b. Robert Dreher, NEPA under Siegei. Deters federal agencies from bringing forward proposed

projects that could nto withstand public examination and debate

ii. Broadened agency awareness of environmental valuesiii. Expanded public engagement in government decision-

makingc. Macondo Well used NEPA, but it couldn’t catch human error

(2) NEPA Regulations in 40 C.F.R. §§1502.16 and 1508.8 on pp. 985-986 and 995 of the Statutory and Case Supplement.

IX. PRESERVATION OF BIODIVERSITYI. Why Preserve Biodiversity?

a. What is it? – Variability among living organisms from all sources, including terrestrial, marine, and other aquatic ecosystem and the ecological complexes of which they are a part

b. Why protect it? – There are so many species out there that we don’t even know what the impact of the extinction will be or what benefits we could derive from them

II. Introduction to the Endangered Species Acta. Statutory Text

Major Provisions of the Endangered Species ActSection 3: Definitions§3(6) defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.”§3(20) defines “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.Section 4: Listing Endangered and Threatened Species§4(a) requires the Secretary to determine whether any species is “endangered” or “threatened” and to designate critical habitat of such species.§4(b) provides that the listing determination is to be based solely on “best scientific and commercial data available” and that the designation of critical habitat is to be based on the “best scientific data available… taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.”§4(b)(3) provides that citizens may petition to force listing determination.§4(c) requires the Secretary to publish in the Federal Register a list of all endangered and threatened species and to review the list every five years to

determine whether any species should be removed from the list or changed in status.§4(d) requires the Secretary to issue “such regulations as he deems necessary and advisable to provide for the conservation” of under §9 for endangered species of fish, wildlife, and plants.§4(f) requires the Secretary to develop and implement recovery plans for endangered and threatened species unless he finds they will not promote conservation of the species.Section 7: Review of Federal Actions§7(a)(1) requires all federal agencies to carry out programs to conserve endangered and threatened species.§7(a)(2) provides that all federal agencies must insure, in consultation with the Secretary, that their actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of such species’ critical habitat.§7(c) requires federal agencies to conduct a biological assessment of any endangered or threatened species likely to be affected by an agency action if the Secretary advises the agency that such species may be present in the area of the proposed action.§§7-(e)-(h) provide that if action is barred by a jeopardy determination , its proponent may seek exemption from the Cabinet-level “Endangered Species Committee” Section 9: Prohibitions§9(a) prohibits sale, import, export, or transport of any species listed as endangered§9(a)(1)(B)&(C) make it unlawful to “take” (broadly defined by section 3(19) to cover harassing, harming, killing, capturing, or collection) any endangered animal species§9(a)(2)(B) prohibits removal or damage of endangered plants on federal lands or anywhere else if in knowing violation of state law.Section 10: Habitat Conservation Plans§10(a) authorizes the issuance of permits allowing the incidental taking of endangered species to parties with an approved habitat conservation plan to minimize and mitigate the impacts of such a taking where the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.Section 11: Enforcement and Citizen Suits§§11(a) & (b) provide civil and criminal penalties for violations of the Act§11(b) authorizes citizen suits against any person alleged to be in violation of the Act and against the Secretary for failure to perform any nondiscretionary duty.

b. Example of the power of the ESA: TVA v. HillTVA v. Hill (1978) (p.942)Facts: TVA wanted to build a dam on the last free flowing section of the

Little Tennessee River. Environmentalists first tried to stop it with NEPA, but then TVA did an EIS so the injunction was dissolved. Then the snail darter was discovered in that section of the river. The dam would destroy its habitat and eliminate the species (by killing its food source). Department of Interior, despite political pressure, list it as an endangered species.District Court Holding: The dam will wipe out stail darter, but it would be inequitable to stop the virtually complete dam (already put so much money into it). 6th Circuit: Reverses on abuse of discretion. The court has equitable discretion, but when the only thing that will stop the species from being wiped out is an injunction, there is only one option for exercising that discretion.Holding: The 6th Circuit was correct in requiring an injunction. Congressional appropriation of funds for the project did not constitute an exemption. Congress clearly expressed an intent to protect endangered animals.

c. Ramifications of TVA v. Hilli. Sent a very strong signal that ESA would be taken

seriouslyii. Led to creation of the “God Squad” exemption from §7

1. Can grant exemptions if three conditions are met:a. There are no reasonable and prudent

alternatives to federal actionb. Action is in the public interest on a regional

or national basisc. Benefits of the action clearly outweigh the

benefits of alternatives that do not jeopardize the species

d. God Squad and the Spotted Owli. Portland Audobon Society v. Endangered Species

Committee (9th Cir.): Court held that President H.W. Bush unlawfully interfered with deliberations of the “God Squad.” Spotted Owl was then not exempted by God Squad.

e. Polar Bears and the ESAi. Bush agreed to list it as endangered

ii. Previous administration had explicitly said that they would not use ESA to do anything about climate change. Obama reaffirmed this policy.

III. §7 Consultation Process a. §7(a)(1): affirmative duty for agencies to help conserve

endangered and threatened speciesb. Process is similar to EIS process:

i. 1. Are there any species that are likely to be affected by the project?

ii. 2. If so, ask the agency to do a biological assessment to see it they are likely to be affected

1. documents agency’s conclusions and rationale for determining what the impact of the action will be on the listed species

iii. 3. FWS does formal biological opinion to decide whether or not the project can go forward

1. biological opinion may recommend “reasonable and prudent alternatives” to the proposed action to avoid jeopardizing or adversely modifying habitat

IV. Scope of Federal Authority. a. Constitutional sources of federal authority

i. Treaty Power (Migratory Bird Treaty Act and Missouri v. Holland)

ii. Property power (can regulate public lands)iii. Spending power (may expend federal funds and attach

reasonable conditions on their receipt)iv. Power to regulate interstate commerce (allows regulation

of intrastate activities that substantially affect interstate commerce

b. Legal Challenges to the US Endangered Species Acti. Claim that ESA exceeds federal constitutional authority

to regulate intrastate activityii. Challenge to regulatory definition of “harm”

encompasssign destruction of critical habitat (Sweet Home v. Babbitt)

iii. Regulatory takings challengesc. Rationales for Federal Authority

i. Biodiversity has a substantial effect on interstate commerce

1. problem with this argument is that it means that when a species is the closest to going extinct the federal government has the least power to protect it

ii. The regulated activity (construction) has an effect on interstate commerce

d. Conclusions:i. Congress has the constitutional authority to prohibit

harm to endangered species through the exercise of its commerce power [though judges have argued on what the focus should be]

1. Biodiversity as a whole (NAHB v. Babbitt)2. The species itself (Gibbs v. Babbitt)

3. The prohibited activity that harms the species (Rancho Viejo)

4. The regulatory program to protect the species (Gonzales)

ii. Even non-commercial activity that harms US endangered species can be regulated as part of a larger regulatory scheme

iii. Most countries have explicit constitutional provisions providing the authority to protect the environment, though the absence of such a provision in the US Constitution has not been a significant obstacle to environmental protection

National Association of Home Builders v. Babbitt (D.C. Cir. 1997) (p.950)Facts:Wald: ESA is constitutional because it protects current and future interstate commerce that relies on biodiversity and it controls adverse effects of interstate competition.Henderson: Construction of site will affect interstate commerce. The ESA is constitutional because protection of the fly substantially affects land and objects involved in interstate commerce.Sentelle dissent: Both connections to interstate commerce are ridiculous.Gonzales v. RaichHolding: Upheld right of federal government to prevent individuals from growing marijuana that is not for commercial use because it has a substantial effect on supply and demand for a commodotiy in a national market or that regulation of it is an essential part of a larger interstate regulatory scheme. Scalia Concurrence: Congress may regulate intrastate activity that does not itself substantially affect interstate commerce if that regulation is necessary to more general regulation of interstate commerceGibbs v. Babbitt (4th Cir. 2000) (p.957)Facts: US put endangered red wolves on public land and prohbited nearby farmers from killing the wolves if they wandered onto their private land.Holding: Congress can prohibit the taking of the experimental population. There are several reasons why wolves affect interstate commerce: tourism, scientific research, trade in fur pelts (if population grows). Dissent: The inquiry should be focused exclusively on the actual 41 red wolves. They cannot possibly by themselves have an effect of interstate commerce because it is not economic activityRancho Viejo v. Norton (D.C. Cir.)Facts: US gov’t wanted to protect an endangerd toad threatened by a large housing project.Holding:, The regulated activity is commercial housing development and not the arroyo southwestern toad. ESA within commerce power because it is

designed largely to preserve commercial benefits of biodiversity.Ginsburg Concurrence: You cannot regulate the loan hiker in the woods or the homeowner who moves dirt to landscape his property.GDF Realty Investment LLC v. Norton (5th Cir.)Majority Holding: Congress has the authority to make a rational determination to conserve such non-commercial, intrastate species as an essential or integral part of the comprehensive ESA program that regulates activities having a substantial impact on interstate commerce.Jones Dissent: For the sake of 1/8 inch long cave bugs, which lack any known value in commerce, much less interstate commerce, the panel crafted a constitutionally limitless theory of federal protection.

Read (1) pp. 935-964 in the casebook, (2) Endangered Species Act Legislative History Timeline and Principal

Provisions of the Endangered Species Act on pp. 1000-1001 in the Statutory and Case Supplement, and

(3) § 7(a) of the Endangered Species Act on pp. 1011-1012 in the Statutory and Case Supplement.

V. “Harm” in §9a. What is a “harm”?

i. Includes significant habitat modification or degradation (Sweet Home)

b. What does the government have to do to show a violation of §9?i. Sweet home does not require proof of actual past injury

to an endangered species before an injunction can be issued

ii. A reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section 9 of ESA. A habitat modification which significantly impairs the breeding and sheltering of a protected species amounts to “harm” under ESA. (Marbeled Murrelet v. Babbitt)

iii. This is typically litigated as an anticipatory nuisancePalila v. Hawaii Department of Land and Natural Resources (9th Cir.)Facts: Hawaii introduced a population of sheep to an island where the endangered Palila bird lived. The bird lived on a tree that the sheep would eat. Sweet HomeFacts: Plaintiffs (property rights group) argued that the Dept. of Interior’s definition of “harm” which includes “significant habitat modification or degradation where it actually kills or injures wildlife” is illegal because it is overly broad.D.C. Circuit: Harm only includes direct application of physical force to an endangerd species.Holding. Rejects claim that habitat degradation that does not actually kill

the species is not included in §9. Rationale:

(1) Textual: the dictionary definition of harm is to injure(2) Purpose of ESA: the act is supposed to prevent against this

exact type of harm (ex. TVA v. Hill)(3) Congressional intent is clear in the decision to amend §10. If

harm meant what Sweet Home meant, §10 would be redundant.O’Connor Concurrence: The regulation says you must actually kill or injure an animal. Habitat modification can only give way to liability if it is a foreseeable (proximate) cause of the einjury or death and not simply a but for cause (fertilizer deposited in lake by tornado that injures species is not covered).Scalia Dissent: “take” is a term of art that means to reduce animals by killing or capturing to human control. This is reflected in other statutes that use the same word.Marbeled Murrelet v. Babbitt (9th Cir. 1996)Facts: Timber company argued that Sweet Home required proof of actual past injury to an endangered species before an injunction could be issued to prevent logging that would modify the habitat of an endangered bird.Holding: A reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section 9 of ESA. A habitat modification which significantly impairs the breeding and sheltering of a protected species amounts to “harm” under ESA.

V. Climate Change and Protecting Endangered Species Against Private Action.a. In re Polar Bear Endangered Species Act Listing (Sullivan

Opinion, D.C. Cir.)i. Climate change poses unprecedented challenges of

science and policy on a global scale, and this Court must be at its most deferential where the agency is operating at the frontiers of science.

ii. Agency’s decision that §4(d) of ESA is not useful or appropriate tool for alleviating the particular threat to the polar bear from climate change caused by global greenhouse gas emissions is not arbitrary, capricious, or contrary to law.

b. Both Bush and Obama thought ESA was better off if not used to address climate change. It was not designed to be a vehicle for regulating GHGs.

c. Considering O’Connor’s concurrence in Sweet Home, it would be too difficult to establish proximate cause for an individual’s GHG emissions harming species (it is a global problem

Read (1) pp. 964-970 and 987-1009 in the casebook and (2) § 9(a) of the Endangered Species Act on p. 1018 in the Statutory

and Case Supplement.

X. ENVIRONMENTAL ENFORCEMENT

I. Monitoring and Detecting Environmental Violationsa. August 1993 Survey on Corporate Compliance

i. 2/3 of corporate counsel admit that their companies have recently violated the environmental laws

ii. many lawyers believe it is not possible to achieve full compliance with the environmental laws because of their cost, complexity, or uncertainty surrounding how they are interpreted

b. Philosophies of enforcementi. Cooperation: we should cooperate with businesses; we

shouldn’t focus enforcement resources on imposing penalties, we should focus on education (philosophy of Bush Administration)

ii. Deterrent: companies will only obey the laws if they are afraid of the consequences

iii. Combination approachc. What is the point of penalties? – penalties should always recoup

the economic benefits of the violation. We want a company to know they will never benefit from ignoring the law

d. Problems assessing compliancei. It is very difficult to find out about and prove violations

ii. Inspectors have to gain access to facilitiesiii. Sampling results have a wide margin of error; can

fluctuate depending on weather and productione. Enforcement problems

i. Detecting violations1. Most frequently brought to attention by

whistleblowersii. Proving violations

iii. Judges who fail to understand the seriousness of environmental violations

f. Whistleblower provisions in environmental law:i. Prohibit an employer from discharging or discriminating

against any employee who reports violations (CWA, CAA, RCRA, CERCLA, TSCA, SDWA)

ii. Whistleblowers may seek a hearing before an administrative law judge in the Department of Labor

iii. Remedies may include back pay, reinstatement or other relief

iv. Remedies are subject to judicial review and enforcementg. Bounty Provisions in Environmental Laws

i. CAA §113(f): added in 1990, authorizes EPA to pay a reward of up to $10,000 to anyone who provides information that leads to a criminal conviction or civil penalty under the Act

ii. CERCLA 109(d)h. Environmental Audits: How do you encourage companies to

monitor their own compliance with the environmental laws voluntarily?

i. Companies were afraid that doing environmental audits was just going to help prosecutors

ii. State response:1. Many states adopted audit privilege laws to make

audits non-discoverable2. Others made them both privileged and provided

immunity for any violations discoverediii. EPA was concerned that this was going to be a get out of

jail free card promulgated Policy Statement on Incentives for Self-Policing (p.1016)

1. Applies at the federal level (not state)2. Provides incentives for companies to voluntarily

disclose and promptly correct violations3. Eliminates gravity based penalties and criminal

penalties if part of systematic audit process (75% reduction if not systematic)

a. This still requires the violator to pay the economic value of the violation [maintains EPA policy that they will not settle for less than the economic benefit of the violation]

4. Exceptions: a. repeat violationsb. violations that cause serious actual harm or

that violate ordersc. Voluntary discovery: if the discovery was

inevitable, it is irrelevant whether they were going to report it

i. States get delegated authority for administering federal programs

i. States frequently do the actual permitting; EPA can veto if they think permits are inadequate

ii. In order to get delegated authority, states must show they have legal authority and sufficient resources to carry out laws

iii. The only sanction available to the agency if a state isn’t doing a good enough job is to pull the delegated authority

iv. States spend much more on implementing environmental laws than the federal government does through EPA

EPA, Final Policy Statement on Incentives for Self-Policing of Violations (2000)

C. Incentives for Self-Policing

1. No Gravity-Based PenaltiesIf a regulated entity establishes that it satisfies all of the conditions of Section D of this Policy, EPA will not seek gravity-based penalties for violation of Federal environmental requirements discovered and disclosed by the entity.

2. Reduction of Gravity-Based Penalties by 75%If a regulated establishes that it satisfies all of the conditions of Section D of this Policy except for D(1) – systematic discovery- EPA will reduce by 75% gravity-based penalties for violations of Federal environmental requirements discovered and disclosed by the entity.

3. No Recommendation for Criminal Prosecution(a) If a regulated entity establishes that it satisfies at least conditions

(D)(2) through D(9) of this Policy, EPA will not recommend to the U.S. Department of Justice or other prosecuting authority that criminal charges be brought against the disclosing entity, as long as EPA determines that the violation is not part of a pattern or practice that demonstrates or involves:(i) A prevalent management philosophy or practice that

conceals or condones environmental violations(ii) High-level corporate officials’ or managers’ conscious

involvement in, or willfull blindness to, violations of Federal environmental law;

(b) Whether or not EPA recommends the regulated entity for criminal prosecution under this section, the Agency may recommend for prosecution the criminal acts of individual managers or employees under existing policies guiding the exercise of enforcement discretion

4. No Routine Request for Environmental Audit ReportsEPA will neither request nor use an environmental audit report to initiate a civil or criminal investigation of an entity. For example, EPA

will not request an environmental audit report in routine inspections. If the Agency has independent reason to believe that a violation has occurred, however, EPA may seek any information relevant to identifying violations or determining liability or extent of harm.

D. Conditions

1. Systematic DiscoveryThe violation was discovered through:(a) An environmental audit; or(b) A compliance management system reflecting the regulated entity’s

due diligence in preventing, detecting, and correcting violations. The regulated entity must provide accurate and complete documentation to the Agency as to how its compliance management system meets the criteria for due diligence outlined in section B and how the regulated entity discovered the violation through its compliance management system. EPA may require the regulated entity to make publicly available a description of its compliance management system.

2. Voluntary DiscoveryThe violation was discovered voluntarily and not through a legally mandated monitoring or sampling requirement prescribed by statute, regulation, permit, judicial or administrative order, or consent agreement. For example, the policy does not apply to:(a) Emissions violations detected through a continuous emissions

monitor (or alternative monitor established in a permit) where any such monitoring is required;

(b) Violations of National Pollutant Discharge Elimination System (NPDES) discharge limits detected through required sampling or monitoring; or

(c) Violations discovered through a compliance audit required to be performed by the terms of a consent order or settlement agreement, unless the audit is a component of agreement terms to implement a comprehensive environmental management system.

3. Prompt DisclosureThe regulated entity fully discloses the specific violation in writing to EPA within 21 days (or within such shorter time as may be required by law) after the entity discovered that the violation has, or may have, occurred. The time at which the entity discovers that a violation has, or may have, occurred begins when any officer, director, employee or agent of the facility has an objectively reasonable basis for believing that a violation has, or may have, occurred.

4. Discovery and Disclosure Independent of Government or Third-Party Plaintiff(a) The regulated entity discovers and discloses the potential violation

to EPA prior to:(i) The commencement of a Federal, State, or local agency

inspection or investigation, or the issuance by such agency of an information request to the regulated entity (where EPA determines that the facility did not know that it was under civil investigation, and EPA determines that the entity is otherwise acting in good faith, the Agency may exercise its discretion to reduce or waive civil penalties in accordance with this policy;

(ii) Notice of a citizen suit;(iii) The filing of a complaint by a third party;(iv) The reporting of the violation to EPA (or other government

agency) by a “whistleblower” employee, rather than by one authorized to speak on behalf of the regulated entity

(v) Imminent discovery of the violation by a regulatory agency(b) For entities that own or operate multiple facilities, the fact that

one facility is already the subject of an investigation, inspection, information request or third-party complaint does not preclude the Agency from exercising its discretion to make the Audit Policy available for violations self-discovered at other facilities owned or operated by the same regulated entity.

5. Correction and RemediationThe regulated entity corrects the violation within 60 calendar days from the date of discovery, certifies in writing htat the violation has been corrected, and takes appropriate measures as determined by EPA to remedy any environmental or human harm due to the violation. EPA retains the authority to order an entity to correct a violation within a specific time period shorter than 60 days whenever correction in such shorter period of time is feasible and necessary to protect public health and the environment adequately. If more than 60 days will be needed to correct the violation, the regulated entity must so notify EPA in writing before the 60-day period has passed. Where appropriate, to satisfy conditions D(5) and D(6), EPA may require a regulated entity to enter into a publicly available written agreement, administrative consent order or judicial consent decree as a condition of obtaining relief under the Audit Policy, particularly where compliance or remedial measures are complex or a lengthy schedule for attaining and maintaining compliance or remediating harm is required.

6. Prevent Recurrence7. No Repeat Violations8. Other Violations Excluded9. Cooperation

E. Economic Benefit

F. Effect on State Law, Regulation or Policy

II. Criminal Enforcementa. Enforcement Authorities: The Clean Water Act (p.1023)

i. 3 Tracks of Penalties1. Criminal Penalties

a. For most serious violationsb. If “knowing” violation, can get up to 3 yearsc. “knowing endangerment” can end up with

even higher penalties (15 years)d. most criminal enforcement actions do not

get convictions under enviornmnetal alws- they get you on making false statements or obstruction of justice

2. Civil penaltiesa. EPA can get injnction to stop harmful action

3. Administrative enforcement actiona. Usually for fairly minor offenses (§309(a))b. EPA will tell the company they found a

violation and propse a penalty that must be paid unless the company wants to contest it

c. If company contests they get a hearing before an administrative law judge

d. ALJ decides how much they should paye. Can ultimately appeal to EPA Administrator

and hten courtb. Criminal provisions in federal environmental laws

i. Have been routinely increasedii. Ex:

1. Clean Air Act §113(c)2. Clean Water Act §309(c)3. RCRA 3008(d) & (e)4. TSCA §§15 & 165. FIFRA 14(b)

c. Standards of Proof for Public Welfare Offensesi. United States v. Dotterweith (1943): where dangerous

materials are involved, criminal violations of regulatory

statute (FDCA) do not require showing of specific intent to violate the laws

ii. U.S. v. International Minerals & Chemicals Corp (1971): “knowingly” refers to acts made criminal rather than knowing that regulations violated

iii. U.S. v. Park (1975): responsible corporate officials may be held criminally liable for violations without proving evil intent

d. Who can be held criminally liable when corporations violate the environmental laws?

i. Responsible corporate officers [this gives them an affirmative duty]

ii. Employees who make corporate decisioniii. Employees who knew or should have known that they

violated regulationse. What does “knowing” mean? only need to show the act was

knowing, not that the violators knew the act would violate the law (Weitzenhoff)

United States v. Weitzenhoff (9th Cir. 1994) (p.1039)Facts: An investigation showed that East Honolulu Community Services Sewage Treatment Plant was illegally dumping sewage. Three managers were prosecuted for criminal violations of CWA after they ordered nighttime dumping in excess of NPDES permit.Holding: It is a felong to “knowingly violate any permit.” This only requires the prosecution to engage in knowing conduct that is violative of the law (not commit a knowing violation of the law). Reasoning: In most cases it is too hard to prove exactly what the defendants were thinking. If this were the standard, we would never be able to prosecute violators criminally.

III. Citizen Suits and Standinga. Citizen suits in the U.S.

i. The first citizen suit provision was written into the CAAii. This language was virtually copied in all other major

federal statutesiii. Citizen suits are the engine that propels environmental

law. They are an important check on agency failures to implement the laws and a vital deterrent against future failures.

b. How provisions work:i. Most federal environmental laws authorize citizen suits

against1. Violators of the law

2. Officials who fail to perform non-discretionary duties

ii. Usually require 60 days notice: this is to give the agency the first crack at taking its own enforcement effort

iii. Citizen suits are generally precluded if federal or state authorities are diligently prosecuting an action to require compliance prior to the citizen suit being filed

iv. Gualtney: environmentalists don’t have to prove that they were in violation at the time the lawsuit was filed. They only have to make a good faith showing that they have reason to believe that the violations will be recurring.

c. Standingi. Constitutional elements:

1. Injury in fact2. Traceability3. Redressability

ii. Prudential restrictions1. Prohibition against third-party standing2. No generalized grievances3. Zone of interests (must be within the zone of

interest protected by the statute)iii. Doctrine of Organizational Standing (Automobile

Workers v. Brock)1. Reagan administration wanted to eliminate

standing for organizations2. Organizations have standing to assert the interests

of their members so long as:a. At least one member of the group would

have standing to sue in his or her individual capacity, and

b. The interests the organization seeks to protect through the lawsuit are “germane to the organization’s purpose”

iv. Judicial Responses to citizen suits: two views1. J.Skelly Wright: judicial duty is to see that

important congressional purposes are not lost in halls of democracy

2. Scalia: so long as no minority interests are affected, important legislative purposes, heralded in the hallways of Congress, can be lost or misdirected in the vast hallways of bureaucracies. This is a good thing.

v. Scalia’s campaign to restrict standing in citizen suits:1. Lujan v. National Wildlife Federation: NWF

thought Reagan was illegally allowing too much

development on public lands. The court said that the plaintiffs need to show that they are actually using individual parcels about to be developed. This made it virtually impossible to sue because they didn’t know what was going to be developed until bulldozers arrived.

2. Lujan v. Defenders of Wildife: plaintiffs lack standing to challenge decision not to apply ESA to actions of US agencies outside of the US.

a. Note: Scalia was unable to completely wipe out environmental standing because Souter and Kennedy would not have joined.

3. Steel Co. v. Citizens for a Better Environment (1988): made it harder to meet redressability requirement. The fine isn’t going to the plaintiffs, so there is no redressability.

vi. Impact of Lujan II: Lower courts went crazy because they didn’t know what degree harm had to be shown

1. Gaston Copper: 4th Circuit said that the plaintiffs couldn’t show that the molecules that had violated the permit had somehow touched them and somehow harmed them

2. Magnesium: Court ordered supplemental standing briefs, even though the only issue on appeal was whether the penalty was too high. Said they had no standing because they did not prove how the violation of the permit harmed them.

3. This in effect was saying that a citizen must have the same amount of harm that would be required in a private lawsuit to get standing in a public lawsuit

vii. Friends of the Earth v. Laidlaw Environmental Services (2000)

1. The litigants only have to prove that as a result of the violations there was injury to themselves, not injury to the environment.

2. Satisfies redressability because, unlike Steel Company, the violations continued after the citizen suit was filed. Therefore there is a continuing deterrent effect.

viii. Mass v. EPA: is it a special case of parens patriae standing, or does it apply to all environmental law standing?

ix. Summers v. Earth Island Institute:

1. Legal mistake: they settled the project they had clear standing over

2. You can bifurcate standing: you may have standing for one area, but not for the whole law

3. In this case, the claim was insufficient to establish standing. The likelihood that he would go to the specific place that the Forest Service will subject to a categorical exclusion is very low, especially given the vast expanse of the national forest.

4. Implications of Summers: Environmentalists will have a harder time with public lands, but this does not necessarily take us back to pre-Laidlaw days

Read: (1) pp. 1011-1025 & 1037-1054 in the casebook and (2) Clean Water Act §§ 507(a), 507(b), and 309(c) on pp. 899 and 840-

842 in the Statutory and Case Supplement.

Read (1) pp. 1054-1055 & 1070-1101 in the casebook and (2) §505 of the Clean Water Act, 33 U.S.C. 1365, on pp. 898-899 of the

Statutory and Case Supplement.

XI. PROTECTION OF THE GLOBAL ENVIRONMENT

I. Introduction to International Environmental Lawa. Model for how the world responds to environmental problems

has been changingi. Originally, was only through multinational treaties and

informal principlesii. Now:

1. Globalization of environmental law: as countries upgrade their environmental standards they borrow law from one another an a very high rate

2. Retailer/ purchaser initiatives: purchasers can influence environmental issues by using buying power to shift suppliers behavior

b. Forces driving the development of global environmental lawi. Growth of international trade and multinational

corporate enterprisesii. Globalization of environmental concerns

iii. Increased global collaboration of environmental NGOs and environmental officials

iv. Development and implementation of multilateral environmental agreements (ex. Kyoto Protocol and Montreal Protocol countries had to change their own laws to comply)

c. How is international law different from domestic?i. Like contracts: the binding nature comes from the

willingness of parties to be boundii. Very little procedural hierarchy: no global constitution or

international body with authority over everyoned. Train Smelter Dispute between US and Canada

i. There was a treaty between US and GB (representing Canada) that said if there were disputes that couldn’t be resolved about boundary waters, they would enter into arbitration

ii. A copper smelter in British Columbia was polluting into Washington State

iii. Arbitrators relied on Georgia v. Tennessee Copper (states have the authority to protect citizens from pollution occurring outside of the state) and required the smelter to reduce population

e. UN Environmental Conferencesi. 1972: Stockholm Conference on the Human Environment

1. Stockholm Declaration: states have a sovereign right to exploit their own resources and to ensure that the activities within their jurisdiction or control do not cause damage to the environment or control do not cause damage to the environment of other states or of areas beyond the limits of their jurisdiction [sic utere principle]

ii. 1982: Nairobi Conferenceiii. 1992: UN Conference on the Environment and

Development (Rio)1. Rio Declaration (p.1123): reiterates sic utere2. Principle 13: restatement of Stockholm Declaration

except that it inserts “in an expeditious and more determined manner.” [this is basically admitting that they have made little progress in the last 20 years]

iv. 2002: World Summit on Sustainable Development (South Africa)

v. 2012 UN in RioII. Protection of the Global Atmosphere

a. Montreal Protocol on Substances that deplete the ozone layeri. Historical background: Two scientists developed a theory

that CFCs were so stable that they would stay in the atmosphere for a long time, become chlorine, and turn ozone into oxygen, thereby destroying the ozone layer

ii. We took precautionary measures (banning CFC) before we actually found the hole in the ozone layer one of the only times precautionary rule has been followed

b. Development: agreed to set up process even before the hole was found

c. What it said:i. Developed countries would start phasing down first

ii. Tax would then go to helping developing countries do the same, but on a slower track

d. Results: has actually been responsible for a larger reduction in GHG than the Kyoto Protocol

e. Is this a good model for dealing with climate change?i. GHG is a much larger category of products than CFCs

ii. There were easier substitutes for CFCsiii. Differences in public support

f. Global tragedy of the commons: climate changei. June 1992: UN Framework Convention on Climate

Change sets up negotiating process. The US Senate ratified unanimously, went into force in 1994.

ii. Kyoto Protocol:1. 5% reduction from 1990 levels during 2008-2012

for developed countries2. entered into force in Feb. 20053. US said it wouldn’t ratify unless it also required

developing countries to control emissions as well4. For a long time Austraila and the US were the only

industrialized countries that had not ratified it. However, it became an election issue in Australia and they ratified it

5. Article 3.1 of FCCC: commits all parties to protect the climate system on the basis of equality and in accordance with their common but differentiated responsibilities and respective capabilities

iii. Post-Copenhagen Submissions by countries1. US pledged to reduce emissions of GHG by 4%

below 1990 by 2020 (slightly below Kyoto)2. China announced voluntary goal to reduce carbon

intensity of its economy by 40% below 2005 levelsiv. Current status of global environmental law: more of a

competition between countries for what they can establish than a collaborative, top-down approach

1. Example of bottom-up implementation: 155 mayors have pledged to have their city comply with Kyoto Protocol

Read pp. 1117-1125, 1129-1150 & 1154-1158 in the casebook.

III. Trade Liberalization and the Environmenta. Environmentalists argue that trade liberalization will harm the

environmentb. GATT Article XX

i. Permits environmental regulations that 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, if:

1. (b) necessary to protect human, animal, or plant life or health, or

2. (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption

c. Nondiscrimination in commerce: one state cannot discriminate against out of state commerce because of where it originates

d. Tuna/ Dolphin I Decisioni. Mexico was complaining about the US ban on the

importation of tuna from countries whose fishing fleets had more than 1.25x the average dolphin death of the US fishing fleets. They claimed it was a violation of GATT because it was an unnecessary unilateral action to protect the global commons. They argued the US should have negotiated a multilateral agreement instead. Article XX only talks about domestic natural resources; it does not allow one country to unilaterally protect the global commons.

ii. Panel Holding: the US did not exhaust its options. Even if the US had the right to protect dolphins in international waters, they should have tried to negotiate a treaty in advance. It is too hard for Mexico to compy because they cannot know US rate of dolphin killing in advance.

iii. Aftermath: the US quickly got Mexico to agree to drop the complaint and impose new dolphin fishing practices.

e. Tuna/Dolphin II i. US also had tuna laundering prohibition, which the

Europeans were angry about.ii. Principle 12 of Rio Declaration:

1. Presumption against unilateral actions2. Environmental issues addressing trans-boundary

problems should be based on multilateral agreements

iii. Europeans succeeded in getting panel to say tuna laundering provision is violation of GATT. However, the

panel recognizes that the US has a legitimate interest in protecting dolphins of the high seas.

f. The Shrimp/Turtle WTO Decisioni. Issue: whether requirements that turtle excluder devices

be used in shrimping operations can be imposed on other countries.

ii. Appellate ruling: the problem is the way in which this is imposed. You cannot require that it be absolutely the same as in the United States if there are other ways of protecting the turtles.

iii. We now have more specific requirements that deal with different situations

IV. International Trade in Hazardous Substancesa. Asbestos Decision (p.1179)

i. For the first the WTO upheld an absolute ban on a product on the grounds that it was so dangerous

ii. Almost all asbestos used in the US is produced outside of the country

b. Karin B: ship tried to unload toxic waste in Africac. Basel Convention

i. If there are hazardous substances that are being shipped abroad, you must notify the country that it is coming and get their consent before you ship

ii. Works like RCRA (bans export of hazardous waste unless prior informed consent or pursuant to treaty)

iii. TSCA permits manufacture solely for export of chemicals banned in the U.S. so long as they are labeled as solely for export

d. “Circle of Poison”: we produce hazardous materials that are banned in the US, ship them to other countries, and then traces of those substances come back in products produced in those countries

i. however, environmentalists have not been successful in having a ban of a product mandate a ban on all uses (including manufacturing) because it really would just be exporting US jobs (because other countries will manufacture and those developing countries would keep on using it)

e. Dow Chemical v. Alfaro (Texas 1990)i. Pesticide was banned in the US. Dow Chemical kept

making it in the US, then exported it to Costa Rica where they used it on bananas.

ii. Case brought under alien tort statutef. Alien Tort Statute

i. Says that foreigners can bring suit against anyone who has violated the law of nations (acts that would be violations in any court of law)

ii. Filartiga v. Pena-Irala: Woman found that former military leader who had tortured and killed her brother was living in the United States

iii. Jota v. Texaco; Aguinda v. Texaco: plaintiffs livid in the Amazon. Texaco just dumped the waste from oil exploration anywhere, causing major environmental damage. 2nd Circuit would only dismiss the suit if they would accept continuing jurisdiction of Ecuador.

iv. Beanal v. Freeport McMoran (p.1191): failed to bring a claim under the alien tort statute because environmental harm was not a violation of the law of nations. [Plaintiffs cited general notions in Rio Declaration. But the Court said it was not the type of shocking grievous harm (like murder, torture) that would qualify]

v. Flores v. Southern Peru Copper Corp.: Lead smelter has no pollution control. 2nd Circuit says that it is not the harm that would rise to the violation of the rule of nations. It is up to Peru to determine if it violates its own laws, but we won’t export US domestic standards.

vi. Sosa v. Alvarez-Machain: US kidnapped doctor who they suspected of being involved with torture and murder of DEA agent. He was acquitted and sued the DEA agents who kidnapped him. US said it was not enough to constitute violation of international law of nations.

vii. For environmental claims: Alien tort statute is only available for egregious human rights allegations coupled with environmental degredation

1. Doe v. Unocal: company got together with Burmese government to force locals to labor for them (under coercive program of rape and murder)

2. Saro-wisa: environmentalist who was complaining about Shell pollution was executed by military at Shell’s behest. Case was settled for $15 million.

3. Kiobel v. Royal Dutch Petroleum: individuals can violate the law of nations, states can violate the law of nations, but corporations cannot US Supreme Court has just granted cert

4. Trafigura Toxic Waste Dumping in Ivory Coast (British case): several people died because waste was so toxic. During the course of discovery they found an email congratulating the boat captain.

They settled and captain was criminally prosecuted.

viii. Chevron in Ecuador1. Chevron was held liable to pay $8.6 billion2. Unless Chevron apologizes to people of Ecuador,

the judgment will double

Read (1) pp. 1167-1195 in the casebook and §§ 17(a) & (b) of FIFRA on p. 180 of the Statutory and Case

Supplement.