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1. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, (1984); pg. 128,
briefed 9/5/96

2. Facts: In the Clean Air Act Amendments of 1977, Congress enacted certain
requirements applicable to states that had not acheived compliance with national
air quality standards established by the EPA. One of these amendments required
the non-attainment states to regulate new or modified major stationary sources
of air pollution. To this end, the EPA enacted a regulation which allowed a
plantwide definition of stationary source, i.e. a bubble concept whereby a
new emitter could be added to a plant as long as reductions in other areas of the
plant resulted in no net increase in pollution.

3. Procedural Posture: Chevron was apparently sued by NRDC concerning

additions made to a plant. The Court of Appeals decided that since Congress
had not specified any clear intent in this area, that it was inconsistent with an air-
pollution reducing statute to enact a regulation that allowed the pollution level to
stay the same. Thus, the Court of Appeals set aside the EPA regulations.

4. Issue: Whether the EPAs decision to allow States to treat all of the pollution-
emitting devices within the same facility as a single stationary source is a
reasonable construction of the statute.

5. Holding: Yes.

6. Reasoning: The standard of review is whether the agency enacting the

regulation had a reasonable interpretation of the statute. Since Congress was not
unambiguous in this area, the EPA had the power to interpret the statute. Given
the statutory and regulatory history, it is clear that Congress intended to strike a
balance between the competing policies of reduction of air pollution and
modernization and industrial progress. Thus, although the term stationary
source used to have two different meanings - one for pollution maintaining
statutes, and one for pollution reducing statutes, it is clear that the EPA
purposefully changed the definitions to be the same regardless of the application.
Since Congress intent appears to be to give the regulatory agency broad power
in this area, then the plantwide definition of the term stationary source is
reasonable.

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1. Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Comm., (1971);

pg. 422 Supp., briefed 9/8/96

2. Facts: The Atomic Energy Commission (AEC) promulgated a set of rules which
they contended brought them into compliance with the requirements of NEPA
that an environmental impact statement (EIS) be prepared prior to the licensing
of a new nuclear power plant. The rules provided that an environmental
report would be prepared, upon which the AEC would draft its own detailed
statement, and both would accompany the application for the new license
throughout the review process. However, the report would not be considered by
the licensing authority unless environmental issues were raised by a party to the
proceeding.

3. Procedural Posture: CCCC sued claiming that AECs rules did not comply
with the NEPA requirement that the environmental impact of their actions be
considered to the fullest extent possible.

4. Issue: Whether the EIS must be considered by the ultimate licensing authority.

5. Holding: Yes.

6. Reasoning: The EIS procedure is a mechanism to ensure compliance with the

general requirements of NEPA. The EIS procedure must be complied with to the
fullest extent possible - a high standard which is enforceable by the court.
Although the courts probably may not reverse a substantive decision which
considered the EIS unless it was arbitrary, failing to consider a good faith EIS is
reversible. Merely having the EIS physically accompany the license application
is an unreasonable interpretation of the NEPA requirements. The word
accompany in section 102 must be interpreted to mean that the environmental
factors be considered at every important stage in the decision making process.

1. Stryckers Bay Neighborhood Council, Inc. v. Karlen, (1980); pg. 847, briefed
9/8/96

2. Facts: The HUD planned to build some lower income housing on a lot in N.Y.
city.

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3. Procedural Posture: A local organization (Trinity School) sued to enjoin the

construction. The District Court held that HUD had not violated NEPA. On
appeal, the court affirmed, holding that HUD did not have prepare a full EIS
under 102(2)(C), but that they still had to consider alternatives under 102(2)(E),
and remanded the case for HUD to conduct further study. The HUD study
concluded that the unacceptable 2-year delay in finding a new site outweighed
any adverse social environmental impact (i.e. the racial and economic problems
associated with concentration of low-income housing in a single high-rise
building). The District Court found that HUDs conclusion was neither arbitrary
nor capricious, and done in good faith. The court of appeals vacated and
remanded again, holding that mere consideration of the environmental impact
is insufficient under NEPA, and that the 2-year delay should have been given less
weight.

4. Issue: Whether the court may make a substantive review of a decision to go

ahead with a project given that they have considered the environmental impact.

5. Holding: No.

6. Reasoning: In Vermont Yankee, the court held that NEPA imposes duties on
agencies which are essentially procedural, and that NEPA was designed to
insure a fully informed and well considered decision, but not necessarily one
which the members of the courts would have reached on the same facts. Thus,
the court of appeals was wrong in requiring that the HUD elevate environmental
considerations over schedule considerations. NEPA requires nothing more than
the agency fully considers the environmental consequences of its proposed
decisions.

7. Dissent: [Marshall] Vermont Yankee is being read too broadly here, and out of
context. This is not the type of case for summary disposition. There should at
least be a plenary hearing.

8. Notes: 1. Stryckers Bay is generally believed to stand for the proposition that a
court may not find an agency decision arbitrary and capricious on the merits
because the agency relied on a totally unsatisfactory impact statement. 2.
However, in Sierra Club v. Corps of Engineers II, the court held that the EIS was
inadequate because it failed to reveal that the proposed landfill area was an
important winter habitat for juvenile striped bass. When the Corps of Engineers
prepared a new report, and decided to proceed with the landfill anyway, the

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court found that the decision was arbitrary and capricious because the reasons
for giving the permit did not reasonably connect the data found by the federal
defendants to the choice they made. 3. Separation of powers considerations
prevent the judiciary from performing a rigorous substantive review if the EIS
has been prepared, leaving them with the arbitrary and capricious standard of
the Administrative Procedures Act (APA). 4. Although some commentators have
claimed that EIS statments are typically self-serving, defensive efforts that
prevent any real change in an agencys behavior, other have stated that the EIS
has at least some positive impact on agency activities, even if there are some
procedural roadblocks.

1. Folmar v. Elliot Coal Mining Co., (1971); pg. 699, briefed 9/12/96

2. Facts: Residents of a coal mining area complained of air pollution from the
neighboring coal cleaning factory. Over several years, the coal cleaning factory
had installed many improvements to the equipment to improve the air pollution
problem.

3. Procedural Posture: The residents sued under common law tort for trespass
for air pollution. The case was tried to a judge who found for the defendant coal
cleaning factory, mostly based on their promise to either stop using the
thermodryer, or to install a wet scrubber.

4. Issue: Whether the trial court was correct in concluding that the invasion of the
appellants properties was not unreasonable when the condition could have been
cured by the installation of new equipment which had not, at the time of trial,
been installed.

5. Holding: Yes.

6. Reasoning: The Restatement of Torts 822 governs this case. For a defendant to
be liable, the invasion must be (1) substantial, and (2) intentional and
unreasonable. An actor is unreasonable when the gravity of the harm outweighs
the utility of his conduct. Here, the appellant has not proven when the addition
of a wet scrubber would have been economically feasible, and thus had not
shown that the lack of one at the time of trial was unreasonable. However, since
the verdict was based on an expectation, it is not res judicata as to damages in the

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future should the scrubber not be installed. Also, since the action was for
damages, equitable relief such as injunction was not available.

1. NRDC v. Train, (1976); pg. 174, briefed 9/17/96

2. Facts: Train is the Administrator of EPA. By 108 of the Clean Air Act, the
Administrator is required to list air pollutants which: (a) in his judgment
endanger the public health or welfare, (b) come from numerous or diverse
sources, and (c) for which he plans to issue air quality criteria (ambient
standards). This list is then used to generate National Ambient Air Quality
Standards (NAAQS) for the states to implement. Lead was not listed in the 108
list.

3. Procedural Posture: The NRDC brought this action to compel Train to list lead
as a pollutant under 108, arguing that once the Administrator has determined
that a pollutant meets 108(a)(1)(A) and (B), that it must be listed. The Defense
argued that it had the discretion whether to list it, interpreting 108(a)(1)(C) as a
third criterion (i.e. whether he plans to issue criteria).

4. Issue: Whether the Administrator has the discretion whether or not to list lead
as a pollutant under 108.

5. Holding: No.

6. Reasoning: The statute states that the Administrator shall list a pollutant if it
meets the factual and judgmental criteria of 108(a)(1). The statute does not
provide that the Administrator has the authority to determine whether the
statutory remedies that are triggered by placing a pollutant on the list are
appropriate. In response to the defense argument that 211 (regulation of vehicle
lead emissions) is the proper remedy, the 211 remedies and the 108 remedies
are not mutually exclusive or alternative. Furthermore, the unavailability of data
does not prevent the Administrator from being required to list lead since it has
already been determined to be dangerous to public health and to come from the
requisite number of sources.

7. Notes: This case was brought under 304, enabling citizen suits to compel EPA
actions. 304(f)(3) limits suits to violations of conditions or requirements of the
Act. Thus, although citizens suits are authorized under 304 to compel to EPA to

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perform nondiscretionary acts, such as listing a pollutant, they are not generally
authorized to compel compliance with a SIP. However, 307 provides procedures
for all key regulatory decisions and their public and judicial review, and so many
actions are brought under this mini-administrative act. In 1990, 304 was
amended to allow for citizen suits for past violations, and to award civil
damages, and not just injunctive relief.

1. Lead Industries Assn., Inc. v. EPA, (1980); pg. 190, briefed 9/24/96

2. Facts: The EPA issued ambient air quality standards for lead which were
designed with a margin of safety in order to protect the most sensitive
population, namely children.

3. Procedural Posture: The LIA sued, claiming that the Administrator had
exceeded his authority under NEPA by promulgating an ambient air quality
standard that went as far as to protect against health risks that were not clearly
harmful to the public. Furthermore, they claimed that the Administrator must
only protect against clearly harmful pollutant levels because of the economic
dislocation that might be caused.

4. Issue: Whether the Administrator is prohibited from issuing ambient air

quality standards at a level that is not clearly harmful to the public health.

5. Holding: No.

6. Reasoning: The clearly harmful standard is too narrow an interpretation of

the statutory language of 109 mandate to protect the public health. The
congressional intent as evidenced by the legislative history was a precautionary
approach to prevent harm, not to require that there actually be harm. This is
because many pollutants are not capable of being designated as clearly
harmful given technological limitations on measurement. Furthermore, where
Congress has required economics to be taken into account, it has expressly said
so.

1. Union Electric Co. v. EPA, (1976); pg. 237, briefed 10/3/96

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2. Facts: Missouri submitted a SIP to EPA to implement the NAAQS for sulfur
dioxide. The plan was more stringent than the federal requirements. The EPA
Administrator approved of the plan pursuant to 110(a)(2). Union Electric Co.
operated a coal-fired power plant, and was unable to implement controls that
could meet the Missouri requirements.

3. Procedural Posture: Union Electric brought an action, after the expiration of

the 30 day appeal period, to oppose the Missouri SIP, claiming that it was
technologically and economically infeasible to comply with the plan. Union
asserted that the Administrator must take into account economic and
technological feasibility in approving state implementation plans. The lower
court found that it had no jurisdiction.

4. Issue: Whether the Administrator must or may take into account economic or
technological infeasibility when approving state implementation plans.

5. Holding: No.

6. Reasoning: Section 110(a)(2)(A)s three-year mandatory deadline for acheiving

primary air quality standards is central to the regulatory scheme of the act. Both
the language of the statute and the legislative history make clear that the three
year deadline is intended to be technology forcing in nature, and not subject to
delay by claims of technological or economic infeasibility. Furthermore, states
may submit plans that are more stringent than federal law requires. The
Administrator shall (must) approve such plans if they meet the minimum
requirements of 110(a)(2). Thus, since none of the eight requirements in the
statute mentions feasibility, then it may not be considered.

1. Citizens Against The Refinerys Effects v. EPA, (1981); pg. 262, briefed
10/3/96

2. Facts: Hampton Roads Energy Co. applied for a permit to build an oil refinery
in Portsmouth VA. Since Portsmouth was a non-attainment area for ozone, and
the oil refinery was required to meet the non-attainment requirements for new
sources. These included the 1977 amendments offset program whereby a new
source could only be built if the amount of pollution it was going to emit was
offset by a corresponding reduction in pollution by an existing source. The
EPA passed guidelines that allowed offsets to come from a broad geographical

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area if the pollutant was hydrocarbons. Virginia submitted a SIP that included
the permit for the new oil refinery, and also a corresponding offset in
hydrocarbon emissions gained from the use of a water-based emulsified
asphalt rather than the petroleum-based cutback asphalt currently used in
three various highway districts.

3. Procedural Posture: The citizens group brought this action against the
Adminstrator challenging his approval of the SIP, contending that the offset was
not a real decrease in pollution because the highway districts were artificially
developed and not near the new site, and that economic forces were already
driving a reduction in the use of cutback asphalt anyway.

4. Issue: Whether the Administrator abused his discretion in the approval of the
Virginia SIP.

5. Holding: No.

6. Reasoning: The agency action was not arbitrary or capricious. Congress

intended that the states and the EPA be given flexibility in the implementation of
the SIPs, and in the determination of the broad offset area, in order to encourage
economic growth. Thus, a reduction in cutback asphalt use among a broad area
is reasonable and well within the discretion and expertise of the agency.
Furthermore, the reduction of the use of cutback asphalt was not previously
enforceable, it was voluntary. Thus, by the Interpretive Ruling on the offset
program which requires the offset be enforceable, the offset is real since there
was no guarantee that the cutback asphalt would be reduced.

1. United States v. Riverside Bayview Homes, Inc. (1985); pg. 370, briefed
10/20/96

2. Facts: Bayview owns 80 acres of low-lying marshy lands near the shors of a
Michigan lake. Bayview wished to develop the land, and proceeded to collect
materials to do fill the land. The Army Corps of Engineers, believing the
property was an adjacent wetland under the Clean Water Act, filed suit to
enjoin the construction.

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3. Procedural Posture: The lower court found that the definition of wetland in the
statute should be interpreted narrowly to avoid a takings issue, and thus found
for Bayview.

4. Issue: Whether the bayview property is an adjacent wetland within the

meaning of the statute, and, if so, whether the Corps jurisdiction over navigable
waters gives it statutory authority to regulate discharges or fill material into
such a wetland.

5. Holding: Yes.

6. Reasoning: First of all, there is no taking, because a permit imples that the
permission to use the land may be granted. The lower court was wrong to limit
the definition of wetland to those land that are subject to frequent flooding,
because the regulation clearly states that the test is whether there is sufficient
saturation, even by ground water, to support wetland vegetation. The District
Court found that the property was characterized by wetland vegetation, and that
it was adjacent to a body of navigable water. Thus, it is part of the waters of the
United States under the regulations. Furthermore, the regulations are a
reasonable interpretation of the statute (the CWA) because the Corps has wide
discretion in interpreting the statute as long as the interpretation is not in conflict
with the expressed intent of Congress. Based on the legislative history and
purpose of the statute, it is reasonable for the Corps to interpret the term
waters to include adjacent wetlands, because the wetlands are part of the same
hydrologic ecosystem.

1. Bersani v. Robichaud, (1988); pg. 514 supp., briefed 10/20/96

2. Facts: Pyramid wished to build a shopping mall on some wetlands that it

purchased. The CWA requires that wetlands be developed only if there is no
practicable alternative. An alternate site may have existed at the time that
Pyramid bought the wetland site, but it was partially owned by another company
at the time that Pyramid applied for the Permit to develop it.

3. Procedural Posture: The EPA vetoed the permit (after issuance by the Army
Corps of Engineers), stating that a practicable alternative was available at the
time that Pyramid entered the market. Pyramid sued EPA and EPA was
granted summary judgment.

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4. Issue: Whether the EPA interpretation of practicable alternative in the

regulation is allowable.

5. Holding: Yes.

6. Majority Reasoning: The purpose of the act was to create an incentive for the
developers to avoid choosing wetlands to develop. Pyramids reading of the
statute to require an alternate site be available at the time of the permit
application would defeat this purpose because it would remove the incentive at
the time the incentive is needed. Conversely, in the case in which alternative sites
were not available at the time of selection, but later became available, the
developers application would be denied even though it could not have explored
the alternative site. Even if the alternative site were already owned at the time
that Pyramid entered the market, this does not necessarily mean that it was
unavailable. Pyramid could have attempted to purchase it from the owner.

7. Dissent Reasoning: The market entry standard is vague and indefinite.

Furthermore, it has the undesirable result that the first developer always would
have an alternative site, but a second developer always would not. This would
lead to trickery, using a second party buyer, to purchase the land and then sell it
back to the first. Or worse yet, it would prevent the first developer from ever
being entitled to develop the land if the second party were forbidden to sell it to
them. The proper answer is for the EPA to make the decision based on the
circumstances that exist at the time that the EPA is making the decision.

1. Folmar v. Elliot Coal Mining Co., (1971); pg. 699, briefed 10/22/96

2. Facts: Residents of a coal mining area complained of air pollution from the
neighboring coal cleaning factory. Over several years, the coal cleaning factory
had installed many improvements to the equipment to improve the air pollution
problem.

3. Procedural Posture: The residents sued under common law tort for trespass
for air pollution. The case was tried to a judge who found for the defendant coal
cleaning factory, mostly based on their promise to either stop using the
thermodryer, or to install a wet scrubber.

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4. Issue: Whether the trial court was correct in concluding that the invasion of the
appellants properties was not unreasonable when the condition could have been
cured by the installation of new equipment which had not, at the time of trial,
been installed.

5. Holding: Yes.

6. Reasoning: The Restatement of Torts 822 governs this case. For a defendant to
be liable, the invasion must be (1) substantial, and (2) intentional and
unreasonable. An actor is unreasonable when the gravity of the harm outweighs
the utility of his conduct. Here, the appellant has not proven when the addition
of a wet scrubber would have been economically feasible, and thus had not
shown that the lack of one at the time of trial was unreasonable. However, since
the verdict was based on an expectation, it is not res judicata as to damages in the
future should the scrubber not be installed. Also, since the action was for
damages, equitable relief such as injunction was not available.

1. Cities Service Co. v. State, (1975); pg. 701, briefed 10/22/96

2. Facts: Cities Service mines phosphates. In the mining operations, it is

necessary and customary for the water used to be stored in settling pools behind
earthen dams. One of the dams broke, releasing about one billion gallons of
phosphate slime ladened water into an adjoining river, killing most of the
wildlife.

3. Procedural Posture: The State of Florida sued Cities Service. Cities service
appeals from the partial summary judgment as to liability.

4. Issue: Whether the law of strict liability for abnormally dangerous activities as
applied to this case should result in partial summary judgment against Cities
Service with respect to liability.

5. Holding: Yes.

6. Reasoning: The strict liability rule for abnormally dangerous activities as

stated in Rylands v. Fletcher, has been codified in the Restatement of Torts. Thus,
one who carries on an ultrahazardous activity is liable to another whose person,
land or chattels the actor should recognize as likely to be harmed by the

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unpreventable miscarriage of the activity...although the utmost care is exercised

to prevent the harm. This rule should be applied in Florida. Furthermore, the
activity here was ultrahazardous because it necessarily involve[d] a risk of
serious harm...which can not be eliminated by the utmost care, and it is not a
matter of common usage. Although the land in question has traditionally been
used as a phosphate mine, the sheer amount of possible damage made it a non-
natural use of the land. Thus, even though the mine is very useful, the rights of
the adjoining landowners and the public requires that the loss be placed on
Cities Service.

1. Frady v. Portland General Electric Co., (1981); pg. 706, briefed 10/22/96

2. Facts: PG&E operates an electrical generating plant which emits low frequency
vibrations.

3. Procedural Posture: Plaintiffs are adjoining landowners and residents. They

brought an action for private nuisance and trespass. The case was originally non-
suited, and has been again dismissed in the trial court.

4. Issue: Whether the plaintiffs have stated a cause of action.

5. Holding: Yes.

6. Reasoning: For a complaint in nuisance to be sufficient, it must allege that the

defendants actions were either intentional and unreasonable, or unintentional
and negligent. Likewise for trespass, the complaint must allege intentional
action. Here, the plaintiffs do not expressly allege intentional action. However,
based on the previous non-suit, the court can infer actual knowledge of the
complaints, thus making the subsequent action intentional. The defendants
properly raise the point that a private nuisance cause of action must plead special
damage, otherwise, it is a public nuisance and the state is the real party in
interest. Thus, as to the persons who are not landowners, they do not have
standing since their damages are not different that the rest of the general public,
but rather only an increase in degree. However, the landowners do have special
damages. The trespass claim is properly dismissed as to all of the plaintiffs
because they failed to allege that there was an invasion of the exclusive
possession of their land, only that there was an invasion of their use and
enjoyment of it.

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7. Notes: 1. A trespass may be found from transitory particulate matter if the

plaintiff suffers actual and substantial damage. This extra requirement of
substantial damages balances the need for factories with the rights of the
adjacent landowners, screening out those with only nominal damages. 2.
Nuisance does not require a showing of negligence. Liability in nuisance is
predicated upon unreasonable injury rather than upon unreasonable conduct.
3. Coming to the nuisance is generally regarded as not being a valid defense
any longer. Hypersensitivity is a valid defense, even though most
environmental laws are designed to protect even the hypersensitive. 4. An
economic approach would be to define unreasonableness as if the marginal
damage exceeded the marginal cost of abatement. 4. Strict liability in
environmental cases forces companies to internalize all of the costs of doing
business. However, those costs are then passed on to the consumer.

1. Sindell v. Abbott Laboratories, (1980); pg. 393, briefed 11/20/94

2. Facts: The was the daughter of a woman who was prescribed DES to prevent
a miscarriage while the was in utero. DES was found to cause cancer, and the
is trying to recover damages from her own cancer. The was one of 100 or so
manufacturers who made DES as a generic from a common formula. The
cannot prove that was the one who made the DES that her mother actually
ingested, nor can the prove that they were not the actual manufacturer.

3. Procedural Posture: The demurred and trial court sustained the demurrer
without leave to amend based on 's admission that they could not prove that
the was the actual manufacturer.

4. Judges' Rule: Where several manufacturers of a product are named as 's to a

product liability action, and the cannot prove proximate causation of any one
manufacturer, and the manufacturers can not disprove causation, the may
bring action against a number of 's jointly. If the combined market share of each
of the 's is a substantial percentage of the overall market, the burden of proof
shifts to the 's to disprove causation. Furthermore, the damages shall be
apportioned among 's in proportion to their individual market shares.

5. Classical Holding: Same as judge's rule.

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6. Reasoning: The majority reasoned that as between an innocent and

negligent 's, the latter should bear the cost of the injury. They relied upon the
holding in Summers. Each could in turn bring action against the remaining
DES manufacturers not joined in the action to recover their fair share. The court
felt it was proper to introduce a new theory to address the changing times.
Otherwise, the 's would have no deterrence, because they knew that they could
be protected by their relative anonymity if there were enough other
manufacturers.

7. Notes: 1. The Environmental Law Institute (ELI) proposed a model statute for
apportioning liability among possible tortfeasors, and damages among possible
vicitms, including taking into account contributory negligence and assumption of
risk, in order to minimize overdeterrence of industry. Under their scheme, if the
nationwide background incidence of a disease was 20/100,000, and exposure
to toxics at a given site was known to increase the risk by 3/100,000 to
23/100,000, then assuming no contributory negligence, the plaintiff with $1
million in actual damages would recover 3/23 * 1 million or $13,000. The
rationale is that although three of the disease cases in the area were probably
caused by the toxic site, the court would not be able determine which 3 of the 23.
Thus, the amount of recovery is discounted by the probability that the harm to
that particular person was caused by the site. 2. Due to the latency period of the
disease following exposure, the statute of limitations is generally extended to run
from the time that the plaintiff discovered, or should have discovered the cause
of the disease.

1. Ayers v. Jackson Township, (1987); pg. 728, briefed 10/24/96

2. Facts: 339 plaintiffs sued a township for injuries allegedly caused by

contamination of an aquifer from a landfill.

3. Procedural Posture: The trial jury returned a verdict for the plaintiffs, and
damages were awarded for quality of life, increased risk of cancer, and medical
surveillance expenses for the increased cancer risk. The appellate division set
aside damages for the medical surveillance expenses.

4. Issue: Whether the unquantifiable increased risk of illness or a need for

medical surveillance is sufficient to justify compensation under the Tort Claims
Act.

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5. Holding: An unquantified enhanced risk of disease, in the absence of

symptoms of present disease, is not presently compensable. However, the
quantifiable cost of medical surveillance caused by that unquantified but
significant enhanced risk is presently compensable.

6. Reasoning: The courts have been reluctant to provide present compensation

for unrealized injury unless the proof that the injury will occur is substantial.
This is because to award damages based on a mere mathematical probability
would significantly undercompensate those who actually do develop cancer, and
would be a windfall to those who do not. The legislative purpose of the Tort
Claims act also states that the courts should exercise restraint in recognizing new
causes of action. However, the claim for medical surveillance is sustainable
because the cost of surveillance is a present cost, and is necessary, and has been
caused by the exposure.

1. Village of Wilsonville v. SCA Services, Inc., (1981); pg. 520, briefed 10/29/96

2. Facts: SCA operates a toxic waste disposal dump that is located within and
adjacent to the Village. The dump contains very dangerous chemicals, stored in
steel drums. The dump sits on top of a low-permeation glacial till, under which
is some groundwater, and also an abandoned coal mine. Several experts testified
that eventually there will be contamination of the groundwater, and thus the
surrounding wells, due to either interaction of the chemicals, collapse of the coal
mine, or leaching of the chemicals through the soil.

3. Procedural Posture: The Village brought this suit to enjoin SCA from operating
the dump. The trial court found for the Village, and ordered the site cleaned up
and removed. The court of appeals affirmed. The defendant assigns three points
of error: 1) that the lower courts did not apply the proper standard for
determining when a prospective nuisance should be enjoined, 2) the lower court
failed to defer to the EPA and give weight to the permits they issued, and 3) the
lower courts did not balance the equities correctly when deciding to grant a
permanent injunction.

4. Issue: Whether the granting of a permanent injunction against a prospective

nuisance was proper in this case.

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5. Holding: Yes.

6. Reasoning: It is true that in order to enjoin a prospective nuisance, there must

be a high probability that the nuisance and damage will actually occur. However,
in this case, there can be no doubt that it is highly probable that a nuisance will
occur that will bring about substantial injury. Additionally, the condition of
nuisance is already present due to the location of the site and the manner in
which it has been operated. As to deference to the EPA, the permits were granted
based on evidence supplied by the defendant himself, which was proved at trial
to be inaccurate. Thus, the permits do not deserve any weight. As to the
permanence of the injunction, a permanent injunction will not lie unless 1) either
the polluter seriously and imminently threatens the public health, or 2) he causes
non-health injuries that are substantial and the business cannot be operated to
avoid the injuries. However, in this case there is clearly an extremely hazardous
activity being conducted in an unsuitable location, which seriously and
imminently poses a threat to the public health. There is no question that the
defendant provides a very socially valuable service. However, nuisance may
merely be a right thing in a wrong place.

1. Boomer v. Atlantic Cement Co., (1970); pg. 592, briefed 3/19/95

2. Facts: The operates a cement plant. The is a resident of the area. The plant
emits large quantities of particulate matter which is a nuisance to the .

3. Procedural Posture: The lower courts found that a nuisance did exist, and that
the total damages, present and future, were $185,000. However, contrary to the
general rule of the state, they refused to grant an injunction to stop the cement
plants operation, even though it was a substantial and continuing nuisance,
because of the extreme lopsidedness in value of the plant as compared to value of
the s property.

4. Issue: Should an injunction be granted in a nuisance case where there is a large

disparity between the value of the s damages and the value of the s operation?

5. Holding: No. Where a nuisance is of a permanent and unabatable character an

injunction will be granted unless the value of continuing the operation
significantly outweighs the value of the damage done by the nuisance, in which
case permanent damages may be awarded instead.

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6. Reasoning: The majority reasoned that the value of having cement plants was
very high. Furthermore, there was not likely to be any acceleration in the rate of
finding a reasonable way to abate the pollution. Thus, it would be inequitable to
grant the injunction and shut down the plant entirely. However, the threat of an
injuction if the did not pay damages would correct the problem of the
particualr s that were a party to this action. Thus, the majority reasoned that the
proper remedy would be to grant an injunction, which would be removed when
they paid permanent damages. The theory they used would be a "servitude on
land" of s imposed by the s nuisance.

7. Dissent: The dissent reasoned that air pollution from cement plants was of
such high importance to the public in general that the court should set a
precendent on behalf of the rest of the public, not just the particular s in this
action.

1. Reserve Mining Co. v. EPA, (1975); pg. 531, briefed 11/5/96

2. Facts: Reserve has operated a mining facility on the edge of Lake Superior for
15 years. The mine discharges tailings (residual slurry) from its operations into
the Lake. It also discharges particulate matter into the air. The lake is a source of
drinking water for local residents. There was evidence produced at trial that a
fiberous component of the waste was susbtantially the same as asbestos, which
causes cancer when inhaled in sufficient doses.

3. Procedural Posture: The trial court found that Reserve violated both air and
water regulations, and also was a common law nuisance. It found that the
operations substantially endangers the health of the people, and ordered an
immediate injunction.

4. Issue: Whether the danger to the public health posed by the Reserve mine is
substantial enough to require an immediate injunction.

5. Holding: No.

6. Reasoning: It is reasonable (though not more probable than not) to conclude,

based on the evidence, that the discharge of the fibers into the air are of the same
nature and dosage level as those hypothesized by many studies to cause cancer

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due to non-industrial exposure (merely being near an asbestos plant). Also,

although there is some inconclusiveness in the studies, the discharge of the fibers
into the water are of a sufficient nature and level to give rise to a reasonable
medical concern for the public health. The Reserve discharges into the air
violate various air pollution statutes and regulations. The FWPCA provides
authority for the U.S. to secure abatement of water discharges into waters where
the discharges violate state water quality standards and endanger...the health or
welfare of persons. The state regulations here define pollution as contamination
which is potentially harmful or detrimental or injurious to public health.
Based on our findings, the Reserve discharge is pollution under this definition.
Furthermore, the term endanger in the FWPCA, interpreted in light of
legislative history and common sense, is used in a precautionary or preventative
sense. Thus, the discharge of fibers into the water can be abated. However, given
the balance of equities in this case, the best remedy is to allow the mine a
reasonable time to find a land-based disposal site for the tailings. As to the
air pollution, however, the mine must immediately use such available technology
as will reduce the fiber count in the ambient air below a medically significant
level.

1. United States v. Monsanto co., (1988); briefed 11/29/96

2. Facts: s are the landlords and a few waste generators affiliated with a toxic
dump site that was extremely poorly managed. The landlords leased the land to
a toxic waste disposal company which accepted and stored toxic wastes in a very
haphazard manner. In time, the wastes leaked out, caused fires and explosions,
and toxic clouds.

3. Procedural Posture: EPA sued for reimbursement under CERCLA 107(a) for
the costs of the cleanup of the site. During clean-up, several 55 gallon drums
bearing the logos of the defendant generators were found. Also, in the soil,
wastes like the ones produced by the generators were found. The District
Court entered summary judgment against the defendants as to liability.

4. s Arguments: 1. The landlords argued that they were ignorant of the

disposal and treatment practices, and thus they were innocent absentee
landlords. Furthermore, the landlords argued that summary judgment was
inappropriate because there were genuine issues of fact as to the affirmative
defense of third-party intervention. 2. The generators argued that imposition of

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liability retroactively was unconstitutional, and that the government needed to

demonstrate a closer nexus or causation between their wastes and the harm to
the land, i.e. that the spilled wastes actually came from their drums.

5. Issue: Whether summary judgment was proper in this case.

6. Holding: Yes.

7. Reasoning: The structure of CERCLA is to provide strict liability for site-

owners and waste generators (among others) so long as the government can
make out a prima facie case that the site was a facility, that there was a release,
and that the government incurred cleanup costs. Thus, there is clear intent on
the part of Congress not to require active participation of the landowner to
impose liability. There was no evidence to support the landowners affirmative
defenses because they had a contractual relationship with the dumpers (the
lease). Furthermore, even if there were no contractual relationship, the site-
owners did not take precautionary action against the dumping, because they
never visited the site. As to the generators liability, the plain meaning of the
word such in the language describing the release of compounds containing
such hazardous substances is alike or similar. It would weaken the
intended bite of CERCLA if the government had to prove actual causation.
Congress intentionally allocated the burden of disproving causation to the
defendant who profited from the inexpensive disposal of hazardous wastes.
Also, the application of joint and several liability here is appropriate because the
harm was indivisible among the PRPs. Lastly, the retroactive application of
liability is constitutional because it is not a punishment, but rather a
reimbursement obligation.

8. Notes: 1. The court held that applying joint and several liability, and then
requiring the parties to bring a second action for contribution from co-defendants
was allowable. Considerations in assigning shares include volume, toxicity,
involvement , degree of care exercised. 2. There is a special exception to liability
for innocent purchasers of a dirty site under 101(35)(A). However, it is limited to
purchasers who did not know and had no reason to know that any hazardous
substance was disposed of at the facility. 3. The affirmative defenses listed in
107 are narrow and very hard to satisfy. For example, an act of God must be the
only cause if that defense is to be used. 4. Negotiations of settlements between
EPA and the site owners or generators are frequent. IN return for cleaning up the
sites themselves, or paying a sum, the PRPs are granted a convenant not to sue.

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1. Cadillac Fairview v. Dow Chemical Co., (1988); pg. 644, briefed 11/30/96

2. Facts: Cadillac bought property in Torrance. It later learned that the site had
been used by Dow, Shell, the federal government, and others as a toxic waste
dump site. State officials requested that Cadillac undertake certain measures to
protect local residents from harm from the wastes, and so Cadillac incurred
about $70,000 of expenses out of its own pocket in testing, erecting a fence, and
employing a security guard to keep people out.

3. Procedural Posture: Cadillac brought a federal action under CERCLA 107(a) to

recover the costs necessary to respond to the danger. Cadillac also sought
declaratory judgment that all costs in the future would be borne by the
defendants, and sought injunctive relief, requiring the defendants themselves to
clean up the site. The district court entered summary judgment for the
defendants on the grounds that CERCLA does not provide for a private response
action in the absence of some initiation or coordiation by a governmental agency.

4. Issue: Whether CERCLA provides for a private response action by a private

individual acting alone in the absence of governmental coordination or initiation.

5. Holding: Yes.

6. Reasoning: In Wickland and in NL Industries the court had held that private
actions need not be preceeded by governmental actions. There is nothing in the
statute that indicates that a party seeking to recover its costs must wait for
government approval. Also, the statutory structure of CERCLA provides no
mechanism for a private party to seek approval of a response. Finally, to require
the government to act first would result in requiring them to devote limited
resources to this procedure. Thus, summary judgment as to monetary liability
was improper. However, the claim for injunctive relief was properly dismissed
because CERCLA does not provide for a private right of injunctive relief, only a
federal right to injunctive relief in 106.

1. Unites States v. Akzo Coatings of America, Inc., (1991); pg. 329 supp., briefed
12/1/96

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2. Facts: The Rose Site in Michigan contains toxic wastes. EPA placed the site on
the NPL, and conducted an RI/FS which originally stated that the method of
cleanup must be incinerating the soil. Later, the EPA reconsidered, and entered
into a consent decree with the PRPs to allow 1/2 of the soil to be flushed, and
the other half to be incinerated, so long as the PRPs can demonstrate that the soil
flushing will satisfy the clean-up requirements. Michigan argues that this
violates their non-degradation of ground water statute, which is one of the
Applicable or Relevant and Appropriate Requirements (ARARs).

3. Procedural Posture: The district court found that the Michigan non-
degradation statute was an ARAR, but that the soil flushing was acceptable given
the provision that it be proven as effective as incineration. The PRPs appeal the
decision that the Michigan statute is an ARAR, and Michigan appeals the
decision that soil flushing is allowable clean-up method.

4. Issue: Whether the consent decree, allowing the soil flushing, is valid.

5. Holding: Yes.

6. Reasoning: The consent decree has reasonably addressed all of the concerns
raised in the public comments to the RI/FS and to ROD. Thus, it is not arbitrary
or capricious. Also, although the Michigan anti-degradation statute is an ARAR,
it has been impliedly waived by the EPA. The EPA is not under any duty to
conclusively determine that the soil flushing will work. They merely need to
provide sufficient safeguards (which they have) that the method will work.

1. Tennessee Valley Authority v. Hill, (1978); pg. 404, supp., briefed 12/1/96

2. Facts: Congress authorized about $100 million for the construction of Tellico
Dam on the Tennessee River, as part of a river development plan. After it was
about half-completed, a small population of a new species of snail-darter fish was
discovered in an area that would be destroyed by the reservior that the dam
would create. A citizens group petitioned the Secretary of the Interior to place
the new species of snail darter on the endangered species list. The Secretary,
pursuant to the newly enacted Endangered Species Act, halted progress on the
dam under 7 of the act, which provides that the Secretary must take such
action necessary to insure that actions authorized, funded, or carried out by them
do not jeopardize the species.

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3. Procedural Posture: TVA sued to have the dam contruction reopened.

Thereafter, Congress itself continued to allocate funds for the dam, even with
knowledge of the pending lawsuit. The district court refused to enjoin
construction of the dam, and the court of appeals reversed.

4. Issue: Whether the ESA requires that the Tellico Dam construction be halted to
save the snail-darter even though it was substantially constructed already, and
Congress continued to allocate money for it.

5. Holding: Yes.

6. Reasoning: The plain language of the ESA is that there is no exception to the
rule of protecting the endangered species at any cost. This language is further
supported by the legislative history, noting that the value of a species is
incalculable. The plain intent of Congress was to halt and reverse the trend
toward species extinction, whatever the cost. There is no provision for the Courts
to interpret the Act differently or to find that it does not apply to federal projects
already underway. To do so would violate separation of powers. The fact that
Congress continued to allocate funds does not create an implicit exception.

7. Notes: A God Squad that was formed to decide exceptions on a case-by-case

basis. The committee requires five out of seven votes for an exception. However,
the committee voted down an exception for the dam. An exception was later
granted via a rider to a general bill.

1. Northern Spotted Owl v. Hodel, (1988); pg. 408, briefed 12/1/96

2. Facts: The Northern Spotted Owl is associated with old-growth forests in the
Pacific Northwest which are available for harvest. Pursuant to the ESA, the Fish
and Wildlife Service initiated a study of the owl to determine its status. Their
expert, and other reviewing experts, concluded that the owl would become
extinct in the forseeable future if the forest habitat was harvested. However, the
Service issued a report stating that listing of the owl was not warranted.

3. Procedural Posture: The plaintiffs sued to have the owl listed. Both sides
moved for summary judgment on the record.

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4. Issue: Whether the Service is entitled to deference in its opinion that the owl
should not be listed.

5. Holding: No.

6. Reasoning: The Services action was arbitrary and capricious under the APA
because its decision has not been backed up with any analysis. The decision not
to list the owl is contrary to their own unrebutted experts opinion without
offering an explanation.

1. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, (1995);

pg. 410 supp., briefed 12/1/96

2. Facts: The Secretary of the Interior listed the northern spotted owl and the red-
cockaded woodpecker as endangered species. As such, under 9, it became
illegal to take them, meaning to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect them. Furthermore, the Secretary promulgated
regulations that further defined harm to include significant habitat
modification or degradation where it actually kills or injures wildlife.

3. Procedural Posture: The citizens group of farmers sued for a declaration that
the regulation defining harm as habitat modification was beyond the power of
the Secretary. The lower courts agreed.

4. Issue: Whether the Secretary exceeded his authority under the ESA by
promulgating a regulation prohibiting habitat modification.

5. Holding: No.

6. Majority Reasoning: The ordinary meaning of the word harm is to cause

hurt or damage to. In the context of the ESA, that naturally encompasses habitat
modification that results in actual injury. Second, the broad purpose of the ESA
supports the decision to extend protection. Third, the statutory structure implies
that the word harm itself was intended to have independent meaning. Thus,
the Secretary is entitled to deference (under Chevron) since his interpretation of
the ESA statute is reasonable.

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7. Dissent Reasoning: [Scalia] The word harm is not the important word in the
statute. The word take is the operative word. Take is a term of art that has a
well-defined meaning. In this sense, it means an act, not an omission, that
directly and intentionally, not by accident, injures a particular animal, not
polulations of animals.

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