DEPARTMENT OF PUBLIC POLICY

POL 661: Environmental Law
Lecture 7: Pollution: Public Controls Introduction
In this section we are focused on understanding how public law controls (statutes) are used to achieve environmental goals. In order to place these materials into perspective we need to bring forward our understanding of private law controls (common law) from the previous module. Recall that a major difference between public and private control mechanisms is the focus between the two; private control mechanisms tend to focus on the individual, while public control mechanisms tend to focus on the environment (at least regarding ‘environmental’ statutes). A visual representation of this difference is copied below for recollection and reference purposes:

In addition to the difference in focus between public and private legal frameworks, there is also a difference in the type of judicial review applied to public and private frameworks. As described in the last module, the role of judicial review in private frameworks, based in common law, is expansive; judges have substantial discretion in fashioning remedies between the parties under common law traditions. We noticed how judges utilized a cost-benefit framework in the Boomer and Spur cases when trying to

Page 2 of 12 fashion an equitable remedy between the parties under the common law doctrine of nuisance. What also noticed the substantial freedom offered to judges under common law doctrines can lead to an inconsistency in the ultimate remedies created, particularly in the criteria chosen by the judges and also the weights applied to their chosen criteria. We also observed the focus of this cost-benefit application was really on the entities of the lawsuit (the company and the homeowners), and not really on the environment (the environment was more of the backdrop for the underlying claim of nuisance, but it was not really the focus in fashioning a remedy to the nuisance itself). In this module we focus on the role of public law in fashioning remedies for environmental harm. We will notice that environmental statutes, unlike common law, place the environment at the center of the legal issue, both in terms of determining a violation of the law and in terms of fashioning a remedy for violations. In terms of the ‘fashioning’ of remedies, we will see that courts are much more constrained in their decision-making when implementing remedies under statutes then they are under common law tradition. In order to make this clear, our analysis will begin with an overview of judicial review of statutory environmental law, and then review specific applications under several environmental statutes dealing directly with pollution.

Judicial Review of Statutory Environmental Laws
In order to understand the constraints of judicial review under statutory law application, we first need to recall our hierarchy of laws discussion (separation of powers) from earlier in the course. To help in our recollection the figure showing the hierarchy is copied here:

Recall that the hierarchy above presents us with a clear understanding of the relationships between different kinds of law. Our focus here in statutory law interpretation is on the “Laws” section above: federal environmental statutes that are passed by Congress with stated purposes and objectives. The role of the judiciary is to ensure these stated

Page 3 of 12 purposes and objectives are being carried out and it accomplishes its role in two primary ways: • First, the judiciary ensures the environmental statute (either facially or as it is being applied in a particular case) does not violate constitutional principles.1 (The courts always have jurisdiction to protect against constitutional violations.) Second, the judiciary applies an established framework of statutory interpretation to the law that is under review. This framework is based on the language of the statute; essentially the degree to which Congress has spoken on the remedies available under the statute. The court’s job is to ensure the legislative mandates are being followed based on the language of the statute.

Putting aside the constitutional questions (a court’s review of a statute to ensure it is constitutional) let us focus our attention on judicial framework of statutory interpretation. As noted earlier, the amount of discretion available to courts when reviewing statutory law is generally limited in comparison to the amount of discretion available when reviewing common law. To understand this, we must look to the statute itself to determine the intentions of Congress in passing the law and decipher the degree to which the legislature has spoken on the kinds of remedies available under the particular statute, including whether or not judicial review is actually available. The process of determining judicial review is summarized in the following steps: • First, it must be determined whether or not judicial review is available under the statute. o Look to the statute and determine if the express language of the statute allows for judicial review.  If the statute expressly allows for judicial review, then it is available.

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A statute can be facially unconstitutional where, as written, the law violates constitutional principles; an example might be a statute that prohibits a women from getting an abortion in violation of the federal constitutional right to privacy. A facially unconstitutional law is rare as it is presumed Congress does not normally pass such laws, and under this presumption, courts seek to ‘harmonize’ a statute to find that it is constitutional as written. Alternatively, a statute can be found unconstitutional as applied in a certain setting; the statute is not facially unconstitutional, but is unconstitutional in the manner it is being applied. An example might be a housing statute that is valid as written but is being applied in a way that prevents minorities from gaining access to housing.

Page 4 of 12   If the statute expressly forbids judicial review, then there is no judicial review available. If the statute is silent, then the Administrative Procedures Act (another statute) applies regarding judicial review.

If the statute allows for judicial review (either expressly or through silence), then other provisions of the statute must be reviewed to determine the extent of judicial review available. o If the language of the statute regarding the kinds of remedies available (the extent of judicial review) is unambiguous, then that statutory language controls (a court has little discretion and simply follows the statutory remedies stated).2 o If the language of the statute is ambiguous, then the court reviews the actions (usually of an agency in enforcing the statute) to see if those actions are a reasonable interpretation of the statute (reasonably likely to meet statutory goals) and otherwise within the discretion granted by Congress in the statute. o If the statute is silent, then a court will review the actions (agency conduct) in relation to other parts of the statute.3 The goal here is to find

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Note that often judges are actually reviewing agency actions in implementing statutory goals under environmental laws. Recall that agencies of the executive branch (like the EPA) are often delegated the responsibility for implementing statutory goals. Thus, judicial review of environmental statutes often surrounds the actions of the agency in implementing statutes, including the enforcement of statutes and regulations made to implement a statute. The question under such review is whether the agency is acting within its delegated authority under the statute. Where a statute is unambiguous, then the court looks to ensure the agency action is a direct reflection of the statutory mandate (follows the language precisely). Where the statute is ambiguous, the court determines whether the agency action is within the discretion granted by Congress under the statute.
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The review conducted by a court of agency actions is of three primary kinds (referred to as standards of judicial review): • Arbitrary and Capricious Standard: The main query focuses on whether the agency has considered ‘relevant’ factors related to the statute in their decisionmaking, and also whether there has been any ‘clear’ error of judgment based on the facts available to the agency. For example under NEPA review, the notice and comment requirements may bring forth relevant information about environmental impacts of a proposed project. Failure to consider this information may be seen as a clear error of judgment based on the facts presented because a decision is being made about the heart of the NEPA statute (environmental impacts) without

Page 5 of 12 the degree of discretion granted to the agency under the statute. If the discretion is total, then the court cannot review the agency’s conduct. If the discretion is limited, then the court reviews the agency’s conduct under the express statutory limitations. A visual representation of statutory judicial review as described immediate above is provided here:

What should become apparent to you in reviewing the role of the courts in statutory interpretation is that the remedies are very much dictated by the wording of the statute. Unlike common law, courts are limited in the amount of discretion they have to ‘fashion’ a remedy; the language of the statute really controls (and some might argue ‘hamstrings’) judicial review. This is important to consider from a policy standpoint because it speaks considering relevant information related to that decision. • In Excess of Statutory Authority Standard: The focus here is on the authority granted to the agency under the statute and whether that authority has been exceeded by the agency. Without Observance to Required Procedures Standard: The focus here is on procedures laid out in the statute and whether the agency has conformed to those procedural requirements. Failure to follow the procedural requirements of NEPA is a clear example.

Page 6 of 12 to the overall effectiveness of environmental statutes; the degree to which an environmental statute will be effective in protecting environmental assets is directly related to the kinds of enforcement and remedial mechanisms contained in the statute. If the statute is silent on the exact remedies available, then the amount of discretion the statute grants to agencies for implementation and enforcement purposes becomes critical; greater discretion provides agencies with greater choice in fashioning enforcement and remedial measures to meet statutory goals. However, complete discretion to agencies can be detrimental from a policy standpoint as well. Because agencies are political bodies, the extent to which an agency may be willing to enforce environmental protections will be connected to the political leanings of the executive branch in any particular administration. Thus, while discretion may be an important part of providing an adaptive capacity to agencies, there is likely an upper limit on the effectiveness of full discretion. So we should now understand that statutory environmental law frameworks are very much drivers of environmental protection, and the precise language of those statutes becomes a controlling factor when we think about the ultimate enforcement of environmental goals. We look to the statutes to determine the extent of judicial review allowed, the kinds of remedies explicitly identified in the statute, and the roles granted to agencies in the enforcement of those goals through the degree of discretion granted to the agencies in the statute. With this understanding of judicial review in-hand, we now turn to examples of public law remedies for pollution.

Public Law Remedies to Pollution
The kinds of remedies available in our legal system are varied and include the following kinds of ‘remedial’ measures:     Holding someone criminally liable for violating a legal mandate and thus placing them in jail (removing their freedom of movement). Forcing someone to pay damages (money) to injured parties and elsewhere as a result of some action. Forcing someone to do something specific, like taking remedial action to lessen the harm caused by previous conduct. Forcing someone to stop doing something through the issuance of an injunction.

We can find examples of all of these different forms of remedies in most environmental statutes. For example, the Clean Air Act and Clean Water Act both contain civil and criminal penalties depending on the violations observed. Under the CWA violations that can lead to both criminal and civil penalties often include the intentional discharge of pollutants into a waterway without a permit under the Act. The CAA contains similar penalties for stationary sources of air pollution (coal burning power plants for example) that fail to utilize the best available technology standards set forth in the Act, or

Page 7 of 12 otherwise fail to self report violations of standards set for the particular facility.4 Injunctions are also the tool most often applied by judges at the beginning of litigation; preliminary injunctions are usually used as a means of stopping the activity complained of while the deeper statutory issues are considered. For example, a claim of a failure to consider alternatives under NEPA may lead to an initial injunction issued by a court to prevent the activity from moving forward while it reviews the basis of the claim, i.e., whether the procedural requirements of NEPA – including consideration of alternatives – was followed.5

Citizen Suit Provisions
One additional consideration in thinking about public law remedies is the role of citizens in enforcing statutory requirements under the various environmental statutes. Recall under private remedies – particularly nuisance claims highlighted in Boomer and Spur – individual homeowners (citizens) has the right to bring actions against the ‘offender’ of the environment in both cases. Generally under common law, citizens have direct access to the court system; once a wrong has been committed (or is about to be committed) the aggrieved party has the capacity (standing) to bring a direct action in a court of law. Under common law, citizens to not have to ask for special permission to bring such actions; standing is presumed in the ability to bring a complaint forward and it is up to the defending party to show a lack of the court’s jurisdiction (say by brining a motion to dismiss indicating there is no jurisdiction because of a lack of merits to prove the underlying claim).6 The right to bring a claim by citizens is not automatic in public environmental statutes. A number of environmental statutes do contain citizen suit provisions, but the ability to bring a suit is not direct. Government generally has the right to bring such a suit first, and only upon failure to take action can citizens (who prove standing) bring a suit in the place of government. There are a number of reasons for this limitation on direct citizen suits and we can consider one aspect of the rationale generally. Note that public environmental statutes focus on protecting the environment rather than protecting humans directly as in the common law. Because the environment is at the heart of the
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There are sections of both the CWA and CAA that require self-reporting of violations by certain sources of pollution (companies for example). This statutory requirement has been criticized because the self-reporting can lead to criminal violations under both statutes (usually the heads of the company are criminally responsible and subject to jail time). As such, some argue mandated self-reporting is unconstitutional because it violates the Fifth Amendment protection against self-incrimination.
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We also saw how injunctions were used in private law remedies, particularly nuisance, in order to stop the offending activity while the basis of claim was decided.
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An example might be in a nuisance claim where there is no evidence of an offending activity upon which relief (like an injunction and/or damages) can be granted.

Page 8 of 12 statute (even if human health and wellbeing is the rationale behind protecting the environment), there is not necessarily a direct connection between certain humans and the environment being protected. Congress has chosen in most of these statutes to allow government (via agencies) the discretion on enforcement, and only when government has chosen not to litigate a potential violation do certain citizens have the right to bring a claim. Not all environmental laws allow for citizen suits. For example, the Endangered Species Act (ESA) does allow for citizen suits, while the Marine Mammal Protection Act (MMPA) does not. The CWA and CAA both have citizen suit provisions under limited circumstances. For example, if you or I believe that a company is violating the provisions of the Clean Water Act (say we believe they are discharging more pollutants into the water than their NPDES permit from the federal government allows), then we may want to bring a lawsuit against the company. However, our capacity to bring that lawsuit will be defined (and likely limited) by the specific provisions in the Clean Water Act that allow for enforcing the provisions of the statute.7 So we may need to contact EPA as the official government entity that may be entitled to bring an enforcement action against the company. But what if EPA is not willing to move forward with our claim? What if they lack the resources to check on the company immediately? This is one major limitation of public laws; they often limit our capacity to bring direct actions against potential violators. Contrast this example with private law remedies like nuisance or negligence; remember that if we can show individual harm and a connection to the company, then we have standing in order to bring a claim against them directly. From a policy standpoint we need to consider the impact limiting individual access to sue on behalf of environmental wrongs (remember the environment cannot sue on its own behalf) has on policies geared to protect the environment. Such limitations are sometimes said to have a ‘chilling effect’ on the purpose of the law. The point here is to understand that the role of public environmental laws is much more comprehensive than private laws. While comprehensive, these laws are limited in a
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For example, our ‘capacity’ is defined by a number of factors under the CWA:  First, we must prove standing: o Injury-in-fact (we must show we are injured by the action) o Causation (we must show the injury is caused by the purported violation) o Redressability (we must show the court has power to redress the injury) Second, we must show government is unwilling to seek enforcement action: o 60 day notice to government required under statute (give notice of violation to govt. and then it has 60 days under CWA to determine if it wants to prosecute). Third, under CWA, we can only bring action for future violations (must show continuing violation). Only government has capacity to bring an action for past violations.

Page 9 of 12 number of ways; first, they are defined by their statutory language, which means Congress establishes the rights and responsibilities of the parties. Second, judicial review is limited to statutory construction; judges are limited in their remedial capacity by the language of the statute. Third, citizen advocacy of violations is limited; government has the primary discretion on enforcement actions under most environmental statutes, and sole discretion (no citizen suit provisions) under certain statutes. Collectively we may see that as comprehensive as environmental statutes may be in scope, they are potentially limited in application by the political nature of their creation (legislative definition) and enforcement. Some might argue it would be better to allow immediate citizen suit provisions for all environmental statutes as a way of ensuring better conformity and enforcement of these provisions (ecologist camp). Others would suggest allowing such ease of prosecution of environmental statutes would provide a substantial roadblock to progress, clog up the courts with litigation, and result in unnecessary costs and delays (economist camp).

Special Cases Attainment Areas
One interesting issue discussed in the text is that of attainment areas under the Clean Air Act. There are certain areas of the country (due to a number of reasons) that are CLEANER than the air quality standards require. An interesting policy question is whether these areas should be able to further degrade their air quality? For example, one way to attract industry into a state is to suggest they will be able to pollute a significant amount without any technological controls (which are expensive). While this might increase job opportunities through economic growth of the state, it does so at the expense of air quality. Does this make sense? Does it seem equitable? As the text notes, there are arguments on both sides of the issue. The U.S. Supreme Court ultimately decided the CAA requires high quality air, although this does not necessarily solve the policy implications as states continue to offer their lack of clean air controls as a major incentive to drive business into their jurisdictions.

Emission Credits
Emission credits are a way of creating incentives to create changes in behavior. In the most basic application, a company is given an incentive to reduce its emissions further than is required by law, because the additional reduction becomes a credit that the company can trade with other companies who might need the additional ability to pollute. It can be sold to the other company for a price greater than it cost to achieve the emission reduction, thus giving the reducing company a profit. Even if they cannot sell the credit, they can use it as a tax credit with the U.S. government, creating a failsafe incentive for the industry. This process can be seen as a policy closely linked to the free market incentives favored by economists such as Coase. The policy is created in such as way that it does not force a particular action by a company, but rather creates an incentive for a company to consider

Page 10 of 12 reducing their emissions. In a way, by doing this, government is creating a market that embraces a value for clean air. Many experts feel such an approach is a superior method to the traditional command-and-control form of environmental regulation.

Acid Rain
Acid rain occurs when sulfur and nitrogen oxides are generated from stationary sources, and combine with the hydrologic cycle. The resulting rain is hazardous to humans and the environment. Congress controls acid rain primarily through the CAA, but the effects of acid rain can be seen in all aspects of the hydro-geological cycle; it affects our atmosphere, gets deposited on our land and water, and causes substantial damage to our crops and ecosystems in general. The main cause of acid rain is sulfur dioxide, a main ingredient in many forms of coal. When coal is used as the primary source of generating electricity, it is burned in the process. The sulfur is released, combines with water in the atmosphere, and is re-deposited to the earth. We can control sulfur reaching the air through a combination of technological solutions (scrubbers on power plant smoke stacks), as well as removing the sulfur from the coal prior to burning. Both carry costs that increase the price for electricity paid by the consumer. One interesting policy point about coal and acid rain is the difference in sulfur content between coals found in different parts of the country. In general, coal mined in the eastern part of the U.S. is rich in sulfur. Alternatively, coal mined in the west has lower sulfur content. When acid rain was becoming a significant issue in the 1980s, there was a lot of lobbying being conducted by coal producers from both the east and west. Western coal claimed it provided a superior alternative because their coal had low sulfur content, thus, the need to remove the sulfur was diminished. This meant an easy control on acid rain, while also allowing for lower electricity costs to consumers. Their suggestion was to place different technological standards on power plants if they chose to use western versus eastern coal. If the CAA has created such a standard, it would likely have been much cheaper for plants to purchase from western coal, giving it a significant advantage (while protecting the environment). Eastern coal lobbied hard to ensure no such amendment was made the CAA. It argued for a best available technology standard no matter what type of coal an industry was using. What this meant was an electric plant would have to pay for the SAME technology no matter whether they used western or eastern coal. This would place eastern and western coal on equal ground from a financial standpoint. Of course, this also meant that consumers would be paying higher electricity prices when they could have been paying cheaper prices WHILE protecting against acid rain. Ultimately, Congress sided with eastern coal, and we never saw the benefit of using western coal (at least economically). The point is to highlight how the environment can very much become a side issue in the environmental debate and also how political some of these issues can become.8

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For an excellent summary and review of this issue, please see here: http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1678&context=ealr

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Federal Government Jurisdiction Limitations
A few court cases are pointed out in the reading (SWANNC and Rapanos) discussing the extent of federal jurisdiction under the Clean Water Act. The point is to consider (again) the idea that there are limits to federal jurisdiction when considering environmental laws. SWANNC tells us one limit is where the federal government attempts to regulate wholly intrastate bodies of water. In this case, we are talking about small man-made ponds that are used by migratory birds during migrations north and south. Rapanos reiterated this idea of limitation, but placed the context in terms of ecosystems. The suggestion is the federal government CAN regulate small water bodies if that water body has an affect on the larger aquatic ecosystem. From a policy standpoint, this is an important concept. It suggests federal environmental laws are moving into a new understanding of the relationships between humans and the environment. By mentioning ecosystems as a basis for establishing federal control (because ecosystems form an important part of interstate commerce – they are essential for human wellbeing), we may be seeing elements of sustainability move front-andcenter into the judicial interpretation of the constitutional right of the federal government to manage the interstate affairs of its citizens!9 This is important if we want our environmental laws to be comprehensive in application to achieve stated goals (all waters, whether wholly in state or interstate, are important from a systems perspective). Of course the more power granted to the federal government in accomplishing comprehensive environmental policy, the less sovereignty acknowledged by individual states to manage affairs (including environmental affairs) that occur within state boundaries.

Conclusion
A number of principles have been identified in these last two modules that help us better understand the relationship between public and private law remedies. Private remedies may provide for direct access to judicial review, but they are often limited in the breadth of their application; if we are seeking comprehensive environmental policies, then private law remedies may be of limited potential in achieving such comprehensive goals. Public laws have a much wider scope of application (they tend to apply to an entire field of the environment, for example the air or water) but lack the ability of both access to courts and thus judicial review, as well as limited judicial discretion in reviewing statutory violations. After reviewing these major differences of public and private controls (and seeing them in the context of pollution), we may conclude neither is superior in offering a comprehensive policy approach to environmental health. Considering we are talking about an area of law that was not intended to protect environmental concerns (common law) on the one hand, and an area of law that is subject to the influences of the political process (statutory law) on the other hand, such a
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For a more detailed discussion of the federalism question presented in the Rapanos case, particularly its policy implications on thinking about federal jurisdiction based on systems thinking, please see the following article: http://works.bepress.com/chad_mcguire/2/

Page 12 of 12 criticism suggesting both lack the capacity to fully protect environmental interests may be justified. We will revisit the application of public and private controls (in land use) later in the course. For now, try and consider what kind of policy approach might offer a more comprehensive solution, or whether the current system of laws in place is about “as good as it gets.” END OF SECTION.

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