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Environmental Law Outline

Environmental Values and Policies Two elements of human development have been regularly linked to increasing environmental concerns: population growth and technological change Some characteristics more common to modern environmental problems than to historical environmental concerns: uncertainty of mechanism and effect potentially catastrophic effects collective risks irreversibility controllability

Modern response to environmental problems have had beneficial effects, however the early successes targeted the problems that were the easiest to see and resolve (e.g. burning rivers). ational health standards still have not been met and science continues to reveal new problems. The environment has been labeled a consensual issue, because agreement on its importance is so widespread !ritics of environmental policy argue that: it has failed to deliver on many of its promises it has ignored some significant issues almost entirely it has accomplished its goals at too high a cost to other values (e.g. property rights, economic growth) environmental law has taken laudable environmental goals and pursued them too far

Themes of " e#t $eneration% environmental law studies: &. environmental policy must be sensitive to the costs as well as the benefits of environmental regulations, and must choose policy instruments fle#ible enough to permit locali'ed determinations where possible (. the structure of environmental law needs reform, it should move beyond single)media or single species approach and adopt a more holistic and longer)term consideration of environmental threats *. urges reassessment of the allocation of responsibilities between federal, state and local governments Ecological Perspectives


The science of ecology seeks to understand the functioning of ecosystems, both on a small scale and on a grand scale. +ts main premise is the interdependence of everything Homeostasis: the ,uality of returning to a self)sustaining e,uilibrium after being disturbed, unless the disturbance is too great Carrying capacity: the e#tent of disruption an ecosystem could absorb and still rebound Two ecological rule of thumbs: &. seemingly simple actions typically will have non)obvious and unintended conse,uences that may culminate in a threat to ecosystem stability (. smaller actions have less drastic conse,uences on functioning ecosystems than larger actions -cologists seek to live in harmony with nature, not at odds with it. New ecology Myth of the balance of nature: ature, undisturbed by human actions, will remain constant, and this constant state is the most desirable ew ecologists argue that in nature variation rather than constancy is the rule and that scientists should seek to better understand the dynamic nature of ecological systems. Common Pool Resources Tragedy of the commons: people tend to overuse environmental resources because they are available without cost to us, so the price mechanism does not make us aware of the harm we are causing to other humans or the environment. History of Environmental Law Si# Stages in the history of .S environmental law: &. The Common Law and Conservation Era, /re &012 legislation was left to sate and local governments whose public health or nuisance laws were poorly coordinated and rarely enforced !ongress only acted when a public heath problem was particularly visible or obvious

(. Federal Assistance for State Problems &012)&03(

federal programs were premised on the notion that environmental problems were the responsibility of state and local governments national concern began to grow

*. The !ise of the "odern Environmental "ovement, &03()&045 rise traced to Silent Spring book which talked about pesticides accumulating in the food chain environmental groups form increased concern over the environment

1. Erecting the Federal !egulatory #nfrastructure: &045)&065 e#plosion of federal legislation (!78, !88, 9!98, !-9!:8) -/8 formed i#on signs the ational -nvironmental /olicy 8ct ( -/8)

2. E$tending and !efining !egulatory Strategies, &065)&005 initial laws are broadened and strengthened ";ammer% provisions are included into laws in order to force agencies to adopt regulations

3. !egulatory !ecoil and !einvention, &00&)present EARLY CO 9epublican congress attempts to weaken the environmental laws ON LA!

!ommon law relied largely on nuisance law doctrines to resolve environmental law controversies /rivate nuisance actions focus on invasions of interests in the private use and en<oyment of land /ublic nuisances were common law crimes that involved offenses against the state arising from actions that interfered with public property Two approaches to nuisance: Threshold: whether action meets a certain threshold, if it does then it is considered a nuisance and must be en<oined =damages >alancing: consider whether the activity creating the nuisance is valuable to society, does the gain outweigh the loss ote: a slap lawsuit is when a company files suit against a plaintiff in order to retaliate and tie up his legal resources Private Nuisance

/rivate nuisances: nontrespassory invasions of another?s interest in the private use and en<oyment of land. -lements: must have a property rig"t there is an invasion which results in sufficient harm causation action must be intentional and unreasoan#le or unintentional and otherwise actionable under the rules of negligence or reckless conduct or abnormally dangerous conduct

The damage in a private nuisance case is to an individual (or a few individuals) as contrast to a public harm :iability is only imposed in those cases where the harm or risk to one is greater than he ought to be re,uired to bear under the circumstances w=o at least compensation +n early times, nuisance laws were used as 'oning devices, in that industry was kept away from homes ;owever, as the industrial age progressed, courts were less inclined to issue in<unctions against the industrialists and would only allow money damages +n "adison v% &uc'town Sulphur Copper and #ron Co.(Tenn, &051), nearby landowners sought an in<unction to stop pollution emanating from copper smelters. The court agreed that in<ury had been shown and that damages were a matter of right but that an in<unction was a matter sub<ect to the courts sound legal discretion. @earful that an in<unction would destroy industry in the state the court allowed damages but no in<unction. (!t employed the balancing approach) Pu#lic Nuisance /ublic nuisance: an unreasonable interference with a right common to the general public. +n determining whether interference with a public right is unreasonable, courts consider whether the conduct: &. involves a significant interference with the public health, safety, comfort, or convenience (. is act illegal *. is of a continuing nature or has produced a long lasting effect on the public right that the actor has reason to know is significant @or a private citi'en to assert a claim based on a public nuisance they must show that they have sustained a special in<ury. The doctrine was most often used to prosecute those who obstructed public highways, fouled public waters, or omitted no#ious fumes.

Two early S.!T decisions involve public nuisance actions by state authorities against out of state polluters: +n "issouri v% #llinois, !hicago built a canal to divert its raw sewage into the Mississippi 9iver. Missouri filed a common law nuisance action seeking to en<oin the discharges. The court reviewed much evidence but concluded that the evidence was inconclusive as the e#perts did not agree and a number of Missouri cities discharged pollution into the river and may be causing the health problems. The court concludes that the evidence is insufficient to establish a case of public nuisance. !everse golden rule: in a transboundary pollution case, the affected state cannot demand that the source state adhere to a higher standard than the affected state applies to its own citi'ens +n (eorgia v% Tennessee Copper Co., the state of $eorgia brought a common law nuisance action against the smelters, who were located across the border in Tenn. ;ere the evidence was much clearer as the fumes destroyed a large swath of forest and crops. The court agreed to issue an in<unction and seemed to reason that when there is a clear public nuisance and a sovereign brings suit, the court is more likely to issue the in<unction. T-A8S +n "eat Producers #nc% v "cFarland, / alleged that a neighboring cattle feeding facility emitted disagreeable odors that amounted to a private nuisance. The issue was whether the facility emitting the odors amounted to a nuisance <ustifying recovery of permanent damages to ad<acent land by reduction in market value. The court held that it was nuisance and that such damages were recoverable. /rivate nuisance (TA): a condition which substantially interferes with the use and en<oyment of land by causing unreasonable discomfort or annoyance of persons of ordinary sensibilities attempting to use and en<oy it. (an offensive odor in itself is sufficient) Measure of damages B reduction in market value +n &06(, the TA legislature passed the 9ight to @arm 8ct, Te#. 8gric. !ode 8nn. C(2&: states that its purpose is too limit the circumstances under which ag operations may be considered a nuisance or sub<ect to regulation regulation includes 'oning restrictions the act imposes a one year statute of limitations on nuisance actions brought against an ag operation that has lawfully been in operation, provided the conditions complained of have not substantially changed

The 8ct codifies the cases where courts refused to en<oin an activity where the plaintiffs had moved to the nuisance.

National Environmental Policy Act $NEPA% -/8 mandated a significant change in the decision)making procedures used by federal agencies C&5& establishes as the continuing policy of the federal government the use all practical means to create and maintain conditions under which man and nature can e#ist in productive harmony C&5((c) re,uires all federal agencies to prepare an environmental impact statement (-+S) on ma<or federal actions significantly affecting the ,uality of the environment. C&5((()(e) re,uires all federal agencies to study alternates to actions involving unresolved resource conflicts C&5( of -/8 re,uires that all federal agencies include in every recommendation or report on proposals for legislation and other ma<or @ederal actions significantly affecting the ,uality of the human environment, a detailed statement by the responsible official on D &. the environmental impact of the proposed action, (. any adverse environmental effects which cannot be avoided should the proposal be implemented, *. alternatives to the proposed action, 1. the relationship between local short)term uses of manEs environment and the maintenance and enhancement of long)term productivity, and 2. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. +n Calvert Cliffs Coordinating Committee v% )nited States Atomic Energy Commission, / argued the rules adopted by the !ommission failed to satisfy the rigor demanded by -/8. The rules stated that a detailed report would "accompany% an application but would not be considered by the licensing board. The court holds that an agency must F to the fullest e#tent possible under its statutory obligations F consider alternatives to its actions which would reduce environmental damage. !onsideration of environmental matters must be given more than <ust a pro forma ritual. -nvironmental issues must be considered at every important stage in the decision)making process concerning a particular action. This landmark case established that -/8 would not be reduced to mere bureaucratic red tape. 7hat happens if the -+S is perfect, the pro<ect is clearly an environmental disaster, but the agency decides to ahead anywayG +s there a substantive review of their decisionG +n Stryc'er*s +ay ,eighborhood Council #nc% v% -arlen, the /?s sought to en<oin the construction of a low)income housing pro<ect. The /?s felt that ;.H did not fully consider the environmental impacts involved. ;.H found that development of an alternative location would result in an unacceptable delay. The appellate court held that delay could not be an overriding factor in ;.H?s decision. The S. !t. held that once an agency has made a decision sub<ect to -/8?s procedural re,uirements, the

only role for a court is to insure that the agency has considered the environmental conse,uences. ;ere ;.H considered the environmental conse,uences. The court implies that -/8 imposes no substantive duties on agencies. &ma'or federal action( 8n -+S must be prepared for proposals for legislation and other ma.or federal actions significantly affecting the ,uality of the human environment. (legislative -+S?s are rarely performed) +f an agency determines there is no significant impact, then they won?t need to do an -+S (this is called a @I S+ F finding of no significant impact) The agencies consideration cannot be arbitrary and capricious 7hat are ma<or federal actions: "actions which may be ma<or and which are potentially sub<ect to federal control and responsibility% +ncludes private pro<ects that re,uire federal approval or funding as well as federal programs, policies, and rules. The most difficult ,uestions in determining whether there is a "proposal for ma<or federal action% have been the appropriate timing and scope of the review that -/8 re,uires. +n -leppe v% Sierra Club, the club argued that the Hept. of +nterior could not allow further development of federal coal reserves in the orthern $reat /lains w=o preparing a comprehensive -+S on the entire region. 8t the time there was no proposal for an action of regional scope, only local actions. +n order to warrant an -+S, there must be a ma<or federal action for the region. Mere contemplation of certain action is not sufficient to re,uire an impact statement. )"e moment at w"ic" an agency must "ave a final statement ready is at t"e time at w"ic" it ma*es a recommendation or report on a proposal for federal action . (Sutton says the agency should start on an -+S when it begins to allocate resources for the pro<ect) ;owever, the notes indicate that sometimes related actions in a region may be so interrelated as to re,uire an -+S for the whole region. +n Thomas v% Peterson, the @orest Service planned to construct a road and approved timbers sales. +t claimed it did not need to prepare an -+S, because each of the actions considered individually has an insignificant environmental impact. The court disagrees and states that if two separate actions are so interrelated they must be considered collectively. !onnected and cummulative action must be considered together: (here, the proposed and timber sales are both connected and cumulative) Connected actions are actions that: &. automatically trigger other actions which may re,uire environmental impact statements (. cannot or will not proceed unless other actions are taken previously or simultaneously *. are interdependent parts of a larger action and depend on the larger action for their <ustification

Cumulative actions: actions which when viewed with other proposed actions have cummulatively significant impacts +n Sierra Club v% Peterson, / alleged that the oil and gas leasing program violated -/8, because no -+S was prepared prior to the action. The @orest Service concluded that no -+S was re,uired at the leasing stage since very few e#ploratory operations result in the discovery and production of gas. 8 decision of "no significant impact% can only be overturned if the decision was arbitrary, capricious, or an abuse of discretion. ;owever, the courts must ensure that the agency took a "hard look% at the environmental conse,uences of its decision. -/8 re,uires federal agencies to determine at the outset whether their ma<or actions can result in significant env impacts. 8n -+S is re,uired when the "critical agency decision% is made which results in irreversible and irretrievable commitments of resources of an action that will affect the environment. ;ere, since the Hept. did not choose to retain authority to preclude all surface disturbing activities, an -+S must be prepared at the point of commitment F when the leases are issued. 8lternatively, the Hept. could have deferred preparation of the -+S if it reserved the right to preclude any surface disturbing activities in the leases. &significantly affecting t"e +uality of t"e "uman environment( The crucial threshold ,uestion for -/8?s -+S re,uirement is whether a proposed action is likely to significantly affect the ,uality of the human environment. +n Hanly v% -leindienst, the issue was whether an -+S had to be prepared for the construction of a <ail and related facilities as an anne# to the federal courthouse. The $S8 prepared an -8 and concluded that the detention center would not have a significant effect on the environment. The court sets out two factors for deciding whether a ma<or federal action will "significantly% affect the ,uality of the human environment: &. the e#tent to which the action will cause adverse environmental effects in e#cess of those created by e#isting uses in the area affected by it (adding one more factory to area full of factories) (. the absolute ,uantitative adverse environmental effects of the action itself, including the cumulative harms that results from its contribution to e#isting adverse conditions or uses in the affected area (is that one additional factory the one that breaks the camel?s back) Federal agencies must develop a reviewable environmental record even for the threshold (whether it is significant) question. @urthermore, before a threshold determination is made, the responsible agency must give notice to the public and allow them to submit relevant facts which might bear on the decision (does not re,uire a full)fledged hearing). !ourt basically says you need an -+S if there is a controversy or uncertainty. /lus, agencies must develop some minimal procedural re,uirements to record the findings (so court can review a @I S+ B a finding of no significance)

The dissent notes that after this decision an -8 will be re,uired even when everyone knows that the proposed action will not significantly affect the human environment. This could result in a waste of time and money. -/8 is not limited to the human environment Hanly shows that the effects of urbani'ation (i.e. traffic, crime, etc.) are a part of the human environment and therefore fall within -/8?s <urisdiction. ,s t"e E,- Ade+uate. -ach -+S must include: a summary e#planation of the purpose and need for the proposed action description and comparative assessment of the alternatives have to consider no action as an alternative description of the environment that will be affected analysis of the environmental conse,uences alternatives

Hoes not have to include: cost)benefit analysis worst case scenario

-/8 re,uires that agencies assess and consider alternatives to proposed actions +n /ermont 0an'ee, the court consider whether -/8 re,uired the uclear 9egulatory !ommission to reopen the proceedings (public hearings) to consider energy conservation measures as an alternative to construction of the plant. The court stated that the concept of alternatives must be bounded by some notion of feasibility. The agency cannot possibly consider every possible alternative. 8t the time the -+S was drafted in this case, energy conservation was not a serious concern. 7hile the concept of alternatives is an evolving one (as other alternatives and concepts are better understood), the decision must be reviewed in light of the info available at the time. Moreover, comments must be significant enough to step over a threshold re,uirement of materiality before any lack of agency response or consideration becomes of concern. (agency dose not have consider every "ought to be% or "pie in the sky% comment) The agency does have to consider "no action% as an alternative, however burden is on intevenor to bring forth specific info about energy conservation /uality of Analysis in an E,-

+n Sierra Club v% )S Army Corps of Engineers, /?s argued that the final -+S was deficient because it erroneously characteri'ed an area of the ;udson 9iver it planned to fill as a "biological wasteland%. The agency made this conclusion despite no literature to support its finding, and e#pert warnings to the contrary. The court concluded that the @-+S did not reasonably ade,uately compile relevant information with respect to fisheries impact. The court held that a decision made in reliance on false information, developed without an effort in ob<ective good faith to obtain accurate information, cannot be accepted as a "reasoned% decision. The court?s ruling is narrow. The court states that a court cannot overturn an agency decision if the agency has: &. (. *. 1. conducted ade,uate compilation of relevant info analy'ed the info in a reasonable fashion not ignored pertinent data made disclosures to the public

7hat is the obligation of agencies to supplement their -+S?sG +n "arsh v% 1regon ,atural !esources Council, the court held that the decision whether to prepare a supplemental -+S is similar to the decision whether to prepare an -+S in the first instance: if there remains "ma<or federal action% to occur, and if the new information is sufficient to show that the remaining action will Jaffect the ,uality of human environment% in a significant manner or e#tent not already considered, a supplement -+S must be prepared. Standard of !eview: as long as the agency?s decision not to supplement the -+S was not arbitrary or capricious it should not be set aside. -/8 review: NEPA framewor* The process begins with and "environmental assessment% (-8), which is a brief analysis of the need for an -+S. The -8 must consider alternatives to the proposed action. +f the agency decides not to prepare an -+S, it must make a "finding of no significant impact% (@I S+) available to the public. This finding is sub<ect to <udicial review using the arbitrary and capricious standard (!ourt will want to review a record, if record is insufficient court may re,uire a new -8) and court will take a "hard look% at the agency decision. +f agency does decide to prepare an -+S, it must determine the scope of the -+S and the significant issues to be discussed in the -+S. applies to international actions that the .S is involved in treaties may re,uire -+S?s if there is a final agency action (sending the treaty to !ongress) -+S does not have to include a cost)benefit analysis or the worst case scenario -+S must consider no action as an alternative


Rule: 8n -+S is re,uired for a ma<or federal action that significantly affects the human environment +n order to decide in there should be an -+S go through the triggers 4 triggers for -/8 analysis: (&) (() (*) (1) (2) $1% (4) a'or (must be big F any substantial commitment of resources F monetary oo otherwise) 0ederal (!-K regulations include private corps that use federal funding, plus agency rule)making, but e#cludes administrative actions) some federal agency has power to control the action Action (an irretrievable commitment of resources) -ignificantly (look at the conte#t) Affecting (directly or indirectly) Human Environment (human environment is broad and includes anything that affects humans) ote: socio)economic effect alone is not an impact on the human environment (like going out of business) ote: +f the potential effects on the environment are too speculative or remote they will not be significant (like sub<ective fear of nuclear reactor disaster)


Timing (has there been an irretrievable commitment of resources or a permit application) Scope (is there interconnectivity or a cumulative effect) Significance (is there controversy or possible potential effects on the environment)

-ummary of NEPA2 -/8 re,uires an -+S when an agency has made a report on a proposal for a ma<or federal action with a substantial environmental impact. +n deciding whether any -+S is re,uired, the most difficult ,uestion to answer has been whether there will be a substantial environmental impact. Ince it has been concluded that an -+S is re,uired, the ne#t ,uestion is the scope of the -+S. The S.!T. has madBe it clear that the answer to this ,uestion is to be found by determining the precise scope of the agency proposal which is under consideration. The alternatives to that proposal and the environmental impact of the proposal must be discussed in detail. CERCLA $Compre"ensive Environmental Response3 Compensation and Lia#ility Act% Itherwise known as "Superfund% Heals with the problem of cleaning up unused or abandoned ;=7 disposal sites.


The core of !-9!:8 is its liability provisions and its authori'ation to -/8 to spend monies from the Superfund for removal operations and remediation operations, targeted at longer term solutions, including decontamination solutions The main purpose of !-9!:8 is to make spills or dumping of ha'ardous substances less likely through liability Hual goals: prevent environmental contamination and ensure that it is cleaned up when it occurs 1 basic strategies of Superfund: (&) (() (*) (1) information gathering specifying federal authorities to respond the fund that is the source of money for clean ups strict liability scheme

!-9!:8 makes a broad class of parties liable for the costs of responding to the release, or the substantial threat of release, of "any ha2ardous substance3 Hefinitions: Hefinition of facility is broad
LfacilityL means (8) any building, structure, installation, e,uipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (>) any site or area where a ha'ardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be locatedM but does not include any consumer product in consumer use or any vessel. LreleaseL means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, in<ecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any ha'ardous substance or pollutant or contaminant), but e#cludes (8) any release which results in e#posure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (>) emissions from the engine e#haust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (!) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the 8tomic -nergy 8ct of &021 if such release is sub<ect to re,uirements with respect to financial protection established by the uclear 9egulatory !ommission under section &45 of such 8ct or, for the purposes of section 0351 of this title or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 40&((a)(&) or 401((a) of this title, and (H) the normal application of fertili'er.

!overed persons: &. (. *. 1. owner=operators past owners=operators persons who arranged for disposal persons who transports


Ha4ardous -u#stances The term incorporates by reference the identified dangerous substances under the other acts. (broad definition) @or e#ample, the term includes ;=7 under 9!98 (listed and characteristic ha'ardous wastes), to#ic water pollutants under !78, ha'ardous air pollutants under !88 The 8ct is designed to prevent and cleanup releases of ha'ardous substances. The 8ct e#cludes federally permitted releases F if a release of a ha'ardous substance is under a federal permit then it is not a violation of !-9!:8 (H?s will sometimes use this as a defense) The release of a substance that does not happen to fall within !-9!:8?s broad definition of ha'ardous substances can still generate a !-9!:8 response if it presents "an imminent and substantial danger% Lia#ility Provisions of CERCLA 8n action will fall under Superfund if: &. it is a ha'ardous substance (. there is a release *. there is a response cost +n )S v% 1lin Corp., the H argued that (&) enforcement of !-9!:8 violated the !ommerce !lause and (() that !-9!:8 was not intended to have retroactive application (&) Commerce Clause: The commerce clause empowers !ongress to regulate intrastate activities that substantially affect interstate commerce. !-9!:8 is valid as applied because it regulates a class of activities (disposal of ha'ardous waste on)site) that substantially affects interstate commerce (improper waste disposal increases the costs of handling waste, chemical contamination increases agricultural losses) (() Retroactivity: Since !-9!:8 contains no e#plicit statutory command regarding retroactive application of its cleanup regime, courts must look to congressional intent. >y imposing liability upon former owners and operators, !ongress manifested a clear intent to reach conduct preceding !-9!:8?s enactment. Responsi#le parties /otentially responsible persons under !-9!:8:


&. (. *. 1. 14,E!S

owner=operators past owners=operators persons who arranged for disposal persons who transports

+n ,ew 0or' v% Shore !ealty Corp., the state brought suit to get Shore to clean up the property. Shore argued that he is not a responsible party as he neither owned the site at the time of the disposal nor caused the presence of the release at the facility and that he is entitled to an affirmative defense. The court held that !-9!:8 une,uivocally imposes strict liability on the current owner of a facility from which there is a release or threat of release, without regard to causation. Moreover, he cannot assert a defense because he knew about the dumping. /lus, the threat of a release was still present. Hefenses to !-9!:8: causation by N &. an act of $od (. an act of war *. acts or omissions of a third party other than an employee or agent of H or one whose act or omissions occurs in connection with a contractual relationship with H ote: 8 tenant or lessee is considered an owner and is a potentially responsible person ,nnocent Purc"aser Pro#lem !-9!:8 was amended to clarify that innocent purchasers of contaminated property can assert the third party defense if they can establish that: &. they did not have actual or constructive knowledge of the presence of ha'ardous substances at the time the land was ac,uired (. they are a government entity ac,uiring the property through involuntary transfer or *. they ac,uired the land by inheritance or be,uest To establish lack of constructive knowledge the purchaser must have undertaken all appropriate in,uiry into the previous ownership and uses of the property consistent with good commercial or customary practice ( title search, visual inspection) !heap price might give purchaser constructive notice 1PE!AT1!S -ven a party who does not own a facility can be held liable as an operator


-mployees can be held personally liable as operators The following case concerns the liability of a parent corporation for a facility owned by a subsidiary +n )S v% +estfoods, the court stated that as a general rule a parent corporation is not liable for the acts of its subsidiaries, unless the corporate veil is pierced. !-9!:8 imposes direct liability on operators. ;ence, a parent corporation may be directly liable for its own actions in operating a facility owned by its subsidiary. 8n operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of ha'ardous waste, or decisions about compliance with environmental regulations. The focus should be on the relationship between the parent and the facility (rather than the relationship between the parent and subsidiary). Mere dual directorship is not enough to give rise to direct liability. -#amples of when a parent may be liable:
when the parent operates the facility in the stead of its subsidiary or alongside the subsidiary in some sort of a <oint venture an agent of the parent with no hat to wear but the parentEs hat might manage or direct activities at the facility that a dual officer or director might depart so far from the norms of parental influence e#ercised through dual officeholding as to serve the parent, even when ostensibly acting on behalf of the subsidiary in operating the facility

5656567 R8LE of CERCLA: There are four elements of a section &54 claim, four categories of /9/?s, four categories of response costs, and three defenses four elements of a section 567 claim: &. a release or threatened release (. of a ha'ardous substance *. from a facility 1. which causes the incurrence of a response cost &. present owners=operators (. former owners=operators at the time of the disposal *. arrangers 1. transporters &. removal or remedial actions not inconsistent with !/ (. any other necessary costs of response *. damages to in<ury to natural resources 1. health assessment or studies &. act of $od

four categories of P!P*s:

four categories of response costs:

three defenses:


(. act of war *. acts of unrelated third parties Categorical defenses: (E,E!AT1!S !-9!:8 imposes liability on nonnegligent generators of ha'ardous substances that are released. The following case address the nature of generator liability: )S v% Aceto, @acts: The -/8 sought to recover over O&5 million in response costs incurred in cleaning of a pesticide formulation operation (now bankrupt). H was a manufacturer of pesticides who sent his technical grade pesticides to the formulators who processed it to produce a commercial product. +n the process, pesticides were spilled. The govt. alleges that H is liable because, by virtue of their relationship with the formulator, they "arranged for% the disposal of ha'ardous substances. H argues that they only contracted for the processing of a product, not the disposal of waste. ;olding: !-9!:8 is a given a broad interpretation. The goal of !-9!:8 is that those responsible should pay for the cleanup. /ersons cannot escape liability by contracting away their responsibility or alleging that the incident was caused by the act or omission of a third party. ;ere, the formulator was performing a process on products owned by H for H?s benefit and at their directionM waste is generated and disposed of contemporaneously with the process. ;ence, H "otherwise arranged for% the disposal of waste and is responsible. !ourt says a specific intent to arrange for disposal is not re,uired. +ut see 4th !ircuit ("arranged for% does imply intentional action) and &&th !ir (adopts a policy of totality of the circumstances where intent is one factor) Strict, joint, and several liability -ven though references to strict liability are not in !-9!:8, courts have almost uniformly found that !-9!:8 imposes strict, <oint, and several liability on 9/?s. 9easons why include: avoiding clean up delays acknowledging that many sites are owned by insolvent companies involves the release of abnormally dangerous substances innocent landowner defense inheritance local government who involuntarily ac,uire property through its sovereignty certain lenders


The following address?s whether liability should be apportioned among generators: +n 1*,eil v% Picillo, thousands of barrels of ha'ardous that were dumped on a farm, ended up catching on fire an creating a big mess. The govt. sought to recover cleanup costs and went after *2 H?s. Most of them settled but two claimed that their contributions to the disaster were insubstantial and that it was unfair to hold them <ointly and severally liable. The court states that damage should only be apportioned if the defendant can demonstrate that the harm is divisible. ;ere, only a small amount of barrels could be positively attributed to H?s and it was uncertain whether any of the unidentifiable barrels belonged to H. ;ere, H had the burden to account for the uncertainty and failed to do so. ote: Two !-9!:8 provisions mitigate the harshness of the <oint an severally liability: He minimis settlements: -/8 is directed to offer early settlements to H?s who the agency believes are responsible for only a small portion of the harm. !ontribution: courts may allocate response costs among liable parties. +f a party has settled with the -/8 it may not be <oined in any subse,uent contribution actions.

Liability !mount and !llocation !-9!:8?s ational !ontingency /lan recogni'es two types of responses to ha'ardous waste sites: (&) short8term removal actions designed to alleviate immediate dangers to public health or the environment and (() longer8term remedial actions designed to provide a permanent remedy to the ma#imum e#tent practicable. Most of the money typically goes into remediation. :iable parties under !-9!:8 must account for these costs. Steps of the Superfund /rocess: &. (. -ites are ran*ed on t"e Ha4ardous Ran*ing -ystem. The most ha'ardous sites are placed on the Superfund list. A Remedial ,nvestigation90easi#ility -tudy $R,90-% is conducted . The -/8 must consider what remedial steps should be taken. +t must consider the cost effectiveness of the actions proposed. )"e EPA issues a Record of :ecision. +t draws conclusions as to what remedial actions will be taken based on the 9+=@S. +t also sets forth the standard of cleanup. (;a'ardous sites ne#t to schools, neighborhoods, over underground a,uifers, etc. must be cleaned more thoroughly than a site in the middle of the desert.) !ost effectiveness seems to be the



overriding concern in the selection of most of the remedial alternatives proposed. +n allocating liability among parties <oined in a contri#ution action the court have applied the $ore factors. These factors were introduced by Senator 8l $ore, but were not passed by !ongress. ;owever, they have been adopted by the courts. &. (. *. 1. 2. 3. The ability of the parties to demonstrate that their contribution can be distinguished. The amount of the ha'ardous substance involved. The degree of to#icity of the ha'ardous substance. The degree of involvement by the parties in generation, transportation, treatment, storage, or disposal. The degree of care e#ercised by the parties taking into account the characteristics of the ha'ardous substance. The degree of cooperation by the parties with government officials to prevent harm.

)HE RCRA RE;8LA)ORY PRO;RA 9!98 is a comprehensive environmental statute under which the -/8 is granted authority to regulate solid and ha'ardous wastes 9!98 and the ;=7 program is a "cradle to grave% management of ;=7 9!98 employs the manifest system to track waste The act established a system for identifying and listing ha'ardous wastes, standards for generators and transporters of ;=7 and for operators of TSH?s, a permit system to enforce these standards, and a procedure for delegating to states the administration of the permitting program. The statute is centered upon re,uirements that facilities utili'ing ha'ardous materials obtain permits, and maintain proper records of the treatment, storage and disposal of ha'ardous substances. 9!98 has five distinct, interrelated ob<ectives: &. make land disposal of wastes far safer than it had been previously (. technology forcing F re,uires TSH?s to employ the best available technologies 9% waste reduction 1. minimi2e direct regulation of the production processes :% encourage recycling ote: Pou have to have a permit to be a TSH facility. ;owever, when the statute was first enacted it provided for an +nterim status that allowed companies to continue to operate. ;owever, the companies would get interim status and then never apply for a permit. !ongress has since phased out interim status.


9!98 is divided into two ma<or parts: (&) su#title C, a regulatory program covering ha'ardous solid wastes, and (() su#title :, a largely non regulatory program to encourage states to improve their management of non)ha'ardous substances. Subtitle ! has five ma<or elements: +dentification Tracking /ermitting 9estrictions and !ontrols -nforcement and !ompliance

To be regulated under 9!98 a substance must be a solid waste, only solid wastes that are "a4ardous are sub<ect to regulation under sub title !. ote: The ;8S:8 amendment to 9!98 eliminated the small ,uantity generator e#ception (which put a lot of small businesses out of business) and re,uired liners !"at -u#stances are &-olid !astes(. 9!98 has a number of e$ceptions: domestic sewage, industrial point sources, irrigation return flows, nuclear materials, and basically things that are inherently product like (you can have paint sit on your shelf as inventory) To determine what a ha'ardous waste is under 9!98, you must first determine what is a solid waste. Solid 7aste: means any garbage, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, li,uid semisolid, or contained gaseous material resulting from industrial, commercial N The basic problem in determining whether something is a solid waste is ascertaining what is meant by the phrase "other discarded material% .nder the -/8?s definition, ot"er discarded material is any material that is: &. abandoned (. recycled or *. considered inherently waste)like 8bandoned: no intent to put it to further beneficial useM four types of abandonment &. (. *. 1. burning or incineration disposal (have someone come pick it up or throw it away) accumulating, storing or treating it in lieu of its original intended use otherwise applied to land in lieu of its original intended use


The following case deals with whether certain materials used in recycling might fall within 9!98?s <urisdiction: +n American "ining Congress v% EPA, +ndustry reps challenged the -/8Es final rule amending definition of Lsolid wasteL to establish agencyEs authority to regulate secondary materials reused within an industry;s ongoing production process. .nder the final rule, if a material constitutes Lsolid waste,L it is sub<ect to 9!98 regulation unless it is directly reused as an ingredient or as an effective substitute for a commercial product, or is returned as a raw material substitute to its original manufacturing process. (the latter category is known as the Lclosed) loopL e#ception.) The reps argue that that -/8Es authority under 9!98 is limited to controlling materials that are discarded or intended for discard. They further argue that -/8Es reuse and recycle rules, as applied to inprocess secondary materials, regulate materials that have not been discarded, and therefore e#ceed -/8Es <urisdiction. The court agrees and holds that, in light of the plain language of the statute and congressional intent, that -/8 need not regulate LspentL materials that are recycled and reused in an ongoing manufacturing or industrial process. These materials have not yet become part of the waste disposal problemM rather, they are destined for beneficial reuse or recycling in a continuous process by the generating industry itself. "t is not a ha#ardous waste if its going to be immediately reused or is not part of the problem. ,dentifying &Ha4ardous !aste( The e#tensive regulatory standards prescribed by subtitle ! of 9!98 are applicable to solid wastes that are ha'ardous, which include: (&) wastes specifically listed as ha'ardous, (() wastes that e#hibit any of the four ha'ardous characteristics, and (*) wastes mi#ed with or derived from a listed waste &. :isted 7aste: its an identified ha'ardous waste and is in a list and given a number, there are four categories of listed wastes: "@% ha'ardous from nonspecific sources "Q% ha'ardous from specific sources "/% acutely ha'ardous chemical products ".% on)acutely ha'ardous chemical products (. !haracteristic 7aste: does material have any of the characteristics of ha'ardous waste: ignitability corrosivity to#icity reactivity

*. Mi#ture rule: when a listed ha'ardous waste is mi#ed with a solid, li,uid, or semisolid material, the resulting mi#ture is also a ha'ardous waste. ( the -/8 did not want dilution to become a solution)


1. "Herived from% rule B wastes derived from from the treatment, storage or disposal of a listed wastes are deemed to be a ;=7 (e#ample: if you put ;=7 in an incinerator, the ash that is left over is ;=7) The mi#ture and derived from rules were struck down (-/8 did not give ade,uate notice or opportunity for comment) but were later reinstated. ote: !haracteristic wastes are not sub<ect to the mi#ture and derived from rules unless the resulting waste still e#hibits one of the characteristics. The following case deals with incinerator ash and the household waste e#ception: City of Chicago v% Environmental &efense Fund @acts: +t was discovered that ash from municipal waste incinerators often flunked the -/8?s to#icity test. The &065 -/8 regulations provided a "waste stream e#emption% for household waste, which covered that category of waste from generation through treatment to final disposal of residues. Those regulations did not e#empt the ash if the incinerator burned anything in addition to household waste. +n &061 !ongress added to 9!98 the "!larification of household waste e#clusion.% The issue is whether the ash F which would have been considered ;=7 under &065 regulations because the facility is burning more than <ust household waste F is now sub<ect to regulation under subtitle !. ;olding: The court holds that the ash is sub<ect to subtitle ! regulation. The court reasons that the facility itself is not sub<ect to Subtitle ! regulation but the ash is. Moreover, the statutory language does not even e#empt the facility in its capacity as a generator of ;=7. 7hile a resource recovery facilities management activities are e#cluded from Subtitle ! regulation, its generation of to#ic ash is not. (The facility is not considered a TSH facility, but is still a generator. SI the amendment e#cempts them from the rigors of TSH status.) Avoiding )-: -tatus !ecycling: the recycling process itself is e#empt from 9!98 (as long as no storage is involved) Closed loop e$emption: if spent material is reclaimed and returned to the original process and the entire process is closed through interconnected tubes and pipes, the material will not be a 9!98 (even if you cannot have a closed lop system you can still recycle w=o being a TSH facility by storing the waste less than 05 days, but you still are a generator) .se ,P&ES permit to discharge waste (but still have to comply with !78 regulations) Seek to have the ;=7 delisted !heck for new and unpublished EPA interpretations of regulations (might be favorable)


-u#title : and t"e Regulation of &Non6"a4ardous( !aste :isposal Subtitle H addresses solid wastes that are not considered ha'ardous (and household waste that may be ha'ardous but is e#empted under subtitle !) More than (5 times more solid waste falls under the <urisdiction of subtitle H These wastes are only sub<ect to its "open dumping% ban and the -/8?s minimum standards for municipal landfills +n &061, most landfills were unlined and sat over a,uifers onha'ardous waste landfills can pose substantial threats to human health and the environment: prior to 9!98 ha'ardous wastes were often sent to these landfills a lot of household waste contains ha'ardous substances midnight dumping

:andfills are now re,uired to perform groundwater monitoring 7hen designing a landfill, consideration must be given toM floodplains, endangered species, surface waters, air criteria, and safety ;as open dumping ban F no new open dumps are allowed and old ones must be worked on 9!98 outline: (&) +s it a solid wasteG +f yes, +s it a subtitle ! ha'ardous waste or a subtiltle H non)ha'ardous wasteG is it a listed or characteristic wasteG does the mi#ture rule applyG does the derived from rule applyG

(() 7hat e#emption might applyG (*) +s there a generatorG (1) +s there a transporterG !C!A and CE!CLA interaction< >oth are statutes that govern ;=7 9!98 regulates the management of ;=7


!-9!:8 regulates the disposal of ;=7 !-9!:8 definition of ;=7 is more comprehensive and broad and includes the 9!98 definition of ;=7 !A)ER POLL8),ON CON)ROL Today the biggest problem is nonpoint source pollution The first act to control water pollution was the 9iver and ;arbors act of &600, it was mainly designed to prevent interference with navigation /rincipal federal laws addressing water pollution: !lean 7ater 8ct prohibits all unpermitted discharges into the waters of the .nited States of pollutants from point sources Icean Humping 8ct prohibits all dumping of waste in the ocean e#cept where permits are issued Iil /ollution 8ct makes owners of vessels discharging oil liable for cleanup costs !oastal Rone Management 8ct: offers federal financial assistance to states that adopt federally approved coastal management plans Safe Hrinking 7ater 8ct regulates contaminants in drinking water supplied by public water systems Clean !ater Act !ongress enacted the !lean 7ater 8ct to restore and maintain the chemical, physical, and biological integrity of the nations waters. The heart of the !78 is C*5&?s re,uirement for nationally uniform, technologically based limits on point source discharges administered through a national permit program &. ,ational Standards The act establishes national standards for water ,uality (7ater ,uality standards). >eyond a certain point the pollutant threatens health. The ,uestion is oftenM ;ow much pollution can you put into a water body before its is pollutedG There are effluent limitations on the pollution=waste water dumped into a stream. The limitations are national standards, but they are based on the ability of the polluter to control and limit the pollution (it is a technology based standard) /lants must use the >est /racticable Technology (>/T)=>est 8vailable Technology (>8T) that is economically achievable


There are also pretreatment standards: the plant has to have sufficient works on site to treat the water before it gets to the public treatment works (. Point source pollution The permit system applies to point source pollution There are two types of pollution: point and non)point /oint source: you can point to the source (e.g. a pipe ) on /oint Source: not easily identified, runoff Hischarge re,uires an /H-S permit, no discharge can be made without a permit There are industry standards for each type of industry (-/8 sets different effluent limits) *. &redge and Fill permits The act says that before you can dredge or fill a wetland area you have to get a permit from the corps of engineers "wetlands% are controlled by federal permits 1. 1il and Ha2ardous substance discharge There is mandatory reporting if the discharge is above the threshold amount :% Categories of Pollutants< (&) /riority pollutants F is a list of to#ic chemicals (have to use >8T) (() !onventional pollutants F p;, fecal coiliform (>!T re,uired) (*) on)conventional pollutanst IT-: .nder the 7ater and 8ir 8cts, negligent conduct is a crime, there are knowing violations and "knowing endangerment% violations. >oth 8cts also have provision for citi'en enforcementM gives citi'ens the authority to bring suit against violators -cope of 0ederal Aut"ority to Regulate !ater Pollution !78 prohibits unpermitted discharges of pollutants to "navigable waters% avigable waters: waters of the .S, including the territorial seas The term "waters of the .S% has a very broad meaning under the act, and the term "navigable% is of little import. The !78 is limited in <urisdiction to "navigable waters% because !ongress found the authority to regulate the waters on the basis of the commerce clause. Inly navigable waters can affect interstate commerce. ;owever, courts often construe "navigable% broadly to effectuate the broad ob<ectives of the 8ct.


The following case concerns whether wetlands ad<acent, but not physically connected to, surface waters were part of the "waters of the .S%: +n )S v% !iverside +ayview Homes #nc., H owned a marsh near the shores of a lake and began to fill it in in order to build a housing development upon it. The !orps argued that the property was an ad<acent wetland covered by the regulations and therefore re,uired a permit. The court states that 8gencyEs construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with e#pressed intent of !ongress. !ongress choose to define water covered by the act broadly and intended to allow regulation of waters that might not satisfy the traditional tests of navigability. 7e cannot say that the !orpsE <udgment on these matters is unreasonable, and we therefore conclude that a definition of =waters of the )nited States= encompassing all wetlands ad.acent to other bodies of water over which the !orps has <urisdiction is a permissible interpretation of the 8ct. >ecause respondentEs property is part of a wetland that actually abuts on a navigable waterway, respondent was re,uired to have a permit in this case. !orps definition of waters as including wetlands ad<acent to navigable waters, even if not inundated or fre,uently flooded by the navigable water, was reasonable under the statutory authority 8d<acent wetlands play a key role in maintaining the "waters of the .S% 9egulated activities must substantially affect interstate commerce )S v% Lope2 The following case has two distinct parts: )S v% 4ilson: H?s were convicted of knowingly discharging fill material and e#cavated dirt into wetlands without a permit The defendants challenge the authority of regulation (defining waters of the .nited States to include those waters whose degradation Lcould affectL interstate commerce) to e#tend <urisdiction of the !lean 7ater 8ct to the four parcels in ,uestion. They claim that their property was not ad<acent to waters of the .nited States and that any wetlands that may have been involved were too remote from navigable waters to be under the <urisdiction of the !lean 7ater 8ct. They observe that the wetlands involved here were Lmore than ten miles from the !hesapeake >ay, more than si# miles from the /otomac 9iver, and hundreds of yards from the nearest creeks.L The government argues that the wetlands involved in this case Lwere Sas a factual matterT clearly ad<acent to streams which flow into the !hesapeake >ayL and therefore Lwere properly regulated pursuant to the !ommerce !lause.L The court held that in instructing the <ury in this case, the district court e#tended the application of the !lean 7ater 8ct substantially beyond the regulations that had been approved in !iverside, instructing the <ury that waters of the .nited States included ad<acent wetlands Leven without a direct or indirect surface connection to other waters of the .nited States.L This instruction intolerably stretches the ordinary meaning of the word Lad<acentL and the phrase Lwaters of the .nited StatesL to include wetlands remote from any interstate or navigable waters. (the court looked for a surface connection between the waters)


ote: +solated wetlands are not covered unless there is some substantial connection w= interstate commerce. There has to a ne#us or substantial affect @ill: putting something in for the purpose of replacing the waters with dryland or raising the bottom of the waterway. Side)casting: depositing e#cavated material from wetland drainage ditches ne#t to the ditch +n )S v% 4ilson,(one <udges opinionM is not binding law)the ,uestion was whether "side)casting% violated the !78. The !78 prohibits the discharge (any addition) of a pollutant into the waters of the .S, which includes wetlands. ;ere, H was a land developer who was draining the wetlands in order to build houses. The govt. argued that the "side)casting% process itself constituted a discharge of a pollutant. The court held that while "side)casting% moves e#cavation dirt from one particular locus in the wetland to another, it does not involve the addition of any material to the wetland. &Point -ource( :isc"arges of Pollutants .nder the !78, it is a felony to knowingly discharge a pollutant from a point source into a navigable water of the .nited States without, or in violation of, an /H-S permit. /oint source: any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, discrete fissure, or landfill leachate collection system from which pollutants are or may be discharged Hischarge: any addition of any pollutant to navigable waters (includes all waters of the .S, the waters do not have to be navigable in fact) from any point source, discharge includes surface runoff which is collected or channeled by man +n ,!&C v% Castle, 9H! challenged authority of the -/8 to e#empt categories of point sources from permit re,uirements of the !78. (e#emptions include irrigation return flows, storm sewers containing storm run)off) The -/8?s rationale for these e#emptions is that in order to conserve the 8gencyEs enforcement resources for more significant point sources of pollution, it is necessary to e#clude these smaller sources of pollutant discharges from the permit program. The court holds that the wording of the statute, legislative history, and precedents are clear: the -/8 8dministrator does not have authority to e#empt categories of point sources from the permit re,uirements of C 15(. while technological or administrative infeasibility of such limitations may warrant ad<ustments in permit program it does not authori'e 8dministrator to e#clude relevant point sourcesM where numeric effluent limitations are infeasible, permit conditions may proscribe industry practices that aggravate problems of point source pollution as well as re,uire monitoring and reporting of effluent levelM and a number of administrative devices, including general or area permits are available to aid -/8 in practical administration of /H-S program, and


@7/!8, however tight in some respects, leaves some leeway to -/8 in interpretation of that statute and affords agency some means to consider matters of feasibility.

+n )S v% Pla2a Health Laboratories, the defendant took vials of blood infected with ;epatitis)> and threw them into the ;udson 9iver. The defendant was convicted of knowingly discharging pollutants form a point source without a permit. The defendant argues that the definition of point source does not include discharges that result form the individual acts of human beings. The court agrees and holds that the !78 does not e#pressly recogni'e a human being as a point source. The court reasoned that the !78 targets industrial and municipal production of pollutants and its criminal provisions do not reach actions such as those done by the defendant Variances @H@ (fundamentally different factors) variance: -/8 allows ad<ustment of the category wide standards for plants that could demonstrate the e#istence of "fundamentally different factors% compared with the industry norm +n the &044 8mendments to the !78 !ongress authori'ed some modifications of effluent standards in CC *5&(c), (g). These modifications could be based on economic or water ,uality grounds. ;owever, along with these provisions !ongress included C*5&(l) which prohibits modifications of effluent standards applicable to to$ic pollutants. 8 variance is not a modification or e#emption but is a fine)tuned application of the -/8 regulations. +t allows the -/8 to consider uni,ue factors applicable to atypical plants. +n some cases national standards may not be appropriate, hence an @H@ variance allows fle#ibility. +n Chemical "anufacturers Association v% ,!&C the 9H! argued that C *5&(l) precluded @H@ variances as applied to to#ic pollutants. The court held that C *5&(l) only precludes "modifications% of effluent standards on the basis of economic feasibility and water ,uality. +n contrast, the @H@ variances are corrective devices by which the -/8 may ad<ust the effluent standards when it discovers that relevant factors were left out in the initial determination of those standards. 8s such, @H@ variances are available for to#ic pollutants also. $ffluent Limitations Standards are based on technology C*5& re,uires that effluent limitations reflecting different levels of technology F >/T, >!T and >8T, depending upon the type of pollutant and the deadline for attainment F "shall be achieved% by dischargers. +ndustry has to get /H-S permits which sets the effluent limitations +n !ompany has permit which allows it to discharge A,P and R, can a citi'en file suit if company discharges 8G o, permit shield provision would apply.


%ater &uality Standards States are re,uired to establish water ,uality standards for surface waters 7ater ,uality standards, Two components: (&) designated uses: represent the purposes for which each water segment is to be protected (e.g public water supplies, fishing, swimming, agriculture) (() water >uality criteria: reflect <udgements concerning the degree of protection from individual pollutants that is necessary to attain designated uses 7hen combined with designated uses, water ,uality criteria yield what are called "water ,uality standards%, limits on ambient concentrations of pollutants in particular classes of water. -/8 has re,uired that at a minimum, water ,uality standards must meet the "fishable=swimmable% goal unless that would result in "substantial and widespread economic and social impact% States have the primary role in establishing water ,uality standards (which must be approved by the -/8) States and tribes must adopt water ,uality criteria that specify ma#imum ambient levels of pollutants that will ensure that waters can be used for their designated purposes. 7ater ,uality standards vary from state to state. Some are more lenient than others. That is fine and the -/8 can approve of such standards as long as they are scientifically defensible and protective of designated uses. +n #nternational Paper, lake shore property owners in Uermont brought a private nuisance action against a paper mill across the lake in ew Pork (complained about stench generated form pollution). H argued that the !78 preempted state common law actions. The court held that: (&) !lean 7ater 8ct preempted Uermont nuisance law to e#tent that that law sought to impose liability on ew Pork point source, but (() 8ct did not bar aggrieved individuals from bringing nuisance claim pursuant to law of source state. Ince everyone is permitted (for a particular body of water) you can add up what industry is dumping to get the Total Ma#imum Haily :oad. The agency can ten see if the TMH: matches the 7ater Kuality Standards. +f not they can start ratcheting back the permittiable levels of discharge (as permits come up for renewal) and new planst may not be able to get permits. !pplication of %ater &uality Standards to "nterstate 'ollution -/8 now re,uires permits to ensure compliance with the water ,uality standards set by downstream states +n Ar'ansas v% 1'lahoma, the city of @ayetteville, 8rkansas was issued an /H-S permit by the -/8 for its new sewage treatment plant pursuant to the


!78. 8ccording to permit specifications, the +llinois 9iver, which borders both 8rkansas and Iklahoma, was to receive effluent discharge with specific limitations from this new point source ;owever, the spring)fed waters of that river were already in a severe state of degradation in violation of IklahomaEs current 7KS. Subse,uently both 8rkansas and Iklahoma challenged the -/8 8dministratorEs rulings in issuing the permit The -/8 had determined that the new permit must comply with IklahomaEs 7KS, but further found that since there was no detectable impact on IklahomaEs waters, the permit should be issued. 8rkansas challenged the -/8Es authority to re,uire compliance with IklahomaEs more stringent 7KS. The !ourt held that the $'! has the authority to require such compliance with downstream states( %&S, and that the -/8 had reasonably used a detectable impact standard to determine that 8rkansasE discharge would not violate IklahomaEs 7KS -/8 has broad discretion in setting standards. !etlands Protection and t"e <5=5 Permit Program The !78 establishes a separate permit program, in addition to /H-S, to govern discharges of dredge and fill material. C151 re,uires all dischargers of dredge and fill to the waters of the .S to obtain a permit from the 8rmy !orps of -ngineers The following case challenges the Tulloch rule which defined "discharge of dredged material% to include "any addition, including any redeposit, of dredged material, including e#cavated material, into the waters of the .S% 9edeposit occurs when material removed from the water is returned to itM when redeposit takes place in substantially the same place as the initial removal it is termed "fallback% +n ,ational "ining Association v% Army Corps of Engineers, M8 argued that the definition of "discharge of dredged material% e#ceeded the scope of the !orps? regulatory authority under the 8ct by regulating "fallback%. They specifically argue that discharge means the addition of any pollutant to navigable waters and that fallback cannot be said to constitute the addition of anything. The court agrees and holds that the straightforward statutory term "addition% cannot reasonably be said to encompass the situation in which material is removed from the waters of the .S and a small portion happens to fall back. (no addition then no discharge) The court recommended that the agencies draw a bright line between incidental fallback on the one hand and regulable redeposits on the other and suggests that such a line would receive deference. The court notes that the 9ivers and ;arbor 8ct of &600 make it illegal top e#cavate or fill the navigable waters of the .S w=o the !orp?s approval. >ut that act only covers waters sub<ect to the ebb and flow of the tide or those susceptible for use to transport interstate or foreign commerce. ote: The Tulloch 9ule was designed to prevent developers from simply draining wetlands as an end run around the C151 permit process.


)he *+,+ 'ermit 'rocess C151(b)(&) guidelines provide that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative N which would have less adverse impact on the a,uatic ecosystem N% The guideline define an alternative as "practicable% if it is "available% and "capable of being done after taking into consideration cost, e#isting technology, and logistics in light of overall pro<ect purposes% +f alternatives are available the permit is to be denied w=o further in,uiry The developers bear the burden of proving that there are no alternatives available )HE CLEAN A,R AC) The 8ct establishes comprehensive sets of measures to control outdoor air pollution throughout the nation. The centerpiece of the law involves controlling the si# conventional pollutants. Through the -/8, the federal government establishes national ambient air ,uality standards ( 88KSs) for these pollutants. State governments decide how the numerous e#isting sources within their <urisdictions whose emissions contribute to the ambient levels of these pollutants ought to be controlled in order to meet those 88KSs for their <urisdictions. C&50 of the !88 re,uires the -/8 administrator to set primary 88KSs at the level "which in the <udgement of the 8dministrator, based on the ambient air ,uality and allowing an ade+uate margin of safety, are re,uisite to protect the public health 88KSs have been developed for Sulfur Hio#ide, !arbon mono#ide, I'one, itrogen dio#ide, /M&5 (particulate matter), and :ead. These are the only ones on the list and each has policy reasons for being there (must know for test) /arts of the country that continue to e#ceed the 88KSs are classified as nonattainment areas and additional conditions are imposed on many polluting activities in an attempt to move them towards compliance. -S;8/S govern ha'ardous air pollutants and re,uire an ample margin of safety (which is a stricter standard) 8reas that have high levels of air ,uality are classified according to a prevention of significant deterioration (/SH) program National Am#ient Air /uality -tandards The goal of the !88 is to achieve air ,uality levels throughout the country that protect the public health and welfare. The goal is implemented by setting national ambient air ,uality standards ( 88KSs) and then having the states decide how to control local pollution sources so as to meet those standards.


C&50 of the !88 re,uires the -/8 administrator to set primary 88KSs at the level "which in the <udgement of the 8dministrator, based on the ambient air ,uality and allowing an ade+uate margin of safety, are re,uisite to protect the public health The !lean 8ir 8ct re,uires -/8 to promulgate and periodically revise national ambient air ,uality standards (L 88KSL) for each air pollutant identified by the agency as meeting certain statutory criteria. See !lean 8ir 8ct CC &56)50. +n Lead #ndustries Association v% EPA, :+8 argued that (&) the -/8 must consider the economic impact of the proposed standard on industry and the technological feasibility of compliance in determining the allowance for margin of safety and (() the -/8 must show that the effects on which the standards are based are clearly harmful to public health. The court held that (&) C&50 speaks only of protecting public health and welfare, the -/8 was not re,uired or allowed to consider economic or technological feasibility in setting the air ,uality standardsM (() there is no re,uirement that the effects be clearly harmful, the standards should allow an appropriate margin to protect against affects which have not yet been uncovered of whose significance is a matters of disagreement Revising NAA/-s -/8 is re,uired to review and revise its air ,uality criteria and the 88KSs at five)year intervals -/8 has been reluctant to revise its 88KSs because of the enormous admin burden such revisions would generate Scientific uncertainty has been the principal rationale used by the -/8 when it has declined to revise 88KSs Non :elegation and t"e NAA/-s @or each pollutant, -/8 sets a Lprimary standardL))a concentration level Lre,uisite to protect the public healthL with an Lade,uate margin of safetyL))and a Lsecondary standardL))a level Lre,uisite to protect the public welfare.L The criteria -/8 has announced for assessing health effects in setting the 88KS for non6t"res"old pollutants (ones that have some possibility of some adverse health impact (however slight) at any e#posure level above 'ero): -/8 basically considers severity of effect certainty of effect and si2e of population affected +n &004 -/8 lowered the o'one standard and added a new standard for fine particles of (.2 microns or less (/M(.2) The new 88KSs were immediately challenged: +n American Truc'ing Associations v% EPA, a number of small business petitioners argued that that -/8 has construed CC &56 V &50 of the !lean 8ir 8ct so loosely as to render them unconstitutional delegations of legislative power. The court held that construction of !lean 8ir 8ct on which -/8 relied in


revising 88KS for o'one and particulate matter (/M) effected unconstitutional delegation of legislative power, necessitating remand to allow -/8 to develop permissible construction, in that -/8 failed to articulate intelligible principle channeling its application of factors used to determine degree of public health concern associated with o'one and /M, and none was apparent from 8ct, essentially leaving -/8 free to set 88KS without limits on its discretion. 8lthough the factors -/8 uses in determining the degree of public health concern associated with different levels of o'one and /M are reasonable, -/8 appears to have articulated no Lintelligible principleL to channel its application of these factorsM nor is one apparent from the statute. The non)delegation doctrine re,uires such a principle. The court remands the case in order to allow the agency to come up with some binding standards. ote: The above case was from the H.!. !ircuit. There is a provision in the !88 that gives the H! !ircuit e#clusive <urisdiction over the !88, so its decisions are nationally binding. Ither factors the agency might (or that others suggest they should) consider are background levels (like of o'one which naturally occurs) and sensitive populations (people who have asthma are particularly sensitive to substances in the air) ,mplementation !88 is a technology forcing statute in that it forces technology to be developed in order to comply w= 88KSs 88KSs define the minimum acceptable levels of air ,uality to be achieved throughout the nation for the criteria air pollutants. The -/8 promulgate s the 88KSs, but the states have the responsibility of developing a state implementation plan (S+/) To develop an acceptable S+/ state must: determine e#isting levels of the pollutants in each 8K!9 within states boundaries, provide for emissions limits, monitoring and enforcement programs, compliance timetables, ect. (must come up with a plan on how to attain national standards) .pon -/8 approval, the S+/ becomes federally enforceable C&&5 authori'es -/8 to promulgate national ambient air ,uality standards for o'one and five other pollutants. 8reas that do not meet the minimum level of air ,uality mandated by these national standards are considered to be Lnonattainment areas.L The degree of nonattainment is classified as marginal, moderate, serious, severe, or e#treme. +f a state has an area within it that -/8 has classified as being in nonattainment with respect to o'one (or one of the five other regulated pollutants), the state must devise and implement a Lstate implementation planL Section &&5 governs the interplay between the states and -/8 with respect to the formulation and approval of such State /lans. The basic procedure is that Leach state determines an emission reduction program for its nonattainment areas, sub<ect to -/8 approval, within deadlines imposed by !ongress. Should a state fail to submit an implementation plan, or should its plan fail to provide the re,uired reductions in air pollution, certain penalties)) some mandatory, others at -/8Es discretion))may follow The noncomplying state may, for instance, be prevented from spending federal highway money in nonattainment areas. This sanction becomes


mandatory if the state fails to implement an ade,uate State /lan within (1 months of -/8Es finding that the stateEs proposed plan is deficient. 8t that same point, -/8 must impose a Lfederal implementation planL on those areas of the state in nonattainment. +n )nion Electric Co% v% EPA, Missouri had adopted a S+/ that re,uired substantial reductions in emissions of SI( 8 number of utilities argued that the -/8 should not have approved the plan because it re,uired the utility to do what was technologically and economically impossible. The court states that !ongress intended claims of economic and technological infeasibility to be wholly foreign to the 8dministratorEs consideration of a state implementation plan. The States may adopt such more rigorous emission standards, and the 8dministrator must approve plans containing them if the minimum federal re,uirements are satisfied. The proper forum for such complaints is before the state agency. ote: -/S shall approve a S+/ as long as it meets the !88 re,uirements. )"e 0ederal Role LS+/ callL))-/8Es declaration that a stateEs implementation plan is substantially inade,uate and must be revised -/8 is authori'ed to call for a S+/ revision whenever it finds that an e#isting plan is "substantially inade,uate to attain or maintain the relevant 88KSs, to mitigate interstate transport of pollution, or otherwise comply with the act. +n the following -/8 issued a S+/ call for twelve northeastern states and sought to get them to adopt the !a. /rogram: +n /irginia v% EPA, the court determined that the -/8?s S+/ call effectively ordered the adoption of !8 standards (as other options were so impracticable as to be no option at all). The court states that under the !88 the -/8 decides the "ends% ( 88KSs) and the states are responsible for the "means.% -ach state determines an emissions reduction program for its nonattainment areas, sub<ect to -/8 approval, within deadlines imposed by !ongress. !ourt holds that the -/8 may not, under section &&5, condition approval of a stateEs implementation plan on the stateEs adoption of a particular control measure. 0ederal ,mplementation Plans +f the state fails to implement an ade,uate State /lan within (1 months of -/8Es finding that the stateEs proposed plan is deficient, -/8 must impose a Lfederal implementation planL on those areas of the state in non)attainment. -/8 has been reluctant to do so and has some option short of writing an @+/: !onditional approval: can condition its approval on state promulgating revisions as long as the S+/?s deficiencies are minor and can be corrected within one year !an apply a series of sanctions: suspend federal highway funds, increase pollution offset rates re,uired for new sources


,ncentive6>ased tec"ni+ues for improving air +uality Iffsetting: refers to emissions from one source being offset by emissions from a source at another location, is a re,uirement for obtaining a new construction permit within non)attainment areas >ubbling: refers to placing multiple co)located emissions sources under an imaginary bubble and then treating the total emissions emerging from the bubble as the amount that has regulatory significance (the idea is that plant managers will know better how to achieve any stipulated amount of emissions reduction than regulators) There is a national market set up for SI( allowances. The system is based on a system of allowances that can be banked or sold by emitters. each allowance is e,uivalent to one ton of emissions. ,nterstate Acid :eposition 8cid deposition is a ma<or environmental concern and is primarily associated with sulfur emissions which are due mainly to coal burning power plants The sulfur content of coal burned by utilities depends upon the geological origin of the coal: whereas coal mined in the western .nited States has the lowest sulfur content, almost all of the coal mined in the L+llinois >asin,L including most of +llinois and parts of +ndiana and western Qentucky, has a relatively high sulfur content. &005 amendments to !88 created a Title +U program to deal with acid deposition. +t places a cap on emissions and is an incentive bases pollution reduction strategy. The &005 8ct implemented an innovative market)driven approach to emissions regulation, allowing for the free transfer of emissions Lallowances.L The 8ct is aimed at reducing emissions efficiently and allows utilities to meet the standards in the cheapest manner possible. To comply with the new emissions limitations, utilities now have a choice of the following strategies: (&) installing pollution control devicesM (() using low) sulfur coalM (*) purchasing allowances to emit sulfur dio#ideM (1) switching to another fuelM (2) closing down certain unitsM (3) offsetting emissions at one plant by over) complying at anotherM or (4) adopting some combination. Most utilities have switched to low)sulfur coal +n Alliance for Clean Coal v% +ayh, +ndiana adopted a law that encourages utilities to use high)sulfur coal by providing economic incentives. The 8lliance argued that the act un<ustifiably discriminated against interstate commerce (it that it seeks to protect the regional industry). The court says that the State 8ct discriminated against interstate commerce in violation of commerce clause of federal !onstitution. The 8ct was basically a protectionist measure and was not <ustified by any legitimate and compelling governmental interest. -#one discussion: I'one blocks .Ub F o'one holes allow .Ub to pass through and be absorbed by humans


ormally o'one occupies the Stratosphere and breaks down incoming .Ub

.Ub (from sun) is absorbed by I* (o'one) which breaks down to I( and I they then reform I* and the process continues ;owever, !@!?s alter the normal process. They find their way up to the stratosphere and also absorb .vb, the !@! then breaks down to !l and @! The problem is that !l will pair up with the loose I (free radical o#ygen) which prevents the normal reformation of I* !@!?s (at least in 8merica) have been replaced w= ;@!?s (which breaks down to ;alogen and @!), but ;alogen does the same thing that !lorine was doing. So the "solution% is now the problem R,-? A--E-- EN) The +en2ene decision: IS;8 sought to reduce the e#posure level of ben'ene to &ppm (but had no real evidence other than "less is better%). The industry challenged the agencies attempt and argued that a cost)benefit analysis was re,uired. The court holds that the agency must first make the threshold determination that a risk e#ists (place burden on agency to show that the workplace is unsafe). !ourt says then you decide what risk is significant (safe does not e,ual risk)free). 8lthough the agency has no duty to calculate the e#act probability of harm, it does have an obligation to find that a significant risk is present before it can characteri'e a place of employment as "unsafe% IS;8 is not re,uired to support its finding that a significant risk e#ists with anything approaching scientific certainty. 8lthough the agencies finding must be supported by substantial evidence, the agency to regulate on the basis of the "best available evidence% Ris* Assessment )ec"ni+ues There are four principal steps in the process: Ha2ard identification: +s the item under study casually linked to particular health effectsG &oes8response assessment: 7hat is the relationship between the magnitude of e#posure and the probability that the health effects will occursG


E$posure assessment: 7hat is the level of e#posure of humans (or the environment) to the ha'ardG !is' characteri2ation: 7hat is the overall magnitude of the riskG

9isks can be characteri'ed either in ,uantitative or ,ualitative terms: Kuantitative risk assessment generally specify either the total numbers of people likely to e#perience the adverse effect or the likelyhood that any one individual e#posed to the ha'ard would suffer the adverse effect. ote: almost all risk assessments are plagued by inade,uate data 0,0RA @ederal +nsecticide, @ungicide, and 9odenticide 8ct (@+@98) /urpose: regulate the sale and distribution of pesticides The act governs regulation of pesticides and is a risk)balancing statute +t prohibits the marketing of pesticides that are not registered with -/8 >efore a new pesticide can be registered with -/8, the agency must review information about the risks and benefits of the product C* 9egistration of pesticides: re,uires all pesticides to be registered (applicant must demonstrate that pesticides will not cause unreasonable adverse effects on the environment) C3 provides for automatic cancellation after five years unless registrant re,uests that it be reregistered. 8uthori'es -/8 to cancel registration if pesticide is found generally to cause "unreasonable adverse effects on the environment%. -/8 may suspend the registration of any pesticide pending completion of formal cancellation hearings if the agency determines that suspension "is necessary to prevent an imminent ha'ard to human health% +f -/8 determines that an immediate suspension is necessary "to prevent an imminent ha'ard during the time re,uired for cancellation% the suspension can take effect immediately The 8dministrator must consider the impact of the action on agricultural commodities, retail food prices, and otherwise on the agricultural economy States may not impose regulations in addition to or different from those re,uired by @+@98


Pesitcide: (&) any substance or mi#ture of substances intended for preventing, destroying, repelling or mitigating any pest, and (() any substance or mi#ture of substances intended for use as a plant regulator, defoliant, or disiccent (dryer) 8 substance or mi#ture of substance is a pesticide under the act if it is intended for preventing, destroying, repelling or mitigating any pest >ecause a product has other uses, does not preclude a registration re,uirement )"e )o@ic -u#stances Control Act )-CA /olicy: avoid environmental and health problems by front)end regulation of chemical production and use C2 of the act re,uires a manufacturer to give notice to t"e EPA before manufacturing a new c"emical su#stance, or manufacturing or processing any chemical substance for a "significant new use% C1 empowers the -/8 to re,uire testing by manufacturers of substances on finding that such testing is necessary because there is insufficient data to predict the chemicals effects )"e -afe :rin*ing !ater Act -:!A The SH78 authori'es -/8 to limit contaminants in public drinking water supply systems that have at least &2 service connections or that regularly serve at least (2 individuals The -/8 is instructed to establish heath)protective goals for contaminants in drinking water, which are termed ma#imum contaminant level goals (M!:$s) The M!:$s are the level at which no adverse health affects occur and is the level of ,uality we really want. The real standard, however is M!: (ma#imum contaminant levels) which are set as close as "feasible% to levels of M!:$s, the agency has to consider costs. )"e Emergency Planning and Community Rig"t6to6?now Act /urpose: to support emergency planning by local governments and to provide citi'ens and local governments with information about potential community)based chemical ha'ards (to allow community to prepare for a possible emegency) !ongress adopted legislation re,uiring comprehensive emergency planning and the reporting of chemical release C*5& re,uires the establishment of state response commissions and local emergency planning commissions, which must develop comprehensive emergency response plans The most significant re,uirement of -/!98 is C*&*, which re,uires annual reporting of releases of to#ic chemicals


Iwners and operators of certain facilities must (&) submit an annual report of releases of to#ic chemicals and (() must inform citi'ens about chemicals located in their communities, by submitting to state and local authorities information about to#ic chemical inventories, usages, manufacture, and release. The annual results are called the )o@ic Release ,nventory (T9+) The information generated by the reporting re,uirements must be made available to the public through a national computeri'ed database The availability of info about release has enabled the public to put substantial pressure on companies to reduce emissions. The T9+ give the industries a string incentive to protect or repair their reputations by reducing their release. The T9+ has helped -/8 ad<ust its regulatory priorities by revealing that some chemicals are released in far greater ,uantities that the agency had anticipated )HE RE;8LA)ORY PROCE-The regulatory process is the arena in which law is translated into policy Most environmental regulations are promulgated through informal rulemaking (although pesticide cancellation hearings under @+@98 still involve formal ad<udicatory hearings +nformal rulemaking proceedings are governed by the 8dministrative /roceeding 8ct (8/8) which re,uires that agencies provide: (applies to federal agencies that have rule making authority) (&) public notice in the @ederal 9egister of proposed rule)making actions (() an opportunity for the public to submit written comment (*) publication of final rules in the federal 9egister accompanied by a concise statement of their basis and purpose The above re,uirements are based on due process notions which re,uire notice and comment Most rule)making is informal, agencies only use formal rule)making if re,uired to by statute (de) listing pesticide re,uires formal hearings) Timeline of informal federal rulemaking (8 /9 B advanced notice of proposed rule) !iti'en petitions or agency initiates process 8 /9 /9 draft /9 @inal 9ule





Hespite the minimal procedural re,uirements, it has become enormously difficult for regulatory agencies to issue regulations through informal rule)making. @ear of <udicial reversal has caused agencies to bend over backwards to supply detailed <ustifications for their actions. The /resident and !ongress often seek to influence agency decisions. The following case address the legal bounds on e#ecutive and congressional oversight of the rule)making process: +n Sierra Club v% Costle, some environmental groups claimed that -/8?s new standards for coal)fired plants had been weakened by eleventh hour intervention of /resident !arter and his staff. The issue was whether such oral communications with the 7hite ;ouse must be documented on the rule)making record. (if order to facilitate <udicial review of everything the agency to into consideration in making its decision) The court held that the -/8 does not have to docket every policy session involving the president and -/8 officials during the post)comment period unless the -/8 bases the rule on information or data arising form that meeting. The court recogni'es that the political process can affect the outcome in a way the courts cannot police but !ongress did not intend a purely technocratic unaffected by political considerations. .udicial /eview and the /egulatory 'rocess The ma<or federal environmental statutes specifically authori'e <udicial review of agency action taken pursuant to them Threshold re,uirements for agency review: standing to sue in order to have standing / must have: &. (. *. 1. +n<ury)in)fact in<ury within the "'one of interest% +n<ury can be remedied by the court (redress re,uirement) +n<ury is traceable to the challenged action

ripeness F the action must be ripe for review by the courts &. 7hether agency action will not be disrupted by <udicial review at this point (. 7hether rights o conse,uences will be determined from the agency action

e$haustion F /?s must have e#hausted all admin procedures. !ourt will look at : &. Hegree of /?s in<ury (. eed to protect agency functions *. 8pplying agency e#perience will be helpful to the court through the agency record


1. <udicial economy 4hat is the standard of review? The 8/8 specifies a relatively deferential standard of agency review: C453 provides that courts are to overturn agency action only if it is " ar#itrary3 capricious, an abuse of discretion, or otherwise not in accordance with the law% 7ith the enactment of -/8 courts began a period of greater scrutiny of agency action characteri'ed as the &"ard loo*( doctrine: (court gives hard look at agency decision to see if agency gave hard look) &. (. *. 1. ;as the agency relied on factors !ongress intendedG ;as the agency considered important aspects of the problemG Hoes the agency?s e#planation fit the evidenceG +s the decision so implausible that it could not be e#plained by agency e#pertiseG

Then in ?46, Uermont Pankee mandated greater <udicial deference to agency procedural decisions. +n Chevron )SA v% ,!&C, the issue was whether -/8Es decision to allow States (under the !88) to treat all of the pollution)emitting devices within the same industrial grouping as though they were encased within a single LbubbleL is based on a reasonable construction of the statutory term Lstationary source.L +n response the court sets out a two)part test: 0irst, always, is the ,uestion whether Congress has directly spo'en to the precise >uestion at issue . +f the intent of !ongress is clear, that is the end of the matterM for the court, as well as the agency, must give effect to the unambiguously e#pressed intent of !ongress. +f, however, the court determines !ongress has not directly addressed the precise ,uestion at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. 9ather, if the statute is silent or ambiguous with respect to the specific issue, the ,uestion for the court is (() whether the agencyEs answer is based on a permissible construction of the statute. The court concludes that !ongress did not have a specific intention of the applicability of the bubble concept and that the -/8?s use of the concept is a reasonable policy choice. +t?s interpretation represents a reasonable accommodation of competing interests and is entitled to deference. Two step test: (&) +s the statute ambiguous (look at plain meaning and then look at legislative intent)G (() Hid agency take a reasonable actionG The above test gives the court a lot of room to offer deference ;eneral rule: 7hen an agency makes a decision, the agency needs to have a record to review and the agency decision must be reasonable


;ow to determine if a / is entitled to <udicial review of an adverse agency decision: &oes P meet the threshold re>uirements? (&) does he have standing (() is issue ripe (*) has he e#hausted all agency remedies #f P is entitled to .udicial review must then decide what standard of review applies? :ook to see if there are any standards in the enabling statute +f no standards then 8/8 C453 "arbitrary and capricious% standard is used

Finally the decision has to be based on a record and reasonable analysis of the record. Land 0se 1ontrols and /egulatory )a2ings The 2th amendment o the .S !onstitution provides that "private property shall not be taken for public use, without <ust compensation% Takings re,uire compensation, regulations do not 9emedy for a "taking% (even a temporary one) is damagesM "monetary compensation% There are two categories of regulatory actions that are always takings (no need for case) specific in,uiry): (&) permanent physical occupations are always takings (() where regulation denies all economically beneficial or productive use of land 8s a general rule property may be regulated to a certain e#tent, but if the regulation goes too far it will be recogni'ed as a taking (the ,uestion is how much is "too far%) Uirtually every form of land use regulation that effects property values has been challenged as a taking of private property +n Penn Central: the city designated grand central terminal as a landmark, /enn wanted to build an office building above the terminal, commission refused the plans and /enn argued that the application of the landmarks law constituted a takings. Specifically /enn argued : (&) airspace was a property interest and the (() the operation of the law has significantly diminished the value of the site. !t. said law does not interfere w= /enn?s primary e#pectations concerning the use of the parcel (still functions as a railroad terminal) and that they have not been denied all use of the air rights since they have been made transferable. The court held that :andmarks :aw has not effected a LtakingL of appellantsE property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but


also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties ew standard: did regulation interfere with investment backed e#pectations Transferable development rights: (TH9s) this approach severs development rights from other rights in land and treats them as a separate item, the right to develop is restricted at the conservation site but owners of the restricted land are given TH9s that can be used for development, beyond what would otherwise be permitted, in transfer areas "odern revival of regulatory ta'ings .urisprudence First Evangelical: established temporary taking F "fair value for the use of the property during such period% -eystone: (&) the more drastic the reduction in value of the owner?s property the more likely a taking is to be found but (() where the state is acting to prevent a harm to the public, the courts will be very reluctant to invalidate the regulation as a taking ,olan: land use regulation does not effect a taking if it substantially advances a legitimate state interest +n Lucas v% South Carolina, state enacted act to protect coastline from erosion. The act bars owners of lots on the beach from building permanent structures. / bought a lot for one million and intended to build houses on it, he now argues that the 8ct deprived him of all economic use of his property and is therefore a taking. The state argued that South !arolina was merely e#ercising its police power to prevent harm to the public and that such regulation of "harmful or no#ious use% does not re,uire compensation. The court holds that, even if the state is trying to protect the health and safety of the public, if / has been deprived of all economically viable use a "taking% has occurred. ote: Uery rarely is there a &55W taking of all property value, like in :ucas PRE-ERVA),ON O0 >,O:,VER-,)Y >iodiversity: the variability among living organisms from all sources, including terrestrial, marine, and other a,uatic ecosystems and the ecological comple#es of which they are a partM this includes diversity within species, between species, and of ecosystems The -ndangered Species 8ct is the cornerstone of .S efforts to conserve biodiversity. +n ,ational Association of Home +uilders v% +abbitt, a fly, which habitat consisted of two counties, was placed on the -S list. The county govt. was stopped from enlarging a road intersection as it would lead to a taking of the fly (term take includes significant habitat degradation) in violation of the -S8. The county argued that the federal government does not have the authority under the commerce clause to protect the fly?s habitat because it did not bear a sufficient relationship to interstate commerce. The court held that held that application of 8ctEs prohibition against taking of endangered species to endangered species of fly was proper e#ercise of !ommerce !lause power to regulate use of channels


of interstate commerce. Moreover, application of 8ct to endangered species of fly was constitutional e#ercise of !ommerce !lause power to regulate activities substantially affecting interstate commerce, in that it (&) prevented destruction of biodiversity and thereby protects the current and future interstate commerce that relies upon and (() the provision controls adverse affects of interstate competition. The 8ct empowers the Secretary of the +nterior (the Secretary) to list species as either LendangeredL or LthreatenedL based on any of the following factors: (&) (() (*) (1) (2) present or threatened destruction of a speciesE habitat or rangeM its overutili'ation for commercial, recreational, scientific, or educational purposesM disease or predationM the inade,uacy of e#isting regulatory mechanismsM or other threatening factors (natural or manmade).

8n endangered species is one Lin danger of e#tinction throughout all or a significant portion of its range.L 8 threatened species is one which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range !ivil and criminal penalties may be imposed for violations of the 8ct. C&215 (b) !riminal Uiolations: "8ny person who knowingly violates% a provision of the act or a regulation. .nder the regulations it is unlawful to (&) "take% and endangered species or (() carry and transport an endangered species illegally taken "Take% includes harassing, harming, killing, capturing, or collecting Hetermination of <eopardy: (* step process outlined in Thomas v% Peterson) &. #nformal in>uiry: whether threatened or endangered species "may be present% (. +iological assessment F to determine whether such species is "likely to be affected% *. Formal consultation with F4S F which results in a biological opinion F is the species <eopardi'ed by the proposed actionG C 4 re,uires all @ederal agencies to take "such action as is necessary to insure that actions authori'ed, funded, or carried out by them do not result in the destruction or modification of SaT critical habitat area Sof an endangered speciesT.% C4 provides for review of all federal actions that may affect endangered species and section 4(a) (() prohibits those actions that are found to "<eopardi'e% the e#istence of any such species. +n T/A v% Hill the Secretary of the +nterior listed the snail darter (a small fish) as an endangered species. +n addition, the Secretary found that the snail darter only


lives in a portion of the :ittle Tennessee 9iver which would be completely inundated by a reservoir that would be created by the federally)funded Tellico dam which was already near completion. 8ccordingly, the Secretary declared the area the "critical habitat% of the snail darter. The plaintiffs brought suit to en<oin the completion of the dam and the impoundment of the reservoir as a violation of the -S8. The Supreme !ourt upheld the issuance of a permanent in<unction declaring that an e#amination of the language, history, and structure of the -S8 "indicates beyond doubt that !ongress intended endangered species to be afforded the highest of priorities.% The !ourt admitted that the in<unction will result in a waste of millions of dollars spent in the Tellico Ham pro<ect, but held that it supersede the "incalculable value% of an endangered species. ote: TU8 was a clear repudiation of the balancing approach favored by the economics perspective. 8n enormous amount of money had already been spent on the dam and little work remained to be done, but the court held that these factors were simply irrelevant. +n response to TU8, !ongress amended the -S8 to provide an escape hatch in the form of a special committee (commonly called the "$od committee%) which can override C4 if there are no reasonable alternatives to agency action, the benefits clearly outweigh those of compliance with the statute, and the action is in the public interest and has at least regional significance. +n Thomas v% Peterson the plaintiff?s sought to en<oin the @orest Service?s construction of a timber road in a former ational @orest roadless area for failure to comply with the -ndangered Species 8ct in considering the effects of the road and timber sales on the endangered 9ocky Mountain $ray 7olf. The @orest Service argued that the failure to conduct a biological assessment was an insignificant procedural violation and should not support an in<unction en<oining the completing of its pro<ect. The court held that the violation was significant because the procedural re,uirements of -S8 were necessary to ensure compliance with its more substantive provisions. The court analogi'ed a failure to conduct a biological assessment under -S8 to a failure to conduct an environmental impact statement under -/8. Protection against Private Action2 section A -S8 also provides listed species some protection against private actions. Section 0 prohibits any person (including any corporation or other private entity, and any government agency) from taking, selling, importing, or e#porting any protected species +n Palilia v% Hawaii, some imported sheeps and goats were harming trees which an endangered species of bird, depended on for food. The S-c of +nterior defined "harm% as an act which actually kills or in<ures wildlife. The state argued that this was an indirect effect on the bird and hence was not a "harm% as defined by the Sec of +nterior. The court held that a finding of "harm% does not re,uire a showing of death to individual members of a species, but rather only "an adverse impact on the protected species.% !ourt concluded that the habitat modification was preventing the population from recovering.


Section &5 of the -S8 provide some fle#ibility for "incidental takings% The section authori'es the Sec. To permit incidental takings associated with private action if the actor prepares a habitat conservation plan (;!/) to minimi'e the impact of the taking and assures that it will not appreciably reduce the likelihood of the survival and recovery of the species. (for e#ample one developer was allowed limited housing development of &*W of a butterfly habitat by enacting a plan to permanently protect the other 64W) +n +abbitt v% Sweet Home Chapter, the Sec defines LharmL to include Lsignificant habitat modification or degradation where it actually kills or in<ures wildlife.L 9espondents, persons and entities dependent on the forest products industries and others, challenged this regulation on its face, claiming that !ongress did not intend the word LtakeL to include habitat modification. The court held that SecretaryEs definition of Lharm,L within meaning of -S8 provision defining Ltake,L as including Lsignificant habitat modification or degradation that actually kills or in<ures wildlifeL was reasonable. The court reasoned that SecretaryEs interpretation was supported by (&) ordinary understanding of word Lharm,L (() broad purpose of -S8 to protect endangered and threatened wildlife, and (*) provision authori'ing issuance of permits for otherwise prohibited takings which are incidental to otherwise lawful activities, and legislative history established !ongressE intent that LtakeL apply broadly to cover indirect as well as purposeful actions. ote on private actions: The federal government cannot tamper with an individuals property rights (they can tell you what to do with animals) they cannot tell a private landowner what to do with the plants on his own land. So if you own land on which there is an endangered, you can chop it down w=o fear of violating the -S8. ;owever, if you violate state law in destroying the plant (say by trespassing on neighbors property) you will be liable under the -S8. ENV,RON NE)AL EN0ORCE EN) The -/8 has a Self)/olicing policy whereby companies can file re,uests for relief in cases giving rise to potential criminal violations. The Self)/olicing /olicy criteria re,uire clear efforts on the part of the disclosing entity to discover, disclose and correct the shortcomings that gave rise to the violations. There are nine conditions: &. Hiscovery of the violation through an environmental audit or due diligence (. Uoluntary discovery (as opposed to a re,uired monitoring procedure) *. /rompt disclosure (within &5 days) 1. Hiscovery and disclosure independent of government or third party plaintiff (includes a whistleblower) 2. !orrection and remediation (within 35 days) 3. /revent reoccurrence 4. o repeat violations 6. Ither violations e#cluded 0. !ooperation


Tools of enforcement: (in order of severity=formality) &. +nformal action letter: advise regulated entity of what they should be doing (. otice of violation: formal warning, if entity remedies violation no further action is taken

*. 8dministrative order: formal order re,uiring entity to come into compliance 1. !ivil suits: agency seeks in<unction in federal court 2. !riminal charges (if applicable under statute) IT-: +n the administrative actions the -/8 e#erts a great amount of influence and settlements are likely. ;owever, when civil suits arise, the Hepartment of Xustice takes <urisdiction and the -/8 loses much of its influence. /roblem: a lot of entities see compliance penalties as a cost of doing business and are simple "waiting to be caught%. They know -/8 has limited resources, and take their chances on being caught. 8s a result, -/8 will reduce fines if there is voluntary compliance Penalty policies: civil penalties are calculated based on the gravity of the offense, the economic benefit of delayed compliance, the willfulness of the offense, and the violators past compliance and cooperation with enforcement authorities. The trial court has a lot of discretion in setting the penalty Citi4en Enforcement -nvironmental laws allow * types of citi'en suits: (&) !iti'en enforcement actions: allow private parties to act a private attorney generals to supplement government enforcement (() Headline suits: allow citi'ens to challenge agencies failure to meet a statutory deadline. Hesigned to ensure that regulations implementing the environmental statutes are issued (*) The federal environmental laws also include <udicial provisions that authori'e citi'en suits to review the legality of agency actions .nder the !78, in absence of federal or state enforcement, private citi'ens may commence civil actions against any person "alleged to be in violation of% the conditions of either a federal or state /H-S permit. +f the citi'en prevails in such an action, the court may order in<unctive relief and=or impose civil penalties payable to the .S Treasury. ;owever, no action may be commenced:


8. /rior to si#ty days after the / has given notice of the alleged violation to the 8dministration, the State, and the violator or >. if the 8dministrator or the Sate have commenced a civil or criminal action The purpose of the notice provisions is to allow compliance. The following case addresses the issue of whether citi'ens can bring enforcement actions under !78 on the basis of wholly past violations. (answer is I) +n (waltney of Smithfield Ltd v% Chesapea'e +ay Foundation, the foundation brought suit against H for violating its permit conditions. ;owever, H upgraded its facilities and its last permit violation occurred several weeks before the @oundation filed its suit. H argued and the S. !T agreed that citi'ens may seek civil penalties only in a suit brought to en<oin or otherwise abate an ongoing violation. The harm sought to be addressed by the citi'en suit lies in the present or the future, not in the past. Thus, a citi'en suit cannot be brought for a wholly past violation unless the plaintiff could show a reasonable likelihood that a past violator will violate again. The most natural reading of "to be in violation% is a re,uirement that citi'ens allege a state of either continuous or intermittent violation. ;owever, a citi'en can bring suit for good fait" allegations of intermittent or on6going violations. ote: The !78 has been a popular vehicle for citi'en suits because it was easy to prove that a violation occurred by using H?s own discharge monitoring reports (HM9s) 9emember in order to have standing to sue the /laintiff must show: (&) +n<ury)in)fact (() +n<ury can be remedied by the court (redress re,uirement) and that (*) +n<ury is traceable to the challenged action Moreover, under the mootness doctrine, citi'en suitors lack standing to seek civil penalties for violations that have been abated by the time of the suit. 4hat happens if & goes into compliance while the suit is pending? is the issue moot? Mootness B there is nothing left to be decided. @or a finding of mootness, H has to show there is no possibility that the violation will reoccur. +n Friends of the Earth v% Laidlaw Environmental Services , H Js discharges e#ceeded the permit limits nearly 255 times and @I- brought suit. The last violate doccured before the H.!t <udgemnet was entered. The H.!T found for @I- and assessed a civil penalty. H argues that @I- lacked standing in that there was (&) no in<ury in fact and (() no redressi#ility (since civil penalties are only paid to the goveremennt and would not redress any in<ury /?s have suffered)


H also argued that the case (*) became moot once the defendant voluntarily complied with the terms of its permit. The S.!t held that (&) / has to show that members made use of the area affected or lost resources because of H?s discharges. Actual use followed by deprivation because of H?s actions constitutes "in<ury)in)fact.% ;ere, / offered sufficient evidence of members who once used the environment but now can?t (() Moreover, civil penalties may serve as an alternative to an in<unction, to deter future violations and thereby redress the in<uries that promoted a citi'en suitor to commence litigation (*) defendants voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case. +f relief sought will deter future conduct, that is a form of redress /laintiff has to have standing for each part of the relief they want. / has to show that members made use of the area affected or lost resources because of H?s discharges. Actual use followed by deprivation because of H?s actions constitutes "in<ury)in)fact% !+TR- S.+TS F T-ST I.T:+ Things to look for: (&) +s it a past, present or continuos violationG +f wholly past violation, then citi'en has no standing ($waltney) +f they come into compliance prior to suit, a citi'en can bring suit for good faith allegations of intermittent or on)going violations +f they come into compliance while suit is pending, this will not suffice to moot the suit unless it is absolutely clear that the point is moot (:aidlaw)

(() +s there an in<uryG Must have an in<ury in fact F actual use followed by deprivation "+n<ury% is in<ury to the environment and to the person 9edressibilty includes civil penalties payable to the government

(*) Must show violation of standard (under applicable statute) .nder !78 F did they violate permit .nder -/!98 F did company fail to report to#ic emissions .nder 9!98 you do not have to allege a violation of a standard if you can show imminent danger

;ow do you check for complianceG .nder -/!98 F check computer database on 777


.nder other 8cts F can get access to info (permit=reporting) via @I+8 Permit -"ields C15( of the !78 contains a "shield provision% that defines compliance with an /H-S or S/H-S permit as compliance with C*5& for the purpose of the !78?s enforcement provisions. +n Atlantic States Legal Foundation v% Eastamn -oda', the issue was whether a private group may bring a citi'en suit to stop the discharge of pollutants not listed in a valid permit issued under the !78. ;ere, Qodak had a state permit (S/H-S) to discharge (2 pollutants but was also discharging some other pollutants. 8tlantic brought suit and argued that C*5& of the !78 prohibits the discharge of any pollutants not authori'ed under the permit. The court holds that /olluters may discharge pollutants not specifically listed in permits under state or national pollutant discharge elimination system (S/H-S) ( /H-S), so long as they comply with appropriate reporting re,uirements and abide by new limitations when imposed on such pollutants. Environmental Bustice -nvironmental <ustice issues arise whenever a facially neutral practice produces a disparate impact on a minority group when compared with the general population +t is argued that minorities have been e#pose to disproportionate health or safety risks from known ha'ards such as chemical waste dumps or environment polluting industrial sites The ine,uities can be procedural (use -nglish to communicate with non)-nglish speaking people), (eographical (benefits and burdens of waste disposal are in different locations) and Social (institutional racism) :egal Theories for - U <ustice: .S !onstitution, -,ual protection (/ must defendant acted with racially discriminatory intent) Title U+ of the civil 9ights 8ct ("no person should be sub<ect to discrimination under any program receiving federal funds%) -#ecutive order &(.606 (re,uires that each federal agency make achieving env <ustice a part of its mission) -/8 "+nterim guidance for investigating complaints challenging permits% +ncludes claims of discrimination concerning any program, activity, grant or permit program /roperly pleaded complaint:


&. in writing, signed, with contact info (. Hescribes alleged discrimination (whether it is an intentional action or has the effect of discrimination on the basis of race, color, or national origin) *. @iled within &65 calendar days of the alleged discriminatory acts 1. +dentifies the -/8 recipient responsible for the action ,nternational Environmental Law +nternational law depends largely on negotiations and political relationships to define the rights and responsibilities of sovereign states +nternational env law is "soft law% and -nforcement depends less on "legal% sanctions and more on "moral% suasion or fear of diplomatic retribution. The clearest and most significant source of international environmental law is agreements between sovereign states. +nternational treaties or conventions are akin to contracts in that they derive their legal force from the consent of the parties. +n .S, in order to have force of law treaties must be ratified by !ongress There are conventions, treaties, and protocols ontreal Protocol multinational approach to env concerns agreement to phase out !@!?s by (555 driven by science

Rio Eart" -ummit framework convention on global climate change goal was to reduce to &005 levels under)developed countries always argue that developed countries were able to use cheap energy and they should be able to as well

?yoto Protocol &004 F to address anthropogenci !I( agreed to 2W reduction below &005 levels in period (556 to (5&(

'rotection of the 3lobal !tmosphere I'one depletion and global warming are the two principal problems cased by pollution of the global atmosphere

(&) IRI - H-/:-T+I !@!?s remain in the atmosphere for up to a century or more (() $:I>8: 789M+ $ >uildup of carbon dio#ide and other gasses has led to "$reenhouse% effect !I(, !@!s, and methane have an effect comparable to glass of a greenhouse F they allow visible light to pas through but trap the heat (infrared) radiated back from the earth. The rapid increase in the atmospheric concentrations of greenhouse gasses is directly caused by man?s actions !ombustion of fossil fuels release most of the !I( >urning trees has the double effect of releasing !I( by reducing the amount removed from the atmosphere (as trees store !I() The use of fossil fuels is increasing far more rapidly in developing countries than in industriali'ed countries. 7armer temperatures could e#acerbate air pollution, increase the severity of tropical storms, and change the world in other une#pected ways. There needs to be a balance between the heat coming in and the heat leaving atural gas is considered better than oil and coal because of its hydrogen to carbon ratio (but most developing countries have little natural gas and a lot of coal) ;A)) and !)O $8TT ($eneral 8greement on Tariffs and Trade) is a treaty whose aim is to ensure the unencumbered flow of international commerce F the treaty was transformed into the 7TI (7orld Trade Irgani'ation) in ?01 /arties can challenge, through 7T/ review, national measures (including - U regulations) that constitute un<ustified non)tariff trade barriers $8TT insulates health and - U regulations from attacks as trade restrictions as long as they are not applied in a manner which would constitute a means of arbitrary or un<ustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade /urpose If $8TT is to allow more free trade, .nder $8TT you cannot impose restrictions to protect your own product 7ho are the playersG (in - U law)


governments the public non)governmental parties ( $I?s) these includeM - U groups, civil rights groups and other special interest groups

The Marine Mammal /rotection 8ct bans the importation of commercial fish which have been caught with methods that result in incidental killing or in<ury of marine mammals 8fter the .S imposed a ban on tuna from Me#ico, Me#ico asked $8TT council to hear its case The panel said that the .S was trying to re,uire Me#ico to comply with a standard that the y could not know (as kill limits were fi#ed to .S takings) There are e#ceptions to $8TT: to protect human=animal life and for conservation measures but only if all other options are e#hausted first 8 nation can attempt to affect conservation outside its territorial <urisdiction if it does not try and force change ote: ational security measures overrides any international agreement >i)lateral agreements can be more specific whereas multilateral agreements are broader IT-S The most important principle is @ree trade 8@T8 created awareness of the - U problems along the border and led to the formation of $I?s in Me#ico Pou cannot go into other countries and decide their - U policies, it is up to each sovereign to decide their own policies Law of nations: universally accepted environmental standards or norms (there are none) -very nation does not have the same standards or protections as the .S (most have little or no - U protection) /ublic pressure is one of the most effective ways to regulate - U concerns F raise public awareness so that they will pressure companies into compliance /rinciples: >ias for free trade in $8TT= 8@T8 Pou cannot use treaties to force - U law on other countries (unless the laws are intended to protect shared resources F if it has something to do with the commons F prevent depletion of global resources) economic protectionism will not be allowed


Commerce Clause Limitations @ederal regulation has reduced the supply of municipal dumps and landfills and has increased the cost of land disposal facilities. ew land)based waste disposal capacity is a scarce commodity, as a result many states and cities ship their waste to other states. Some states have attempted to place limits on the importation of waste +n Philadelphia v% ,ew @ersey, a ew Xersey law prohibits the importation of most solid or li,uid waste which originated outside the state. The parties in the case disputed whether the purpose of the restriction was economic favoritism toward local industry or environmental protection of the states resources from overuse. The court did not resolve this dispute and said that "the evil of protectionism can reside in the legislative means as well as legislative ends% ;ere the goal of protecting the environment is legitimate but the means are illegitimate. 7hatever ew XerseyEs ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. >oth on its face and in its plain effect, this law violates this principle of nondiscrimination. The ew Xersey law at issue in this case falls s,uarely within the area that the !ommerce !lause puts off limits to state regulation. In its face, it imposes on out)of)state commercial interests the full burden of conserving the StateEs remaining landfill space. +t is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. >ut that difference is without conse,uence. +n both instances, the State has overtly moved to slow or free'e the flow of commerce for protectionist reasons. +t does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. 7hat is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade. Kuarantine laws directed against out)of)state commerce are IQ as the very movement of such things risks contagion and other evils 9ule: a law is discriminatory if it ta#es a transaction or incident more heavily when it crosses sate lines than when it originates entirely within the state