Fall 2019 Environmental Law Outline

Table of Contents
Administrative Law ................................................................................................................................................ 5
Course Themes................................................................................................................................................................................... 5
Book Introduction .............................................................................................................................................................................. 5
Administrative Law ........................................................................................................................................................................... 6
Judicial Review .................................................................................................................................................................. 6
Scenic Hudson v FPC ........................................................................................................................................................................ 6
Citizens to Preserve Overton Park v Volpe ....................................................................................................................................... 7
Chevron USA v NRDC...................................................................................................................................................................... 8
Standing............................................................................................................................................................................ 10
Standing to Sue in Environmental Lawsuits: Sierra Club v Morton ............................................................................................... 10
Lujan v Defenders of Wildlife ......................................................................................................................................................... 10
Standing Test ................................................................................................................................................................... 11
Bennett v Spear ................................................................................................................................................................................ 12
Zone of Interest test ......................................................................................................................................................................... 12
Organizational Standing ................................................................................................................................................. 13
Friends of the Earth v Laidlaw......................................................................................................................................................... 13
Massachusetts v EPA ....................................................................................................................................................................... 14
Attorney’s Fees ................................................................................................................................................................ 15
Ruckelshaus v Sierra Club ............................................................................................................................................................... 15
City of Burlington v Dague.............................................................................................................................................................. 15
Summary of Attorney’s Fees ........................................................................................................................................................... 16
National Environmental Policy Act (NEPA) ...................................................................................................... 16
Purpose of NEPA ............................................................................................................................................................. 16
Key Provisions of NEPA ................................................................................................................................................. 16
Enforceability of NEPA .................................................................................................................................................. 18
Calvert Cliffs’ Coordinating Committee, Inc. v U.S. Atomic Energy Commission (D.C. Circ. 1971) .......................................... 18
Note: Judicial Review & NEPA ...................................................................................................................................................... 19
Substance versus Procedure in NEPA Compliance ..................................................................................................... 19
Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, Inc. (S. Ct., 1978) ............................................... 19
Strycker’s Bay Neighborhood Council, Inc. v Karlen (S. Ct. 1980) ............................................................................................... 20
Robertson v Methow Valley Citizens Council, (S. Ct, 1989) .......................................................................................................... 20
Triggering the Requirements ......................................................................................................................................... 21
Requirements of NEPA ................................................................................................................................................... 22
Hanly v Kleindienst (“Hanly II”) (2nd Cir., 1972) ........................................................................................................................... 22
Regulations of the Council on Environmental Quality ...................................................................................... 23
NEPA Decision Tree, from Proposal to Action............................................................................................................. 23
Metropolitan Edison Co v. People Against Nuclear Energy ........................................................................................................... 23
Thomas v Peterson (9th Cir., 1985) .................................................................................................................................................. 24
Adequacy of the EIS ........................................................................................................................................................ 25
EIS Process from Notice of Intent to Action Implementation ..................................................................................... 27
Utahns for Better Transportation v U.S. Department of Transportation (10th Cir., 2002)............................................................... 27
Evaluating NEPA............................................................................................................................................................. 29
NEPA Continued….............................................................................................................................................. 30
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 Monsanto Co. v. Geertson Seed Farm ............................................................................................................................................. 30
MEPA – Michigan Environmental Protection Act ............................................................................................. 32
Background/Class Information ........................................................................................................................................................ 32
Michigan Environmental Protection Act (MEPA) ....................................................................................................... 33
Ruin and Recovery Article – Dempsey .......................................................................................................................... 34
Test for MEPA: ................................................................................................................................................................................ 34
Ray v. Mason County Drain Comm’r (1975) – Test to See How MEPA Works ............................................................................ 35
Nemeth v. Abonmarche Development, Inc...................................................................................................................................... 35
Preserve the Dunes, Inc. v. Department of Environmental Quality................................................................................................. 36
Biodiversity and the Endangered Species Act ..................................................................................................... 37
Introduction and History ................................................................................................................................................ 37
History of Wildlife and the Development of powers that regulate it ............................................................................................... 37
The States ......................................................................................................................................................................................... 37
Federal Gov’t ................................................................................................................................................................................... 37
Why do we Care about Species Extinction ...................................................................................................................................... 38
ESA ................................................................................................................................................................................... 38
Species Listing Process .................................................................................................................................................................... 38
ESA Listing Process ........................................................................................................................................................................ 38
In determining whether a species fits into one of these two categories (endangered OR threatened), five factors considered: ..... 38
ESA Section 3 (Definitions) ............................................................................................................................................................ 38
ESA Section 4 .................................................................................................................................................................................. 39
ESA Section 7 Challenges (Consultation) ....................................................................................................................................... 39
ESA Section 9- Prohibited Acts ....................................................................................................................................................... 40
Critical Habitat ................................................................................................................................................................................. 40
Section 10......................................................................................................................................................................................... 40
National Audubon Society v Superior Court ................................................................................................................................... 40
The Listing Process.......................................................................................................................................................... 40
Citizen Listing .................................................................................................................................................................................. 40
Listing Process ................................................................................................................................................................................. 41
Northern Spotted Owl v Hodel ........................................................................................................................................................ 41
Western Watersheds Project v FWS → “warranted but precluded” ................................................................................................ 43
Natural Resources Defense Council (NRDC) v Dept. of Interior ................................................................................................... 43
Gifford Pinchot Task Force v. Dept of Interior ............................................................................................................................... 44
Consultation ..................................................................................................................................................................... 45
TVA v Hill ....................................................................................................................................................................................... 45
The Take Prohibition ...................................................................................................................................................... 46
Take.................................................................................................................................................................................................. 46
Section 9 of ESA .............................................................................................................................................................................. 47
Babbitt v. Sweet Home .................................................................................................................................................................... 47
Summary of ESA ............................................................................................................................................................. 50
Clean Water Act- Protection of Water ................................................................................................................ 51
Clean Water Introduction .............................................................................................................................................. 51
Relevant Statute Provisions ............................................................................................................................................ 51
Federal vs. State Regulation ........................................................................................................................................... 52
Clean Water Act vs. Clean Air Act (Similarities and Differences) ............................................................................. 52
In Michigan ...................................................................................................................................................................... 52
Private Litigation and Historical Evolution ........................................................................................................ 52
History of the Clean Water Act...................................................................................................................................... 52
Private Damages Pre and Post 1970s CWA Implementation ...................................................................................... 53
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 Middlesex County Sewage Authority v National Sea Clammer Ass’n ........................................................................... 53
Clean Water Act Jurisdiction .............................................................................................................................. 54
Four Key Elements for CWA Jurisdiction .................................................................................................................... 54
Potential Test Question ................................................................................................................................................... 54
In Addition ....................................................................................................................................................................... 54
Pollutant ........................................................................................................................................................................... 55
Train v Colorado Public Interest Research Group (PIRG) .............................................................................................................. 55
Point Source ..................................................................................................................................................................... 56
United States v Plaza Health Laboratories Inc. ............................................................................................................................... 56
Navigable Waters of the US ............................................................................................................................................ 57
Clean Water Act Continued… ............................................................................................................................. 57
Solid Waste Agency of Northern Cook County (SWANCC) v US Army Corps of Engineers ...................................................... 58
Rapanos v US................................................................................................................................................................................... 59
“No Net Loss” of Wetlands in US .................................................................................................................................. 63
USA Today Delaware/Virginia affiliate......................................................................................................................... 63
Clean Water Act Administration ......................................................................................................................... 63
Cooperative Federalism .................................................................................................................................................. 63
Key EPA Provisions ........................................................................................................................................................ 64
Coeur Alaska Inc. v Southeast Alaska Conservation Council ......................................................................................................... 64
State Implementation ........................................................................................................................................... 64
How States Obtain Authority ......................................................................................................................................... 64
Natural Resources of Defense Council Inc. (NRDC) v US EPA .................................................................................................... 65
How State Implementation is Overseen ........................................................................................................................ 65
Wetlands ............................................................................................................................................................... 65
Section 404/ 33 USC § 1344............................................................................................................................................. 65
Section 301/ 33 USC § 1301............................................................................................................................................. 66
Bayview Homes, SWANCC and Rapanos Remaining Wetland Questions................................................................ 66
Wetlands Determinations ............................................................................................................................................... 66
US Army Corps of Engineers v Hawkes Co Inc.............................................................................................................................. 67
Dredge and Fill Requirements ....................................................................................................................................... 67
Technology Based Standards.......................................................................................................................................... 68
Types of TBELS (technology based effluent limitations) ............................................................................................ 68
Conventional pollutants ................................................................................................................................................................... 68
Toxic pollutants ............................................................................................................................................................................... 69
Substantive Standards..................................................................................................................................................... 69
Weyerhaeuser Co v Costle ............................................................................................................................................................... 69
Pollutant Categories ........................................................................................................................................................ 69
Water Quality Based Standards..................................................................................................................................... 69
Idaho Mining v. Browner................................................................................................................................................................. 70
Environmental Law Changes ......................................................................................................................................... 70
The Clean Air Act ................................................................................................................................................ 70
Introduction ..................................................................................................................................................................... 70
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 Basic Statutory Provisions .............................................................................................................................................. 70
In Our Backyard: Area Code 48217 .............................................................................................................................. 71
Clean Air Act and Area Code 48217.............................................................................................................................. 71
Hierarchy of Authority ................................................................................................................................................... 71
Six criteria pollutants in NAAQS................................................................................................................................... 71
Common Law Approaches to Air Pollution Control ................................................................................................... 72
Boomer v Atlantic Cement Co. (1970) (Court of Appeals, NY) ..................................................................................................... 72
National Ambient Air Quality Standards (NAAQS) and State Implementation Plans (SIPS) ................................ 73
What must a SIP contain? .............................................................................................................................................. 74
Union Electric Co. v EPA (1976) .................................................................................................................................................... 74
Setting National Ambient Air Quality Standards ........................................................................................................ 75
Whitman v American Trucking Association, Inc. (2001) ............................................................................................ 75
Lead Industries Association, Inc. v. EPA ...................................................................................................................... 76
EPA v EME Homer Generation (2014) ......................................................................................................................... 76
Massachusetts v EPA (2007) ........................................................................................................................................... 77
Hazardous Pollutant Standards........................................................................................................................... 79
National Mining Association v United States Environmental Protection Agency D.C. Circuit Court, 1995 ......... 80
Michigan v EPA Supreme Court, 2015 .......................................................................................................................... 81
New Source Performance Standards .................................................................................................................. 82
ASARCO, Inc. v EPA (F. 2d 319) D.C. Circuit 1978 ..................................................................................................... 82
Environmental Defense v Duke Energy Corporation (2007) ...................................................................................... 83
Citizens Against the Refinery’s Effects, Inc. (“CARE”) v EPA – 4th Circuit, 1981 .................................................. 84
Resource Conservation and Recovery Act (RCRA) ............................................................................................ 85
Overview of RCRA (Resource Conservation and Recovery Act) ............................................................................... 85
Cradle to Grave Regulation of hazardous wastes: an overview of RCRA ................................................................. 85
How we define waste ....................................................................................................................................................... 86
Four ways waste becomes hazardous ............................................................................................................................ 86
Exemptions in statute ...................................................................................................................................................... 86
RCRA Recap .................................................................................................................................................................... 86
Comprehensive Environmental Response and Compensation and Liability Act (CERCLA ............................ 86
RCRA Recap .................................................................................................................................................................... 86
CERCLA .......................................................................................................................................................................... 86
Liable actors under CERCLA .......................................................................................................................................................... 87
Defences to CERCLA ...................................................................................................................................................................... 87
Joint and several liability ................................................................................................................................................ 87
Difference between CERCLA and Common law ......................................................................................................... 87
United States v. W.R. Grace & Co .................................................................................................................................................. 89
CERCLA Review ............................................................................................................................................................. 91
US v. Monsanto ............................................................................................................................................................................... 91
United States v. Alcan Aluminum Corp .......................................................................................................................................... 93
NY v. Shore Realty .......................................................................................................................................................................... 93
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 US v. American Cyanamid .............................................................................................................................................................. 94
Enforcement and Compliance ............................................................................................................................. 95
Commonalities CWA, CAA, CERCLA, RCRA ........................................................................................................... 95
Clean Water Act: Citizen Suit Outline .......................................................................................................................... 95
CWA Citizen Suit ............................................................................................................................................................................ 96
Clean Air Act Citizen Suit .............................................................................................................................................. 96
Enforcement: Ensuring Compliance with Environmental Laws ................................................................................ 96
US v Elias ........................................................................................................................................................................................ 97
Federal Environmental Statutes .................................................................................................................................... 97
Information Gathering ..................................................................................................................................................................... 98
Sierra Club v Union Oil Co ............................................................................................................................................................. 98
Marshall v Barlow’s, Inc.................................................................................................................................................................. 99
Citizen Enforcement...................................................................................................................................................... 100
Hallstrom v Tillamook County ...................................................................................................................................................... 100
Gwaltney of Smithfield v Chesapeake Bay Foundation ................................................................................................................ 102
International Enforcement ........................................................................................................................................... 103
Michael Robinson-Dorn, The Trail Smelter: Is What’s Past Prologue? EPA Blazes a New Trail for CERCLA ......................... 103
Trail smelter arbitration ................................................................................................................................................................. 103
Enviro Pre Writes ............................................................................................................................................... 103
National Environmental Policy Act (NEPA)............................................................................................................... 103
Standing.......................................................................................................................................................................... 104
Clean Water Act (CWA) ............................................................................................................................................... 104
Resource Conservation and Recovery Act (RCRA) ................................................................................................... 105
Clean Air Act (CAA) ..................................................................................................................................................... 105
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”) ........ 105
Endangered Species Act (ESA) .................................................................................................................................... 106

Administrative Law
Course Themes
- Allocation of Property Rights
o Even if private property is the best, it is not practical in certain situations
- Interior Air is shared by everyone
- Burden of Proof
o Nuisance
o Toxics→ Burden is person introducing the toxics and whether it is safe
- Risk Analysis
o Huge uncertainty
- Climate Change
- Uncertainty and Precautionary Principle
o How much risk is involved?
- Externalities
o Shifting cost to outside world

Book Introduction
- Generally plaintiff typically moves promptly for a preliminary injunction
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 - Intended to protect the environmental resources at issue from destruction or irreparable damage before
the legal issues can be adequately dealt w/
- Requirements for equitable relief
o (1) they will be irreparably damaged, or lack an adequate remedy at law, if an injunction is not
issued
o (2) threatened injury to the plaintiff outweighs the harm that an injunction may inflict on the
defendant
o (3) Plaintiff has at least a reasonable chance of success on the merits; and
o (4) granting a prelim injunction will serve the public interest
- Another type of litigation is a lawsuit seeking judicial review of agency rule-making
o Usual pattern is to allow for judicial review of the challenged standards by a US Circuit Court of
Appeals within a certain period
- Non-statutory Review
o Judicial review under the Administrative Procedures Act (APA)
- Lawsuit against a federal agency to enforce the National Environmental Policy Act (NEPA)

Administrative Law
- Developed through environmental law cases
- ½ cases involve challenge to admin decision
- Administrative agencies are a creature of legislation
o Their power comes from the Enabling Act
- Cases today go to whether agency acted under its power under Enabling Act
- Reg Neg. → Issue regulation before we issue preliminary, we let them duke it out prior to court to save
money

Judicial Review
- Review of administrative rules or action
Scenic Hudson v FPC
Facts
- Scenic Hudson Preservation Conference is an unincorporated association consisting of a number of non-
profit, conservationist organizations and the Towns of Cortland, Putnam Valley and Yorktown.
NGO/environmentalist group.
- Applying to set aside three orders of the Federal Power Commission
o Order granting a license to the intervener, Consolidation Edison Company of NY to construct a
pumped storage hydro project
o Order denying petitioners application for a rehearing of the March 9 order
o Order of May 6, 1965 denying joint motions filed by the petitioners to expand the scope of
supplemental hearings to include consideration of the practicality and cost of underground
transmission lines
- Storm King project was to be largest of its kind in the world, however it aroused grave concern among
conservationist groups, adversely affected municipalities and various state and federal legislative units
and admin agencies
o Problem was the project was disruptive to the natural function
- To be licensed by the Commission a prospective project must meet statutory test of being best adapted
to a comprehensive plan for improving or developing a waterway
- The court was concerned about the actual output of energy, not which was most effective.
Holding
- Court sets aside the three orders of the Commission to which petition is addressed
o Commission failed to compile a record sufficient to support its decision
o Commission ignored certain factors and failed to make a thorough study of possible alternatives
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 - Problem w/ what Commission did
o Granted a license while not weighing the alternatives and didn’t review expert testimony, only
following what ConEd (Developer) said
- On remand Commission should
o Take the whole fisheries question into consideration before deciding whether the storm king
project is to be licensed
o Commission should re-examine all questions on which we have found the record insufficient and
all related matters
o Renewed proceedings must include as a basic concern the preservation of natural beauty and of
national historic shrines keeping in mind that in our affluent society the cost of a project is only
one of several factors to be considered
Reasoning
- In licensing the project it is the duty of the Commission to properly weigh each factor
- Petitioners had sufficient economic interest to establish their standing (New York- New Jersey Trail
Conference, towns, etc.)
- Commission was under statutory duty to give full consideration to alternative plans
- Totality of a projects immediate and long term range effects and not merely the engineering and
navigation aspects are to be considered in a licensing proceeding
- Whether the Commission has correctly discharged its duties including proper fulfillment of its planning
function in deciding that the licensing would be in the public interest.
o Commission neither investigated interconnected power as a possible alternative nor required
Consolidated Edison to supply such info
- Failure to inform itself of these alternatives cannot be reconciled with its planning responsibility
Ratio
- Administrative agency has to:
o Consider alternative plans
o Has to make a record to prove they made the decision in the way they meant to make it
o Properly weigh each factor

Scenic Hudson Takeaways

- People who have exhibited special interest in aesthetic conservation, and recreation were included
within class of “aggrieved persons”
- Even though P’s had an economic interest, such an interest not required
- Note the importance of good experts
- Special factors here made it a strong case for Ps – likely irreversible environmental damage, utility
proposal was not energy efficient, less costly alternative (gas turbines) was available and would do less
harm to environment, good expert(s)

Citizens to Preserve Overton Park v Volpe

Facts
- Concerns Section 4(f) of the Department of Transportation Act of 1966 prohibiting the Secretary from
authorizing federal funds to finance construction of highways through public parks if a feasible and
prudent alternative exists
o Part of the highway Act states that there must be
▪ No feasible & prudent alternatives available
▪ Plan must minimize harm
- Secretary authorized a highway through a public park in Memphis, petitioners claim the Secretary has
violated these statutes.
o Claim was rejected by District Court granting summary judgement and was affirmed at the COA
o Financial and ease reasons to run the highway through the middle of the park

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 o DoT signed off quickly, which is why the plaintiff brought the suit
- Highway would go right through the park severing a zoo in the park from the rest of the park
- Petitioners contend his action was invalid without such formal findings that the Secretary did not make
an independent determination but merely relied on judgement from Memphis City Council. Also argued
it would be prudent to re-route the highway to the north or south of the park
- Present plan did not include “all possible methods for reducing harm”
- Essentially arguing that the DoT didn’t look to other alternatives, and just rubber stamped the plan. Had
a duty under the statute to evaluate alternatives
Holding
- Court reverses the judgement and remands for further determination
- Court took arbitrary and capricious standard, agency must evaluate feasible and prudent alternative
routes and must minimize harm, which they did not do
Reasoning
- Secretary did not indicate why he believed there were no feasible and prudent alternative routes or why
design changes could not be made to reduce the harm to the park
o There was no judgement on whether it was feasible and prudent
o Could’ve run it underground to save animals
- Formal findings were not required, but judicial review based solely on litigation affidavits was adequate
- Cost and disruption to the community were not to be ignored by the Secretary
- Court must determine whether the Secretary acted within the scope of his authority
- Procedural error was the failure to make any formal findings and state his reason for allowing the
highway to be built through the park
Class Discussion
- Substantial evidence → less deferential than capricious or unreasonable
- feasible means technologically possible
- prudent means something else is extraordinary, i.e. alternative is crazy like damming the grand canyon
- Agency has to have some process
Ratio
- Selection of alternative must be a feasible and prudent alternative
- Can’t be arbitrary and capricious
- When reviewing an agency decision, the Administrative Procedure Act (APA) requires courts to consider:
(1) whether the agency acted within the scope of its authority;
(2) whether the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the
law; and
(3) whether the agency’s action met the necessary procedural requirements

Class Notes: Citizens to Preserve Overton Park v. Volpe

- Hard look approach to judicial review
o Sometimes it can be beneficial to industry plaintiffs when they challenge industry action
- When you have a statute where congress says administrator must consider X, Y, and Z, they have to
demonstrate they have considered Congress’ directive
o Ex: here alternative was putting road around the park

Chevron USA v NRDC

Facts
- Amended Clean Air Act requirement nonattainment states (states that had not achieved national air
quality standards) to establish a permit program regulating new or modified major statutory sources of
air pollution
- EPA regulation promulgated to implement this permit requirement allowing a state to adopt a plant wide
definition of the term ‘stationary source’

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 o Under this definition an existing plant that contains several pollution emitting devices may install
or modify one piece of equipment without meeting the permit conditions if the alteration will not
increase total emissions
o Essentially when you are building a new facility you must employ new sources instead of retro
fitting
- Companies didn’t want to do this because it was expensive
- COA set aside the regulations of the EPA
Issue
- Whether the EPA’s decision to allow states to treat all pollution-emitting devices within the same
industrial grouping as though they were encased within a single bubble is based on a reasonable
construction of the statutory term “stationary source”
- What is definition of plan in this context
Holding
- Court reversed decision as it was a legal error to adopt a static judicial definition of the term stationary
source when it decided that Congress itself had not commanded that definition
- EPAs definition of the term “source” is a permissible construction of the statute which seeks to
accommodate progress in reducing air pollution with economic growth.
- If there is a gap in the definition court is going to defer under an arbitrary and capricious standard
o Assume agency is an expert and unless agency is so unreasonable it is arbitrary and capricious,
the court will not supplement its own decision
Reasoning
- Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it
determined after examination that Congress did not actually have an intent regarding applicability of the
bubble concept to the permit program, the question before it was not whether in its view the concept is
“inappropriate” in the general context of a program designed to improve air quality, but whether the
Administrator’s view that it is appropriate in the context is a reasonable one
- Agree with COA that Congress did not have a specific intention on the applicability of the bubble
concept in these cases and conclude that the EPA’s use of the concept here is a reasonable policy choice
for the agency to make
- EPA should have broad discretion in implementing the policies of the 1977 Amendments
- Plant wide definition is fully consistent with concern of the allowance of reasonable economic growth
- When a challenge to an agency construction of a statutory provision, really centers on the wisdom of the
agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress,
challenge must fail. Responsibilities for assessing the wisdom of such policy choices and resolving the
struggle between competing views of the public interest are not judicial ones.
Ratio
- If the environmental statute has a gap, court is going to defer under an arbitrary and capricious
standard, assumes agency is an expert unless agency is so unreasonable, it is arbitrary and
capricious the court will not supplement its own decision
- Two step test
o Is Congress’ language clear, direct and unambiguous?
o If ambiguity, is agency interpretation based on a permissible construction of the statute?

Chevron Takeaways
- The bubble concept was permissible
- Question of whether or not agency could put meat on bones of Clean Air Act if Congress silent or
ambiguous
- Chevron question is did Congress speak directly? Was it clear and unambiguous?
- Two step test for review of administrative interpretations of statutes those agencies are responsible for
implementing

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Standing
Standing to Sue in Environmental Lawsuits: Sierra Club v Morton
Facts
- Petitioners were seeking to enjoin the US Forest Service from proceeding w/ a plan to turn Mineral King
(environmentally valuable area of great natural beauty) in the Sierra Nevada Mountains into a Disney
theme park with motels, restaurants, swimming pools and parking structures.
- To provide access a 20 mile highway was also proposed.
- Sierra Club relies on Section 10 of APA, specifically that they are suffering legal wrong because of
agency action
o Injury alleged will be incurred entirely by reason of the change in the uses to which Mineral
King will be put and the attendant change in the aesthetics and ecology of the area
o The road would destroy or otherwise affect the scenery, natural and historic objects and wildlife
of the park and would impair the enjoyment of the park for future generations
- Article 3 of the Constitution states that you must have a case and controversy and standing must show
that the injury is real and that the person is getting injured.
o Non-economic injures can be used for standing
Issue
- Whether the Sierra Club has facts that entitle it to obtain judicial review of the challenged action
Holding
- Sierra Club did not have appropriate standing
Reasoning
- Alleged injury will be felt directly only by those who use Mineral King and Sequoia National Park and
for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort
- Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes
by the Disney Development
- Court noted that development with approval in saying that the interested alleged to have been injured
may reflect aesthetic, conservational, and recreational, as well as economic values. But, broadening the
categories of injury that may be alleged in support of standing is a different matter from abandoning the
requirement that the party seeking review must have himself suffered an injury
Ratio
- A mere interest in a problem is not sufficient by itself to render the organization adversely affected or
aggrieved within the meaning of the APA
- Standing doesn’t need economic issues, can be aesthetics or recreation
- You need an adverse effect, must be injury in fact, more than injury to a cognizable interest
- Need a particularized interest i.e. one who hikes, hunts, etc.
- When you have member public standing you can argue public interest
- A membership organization’s mere interest in a problem, without a showing that its members would suffer actual
injury, is not sufficient to show that the entity has standing to seek judicial review of an action by a federal agency

Lujan v Defenders of Wildlife

Facts
- Involves a challenge to a rule promulgated by the federal gov’t interpreting section 7 of the Endangered
Species Act which requires a federal agency to ensure that any action authorized, funded or carried out
by such agency will not jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of habitat
- In 1986 Interior Department promulgated a regulation stating that Section 7 is not applicable to actions
in foreign nations, Defenders of Wildlife seek to invalidate actions
- Defenders of Wildlife are arguing that there was a lack of consultation with respect to certain (federal
agency) funded activities abroad
- 2 members provided affidavits that they were in these places and planned to go in the future
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Arguments of Defenders of Wildlife
- They had visited the areas in Africa, but had not actually seen the endangered species
- One member had no intention to go back in the next year to Sri Lanka (where the project was planned)
Test for Standing
1. Injury: Plaintiff must have suffered injury-in-fact, an invasion of a legally protected interest
which is (a) concrete and particularized… and (b) actual or imminent not conjectural or
hypothetical
2. Causation: Must be a causal connection between the injury and the conduct complained of- the
injury has to be fairly traceable to the challenged action of the defendant and not… the result of
the independent action of some third party not before the court
3. Redressability: Must be likely as opposed to merely speculative
- Party invoking federal jurisdiction bears burden of establishing standing
- When a pl’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of
regulation) of someone else, causation and redressability hinge on the response of the regulated third
party to the government action or inaction
- When plaintiff is not himself the object of the government action or inaction he challenges, standing is
not precluded but it is ordinarily substantially more difficult to establish
Holding
- Did not demonstrate standing
- Congress does not have power to extend standing to foreign countries
Reasoning
- No facts showing how damage to the species will produce imminent injury to the members, just because
the members had visited the areas of the projects proves nothing
- Past exposure to illegal conduct does not show a present case or controversy regarding injunctive relief,
if unaccompanied by any continuing, present adverse effects
- No showing of perceptible harm
- Goes beyond the limit and into speculation to say that anyone who observes or works with an
endangered species anywhere in the world is appreciably harmed by a single project affecting some
portion of that species with which he has no more specific connection
- Respondents failed to show redressability
- Scalia said there was no causation, just have to consult, don’t have to do anything else
Ratio
- Direct personal injury

Standing Test
- Article III Constitutional Standing, factors (federal courts in US):
1. Injury in fact
- Invasion of legally protected interest which is concrete and particularized and actual or imminent, not
conjectural or hypothetical
2. Causation
- Causal connection between injury and conduct complained of – has to be fairly traceable, not result of
third party not before the court
3. Redressability
- Must be likely, not speculative, that injury redressed by a favorable decision
This test doesn’t apply in Michigan ^ *********
- Particularized harm is Michigan’s test —> i.e. worried about water pollution and occasionally
kayak, can demonstrate standing
- If standing is an issue, then talk about article 3
- Note that standing is potentially an issue, clients should always think about it - want a plaintiff to
always be able to satisfy article III standing
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Lujan Takeaway
- Problems of injury court noted was no concrete plan to go there, worried about someday intentions
- Redressability
o Dept of Interior not decision maker, deferral government is
o No guarantee that US govt pulls funding project won’t be stopped from going forward
- Scalia
o Concerned about injury component
- Unpacking what Article III standing means, limit universe of plaintiff’s to file and allow the right
plaintiff’s in

Bennett v Spear
Facts
- When the Fish and Wildlife Service was notified that the operation of the Klamath Irrigation Project
might affect two endangered species of fish, it concluded that the proposed long-term operation of the
project was likely to jeopardize the species and decided to maintain minimum levels of water in certain
reservoirs.
- The petitioners, irrigation districts receiving project water and operators of ranches in those districts,
filed suit against the Service's director, regional directors, and the Secretary, claiming the determination
and imposition of minimum water levels violated the Endangered Species Act's requirement that the
designated area's economic impact be considered.
- The District Court dismissed the compliant because it lacked standing; economic interests were not
enough to constitute a lawsuit in this matter.
- The Court of Appeals affirmed.
Issue
- Can private parties who claim they have suffered economic harm from enforcement of the Endangered
Species Act sue to reverse regulation?
Holding
- Yes, In the unanimous decision, announced by Justice Antonin Scalia, the Court ruled that the
petitioners had standing to ask for judicial review of the minimum water level setting under the
Endangered Species Act.
- The Act explicitly allows "any person" to sue the government over an alleged violation.
- Justice Scalia asserted this applies to the Secretary's actions over enforcement.
Discussion
- Fund-Interest: Stated broad interest of statute over economic concerns
- Even if original issue is ceased and moot
o Defendant has standing
Ratio
- (Any person) Individuals have standing to ask for judicial review under the ESA
- An agency opinion that has significant, direct legal consequences is reviewable under the
Administrative Procedure Act

Zone of Interest test

- The type of interests or concerns that a law is intended to regulate or protect. The law can be a
constitutional provision or legislative statute. To have standing when challenging state action based on a
law, the plaintiff’s injury must fall under the zones of interests protected by that law.
- To obtain standing, a plaintiff’s injury must fall “arguably within the zone-of-interests” created by the
statute in question

12
Organizational Standing
• Test for organizational standing is an association has standing on or behalf when members would have
standing to sue in their own right, interest at stake is germane to purpose of organization and neither
claim asserted nor relief requested requires individual members participation in the lawsuit
• Need member of organization or person on board, or person involved in organization that has standing

Friends of the Earth v Laidlaw

Facts
- Laidlaw Environmental Services bought a hazardous waste incinerator facility in South Carolina and
were granted an NPDES permit authorizing the company to discharge treated water into the North Tyger
River
- The permit placed limits on Laidlaw’s discharge of several pollutants into the river including Mercury,
an extremely toxic pollutant. Discharge was exceeding the limits set by the permits
- FOE took the preliminary step to commence litigation sending a letter of their intent to file a citizen suit
- Laidlaw contacted the DHEC to ask whether they would file a suit against Laidlaw in order to bar the
FOE’s citizen suit. DHEC agreed to file the suit and settled with Laidlaw for $100K
- DC found that a civil penalty of $400K was adequate and declined to grant FOE’s request for injunctive
relief
- COA held that the case had become moot
Issue
- Whether the suitors claim for civil penalties must be dismissed as moot, when the def, after
commencement of litigation, has into compliance
Holding
- Reverses the COA decision, stating that voluntary cessation of allegedly unlawful conduct does not
suffice to moot a case
- FOE had valid claim against Laidlaw
Reasoning
- FOE had standing to bring the suit and was not barred by the DHEC’s prior action against Laidlaw as
the case was not diligently prosecuted.
- FOE showed injury to its members- i.e.. Kenneth Lee Curtis lived half a mile from the facility and he
occasionally drove over the river that looked and smelled polluted and he would fish, camp, swim and
picnic in and near the river… but would not do so now because he was worried about the pollution
o Direct effect on affiants recreational, aesthetic and economic interests
Ratio
- Case might become moot only if subsequent events made it totally clear that the wrongful behavior
could not be reasonably be expected be recur- Not absolutely clear that Laidlaw’s permit violations
could not reasonably be expected to recur
- A controversy will be deemed moot on the grounds of voluntary cessation by the defendant if the defendant
proves there is no reasonable chance it could resume the offending behavior.

Friends of the Earth Takeaways

- Organizational standing
o Test for organizational standing is an association has standing on or behalf when members would
have standing to sue in their own right, interest at stake is germane to purpose of organization
and neither claim asserted nor relief requested requires individual members participation in the
lawsuit
o Need member of organization or person on board, or person involved in organization that has
standing
- Have to have organization whose purpose is related to subject of litigation

13
 - Importance of recreational aesthetic and economic standing – all interest should be sufficient for
standing per Friends of the Earth. In this case, reasonable concerns about effects of discharge impacted
aesthetic and economic interest (ex: own property along pristine river more valuable than river known to
be polluted by mercury)
- Ginsberg distinguishes Lujan instead of downright overruling it***
- Laidlaw characters
o Knew violating permit, knew subject to fine, didn’t want to deal with environmentalists
o Attorney for Laidlaw asked AG of state to sue them so could bare citizen suit from Friends of the
Earth to pay fine and avoid environmentalists
▪ State went along with it!!
- Don’t want Me Too style litigation – want to prevent that
- Want to encourage agencies to do their job
o To file citizen suit, like under Clean Water, friends of the earth would have to give notice to
Laidlaw, copy environmental agency and state agency and say if you do not come into
compliance, we are going to sue you
- Important for enviro groups to protect natural resources
- Argument that if you have civil penalty, not redress to Plaintiff. Penalty money goes into straight general
fund, not necessarily to fix resource
o Argument made here that P shouldn’t have standing, because money won't go clean up river
o Court says civil penalty good because discourage bad behavior in the future – form of
redressability

Massachusetts v EPA
Facts
- Dispute turns on the proper construction of a congressional statute
- EPA maintains that greenhouse gas emissions inflict widespread harm, thus the doctrine of standing
presents an insuperable jurisdictional obstacle
Holding
- Court did not agree with the EPA
- At the gist of standing is whether petitioners have such a personal stake in the outcome of the
controversy as to assure that concrete adverseness exists
- Party was a sovereign state and not a private litigant like in Lujan
- States are not normal litigants
- Massachusetts does in fact own a great deal of the territory alleged to be affected, reinforcing the
conclusion that its stake in the outcome is sufficiently concrete to warrant the exercise of federal judicial
power
- Petitioners submissions as they pertain to Mass have satisfied most demanding standards of the
adversarial process, harm is both imminent and real
Ratio
(1) The Clean Air Act provides the Environmental Protection Agency with the Statutory authority to regulate new motor
vehicle emissions greenhouse gases as an “air pollutant.”
(2) For standing to be appropriate, an actual case or controversy must be present, which is characterized by a truly
adversarial relationship
(3) Although an agency’s refusal to initiate rulemaking is subject to judicial review, such review is extremely limited and
highly deferential

Massachusetts v. EPA Takeaways

- Climate change case
- States have special standing to bring litigation on behalf of their people
- Redressability
o Plaintiff going to be aided or assisted by favorable result of the court
14
 o Have to show court is able to do something that mitigates, alleviates, injury alleging
o Court could hypothetically redress
- Only worry about Zone of Interest if we get through 3-prong standing test

Attorney’s Fees
- Private Non-profit brings action, if they prevail they should be able to get reasonable attorney’s fees

Ruckelshaus v Sierra Club

Facts
- EDF and Sierra Club filed petitions for review, with the COA, however the COA rejected all claims of
the EDF and Sierra Club
- EDF and Sierra Club filed a request for attorney fees which was accepted
- Case involved sulfur dioxide plants, Sierra Club loses on all accounts
o Tried to argue it should be appropriate to get fees
Issue
- Whether you need to have some success in environmental litigation to claim attorney fees
Holding
- Need some sort of success, absent any success, shouldn’t get attorney’s fees
Reasoning
- Appropriate legal fees (s. 307(f) of Clean Air Act) modifies but does not completely reject the
traditional rule that a claimant must prevail before it may recover attorney fees
Ratio
- Absent some degree of success on the merits by the claimant, it is not appropriate for a federal
court to award attorney’s fees

City of Burlington v Dague

Facts
- Respondent owns land in Vermont adjacent to a landfill that was owned and operated by the petitioner
City of Burlington
- Respondent was represented by attorneys on a contingent-fee basis, and he substantially prevailed over
the City, causing them to close their landfill, and was entitled to attorney’s fees
- In calculating attorney’s fees, initially it was calculated by the Lodestar approach
o Hours expended X hourly rate
- Respondent asked for a contingency enhancement, as without the possibility of fee enhancement,
competent counsel may refuse to represent environmental litigants on a contingent basis
Issue
- Whether respondent is entitled to a contingency enhancement
Holding
- No contingency enhancement was warranted
Reasoning
- (1) Just as the statutory language limiting fees to prevailing parties bars a prevailing plaintiff from
recovering fees related to claims on which he lost, so should it bar a prevailing plaintiff from recovering
for a risk of loss.
- (2) Court have turned away from the contingent fee model, which would make the fee award a
percentage of the value for the relief awarded in the primary action- “to the lodestar model”
- (3) Contingency enhancement would make the setting of fees more complex and arbitrary
Ratio
- Courts will generally turn to the lodestar approach in awarding attorney’s fees

15
Summary of Attorney’s Fees
- Absent some degree of success on the merits by the claimant, it is not appropriate for a federal
court to award attorney’s fees
- Courts will generally turn to the lodestar approach in awarding attorney’s fees
o LODESTAR= Hours Worked X Reasonable Attorney Rate

National Environmental Policy Act (NEPA)

Purpose of NEPA
The preamble of the Act says:
The purposes of this Act are: to declare a national policy which will encourage productive and
enjoyable harmony between man and his environment; to promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to
enrich the understanding of the ecological systems of natural resources importance to the Nation; and
to establish a Council on Environmental Quality.
Key Provisions of NEPA
§101(a) – Policy declaration that the Federal Government will use all practicable means to improve
and coordinate federal plans to the end that the Nation may:
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding
generations;
(2) assure for all Americans safe, healthful, productive and esthetically and culturally pleasing
surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or
safety, or other undesirable and unintended consequences;
(4) preserve important historic, cultural and natural aspects of our national heritage, and maintain,
wherever possible, an environment which supports diversity and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living
and a wide sharing of life’s amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of
depletable resources
§101(b)(C) – Requirement for the government to develop a detailed statement for any action that may
have a negative effect on the environment
§102(2)(C) – the detailed statement that is required by NEPA (“environmental impact statement”)
§103 – requires all agencies of the Federal Government to review their statutory authorities,
regulations, policies and procedures to determine whether they had ‘deficiencies or inconsistencies’
making full compliance with the purposes of the provisions of NEPA possible, and to propose to the
President any measures necessary to bring policies into conformity

NEPA
- Very important procedural law all federal agencies must follow
- Michigan Environmental Protection Act (MEPA) – passed before NEPA
- Prior to NEPA, citizens largely in dark of environmental decision making of environment
- Series of govt decisions that occurred where American govt lied about decisions made
o Ex: Pentagon papers – lied about bombings in Vietnam War, leaked papers to press
- Series of instances that led to NEPA
o River contamination and fires in Ohio
o Endangered species – DET
- Lack of public notice and lack of public review of information government has

16
- NEPA was important because sets out process by which federal govt must make decisions that may have
harmful impact on environment
- Public notice requirement and ability for public to submit comment about govt action that would have
harmful environmental impact *****
- Cases reigned in Congress’ attempt and changed
o NEPA imposes duty on govt to stop, think and consider conduct
o Affirmative duty (per professor)
- Law makes it procedural
o Looking at scope of environmental review, timeliness, procedural questions
- A lot of NEPA now is relevant but not so much relevant outside procedural context
- Key provision of NEPA
o Section 102(2)(c)
▪ Section requires environmental review, key to national environmental policy
▪ Major Federal Actions – key term of art here
• Money → Permitting
- Does NEPA apply to GM deciding to change production line or factory?
o No
- Does NEPA apply to actions Michigan is taking?
o No
- NEPA is federal statute, for the federal government
- Statute limited by courts
- Use Administrative Procedures Act
o NEPA sets up decision making process
o When sue agency under NEPA, typically APA claims (Administrative Procedures Act)
- Vast majority of NEPA suits
o Around things called environmental assessments and environmental impact statements
▪ Environmental Assessment (EA)
• Superficial inspection, paperwork
▪ Environmental Impact Statement (EIS)
• Final result from research
o Ex: highway through park
▪ May first do EA, which is quick look to see if likely significant impact to environment.
▪ When result of EA is significant impact, EIS is required
▪ EIS think consultants, money, years. More involved, rigorous process
▪ If EIS finds no significant impact, FONSI (finding of no significant impact)
document/decision by agency and they would have reasoning
▪ Very few projects subject to NEPA go through EIS process – hear about them because
typically very contentious
▪ Typical EA, finding no significant impact
▪ After EIS, agency will release ROD (record of decision) which becomes subject to
review
▪ At every stage of process, opportunities for public comment and potentially for judicial
review
• If an agency conducting environmental assessment, we could litigate over
whether they should be doing EIS
- Alternatives Analysis (underneath umbrella of EIS)
o Alternatives like instead of building road through park, maybe go around it like Overton Park
case
o Maybe way to build road with smaller footprint

17
 o No action alternative doesn’t necessarily mean not going to build the road, but we are going to
resurface instead of expanding
o Typically permit applicants do want

Pg. 143 – 145: C.F.R., Title 40 §1501 – 1508 (CEQ Regulations regarding preparing an EIS)

The CEQ guidelines provide three situations:

1. Those that normally require an EIS
2. Those that normally may or may not require an EIS
3. Within a categorical exclusion

With regard to 2 (the grey area), there is a production of an Environmental Assessment (EA) which leads to
either the preparation of an EIS or to a Finding of No Significant Impact (FONSI).
Enforceability of NEPA
Calvert Cliffs’ Coordinating Committee, Inc. v U.S. Atomic Energy Commission (D.C. Circ. 1971)
Rule of Law:
The National Environmental Policy Act of 1969 requires a federal agency, to the fullest extent possible,
consider environmental factors at every important stage of the decision-making process.
Facts
The AEC released rules regarding how they were going to grant construction permits or operating licenses.
Petitioners challenged these rules as not complying with NEPA. The U.S. Atomic Energy Commission (the
Commission) (defendant) promulgated rules requiring an applicant seeking a permit to build and operate a
nuclear power plant to prepare an “environmental report” assessing the likely impacts of the nuclear facility on
the environment. Upon receipt of the report, the Commission would then draft its own “detailed statement” to
accompany the applicant’s report. However, under the rules, neither document would be considered by the
licensing board or received into evidence.

TAKE AWAY FROM THIS CASE:

18
 • NEPA requires federal agencies to, the fullest extent possible, use all practicable means and measures to
protect environmental concerns and costs in carrying out their respective duties.
• The statute contains procedural sections that are designed to ensure that federal agencies do exercise the
substantive discretion given to them.
o §102(2)(C): requires officials of all agencies to prepare a detailed statement covering the impact
of particular actions on the environment, the environmental costs which must be avoided, and
alternative measures which might alter the cost-benefit equation.
o Other parts of this section require that environment-based considerations raised by the agency
continue throughout the entire decision-making process.
• Congress’ intent that federal agencies execute NEPA “to the fullest extent possible” means that
environmental issues and concerns be considered at every stage in the decision-making process. This
should be done on a case-by-case basis, weighing the burdens and benefits.
• The Court in this case contrasted the “flexible” substantive policy expressed in §101 of NEPA with the
more exacting procedural requirement of §102. In this case, the plaintiffs brought a challenge only in
regard to §102.
Note: Judicial Review & NEPA
NEPA does not expressly create a right of action and claims that an agency violated NEPA must be
brought pursuant to the general review provisions of the Administrative Procedure Act, 5 U.S.C.
§701-706.
Among other limitations, these provisions allow courts to review only “final agency action” (unless a
statute otherwise provides, which NEPA does not). Therefore, a plaintiff must wait until an agency
acts before they can allege in court that the agency violated NEPA.

Substance versus Procedure in NEPA Compliance

Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, Inc. (S. Ct., 1978)
Rule of Law:
Reviewing courts are generally not allowed to impose additional procedural requirements on
administrative agencies' rulemaking processes. Agencies are free to grant additional procedural rights in
the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies
have not chosen to grant them.
Individuals and entities intervening into the decision-making process related to a major federal action pursuant to NEPA
must provide structured and detailed energy conservation alternatives for the agency to review and consider prior to
issuing an Environmental Impact Statement

Courts can’t require agencies to undertake additional procedures for purposes of assisting judicial review for three
reasons:
(1) Agencies would end up adopting full adjudicatory procedures to avoid being overturned on judicial review
(2) Avoid “Monday Morning Quarterbacking” or after the fact review of what procedure an agency should have used,
which would lead again to full adjudicatory procedures
(3) More procedures do not necessarily mean a better record
→ Distinction between the adjudicative and legislative function – adjudicative determines truths, “who, what where when
why” whereas legislative determination can include all sorts of stuff like opinions and value judgments

Facts
The NRDC argued that the AEC had denied it meaningful opportunity to participate in the rulemaking
proceedings. The Court of Appeal found that the procedures followed by the AEC were inadequate and
remanded the rule to the AEC, finding that a more adequate record would give interested parties a better
opportunity to participate in the proceedings.
Holding

19
The Supreme Court found that reviewing courts are not allowed to impose additional procedural requirements
on administrative agencies’ rulemaking processes. Absent very compelling circumstances, agencies are free to
fashion their own rules of procedure and pursue methods of inquiry capable of permitting them to discharge
their duties. This is because:
1. If courts were to continually review agency proceedings to determine whether the procedures employed
were perfectly tailored to reach what the court considered to be the correct result, judicial review would
be unpredictable
2. Courts only have access to the record produced at the hearing, not the information available to the
agency when it made its decisions regarding what procedures to employ
3. Such review would fundamentally misconstrue the nature of the standard for judicial review of agency
rulemaking
In this case, the Agencies prepared two EIS’s for each of the two licenses challenged. The Court said that these
were sufficient because there are an infinite number of possible alternatives, but the court only needs to look at
what was reasonable for the agency to look at, at the time.

TAKE AWAY FROM THIS CASE:

• Agencies are only expected to look at feasible alternatives when ensuring that they are complying with
NEPA

Strycker’s Bay Neighborhood Council, Inc. v Karlen (S. Ct. 1980)

Rule of Law:
The only role for a court to ensure in reviewing whether a federal agency has complied with NEPA is
whether the agency has considered environmental impact; it may not substitute its judgment for the
agency’s.
Facts/Holding
Here, the Court of Appeal found that HUD had not given enough consideration to possible alternatives of where
to place low-income housing and this violated NEPA. The Supreme Court found that the Second Circuit had
overstepped, since NEPA is primarily procedural, it was not up to the Court to review the substantive quality of
their EIS. The court quoted Vermont Yankee, where it had said that NEPA primarily imposed obligations on
agencies that were “essentially procedural.”
Dissent:
(Marshall, J.): Disagreed that a court is limited only to the mindless task of reviewing whether the agency
considered environmental factors, even if the agency chose to ignore the factors in its conclusion.
TAKE AWAY FROM THIS CASE:
• This case stands for the principle that once an agency has made a decision that complies with NEPA’s
procedural requirements, the only role for a reviewing court is to ensure that environmental
consequences were fully considered.
Robertson v Methow Valley Citizens Council, (S. Ct, 1989)
Rule of Law:
NEPA does not require a fully developed plan detailing what steps will be taken to mitigate adverse
environmental impacts and does not require a worst-case-scenario analysis.
Facts/Holding
The Methow Valley Council challenged the Forest Service’s issuance of a special-use permit for a ski resort on
national forest land. The Forest Service commissioned an EIS to consider the effect on wildlife and mitigation
measures. The COA found the EIS inadequate for two reasons:
(1) The Forest Service used a 15% estimate for mule deer herd loss (even though the Dept. of Game predicted
50%) and;
(2) The EIS did not contain a complete mitigation plan to protect wildlife
The Forest Service argued that they could not come up with a broad mitigation because this would require
cooperation from state and local governments which could not be expected.
20
TAKE AWAY FROM THIS CASE:
• The objective of NEPA is to ensure that environmental impact will not be overlooked in a federal
project. It requires the agency to take environmental concerns into effect. However, NEPA does not
mandate particular results, only the necessary process.
• If the adverse environmental effects are adequately identified and evaluated, NEPA does not prevent the
agency from deciding that other values outweigh the environmental costs.
• There is a distinction between a requirement that mitigation must be discussed in sufficient detail to
ensure that environmental consequences have been considered and a requirement that a substantive
mitigation plan be formulated.
• This is the problem with NEPA and why when MEPA was formulated, it specifically said it would focus
on the substantive aspects
NEPA §102 – Interpretation Mandate
Subsection 102(1) says: “the Congress authorizes and directs that, to the fullest extent possible, the
policies, regulations and public laws of the United States shall be interpreted and administered in
accordance with the policies set forth in this chapter.”
On careful reading of Section 102(1) there are many aspects apparent:
• First: subsection is mandatory
• Second: it makes plain and simple that it is to be construed and administered in accordance
with NEPAs policies (and all federal legal authorities that may be described as policies,
regulations or public laws)
• Third: NEPAs interpretation directs that the required legal interpretation and administration it
refers to must take place to the ‘fullest extent possible’
Triggering the Requirements
The only binding obligation on federal agencies is the requirement that every federal agency include in every
recommendation or report on proposals for legislation and other Federal actions significantly affecting the
quality of the human environment, a detailed statement (NEPA §102(2)(C)).
Agencies have to follow guidelines determined by the Council on Environmental Quality (CEQ) – they are
codified now at 40 C.F.R. Parts 1500 – 1508.

The most basic element of NEPA’s trigger is that EISs are required only for ‘proposals’ – either proposed
legislation or proposed ‘other major federal actions significantly affecting the quality of the human
environment’ (Cf. 5 U.S.C. §551(1)(A))
o Proposals: exist at the stage in the development of an action when an agency subject to the Act
has a goal and is actively preparing to make a decision on one or more alternative means of
accomplishing that goal and the effects can be meaningfully evaluated (40 C.F.R. §1508.23)
o Courts have occasionally held hat an agency’s thinking about a challenged project or policy is
too preliminary or too inchoate to constitute a ‘proposal’ that might require an EIS.

Assuming that a federal agency has a proposal to consider, the next threshold is whether the proposal is for a
‘major federal action’ and whether that major federal action is one ‘significantly affecting the quality of
the human environment.’
• Defined in NEPA regulation, 40 C.F.R. §1508.18 (pg. 133 of textbook):
o Major Federal Action: includes actions with effects that may be major and which are potentially
subject to federal control and responsibility. Major reinforces but do noes not have a meaning
independent of significantly. Actions include the circumstance where the responsible officials
fail to act and that failure to act is reviewable by courts or administrative tribunals under the
APA or other applicable laws regarding agency action.

Steps for whether or not the agency has to develop an EIS:

21
 1. Is there a proposal?
2. Is it a ‘major federal action’?
Requirements of NEPA
Hanly v Kleindienst (“Hanly II”) (2nd Cir., 1972)
Rule of Law:
The agency in charge of the proposed federal action is the party authorized to make the threshold
determination whether an action is ‘one significantly affecting the quality of the human environment.’
Pursuant to the requirements of the National Environmental Policy Act, a federal agency must give notice to the public
and provide for an opportunity to respond before a preliminary or threshold determination of whether to proceed with a
major federal project is made.

The Court says that the standard of review for an EIS decision is de novo. An agency should prepare an EIS if it
is a grey area (if its controversial).

TAKE AWAY FROM THIS CASE:

• Agency must consider if the proposed action could have an adverse effect on the environment
• Court says that there is an objective standard about what to do:
o Is it going to have an excessive impact?
o And objectively, how many people will this effect?
• This case was one of the earliest NEPA cases and did not properly define what was needed to write an
EIS (“grey area” was very unclear)

22
Regulations of the Council on Environmental Quality

NEPA Decision Tree, from Proposal to Action

Metropolitan Edison Co v. People Against Nuclear Energy

- Supreme Court looks at “significantly affecting the quality of the human environment”
- Three Mile Island
- Why require an SEIS? (Supplemental EIS)
o Effect on psychological health effect on health but argument doesn’t consider closeness
(proximate cause)
- (1) Environmental law we are typically reactive – respond after an event has happened
- Only physical changes. No EIS required for major federal action if action does not change physical
environment
o Creating a risk doesn’t satisfy this standard
- (2) Only changes in physical can be environmental impacts, cannot be basis for requiring EIS. Creating
fear does not satisfy the standard
- (3) Even environmental impacts caused by changes in physical environment trigger EIS requirement
only if not causal chain is not too attenuated. Causal connection between Restarting TMI 1 and
psychological harm does not satisfy the standard
- (4) Psychological harm can be an environmental impact but not if it’s too hard to distinguish from gen
disagreement of proposed govt action the fear that would result from restarting TMI 1 does not satisfy
the standard

23
 o Court getting at here is that where do we draw line between someone saying concerned about
bad things from project and just saying that because they don’t want the project going forward.
Burden of proof would be on person making the complaint

Rule of Law:
NEPA does not require the agency to assess every impact or effect of its proposed action, but only the
impact or effect on the environment. An agency can consider the psychological impacts if it naturally
flows from an assessment of the physical and environmental impacts, but it is not enough on its own.

A nuclear plant was shut down and the Nuclear Regulatory Commission (NRC) invited parties to weigh in on
the issue of whether it should be reopened. The People Against Nuclear Energy (PANE) intervened on behalf of
the residents in the area. PANE said the plant would have bad psychological effects on the city. The NRC did
not take any evidence from PANE regarding this, and the Court of Appeal concluded that NEPA required the
NRC to evaluate the potential psychological effects. The Supreme Court reversed their judgment.

TAKE AWAY FROM THIS CASE:

• NEPA does not require agencies to evaluate the effect of risk qua risk.
• Supreme Court concluded that to merit consideration under NEPA, an effect of a major federal action
must have a ‘reasonably close causal relationship… like proximate cause’ to a change in the physical
environment
• The CEQ regulations state that social or economic effects alone are insufficient to trigger the EIS
requirement, but if an EIS is required because a major federal action will or may have significant
environmental impacts, the EIS must examine social and economic effects related to the environmental
effects (40 C.F.R. §1508.14.)

Thomas v Peterson (9th Cir., 1985)

- Issue was whether road and timber sales sufficiently related
- Significant v. insignificant environmental impacts
- Scope of environmental impacts that should be considered in applying the “significantly affecting”
standard
- Forest service studying effects of a timber road
- Strong rule against voiding EIS by improperly segmenting things into pieces
o Chop to smaller bits to pass things – ILLEGAL
o Consistent with CEQ NEPA regulations

Rule of Law:
Prior to initiating proposed federal action, the National Environmental Policy Act requires a federal
agency to prepare a single Environmental Impact Statement for connected and cumulative actions to
determine whether the action will significantly affect the quality of the human environment and the
Endangered Species Act requires a federal agency to prepare a biological assessment to determine
whether an endangered species might be detrimentally affected by proposed action requiring
consultation with the U.S. Fish & Wildlife Service.

Connected Actions are those that must occur together in order to achieve a particular goal. For example,
construction of the gravel road was required to access the timber for purposes of harvesting and selling.
o Notes from Class: [3 things that come from the ‘connectedness part of the test’
§ Indirect effect
§ Connected action
§ Cumulative

24
 (1) Prior to initiating proposed federal action, the National Environmental Policy Act requires a federal agency to
prepare a single Environmental Impact Statement for connected and cumulative actions to determine whether the
action will significantly affect the quality of the human environment
(2) A plaintiff’s burden in establishing a procedural violation of the Endangered Species Act is to show that the
circumstances triggering the procedural requirement exist and that the required procedures have not been
followed

Plaintiffs claimed defendants’ improperly approved the road and timber sales without first preparing an
Environmental Impact Statement (EIS) required by the National Environmental Policy Act (NEPA). Plaintiffs
also alleged the Service failed to consider what impact the construction and timber harvesting protection would
have on the Rocky Mountain Gray Wolf pursuant to the Endangered Species Act (ESA).
To determine whether an EIS is required, the agency first completes an Environmental Assessment (EA) to
assess whether there will be any “significant impact” on the environment from the proposed action. If not, an
EIS is not required. Here, the Service prepared an EA which discussed only the environmental impacts of the
road itself but did not consider the impacts of the timber sales that the road was designed to facilitate. The
Council on Environmental Quality (CEQ), established by Executive Order, issued regulations requiring
“connected” and “cumulative” actions to be considered together in a single EIS prior to making any decision
regarding a particular project. 40 C.F.R. § 1508.25(a)(1).

TAKE AWAY FROM THIS CASE:

• Connected Actions are those that must occur together in order to achieve a particular goal. For example,
construction of the gravel road was required to access the timber for purposes of harvesting and selling.
o Notes from Class: [ask about this] 3 things that come from the ‘connectedness part of the test’
▪ Indirect effect
▪ Connected action
▪ Cumulative
• Cumulative Actions: those which—when viewed with other proposed actions—have cumulatively
significant impacts. Here, the road and timber sales are not only connected, in that one action cannot
occur without the other, but it was also found that this would significantly affect the wolf corridor.
• This case, the ESA and NEPA were considered simultaneously, the Agency failed under both
statutes (potential hypo**??)
• You cannot avoid doing an EIS by “segmenting the project” – e.g. in this case, the EIS could not just be
purely for the road, as there would be a broader impact on the rest of the forest
Adequacy of the EIS
The Council on Environmental Quality(CEQ) has prescribed both procedural steps for completing an EIS and
substantive minima that an EIS must meet (this is in C.F.R. Part 1502). An agency must begin preparing an EIS
early enough that it can serve practically as an important part of the decision making process rather than a
justification for a decision already made.
Steps to Preparing an EIS
First step is “scoping”: deciding the range of actions, alternatives and impacts that the EIS will
consider. (§1501.7)
• Due to the importance of scoping the CEQ regs require that agencies solicit the participation of
federal/state/local/tribal agencies and other interested persons as well as the general public
• §1508.25 defines ‘scope’
Second step is preparing the EIS:
• Documenting the reasons for the proposed action; describing the nature of the proposed action
and alternatives to it; gathering information to allow assessment of the significant
environmental impacts of the proposed action and alternatives; identifying ways to mitigate
those impacts, etc.

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 • Federal agencies often contract with consultants to perform these tasks (but Feds remain
ultimately responsible) (40 C.F.R. §1506.5)
• If the proposed federal action is to permit a non-federal actor’s request for funding or a permit,
then the applicant may be required to provide environmental information – but the Federal
agency is ultimately responsible

Agency’s Steps to Prepare:

1. Agency must first produce a draft environmental impact statement (DEIS) and then make a
final environmental impact statement (FEIS) (40 C.F.R. §1506.5)
2. The agency must make the DEIS available to and request comment from the public, the
project applicant if any, other interested persons, other federal agencies with jurisdiction over
expertise regarding any environmental impact involved and appropriate environmental
agencies at any level of government. (§1502.19)
• A federal agency with jurisdiction or expertise has an obligation to reply to the request
to comment, even if the reply is only to say that they have no comment (42 U.S.C.
§4332(2)(C))
• EPA must comment on every EIS and rate the environmental effects of each action
studied in an EIS as required not by NEPA itself, but by a provision of the Clean Air
Act which was enacted less than a year after NEPA (42 U.S.C. §7609 (Clean Air Act
§309))
3. After receiving comments, the agency responsible for the EIS must then prepare, circulate, (40
C.F.R. §1503.19) and make available to the public (§1506.6), and file with the EPA a final
EIS that includes the agency’s response to comments received (§1506.9).
• An agency may invite further comment about the pending proposal for major federal
action even after the FEIS is filed, but in general, 30 days after publishing notice of the
completed FEIS, an agency is free to make its decision regarding the proposal for
major federal action (§1503.1(b))
4. The agency then inform the public of the agency’s choice in a “record of decision” (ROD),
and then may proceed to implement the chosen major federal action (§1505.2)
• Until the agency makes its final decision, the agency is forbidden from taking action
on the proposal that would have an adverse environmental effect or would limit the
choice of reasonable alternatives. (§1506.1)
5. Under certain circumstances, an agency may be required to produce a supplemental
environmental impact statement (SEIS) even after completing the FEIS, after issuing the
ROD or even starting the project

What Material Must Be Covered:

The CEQ regs also specify the material that an EIS must cover, as a decision-making tool, the EIS is
fundamentally a comparison in alternative courses of action.
• §4332(2)(C)(iii) requires detailed statement on ‘alternatives to the proposed action’
• §1502: comparison of alternatives’ environmental impacts is “the heart of” an EIS
To facilitate this comparison, an EIS must explain the underlying purpose and need to which the
agency is responding in proposing the alternatives including the proposed action (40 CFR
§1502.13)
- An agencies decision to include or exclude certain alternatives can be controversial (Vermont
Yankee)
- The CEQ regs specify that an agency must consider the proposed action, a ‘no action’
alternative and ‘the reasonable course of action’ and ways to mitigate the environmental
impacts of the alternatives

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EIS Process from Notice of Intent to Action Implementation

Utahns for Better Transportation v U.S. Department of Transportation (10th Cir., 2002)
Utahns for Better Transportation v US Department of Transportation → example case of evaluating the
adequacy of an Environmental Impact Statement under NEPA regulations

• it’s meant to be an example of what an Environmental Impact statement is supposed to look like
• review of a massive infrastructure project —> how do you decide what’s appropriate and what’s not
• council of environmental quality (CEQ) exec level agency - guidance now for what agencies should
include
• a lot of the earlier cases aren’t that helpful
• for purposes of NEPA, will make it pretty obvious if NEPA is something he wants us to get into
o only applies if it’s a major federal action - i.e. highway department is building a big road and a
lot of federal money going into it, or united states army is expanding base
• maybe with the factory problem for example - appears to be a Michigan company, within the state,
NEPA doesn’t apply —> raise and dismiss

[Example case of evaluating the adequacy of an EIS Statement under NEPA regulations]
Examples of inadequacies of the EIS:
➢ Did not adequately look at the impacts the highway would have on migratory birds. They only looked at
birds that lived in the area year round and therefore cut out 2-5 million birds from the analysis. They
limited their analysis to smaller, less mobile species that were within a 1000 ft. radius. The Court found
that this was inadequate because it did not focus on the impact on wildlife.
➢ Did not adequately analyze the alternative of building public transit before the highway. The Court
found that this was an inadequate analysis because the regional transit issues would be considered in the
future, and that delaying the Legacy Parkway until a reasonable alternative was found was not included
in the EIS as a possible alternative. The expansion of broader public transit was under consideration and
they did not properly consider this as an alternative.

Examples of why the EIS was adequate:

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 ➢ Appellants had argued that the agency had wanted to expand to 6 lanes in the future but they had not
included this in the EIS as the reason for their failure to not consider the alternative of a narrower
median. The Court rejected this and found that the EIS was adequate on this point because the agency
had explained the choice for not having a narrow median (it would require substitute water control), and
they would defer to the agency’s decision.
➢ The Appellants also argued that the EIS failed to consider the foreseeable growth inducing impact, the
Court rejected this and found that this part of the EIS was adequate. This was because the it was
unnecessary to include the cumulative impact of any potential impact of expansion to 6 lanes in the EIS
because the expansion in the future into six lanes was not so ‘interdependent’ that it would be unwise or
irrational to complete one without the other.

Utahns
- Court finding enviro impact statement to be inadequate
- Beneficial to P to challenge EIS?
o If it isn’t challenged, not helpful because they could do whatever they wanted
▪ System of checks and balances
- Enough to just do the survey?
o Doesn’t mean it’s done correctly
o NEPA requires detailed statement which implies standard of adequacy
o Avoid environmental impacts via alternatives
- CEQ
o Can issue regulations that Feds must follow
o CEQ binding on federal agencies in FEIS? Yes
o Regulations from CEQ binding on federal agencies
- Why P challenge FEIS in first place?
o Language saying we need to probe for adequacy
o CEQ says reasonably explore and objectively all reasonable alternatives
- Types of challenges here
o Failure to consider a reasonable alternative
o Inadequate analysis of a reasonable alternative
o Inadequate analysis of environmental impacts
- Discuss specific allegations and results
- How should court evaluate P’s claims?
o P can challenge whatever proposal they think
o This case they went through everything very thoroughly
o Court could look at agency decision and determine or assess whether agency has given it a hard
look
o Want court to determine if agency missed something blatantly obvious or make sure they didn’t
for political reasons disregard an issue (ex: climate change). Court should be able to call agency
out on something pertinent to project
o Deference to agency already made decision
o Standards of review
▪ Abuse of discretion standard
▪ Arbitrary and capricious standard
- Wetlands
o Species live here
o Filter water from road to river to soak up pollutants before getting into river – natural filter
o Good for flood control – expunge water
o So important No Net Loss of wetlands
- Increased traffic

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 o Induced demand – two lane roads everywhere, everyone will pick which works best, if you make
one an 8 lane, everyone will choose that one and induce demand for the one road
o Discussed a lot when widening roads
o Induced demand argument holds up in court
- SLC
o Traffic increase
o Increased people
o Increased waste
- Failure to consider a reasonable alternative
o D&RG Alignment
▪ Narrower median
▪ Maximum transit alternative
o Alternative land use to reduce travel
▪ They didn’t consider making it so there was not so much traffic
o Alignment questions, failed to consider alt sequencing, failed to consider integration of legacy
parkway and transit, failed to consider alternative land use, failure to consider cost
- Inadequate analysis of a reasonable alternative
o Challenging adequacy of analysis of reasonable alternative
- Inadequate analysis of environmental impacts
o Cumulative impacts of future expansion
o Cumulative impacts comes up in air pollution
o Fail to consider land use impacts
▪ Wetland analysis was adequate, not arbitrary and capricious
o Air pollution
▪ Vehicle Miles Travelled
• Term used to look at if you are going to expand a road, number we can put onto it
to measure additional miles and increased pollution impact
o Segmentation
▪ Breaks down NEPA rule – small components making insignificant
▪ EIS scope
▪ Court ultimately finds EIS not sufficient because of three aspects of Shared Solution were
not evaluated in a single EIS
▪ Hits all regular raised
▪ Claims accepted by court (wanted further considerations done by Agency)
• Allegations
o Failed to consider D & RG Alignment (costs) (p. 175)
o Failed “shared solution” (p. 177)
o Failed to consider Legacy Parkway migration (p. 178)
o Failed wildlife birds 1000 feet setback (p. 182)

Evaluating NEPA
Strengths and Weaknesses of the NEPA and EIS’s
Strengths:
• The EIS has been used as a substitute for planning at the federal, state, and local levels
• The EIS has become in practice an explicit assertion that development requires early planning to avoid
degrading the quality of the environment
• NEPA is often viewed as a conscious(ness) raising statement
• NEPA’s appeal is that it has changed the practice of federal agencies and led to better decisions
• NEPA encourages multi-disciplinary agency and community participation, including obtaining input and
requiring carrying through comments from multiple parties through the process
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Weaknesses:
• Some argue that many of the environmentally significant impacts are not assessed because the agencies
deem them to be “not major”
• There is no way of ensuring that all impacts are assessed
• NEPA has been referred to as the “toothless tiger”

NEPA Continued…
Monsanto Co. v. Geertson Seed Farm
Four Part Test
1. Irreparable
2. Remedies
3. Balancing
4. Public interest

Facts Animal and Plant Health Inspection Service (APHIS) deregulated certain
genetically engineered alfalfa plants
A number of organic alfalfa farmers, Geertson Seed Farms (P) brought suit
claiming that the APHIS decision violated the National Environmental Policy Act
of 1969
P claimed that because of the ruling, they would gave to incur significant costs to
test their plants for contamination
They also claim that the ruling would require them to incur costs to decrease the
likelihood that their plants are infected
District court found in favour of P and granted permanent injunctive relief
COA affirmed
Monsanto appealed, claiming that P lacked constitutional standing to bring the
claim
Issue To establish constitutional standing, must a party establish that its injury is
concrete?
Holding Yes
To establish constitutional standing, a party must establish that its injury is
concrete, fairly traceable to the challenged action, and redressable
The court determines that the plaintiffs have alleged injury sufficiently concrete to
meet the constitutional standing standard
P showed that there is a “substantial risk” that the deregulation will result in their
alfalfa plants being contaminated
To harm P is that they are forced at significant cost, to take certain measures to
ensure that their plants are not contaminated before they are marketed and sold
Because of the risk of contamination, P will incur these costs whether or not their
plants are affected
This is sufficient to establish concrete injury
Because the injury is concrete, traceable to the APHIS’s decision and redressable
by the courts, the plaintiffs have standing to bring their claim
The court of appeals is affirmed on the issue of standing, but reversed on other
grounds
The case is remanded
Ratio To establish constitutional standing, a party must establish that its injury is
concrete, fairly traceable to the challenged action, and redressable

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TEST:
A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff
must demonstrate:
(1) That it has suffered an irreparable injury;
(2) That the remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
(3) That, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted;
and
(4) That the public interest would not be disserved by a permanent injunction
**applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation
→ it’s not enough to determine that there is no reason not to issue; MUST determine an affirmative response (i.e. a reason
TO issue)
• To establish constitutional standing, a party must establish that its injury is concrete, fairly traceable to the
challenged action, and redressable

P. 205, question 2
- Since Metow Valley, NEPA purely procedural, agency violated NEPA
o Difficult to remedy NEPA until agency complies with NEPA requirements
o Good number of NEPA violations that could go unreviewed by the court
- Note 5
o TVA v. Hill
▪ Section 7 of the Endangered Species Act requires federal agencies to ensure that
actions authorized, funded, or carried out by them do not jeopardize the continued
existence of an endangered species or result in destruction or modification of the
species’ habitat.

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Michael Greenberg
- Arguments about NEPA
o Strengths
▪ Widespread use of substitute for planning, helps with development for EIS
▪ Early planning protects degradation of the environment
o Weakness
▪ Want statute to force environmentally friendly outcomes, NEPA unable to do this
▪ Process oriented statute
▪ Need affirmative duty
▪ Because procedural, filed correctly can degrade environment ex: follow procedure and let
in some enviro harms, because don’t need to look at everything
- Cost benefit analysis
o Huge criticism of NEPA and enviro law in general
o NEPA inflationary cost
- Environmental benefits
o Replace wetland or habitat restoration
- Inconsistent and lacks certainty
- Note 3
o Agencies have co-opted NEPA, use for own purposes instead of other way around
- Loudest criticism of the law today is from individual members of Congress trying to carry water for a
project
o Uncertainty or delay
o Can be based on particular decision, 9/10
Takeaway on NEPA statute
- A lot of value in environmental review, not always perfect, much better place to understand agency
decision making and enviro harm and alternatives
- Statute of NEPA greatly limited by the courts, can do a lot more
- Better place Post-NEPA than before
- Civil Rights era impacted government ability

Tapping the Great Lakes Film (Water Withdrawal)

- Michigan 20% of world fresh water
- In 2008, Great Lakes compact (legal agreement between 8 states)
- Sale of water something new
- Water should be owned by each state as sovereign
- MDEQ charges Nestle $200 a year for being able to take water from
- Nestle wants 400 gallons per minute
- Trial judge issued injunction
- In 2016 Nestle made announcement of expansion of Stanwood plant prior to lawsuit
o Disputed amount of 400 gallons per minute
- Nestle CEO is advisor to UN !!!??!!!
- Waukesha
o Water diversion
o Middle ground – Waukesha get what need and Great Lake not too impacted

MEPA – Michigan Environmental Protection Act

Background/Class Information
- MEPA allows private citizens, groups and local governments with standing to sue for injunctions that
will protect the environment

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 o Based on the notion of developing a “common law of environmental quality” rather than
protecting the environment through administrative regulation
- Any person (or the AG) may bring an action for declaratory or injunctive relief against any person for
the protection of the air, water, and other natural resources and the public trust from pollution,
impairment or destruction – MCL 324.1701(1)
- Do not need to be a citizen to bring an action under the act.

Michigan Environmental Protection Act (MEPA)

Test for MEPA
1. Establish a prima facie case (focus tends to be on impairment)
2. Rebut Plaintiffs Prima Facie Case (Defense Rebuttal)
3. Defense establishes an affirmative defense (“there is no feasible and prudent alternative”)

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Ruin and Recovery Article – Dempsey
- History of MEPA
- Michigan State Constitution, Sec, 62 – Conservation and development hereby public concern in interest
of health safety and people…
- MEPA hard to find in MCL because it’s been rolled into NREPA (Natural Resources + Environmental
Protection Act)
- NREPA
o Has MEPA, air pollution issues, natural resource environmental protection
- Statute itself is MCL 324 1702
o MCL 324 1702 (1) – the AG or any person maintain an action in circuit court where alleged
violation likely to occur for declaratory or equitable relief against any person for the protection
of air, water, and other natural resources and the public trust in those resources
- Public trust
o Ancient legal theory from Roman Justinian (roman law). Idea that Cesar would hold the public
interest in water around for future generations. Meaning emperor should not allow fisheries to be
polluted to point where no longer available for use by people
o Roman law → Common Law → US Law
o In Michigan covers Great Lakes
▪ Nobody can prevent you from walking along Great Lakes
o More of a theory than hard law, need to put it into statutes
- MCL 324 1703 → prima facie showing for NEPA case
o P has to make the prima facie showing that conduct of D has polluted, destroyed, impaired or is
likely to destroy, pollute, impair natural resources
o D responds not doing this or no feasible or prudent alternative to the activity they would like to
undertake
▪ Battle of the experts here
o D can use affirmative defence to show no prudent or feasible alternative and that their activity is
consistent with public health, welfare etc.
- MEPA no damages
o Equitable relief
o Declaratory relief
o No monetary damages allowed under MEPA – which limits amount of MEPA cases brought

MEPA
- Who can file a MEPA case?
o Statute says AG, state of Michigan, or any person
- Lansing School Case for standing in Michigan
o Someone who experiences harm from the public at large (unique or different)
- Soil, air, water, sand dunes, natural resources – all protected by MEPA
- Standard for protection
o Pollution
o Impairment
o Destruction
o Or the likely pollution, impairment or destruction
▪ Related to ripeness usually the issue is up for permit, so it has to be in the works

Test for MEPA:

1. Establish a prima facie case (focus tends to be on impairment)
2. Rebut Plaintiffs Prima Facie Case (Defense Rebuttal)
3. Defense establishes an affirmative defense (“there is no feasible and prudent alternative”)

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Ray v. Mason County Drain Comm’r (1975) – Test to See How MEPA Works
- Action brought by 70% of the landowners in the Black Creek Watershed in Mason County and by an
additional group of six persons who joined the suit solely with regard to the environmental issues.
- The plaintiffs/appellants seek to enjoin the Mason County Drain Commissioner, defendant/appelle, from
proceeding with a channelization program for the watershed and from assessing them for any part of the
cost of the project
- The area contains a biologically unique “quaking forest,” swamps and potholes, and scattered, wooded
areas which serve as refuge for a wide variety of wild life
- Digging the drain would destroy the quaking forest (unique ecosystem)
- Trial Court says this suit is WRONG – refers to the administrative agency
o Is this Arbitrary & Capricious
- The existing system of open drains is inadequate to control flooding which occurs in the springtime and
which inundates some 100 acres for periods up to three weeks. This flooding does not pose health or
safety hazards but does cause some crop damage. Water experts prove this is a problem.
- The Defendant never attempted to establish an affirmative defense.
- Matter was remanded to trial court because they never explained their findings.
- HAND NOTE: Making a case for impairment should be low – courts will do the balancing

Class Notes
- Trial court looks at 6 factors, main issue is restate Plaintiff’s claim that the project pollutes and destroys
resources, P does not sustain burden of proof but great volume of evidence
- Prima facie case made by Plaintiff; affirmative defence raised by Defendant was lacking
- Trial courts/circuit courts need to build a record so on review there is something to look at to see if
MEPA violated or been followed
- Substance to standard by developing common law of enviro quality
- If D to MEPA claim, D can argue, yes pollution may happen but no feasible or prudent alternative and it
is consistent with health, safety and general welfare
- Takeaways
o How Prima Facie case brought
o How Prima facie defended
o Environmental common law needs to be developed so we can follow and see what is likely to
destroy environment under the law
o Need record for review and to make sure law being followed
o Trial court needs to go through every element of MEPA as well

Nemeth v. Abonmarche Development, Inc

Facts Development at mouth of river
Soil erosion and sediment control act
Issue Whether violation of soil erosion statute could be used to establish a violation of MEPA
Holding Yes
Recognizing that sand dunes are natural resources and that their erosion causes environmental
harm to vegetation and water through sedimentation and runoff
This ruling allowed P suing to prevent environmental harm to shift the burden of proof to D once
they could show violation of a separate pollution control law

Court also had to determine whether attorney’s fees were allowed under MEPA, but found that the
legislature had not provided for them
Notes MEPA cases often very time intensive and pursued to obtain nonmonetary goals such as an
injunction
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 By denying attorney’s fees, the court limited the ability of citizens without significant finances to
protect the environment through MEPA

Portage factors
Natural resources involved are endangered are rare or unique
- Special religious significance, historical significance, indigenous burial grounds
- Note that a resource does not have to be “rare or unique” to trigger MEPA
Resource easily replaceable (ex: plant trees, but this takes a long time)
Significant effect on other natural resources (ex: warming water can be detrimental to fish,
depletion of forests can be detrimental to certain species, etc.)
- Ex: warming water can be detrimental to fish, depletion of forests can be detrimental to
certain species etc.
Direct or consequential Impact on animals or vegetation impact (critical number)

Preserve the Dunes, Inc. v. Department of Environmental Quality

Facts Unless permit before July 5, 1989, couldn’t excavated land adjacent to where you are
D bought rights to permit and wanted to extend land
P brought challenge under MEPA
Issue Whether a citizens’ group could challenge a permit allowing sand mining in ecologically sensitive
sand dunes. MEPA allows “any person” to sue under the act to prevent environmental harm to the
state.
Holding PTD could not sure under MEPA based solely on alleged violation of the permitting process in the
Sand Dunes Mining Act
Businesses should not have to worry about their permits being challenged, restricted the ability of
citizens to challenge a permit issued by the DEQ under MEPA, overturning years of practice
Dissent Preserved ability and upheld the construction, intent and practice of MEPA to ensure greater
oversight and protection of Michigan’s natural resources
Notes Court making distinction between actual action and state agency making permit decision

Comparing MEPA and NEPA

- MEPA has independent cause of action – so any person with standing in Michigan can file case in
circuit court
o MEPA has more teeth
- File MEPA in circuit where the activity is taking place (ex: where draining of wetland activity taking
place)
- NEPA you don’t sue under NEPA but under Admin Procedure Act
o Put meat on bones
- NEPA about EIS etc.
- MEPA is more substantive
- NEPA borrowed a lot of the language and structure of MEPA
o MEPA predecessor

Upshot of MEPA
- MEPA is great, lots of potential but no recoverable attorney fees or damages means less cases brought
- Still good law, much of what would have been litigated in Michigan has been pushed to the side by
comprehensive environmental statutes like Clean Air Act, Clean Water Act

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Biodiversity and the Endangered Species Act
Introduction and History
History of Wildlife and the Development of powers that regulate it
- Substantial regulatory overlap and little cooperation
The States
- Early common law held that wildlife was state property
- Supreme Courts holding in Geer v Connecticut upheld the states special right to wildlife, noting that
wildlife in a state of nature cannot truly be owned at all, and to the limited extent that the state was
capable of owning it, it was for the benefit of all the people in common.
- State ownership expired in 1979 when the Supreme Court overruled Geer in Hughes v Oklahoma
holding that states do not have an ownership interest in wildlife that would trump the Commerce Clause
authority
o Hughes v. Oklahoma
▪ Ownership of wildlife formally expired
▪ State ownership expired in 1979 when the Supreme Court overruled Geer in Hughes v
Oklahoma holding that states do not have an ownership interest in wildlife that would
trump the Commerce Clause authority
▪ States may not enact facially discriminatory laws to conserve their natural resources unless those
laws are determined, under strict scrutiny, to further a legitimate local purpose and there are no
non-discriminatory options available for reaching that purpose
- Next stage of state wildlife regulation turned the focus to more traditional police powers
- Courts discussion of preservation for the common good was a precursor to the concept of the trust duty
in relation to wildlife. Geer represents the dawn of wildlife federalism.
- In Illinois Central Railroad v Illinois the court established that the public trust doctrine applies to states
o Doctrine holds that certain natural resources belong to the public to enjoy or use and that the
state gov’t has an affirmative duty to preserve these inalienable resources for the public
o By the late 1920s court opinions routinely hinged on application of the doctrine to wildlife
values
- All but a few states now have their own endangered species for protection

Federal Gov’t
- Lacey Act of 1900
o Lacey Act made violations of state game laws a federal crime if the illegal game was transported
across state lines allowing the feds to prosecute state offenses in some cases
o Also seeks to prevent introduction of non-native species into new ecosystems
- Migratory Bird Treaty Act of 1918
o Implemented several international treaties to protect migratory birds
o Immediately challenged under Missouri v Holland, where the Supreme Court rejected the notion
that birds were under exclusive state control and upheld the Act under the federal treaty power
▪ Missouri v. Holland: A treaty which infringes the rights reserved to the states under the Tenth
Amendment to the United States Constitution may nevertheless be considered valid if it is made
under the authority of the United States and is thus the supreme law of the land.
- Federal Aid in Wildlife Restoration Act of 1937
o First federal effort to get states to do more to conserve wildlife and habitat
- Wild Free-Roaming Horses and Burros Act of 1971
o Protection of wild horses and burros on federal land
o Impact on wholly intrastate wildlife and state actors
o Kleppe v New Mexico USSC upheld the statute’s application to prohibit New Mexico Livestock
Board from taking wild burros under the federal property power

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 - Marine Mammal Protection Act of 1972
o Broad assertion of federal power in the realm of wildlife conservation making use of the
Commerce Clause power
o Scientific focus, expecting the use of science in its implementation as well as taking into account
populations and ecosystems
o Pre-empted all state laws resulting in a strong assertion of federal power
o Represented an effort to address competing political interests
- Endangered Species Act of 1973
o Tennessee Valley v Hill told us that the Act was intended to halt and reserve the trend towards
species extinction whatever the cost
o Requires the listing of threatened and endangered species for protection as well as the
designation of their critical habitat to be protected
o Prohibits take of individual members of a listed species by any person
o Biggest step Congress has taken to federalize conservation, but it is not even close to being fully
implemented

Why do we Care about Species Extinction

- Speed of extinction is much higher nowadays
- Losing thousands of species that are never identified
- Losing species affects ecosystem interconnectivity

ESA
- Almost entirely focused on individual species
- Drafted w/ goal of saving them all
- ESA contains citizen suits allowing citizens to sue over a violation if they show injury, causation and
redressability
Species Listing Process
- Provides listing for vulnerable species and then protects them via prohibitions on both gov’t and private
behaviour
- Act’s protections apply only to listed species

ESA Listing Process

In determining whether a species fits into one of these two categories (endangered OR threatened), five factors
considered:
(A) The present or threatened destruction, modification or curtailment of its habitat or range
(B) Overutilization for commercial, recreational, scientific or educational purposes
(C) Disease or predation
(D) The inadequacy of exiting regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued science

ESA Section 3 (Definitions)

- The term “commercial activity” means all activities of industry and trade, including, but not limited to,
the buying or selling of commodities and activities conducted for the purpose of facilitating such buying
and selling: Provided, however, That it does not include exhibition of commodities by museums or
similar cultural or historical organizations.
- (5)(A) The term “critical habitat” for a threatened or endangered species means—
▪ (i) the specific areas within the geographical area occupied by the species, at the time it is
listed in accordance with the provisions of section 4 of this Act, on which are found those

38
 physical or biological features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and
▪ (ii) specific areas outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon a determination by
the Secretary that such areas are essential for the conservation of the species.
o (B) Critical habitat may be established for those species now listed as threatened or endangered
species for which no critical habitat has heretofore been established as set forth in subparagraph
(A) of this paragraph.
o (C) Except in those circumstances determined by the Secretary, critical habitat shall not include
the entire geographical area which can be occupied by the threatened or endangered species.
- (6) The term “endangered species” means any species which is in danger of extinction throughout all or
a significant portion of its range other than a species of the Class Insecta determined by the Secretary to
constitute a pest whose protection under the provisions of this Act would present an overwhelming and
overriding risk to man.
- (19) The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct.
- (20) The term “threatened species” means any species which is likely to become an endangered species
within the foreseeable future throughout all or a significant portion of its range.
ESA Section 4
- If a species is not listed, they are not included
- Treats distinct local populations of subspecies as different
- Can be listed as
o Endangered: Serious danger of being extinct
o Threatened: Less than endangered
- Critical Habitat
o Affects economic & political interest
o “essential to preservation of species”
- SEC. 4. (a) GENERAL.—(1) The Secretary shall by regulation promulgated in accordance with
subsection (b) determine whether any species is an endangered species or a threatened species because
of any of the following factors:
o (A) the present or threatened destruction, modification, or curtailment of its habitat or range;
o (B) overutilization for commercial, recreational, scientific, or educational purposes;
o (C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
- (b) BASIS FOR DETERMINATIONS.—(1)(A) The Secretary shall make determinations required by
subsection (a)(1) solely on the basis of the best scientific and commercial data available to him after
conducting a review of the status of the species and after taking into account those efforts, if any, being
made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect
such species, whether by predator control, protection of habitat and food supply, or other conservation
practices, within any area under its jurisdiction, or on the high seas.
ESA Section 7 Challenges (Consultation)
- Failure to consult at all
- Inadequate Consultation
SEC. 7. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1) The Secretary shall review other
programs administered by him and utilize such programs in furtherance of the purposes of this Act. All other
Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in
furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and
threatened species listed pursuant to section 4 of this Act.

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(2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any
action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency
action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat of such species which is determined by the Secretary,
after consultation as appropriate with affected States, to be critical, unless such agency has been granted an
exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the
requirements of this paragraph each agency shall use the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary
on any prospective agency action at the request of, and in cooperation with, the prospective permit or license
applicant if the applicant has reason to believe that an endangered species or a threatened species may be
present in the area affected by his project and that implementation of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the
continued existence of any species proposed to be listed under section 4 or result in the destruction or adverse
modification of critical habitat proposed to be designated for such species. This paragraph does not require a
limitation on the commitment of resources as described in subsection (d).
ESA Section 9- Prohibited Acts
- Section 9(a)(1) (Least controversial)
o Can’t export/import endangered animals
- Section 9(b)(1)
o prohibits “take any such species” (this is the most controversial because it affects property
owners)
o Can’t take something even if it’s on your property
o I.e. can’t drain a pond if endangered species is in it
- Agencies, requires consultation
Critical Habitat
- Agency must dedicate a critical habitat and define it
- Criteria for listing
o Maximum extent prudent & determinable
o Allowed to consider economics
- Essential to conservation of species
Section 10
- Permits
o 10(a)(1)(B): Incidental take provision

National Audubon Society v Superior Court

• The public trust doctrine preserves the state’s sovereign authority to protect public trust uses, thereby preventing
owners from acquiring a vested right that would allow them to harm the land

The Listing Process

Citizen Listing
Citizens may petition the Secretary to list, uplist, downlist or delist a species
- Whether the petition “presents substantial scientific or commercial information indicating that the petitioned
action may be warranted”
- Substantial information means “that amount of information that would lead a reasonable person to believe that the
measure proposed in the petition may be warranted”
- Secretary must then commence a status review of the species within 12 months to determine whether listing is:
(1) Warranted
(2) Not Warranted
(3) Warranted but Precluded (by competing demands)

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 o Allow those species in greatest need to be addressed first
- It has become a major source of additional discretion, leading to politically based decisions rather than
prioritization on the basis of threat
- Agency is also free to choose not to follow their advice
- The protective portion of the ESA – quite powerful, which is why the listing process is so incredibly important
- Upon listing, designate critical habitat to allow that species some living space; listing then triggers the duty to
prepare a recovery plan
- Listing triggers an affirmative duty to protect

Listing Process
- Putting any threatened or endangered species on a list where ESA protects it
- Fed agency is US fish and wildlife services, put it as endangered or threatened
- Five factors
- Requirement is to have biologists look at it, refer to primary sources
- Most biologists they use assess endangered or threatened. If it is, agency has discretion to put as
warranted or precluded
- Diff between threatened and endangered?
o Endangered right now
o Threatened is likely to be endangered
- Page 227 has listing process 5 factors
- Good evidence as to why threatened or endangered, conflict of relying on agency charged, telling you
whether or not something threatened or endangered
- Recent: Polar Bears
o Threatened because of their habitat – arctic and Antarctic warming and melting of ice
o Less sea ice for them to hunt
o Big debate in the last 10 years of how serious the threat is – litigation in process of listing of
polar bear

Listing and De-Listing

- Once threatened species that was listed has recovered, can be De-Listed
- Allow natural resource agencies to appropriately manage habitat for species
- Contentious
o If you take species ppl like to hunt that was on list, then de-list you will have hunting as
management plan to keep species in control or balance
- Michigan: Grey Wolf
o Hunted to almost complete extinction
o Michigan had to have management plan to manage healthy population of grey wolves – lottery
system for hunting wolves
- If we don’t de-list, law will be attacked for being overly broad and protective

Northern Spotted Owl v Hodel

Facts
- Number of enviro organizations bring this action against the US Fish & Wildlife Service and others
alleging the decision to not make the northern spotted owl endangered was arbitrary and capricious to
contrary law
- Plaintiff petitioned to have the owl included in 1987, in 1987 Service announced it would initiate a
status review of the spotted owl and requested public comment
- Land was for public use, cleared off a lot of the forest due to forestry industry
o Timber companies were struggling, needed more timber
- Listing owl = critical habitat, thus couldn’t allow timber industry to continue logging

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 - Service had a doctor conclude that: the most reasonable interpretation of current data and knowledge
indicate continued growth harvesting is likely to lead to the extinction of the subspecies in the
foreseeable future…
- Concluded that listing the species as endangered was not warranted at this time
Arguments
- Enviro Orgs
o No background science backing the decision
- Loggers
o Destroying timber industry, need it to maintain these towns
ESA Listing Section
- 4(a)(2)→ Standard for listing
- “solely on the basis of the best scientific and commercial data available to him after conducting a review
of the status of the species and after taking into account those efforts, if any, being made by any State or
foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether
by predator control, protection of habitat and food supply, or other conservation practices, within any
area under its jurisdiction, or on the high seas.”
o Illegal to take into consideration political factors
Holding
- Failure of the service to review and make an express finding on the issue of the threatened status is
arbitrary and capricious
Reasoning
- Little insight into how the service found the owl had a viable population
- Fails to provide any analysis and no explanation for findings
- Lack of expert analysis, along with a mischaracterization of a conclusion by Dr. Mark Boyce
- Enviro expert says if it was not listed it was in trouble, other scientists agreed
- No experts concluded that the owl was not at risk of extinction
- Service disregarded all expert opinion on population viability, including that of its own expert, that the
owl is facing extinction
Discussion
- Huge political pressure, granting permit was going to be a major danger to the owl
- Mining, oil, grazing can occur on multi-use areas, while agencies have mandate to foster these
industries, still must protect the owl
Notes from Class
- Very contentious issues
- If court reviewing agency decision (in this case under ESA) looking at analysis and expert testimony and
whether the agency actually supports decision with evidence that supports their decision
- Ex: Moose in Minnesota
o Tough call because should we continue investing $ when our climate may not be conducive to
this species 5 years from now
- Spotted owl politically contentious because if it was listed, logging industries would be precluded from
taking timber (owl needs the space, need a forest)
o If owl listed, would completely destroy timber industry in that part of the country
- P. 234, note 1
o Talks about how politically fraught listing can be
▪ Question of resources in terms of money the government has to protect species
▪ Also have interests with Western Water Shed Case – sage grouse which requires lots of
land to live, reproduce, etc.
Ratio
- Determination of listing or not listing must be made based on the best scientific and commercial
data available, cannot include political or economic factors.

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 - Failure to review or provide analysis or explanation of findings based on an express finding will
result in an arbitrary or capricious decision
- The court will reject conclusory assertions of agency “expertise” where the agency spurns
unrebutted expert opinions without itself offering a credible alternative explanation

Western Watersheds Project v FWS → “warranted but precluded”

Facts
- US Fish and Wildlife Service listed the sage grouse as warranted under the ESA, however declined to
begin drafting rules to protect the birds because the agency had a limited budget and other species were
in worse condition
- Also known as the warranted but precluded finding
o Basically means that we know it is in trouble, however we don’t have the resources to fix the
problem
o Way to deregulate is to not provide funding, then use it as a defence for not regulating
- Backlog was challenged by environmental groups, and the FWS settled and agreed to remove the bird
from its warranted but precluded limbo by 2015
o Plaintiff WWS was not part of that settlement and challenges for a faster resolution
Issue
- Whether the decision to list the grouse as warranted but precluded was arbitrary and capricious
Holding
- Not arbitrary and capricious on the second recommendation
o First recommendation would’ve been arbitrary and capricious, however Director recognized
these issues and properly fixed them by providing more analysis
Reasoning
- At first the Regional Director made a recommendation that ignored his agencies guidelines, contained
no scientific analysis and featured offhand comments about the various political interests at play
- After the recommendation, he was supplied with scientific analysis
- Court engaged in thorough analysis, finding that (1) sage grouse populations in some areas were stable;
(2) substantial habitat exists in many parts of the range; (3) 96% of all populations will remain above
effective sizes for next 30 years. Thus finding was that threat was just moderate.
- Contrary evidence showed that threat was high and immediate
- However, the court is prohibited by law from substituting its own judgement
- Subsequent decision of the director was based on sound science; thus it was not arbitrary or capricious
- Court makes points that substantial evidence might be okay in this situation
Ratio
- A decision backed by sufficient substantial analysis will not be found to be arbitrary and
capricious (lacking other problematic factors)
- Court is prohibited by law from making its own judgement on the animals under the ESA, has to
defer to agencies
- Where science is inconclusive, the Director must exercise his discretion. In reviewing that decision, the
Court is prohibited by law from substituting its own judgment for that of the Director, but must instead
defer to that decision so long as it is not arbitrary or capricious

Natural Resources Defense Council (NRDC) v Dept. of Interior

Facts
- US FWS listed gnatcatcher as a threatened species
- Service found that habitat loss posed a significant threat to continued existence of the coastal California
gnatcatcher
- However, concluded that critical habitat designation would not be prudent under Section 4 for 2 reasons:

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 o (1) Service claimed that the public identification of critical habitat would increase the risk that
landowners might deliberately destroy gnatcatcher habitat
o (2) Critical habitat designation would not appreciably benefit the gnatcatcher because most
habitat is found on private lands
- FWS was worried about people killing the animal because it could cause them to dedicate their property
as critical habitat
Issue
- Whether the defendants violated the ESA by failing to designate a critical habitat for the coastal
California gnat-catcher
Holding
- Final listing fails to show that the Service adequately considered the relevant factors and articulated a
rational connection between the facts found and the choice made
- The FWS must look to individual species impact
Reasoning
- Increased threat to the species
o Increased threat fails to balance pros and cons of designation
o Can only exclude portions of the habitat from critical habitat designation if he determines that
the benefits of such exclusion outweigh the benefits
o Service never weighed the benefits of designation against the risks
- No benefit to the species
o Service expands the narrow statutory exception for imprudent designations into a broad
exemption for imperfect designations
o It is only in rare circumstances where specification of critical habitat concurrently w/ the listing
would not be beneficial to the species
o Service contravened clear congressional intent of Congress.
o 80K/400K of habitat is publicly owned
o Service does not explain why a designation that would benefit such a large portion of critical
habitat is not beneficial to the species
- Couldn’t base it solely on the fact that people might kill the animal to save their property
Ratio
- Service must adequately consider the relevant factors and there must be an articulated rational
connection between the facts found and the choice made
- Must balance the pros the cons of designation when considering an increased threat to the species

Gifford Pinchot Task Force v. Dept of Interior

Facts
- Challenge of six biological opinions issued by the US FWS pursuant to environmental species act
- Biops allowed for timber harvests in specified North-west forests and also authorized incidental “takes”
of the Northern spotted owl, a threatened species under ESA
o Feds adopted a forest mgmt. plan for the entire range of the spotted owl known as the “northwest
forest plan”
o Provision essentially says that you can authorize any taking if it is incidental to or not in
violation of another take
- Appellants argue that the FWS’s interpretation of adverse modification is unlawful
o ESA Section 7 consultations require that in every Biop the consulting agency ensure that the
proposed section “is not likely to jeopardize the continued existence of” an endangered or
threatened species and that the federal action will not result in “destruction or adverse
modification” of the designated critical habitat
- FWS defined “destruction or modification” as

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 o Direct or indirect alteration that diminishes the value of critical habitat for both survival and
recovery
o Appellants argue that this is too high a bar, should be or
- Appellants also argue that the critical habitat analysis in part, relies on alternative habitat in the LSRs
and that such reliance on the LSR to compensate for loss of habitat is unlawful
Issue
- (1) whether the FWS can impose the higher survival and recovery standard
- (2) whether the loss of critical habitat was not an adverse modification because of the existence of
suitable habitat
Holding
- FWS’ findings were arbitrary and capricious
- (1) The purpose of establishing critical habitat is for the government to carve out territory that is not
only necessary for the species survival, but also essential for the species recovery
- (2) It doesn’t matter whether there is existence of a suitable habitat, the FWS must only look to whether
the loss of critical habitat was an adverse modification or not
Reasoning
- Issue 1
o It is logical and inevitable that a species requires more critical habitat for recovery than is
necessary for species survival
o If FWS follows its own regulation, it can’t ignore recovery goal of critical habitat
o ESA was not only acted to forestall extinction, but to allow a species to recover
- Issue 2
o Suitable alternative habitat is no substitute for designated critical habitat
o FWS can’t rely on a conservation program that has the same goal as critical habitat to change the
boundaries of the spotted owl’s critical habitat
Class
- Must provide space for longer term survival
- Supports the environmentalists, can’t hurt the owls habitat
Ratio
- Must take into consideration survival and recovery
- Jeopardy analysis conducted by FWS was within the agency’s discretion. Regarding the critical habitat
analysis, however, the Ninth Circuit reversed the judgment of the district court because FWS had used
an unlawful definition of “adverse modification” and its substitution of alternative habitat for designated
critical habitat was impermissible. The Ninth Circuit directed the district court to enter summary
judgment for Task Force on the critical habitat issue.
-

Consultation
TVA v Hill
Facts
- In 1967, Congress appropriated funds to the Tennessee Valley Authority (TVA) to build the Tellico
Dam.
- In 1973 Congress passed the Endangered Species Act (ESA), which protected certain species classified
as “endangered”.
- The Secretary of the Interior declared the Snail Darter endangered.
- The area of the Tellico Dam was its “critical habitat”
- Although the multi-million dollar project was almost completed, the project predated the ESA, and
Congress continued to appropriate funds to the project after the ESA passed, Hiram Hill sued to enjoin
the completion of the Dam in order to protect the Snail Darter.

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 - He argued that completing and opening the dam would violate the ESA by causing the extinction of the
snail darter.
- The district court refused to grant the injunction and dismissed the complaint.
- The U.S. Court of Appeals for the Sixth Circuit reversed and remanded with instructions to issue a
permanent injunction against any activities that would modify or destroy the Snail Darter’s critical
habitat.
TVA’s Argument
- Whatever statute says, we’ve been doing this project for 6 years, new ESA should not be retroactive
Issue
- (1) Does the ESA prohibit completion of the Tellico Dam?
- (2) Is the Snail Darter protected by the Endangered Species Act, even though congress continued to fund
the dam project and stated that it should be completed?
Holding
- Yes, Yes. In a 6-3 decision, Chief Justice Warren Burger wrote the majority opinion affirming the
injunction.
- The Supreme Court held that Congress’ continued appropriation of funds did not imply that the Dam
project was exempt from the ESA.
- The operation of the Tellico Dam would wipe out the Snail Darter's habitat, so an injunction was the
proper remedy.
- Under the facts, the injunction was the only appropriate remedy
Reasoning
- Completion would eradicate the species
- Injunction was the best way to uphold the ESA, while maintaining the power of the court under the law
Ratio
- Section 7 of the Endangered Species Act requires federal agencies to insure that actions authorized, funded or
carried out by the do not jeopardize the continued existence of an endangered species or result in destruction or
modification of the species’ habitat

The Take Prohibition

Take
- With critical habitat designation, doesn’t mean a private property cannot do anything on property or
cannot in some way impact endangered or threatened species
- Govt cannot take an endangered or threatened species
- Private land owners, take happens where landowner doing otherwise legally permissible activity,
consequence is the take of endangered species

Filing in wetland would require permit under clean water act – federal law
Federal money involved
If private property owner and doing lawful activity on property, you may be able to take an endangered species.
Caveat → you have to check and see. Have to work with state agency or FWS. You may be required to take
certain steps to limit the harm to the habitat.
These “plans” used to be site specific, property by property, to develop habitat conservation plan. Now looking
at them as broad geographic area, county may have series of habitat plans

The Take Prohibition

- Primary protective provision for listed species is the section 9 prohibition against “take” of endangered
species
- Take is defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt
to engage in any such conduct”
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 - Section 9 differs from section 7
(1) It only applies to species listed as endangered, thought threatened species can receive the same
protections by agency regulation and most do
(2) It only applies to wildlife, and excludes plants
(3) It applies to all people, public, or private, rather than just to federal agencies

Section 9 of ESA
- Prohibits take of endangered species
- Definition of take includes “harm, harassment, etc. including harm to habitat”
- Unlike jeopardy of species/success of species as a whole and whether likely to survive, take applies to
individual member of species being harmed
- Take is individual animal/species in and of itself

Babbitt v. Sweet Home

Facts
- The Endangered Species Act of 1973 (16 USCS 1531 et seq.) contains a variety of protections designed
to save from extinction species that the Secretary of the Interior designates as endangered or threatened.
- § 9(a)(1)(B) of the statute generally makes it unlawful for any person to "take" any endangered or
threatened species of fish or wildlife, although there is a provision in the Act which authorizes the
Secretary to grant a permit for any taking otherwise prohibited by 9(a)(1)(B) if such taking is incidental
to, and not the purpose of, the carrying out of an otherwise lawful activity.
- Section 3(19)→ Take includes harm
- Section 17.3→ Harm: “taking includes significant habitat changes”
o I.e. you don’t have to kill the animal, can merely drain the pond they live in
- The respondent organization (a logging company) contended that the regulation defining harm,
particularly the inclusion of habitat modification and degradation, exceeded the authority of § 9(a)(1)(B)
of the ESA, and that it should be direct harm, rather than indirect harm.
Arguments
- Respondent logging co
o Original definition is destruction or modifications to habitat, so it was not what they were trying
to do. They weren’t trying to destroy or modify the habitat.
- Pl’s
o Intended not the harm, but for Congress to buy land that should be protected
Issue
- Was the Secretary of Interior’s interpretation of the word “harm” under the Endangered Species Act of
1973 valid?
Holding
- Yes it was invalid
Reasoning
- Certain actions lead to the killing of animals, direct or indirect. Can’t just say frogs need ponds so you
must save ponds. Have to protect ponds from indirect harm as well.
- Harm must be foreseeable, normal rules of torts apply
- The Court held that the regulation was reasonable because an ordinary understanding of the word
"harm" encompassed habitat modification that resulted in actual injury or death to endangered or
threatened species.
- The fact that the Secretary was authorized to issue permits for takings that § 9(a)(1)(B) of the ESA
would otherwise prohibit, if such taking was incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity, strongly suggested that Congress understood § 9(a)(1)(B) to prohibit indirect
as well as deliberate takings.

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 - The latitude the ESA gave the Secretary in enforcing the statute, together with the degree of regulatory
expertise necessary to its enforcement, established that some degree of deference was owed to the
Secretary's reasonable interpretation.
- The legislative history further supported the Court's conclusion that the Secretary's definition of harm
rested on a permissible construction of the ESA.
Ratio: Definition of harm under s. 3(19) does not just include direct harm, but also foreseeable indirect
harm
- The Secretary of the interior possesses the authority pursuant to the Endangered Species Act to define
the term “harm” broadly to encompass direct injury or death to endangered animals and indirect actions
including the destruction of a species’ habitat and breeding grounds

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon

Facts Sweet Home, entity representing the interests of families dependent upon the forest-products
industry sued Sec of Interior challenging the meaning of the term “harm” as defined in
regulations promulgated pursuant to the ESA
Section 9 of the ESA makes it unlawful for a person to “take” a threatened or endangered
species and the ESA in turn defined “taking” to mean, among other things, harm
Secretary promulgated a regulation defining the word “harm” in the prohibition on takings to
include significant habitat modification or degradation that actually kills or injures wildlife.
P alleged that the application of the “harm” regulation to the red-cocaded woodpecker, an
endangered species and the northern spotted owl, a threatened species, had injured P’s
economically because they could not conduct logging activities where the animals were
located
District court granted defendant’s motion for summary judgment and held the Secretary
possessed the authority to define “harm” as he wished
COA reversed, relying on a canon of statutory construction that a word is defined by the
words around it and finding that the words around “harm” in the statute referred only to the
application of direct force against the “taken” animal
Issue Does the Secretary of the Interior possess the authority pursuant to Endangered Species Act
to define the term “harm” broadly to encompass direct injury or death to endangered animals
and indirect actions including the destruction of a species’ habitat and breeding grounds?
Holding Yes
The Secretary possesses the authority pursuant to the ESA to define the term “harm” broadly
to encompass direct injury or death to endangered animals and indirect actions including the
destruction of a species’ habitat and breeding grounds – broadening harm
Had been thinking take as directly shooting animal, not habitat loss or breeding grounds
Before the case, probably wouldn’t have a take if you didn’t even know the animal existed
on the property
The Secretary is given broad discretion to interpret the ESA, and the Secretary’s
interpretation will be upheld if it is reasonable
Section 9 of the ESA prohibits the “taking” of an endangered or threatened species
The term “take” means, to harm
D defined harm to mean an act which actually kills or injures wildlife, including significant
habitat medication or degradation where it actually kills or injures wildlife by significantly
impairing behaviors like breeding or feeding 50 CFR 17.3 (1994)
This definition is consistent with the ordinary meaning of the word “harm,” which means to
injure
It is also consistent with Congress’s expansive efforts to protect endangered and threatened
species in the ESA, as well as the ESA’s legislative history
The statutory-construction reasoning underlying the appellate court’s decision is incorrect,
because it ignores the plain language of the statute, it does not account for the fact that many
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 of the words around “harm” in the statute refer to actions that do not require the direct
application of force, and it denies the word “harm” the independent meaning intended by
Congress. Accordingly, the Secretary’s interpretation of “harm” is reasonable. The
judgement of the appellate court is reversed
Concurrence The regulation defining “harm” must be limited to actions that actually kill or injure
(O’Connor) individual animals through foreseeable actions, not those that are merely speculative
Dissent The ESA prohibits the hunting and killing of animals and provides for federal lands and
(Scalia) federal funds to acquire private lands to preserve endangered animals’ habitats
Extending the ESA hunting-and-killing prohibition to preserve habitats on private lands
causes unfair financial harm to private landowners whose land has been effectively taken by
the government to use as an animal habitat
The Secretary’s “harm” regulation is not an acceptable interpretation of the statute
The regulation prohibits any significant habitat modification that impairs animal behavioral
patterns and causes death or injury to the animals, even if that outcome was not intentional or
foreseeable, and regardless of how long the chain of causation is between the habitat
modification and the result
Additionally, the regulation’s definition of harm encompasses both acts and omissions and
includes injury not just to individual animals, but also to entire populations of protected
animals
None of these aspects of the regulation are supported by the ESA
Secretary definition of “harm” is at odds with the word’s ordinary meaning, which requires
directly hurting or damaging something
Moreover, the word “take” is defined in the statute to encompass 10 prohibited actions
The other words of prohibition in the statutory definition all describe intentional conduct
directed against an animal or group of animals
The narrower definition of “harm” fits in with these other prohibitions, but the Secretary’s
broad interpretation of the word does not
If many items in a list share the same feature, this suggests that the other items in the list also
share that feature
Furthermore, the Secretary’s def of “harm” is at odds with the ESA’s penalty provisions and
the use of the word “take” elsewhere in the text of the statute and it is unsupported by the
structure of the ESA itself
Ratio The Secretary of the interior possesses the authority pursuant to the Endangered Species Act
to define the term “harm” broadly to encompass direct injury or death to endangered animals
and indirect actions including the destruction of a species’ habitat and breeding grounds
Notes The decision is significant because it demonstrated that "agencies cannot use cost as an excuse" for not
abiding to section 7(a)(2). Additionally, the court's ruling of the case falls under the "Secretary's definition
of 'harm' within the Section 9 taking provision."[1]
In Tennessee Valley Authority v. Hill, the major issue concerned the completion of a dam after discovering
the critical habitat of the snail darter. The ESA was amended in 1978 to include the Endangered Species
Committee, known as the "God Committee," to provide exemptions to section 7. It denied an exemption,
but a rider to a military appropriations bill exempted the Tellico Dam from the ESA.
The case demonstrated the significance of habitat modification under the ESA and is the first case that
defined the word harm under the definition of take, which applies to actions that have direct contact,
minimal, or unforeseeable effects to endangered species. The definition of harm’' includes changes in
habitat that affect endangered species

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Notes from Class
- Fine tuning what it means by take
- When take permissible and when it is not
- Three reasons why “harm” should be upheld
o Habitat modification legit application of harm
o Found COA incorrect in assuming words in definition only applied to actions involving direct
contact with endangered animals
o Ordinary meaning of harm would include changes in harm that impact animals
o Harm does not specifically include direct or indirect
- When court looks at question of harm
o Look at dictionary definition of harm
▪ Which does not assume direct injury, you can harm things without direct contact
o Purpose of the ESA
▪ Overall purpose of law is to prevent extinction of species, ensure their long term survival
▪ Preventing harm supports the broader goals of the law, looking at harm either direct or
indirect
o Statutory interpretation of amendment from 1982, which would allow for permit to take where
the harm was incidental to some other action. Allowing permit for incidental takes which would
otherwise constitute an illegal take
▪ Strongest point
▪ Looking at how the law evolved over time, begun to consider harm to habitat to be
related to direct harm to species
- O’Connor Concurrence
o As long as clear it will cause some injury to species in the future, ok
o Look at results and going forward have results in place to have whether or not
- Majority says a “take” covers private habitat that indirectly harms endangered critter. Take includes
private property where habitat modified that indirectly harms
- Scalia and Thomas Dissent
o Want more harm directly to animal itself, not habitat
- Majority not interpreting congressional intent in the appropriate way
- Majority of habitat protection is on private land, roughly 80%
- A lot of movements to weaken FWS regulations around ESA
- Trump Admin trying to roll back protections
Several attempts to tear up ESA, but not done
Summary of ESA
- Outline relationship and topic and show cases support various propositions
- Structure of the statute→ protect species
- 3 Mechanisms
o 1. Closing of the US Market of any kind of product of endangered species
o 2. Take → includes shooting, harm and habitat modification (Babbitt)
o 3. Section 7 → protects federal action that jeopardizes a species
▪ Any agency that undertakes the project itself or its approval or the granting of a licence if
there’s a possibility that it will jeopardize it has to ask for opinion form appropriate
agency
▪ Preparing opinion requires consultation
- Look at who we are protecting
- “listing” threatened under section 3(20)
o (20) The term “threatened species” means any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its range.
- Endangered under section 3(6)
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 o Danger of extinction all or of a significant part of range
o (6) The term “endangered species” means any species which is in danger of extinction
throughout all or a significant portion of its range other than a species of the Class Insecta
determined by the Secretary to constitute a pest whose protection under the provisions of this Act
would present an overwhelming and overriding risk to man.
- Threatened is obvious if you’re likely to move into endangerment
- Standard of push pull between science and political reality, solely on best scientific and commercial data
- Commercial data: Oil company operating in far north, going to have biologists doing stuff. Respectable
studies, can do scientific studies even though it’s a commercial company doing it.
o Spotted Owl: Saw this play out
- Spotted Owl
o Agency not only has to accumulate info but has to develop an accumulated record showing how
it relates to scientific fact
- Concurrent with listing must designate critical Habitat
o Can be just as harmed by having someone destroy your home is just as bad as someone killing
you
- NRDC v Dept of Interior
o Doing designation should only occur if it is prudent
o Economic can take effect if it is critical habitat
o In deciding the benefit, must look at benefit to a portion of
o Reasonable relationship between the facts and decision they make
- Gifford Pinchot Case
o Goal is not just survival, but in fact the recovery of the species
o If species is jeopardizes have to look at what is happening to species
o Leads to creation of god squad under section 7(8)
- Babbit
o Harm includes habitat modification putting species at risk
o Decision is within the discretion of the agency

Clean Water Act- Protection of Water

Clean Water Introduction
Clean Water Act: Federal statute that regulates water pollution in the US. Implemented in 1972 to
address the issues of diminished water quality that arose from abuse during the Great Revolution
(mostly oil and industrial pollution). In 1972 amendments were made to what is now known as the
Clean Water Act, which established the fundamental framework for addressing water pollution. The
Act reversed the state centric paradigm of water control and banned discharge of pollution into
surface waters except as authorized by permits.
Following the 1972 implementation water quality increased. However, many problems still persist
mostly regarding run off from crop lands, construction sites, forestry operations, livestock areas and
urban streets
Relevant Statute Provisions
33 USC § 1251 Congressional Declaration of Goals and Policy (p 388): establishes the CWA’s
basic structure for regulating discharges of pollutants into waters of the US and regulating quality
standards for surface waters.
- (a): Restoration and Maintenance of chemical, physical and biological integrity of Nations
Waters
- (b) Congressional Recognition, Preservation, and Protection of Primary Responsibilities and
the rights of States
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 - (g): Authority of States Over Water
33 USC § 1342 National Pollutant Discharge Elimination (P 553)
- (a) Permits for discharge of pollutants- Administrator may issue a permit after an opportunity
for public hearing for a discharge of any pollutant
- (b) State Permit Programs: Steps and process for state to implement their own CWA SIPs
- (h) violation of permit conditions: fed can exercise authority to veto approval of SIP
- (l) Limitation on Permit Requirement: No permit is required for agricultural activities
33 USC § 1344 Permits for dredged or fill material: Secretary may issue permits
Federal vs. State Regulation
Originally, water purification was exclusively regulated under local and state authorities. In 1972
when the Clean Water Act was introduced by the federal government there was an obligation to
recognize the rights of states in controlling water pollution.
Clean Water Act vs. Clean Air Act (Similarities and Differences)
Similarities: Both the CAA and CWA reflect the notion of cooperative federalism. This
cooperative federalism is reflected by the federal government setting the standards. However,
the states get to decide how they reach those standards. States are only required to meet the
minimum standard.

Differences: The Clean Water Act stems from the environmental abuses of war and the
industrial revolution. It was after this time that a lot of issues arose regarding water. The clean
air act on the other. Whereas the Clean Air Act stems from common law doctrines of nuisance
and trespass, along with local smoke abatement ordinances form the legal foundations on
which the modern public law on air pollution control stands
In Michigan
- Follows Clean Water Act
- Michigan EGLE does water permits
o State agency ensuring all state and federal laws and regulations passed
o Permit called National Pollution Discharge Elimination System (NPDES)

Private Litigation and Historical Evolution

History of the Clean Water Act
Prior to CWA: If I was concerned about pollution, what could I do to stop it? Statutes didn’t recognize private
rights of action. Could bring citizen suits. Common law suits for nuisance, trespass, diminution of property
value, damages for an activity

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 Riparian
- Ownership of property that abuts surface water
- Have right of reasonable use – I can use that surface water to my benefit reasonably, so long as I’m not
harming another riparian property owner

Pollution under common law

- Nuisance suit
- Right of access/use if riparian property owner

Private litigation
- Where game player prior to Clean Water Act
- Michigan had legislation pre CWA, but nothing had teeth

Attorney fees recoverable under CWA, penalties go into general fund (US treasury), state suit (Michigan
treasury)

History of the CWA: In 1972 the Clean Water Act was passed. FEWAPAS was the original CWA passed in
1948, which set clean water standards and standards for federal support. However, FEWAPAS was formulated
around Health Based Standards. These standards were very complicated and administered and argued differently
to the uniform standards included under the CWA. Also, FEWAPAS health-based standards were not working
and water quality was not improving. Therefore, the CWA moved away from these health-based standards due
to them being so difficult to operate. The CWA was passed from a time of concentrated activism regarding the
environment. Majority of resistance to CWA during this time stemmed from states and companies that no longer
could lure in businesses via there lowered standards.

CWA Fundamentals: Establishes the bare minimum standards that every state must meet
- Standard: swimmable and fishable
- Refuse Act: Passed in 1898 and highlighted that navigable waters must remain dump free so that there
will be no interference with commerce (regulated under the Corp of Engineers)
Private Damages Pre and Post 1970s CWA Implementation
Pre 1970: private damages were dealt with under the Federal Common Law of Nuisance (parallel to individual
common law interfering with our use of water)

Post 1970: Common law of nuisance is pre-emepted by specific statutes

Middlesex County Sewage Authority v National Sea Clammer Ass’n
Rule of Law: Congress made it clear that implied private actions are not contemplated, the courts are not
authorized to ignore this legislative scheme and we must dismiss the federal common law claims because
they are pre-empted by statute. We also must dismiss the claims under the Clean Water Act and MRPSA
because the respondents lacked right of action

Case Facts: Alleged damage to a fishing ground caused by discharges and ocean dumping of sewage and other
wastes.

Issues: The questions raised were whether the Clean Water Act and MPRSA imply a private right of action
independent of a citizen suit? And whether all federal common law nuisance actions involving the ocean are
pre-empted by the Clean Water Act legislative scheme.

Holding: Supreme Court said no private cause of action because that is pre-empted by statute. The trial court
was wrong in finding no claim under CWA because Plaintiff’s filed a citizen suit and failed to notify the EPA,

53
agency, and the defendant 60 days prior to filing the cause of action. However, citizen suits only give rise to
equitable remedies and not damages so your demand is disjointed. Therefore, both actions are dismissed

TAKE AWAY FROM THIS CASE:

- Laid the ground work for what the parameters are for the operation of these statutes.
o No claims to private actions because they are pre-empted by the statute
o All remedies must be sought within its comprehensive remedial scheme
- Establishes the fact that the you can’t collect individual damages under this act through a citizen suit.
- The CWA emphasizes state enforcement of water quality standards, specifically regarding direct
restrictions on discharges, which made it unlawful to discharge a pollutant without obtaining a permit
and complying with its terms.

Clean Water Act Jurisdiction

Four Key Elements for CWA Jurisdiction
Discharge of a Pollutant: any addition of any pollutant to navigable waters from any point source
1. In addition
2. Of a pollutant
3. From a point source
4. To Navigable Waters: Most issues among lawyers
Potential Test Question
Hand will provide a situation where the discharge of listed material is occurring, and you must
determine if this discharge results in a violation of the Clean Water Act

This requires you to go through each of the 4 elements and discuss how they are or are not met
according to the statute, case law and case facts
1. In addition: Look at case facts likely will be easy to identify unless you are dealing with a
watershed or a riverbed types situation. Movement of a pollutant from one body of water to
another does not constitute an addition (Unitary Transfer Rule)
2. Of a pollutant: Construed Broadly and investigated by PIRG. Train v PIRG says that in
determining if something is a pollutant the text is not the be all end all. Here radioactive
materials were included under what the EPA permit program regulates. However, due to the
legislative history and congress intent it was determined that the legislators intended that only
radioactive materials outside of the AEA’s reach are to be regulated by the EPA
3. From a point source: Typically a point source can be easily established. expansively “point
source” is defined in § 502(14) as “any discernible, confined and discrete conveyance,” which
can include any pipe, ditch, channel, tunnel, or other similar conduit. Under Plaza Health a
human cannot be seen as a point source. Had Congress intended to punish individuals for
violations of the CWA it would have included language in the statute to do so.
4. To Navigable Waters of the US: Under Bayview Homes wetlands are considered NWOUS.
In SWANCC jurisdiction was established for a wetlands via physical proximation. The
migratory bird rule is a factor to consider but the physical proximation OR connection to a US
body of water is the most important factor to establish. Rapanos establishes the significant
nexus rule that states there must be some genuine connection between the bodies of waters.
Must see if the navigable water is actually impacting the other body of water.
In Addition
Primarily determining if there is an addition/ discharge of a pollutant is easy. However, in cases where
a watershed or a riverbed are involved it may be difficult to discern if there truly is an addition. This is
because it is hard to track the movement of contaminants through the transfer of water from one body
to another.
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 Unitary Transfer Rule: An addition of pollutants means that once a pollutant is in a navigable water,
the movement of that pollutant to other bodies, cannot constitute an addition
Addition
- Adding pollutant to water in US?
- Reservoir in Florida, used for irrigation, release water into river to draw down reservoir,
question of whether or not pollutants are an addition – don’t have human adding something
but stuff from one water body being transferred to another water body
- Water Transfers Rule
o A 2017 decision, relied on Chevron, EPA allowed transfer in scope of authority
allowing pollution to be in the transfer, this was ok under Unitary Water
- Evidence of it, can see it happening
Pollutant
The definition of a pollutant has been construed broadly by the courts and is fairly easy to establish. If
something is or is not a pollutant is investigated specifically by PIRG groups. This pollution
classification regime has been extended for toxic pollutants.

Pollutant
Under CWA, pollutant means dredged, sewage, garbage, sewage sludge, chemical waste, biological
materials, radioactive materials, heat, rock, sand … discharged into water.
Train v Colorado Public Interest Research Group (PIRG)

Rule of Law: When interpreting the text of a statute, a court may look to the statute’s legislative history
rather than restricting itself to the text alone.

Case Facts: EPA was enacted to regulate water pollution, including pollution from radioactive materials. The
EPA administered this through a permit program. However, in this case the EPA excluded from the permit
program any radioactive materials already reached by the AEA’s regulatory scheme. The Colorado Public
Interest Research Group, Inc., together with other environmental groups and citizens (plaintiffs), brought suit
seeking an injunction directing the EPA to include in its permit program all radioactive materials discharged
into waterways. Plaintiffs want the EPA to regulate this matter because the standard under the AEC is lower.
The EPA’s standard is best available technology that’s economically achievable and that’s a lot higher than the
AEC’s reasonableness standard.

Issue: Are we dealing with a discharge of a pollutant? Obviously the nuclear plant is a point source and we are
dealing with navigable waters.

Court Holding: The lawmakers intended for the AEA to retain its exclusive jurisdiction over radioactive
pollutants. Although the text of the CWA defined “pollutant” to include radioactive materials, the statute’s
legislative history shows that the legislators intended this only to radioactive materials outside of the AEA’s
reach

TAKE AWAY FROM THIS CASE:

- “pollutant” does not include source, by-product, and special nuclear materials, which are already
regulated by the AEA

55
Train v. Colorado Public Interest Research Group
- Diff regulations at issue
- Question of if EPA has authority over radioactive discharge
- Court: EPA arguing CWA doesn’t apply – CWA does not apply, legislative history, concluded that
Congress never intended clean water act to be involved in these activities
- Ratio: when interpreting the text of a statute, a court may look to the statute’s legislative history rather
than restricting itself to the text alone
- SCOTUS faulted court of appeals for resolving pollutant question by looking exclusively by reference
to language of the statute
- First look at comprehensive statute

Point Source
Defined broadly to mean any discernible, … from which pollutants are or may be discharged from.
This non-exclusive framing indicates congressional intent that a point source be interpreted
expansively “point source” is defined in § 502(14) as “any discernible, confined and discrete
conveyance,” which can include any pipe, ditch, channel, tunnel, or other similar conduit.
- 2 exclusions: agriculture stormwater discharges and return floes from irrigated agricultural
(agriculture is given a pass because of the societal values placed on them).
- 2 Categories: CWA point source
o Discrete conveyance may be discerned
o Without a discrete conveyance
National Pollutant Discharge Elimination System (NPDES): Governmental body that regulates
point sources

Point Source
- Pipe coming from factory discharging a pollutant into navigable water

United States v Plaza Health Laboratories Inc.

Rule of Law: Under the Clean Water Act, a human being is not a “point source” from which a discharge
of a pollutant into navigable water would result in a violation of the statute.
Case Facts: A blood testing laboratory dumped approximately 70 vials of human blood in the Hudson River on
at least two separate occasions.
Issue: Under the Clean Water Act, is a human being a “point source” from which a discharge of a pollutant into
navigable water would result in a violation of the statute?
Court Holding: Here it is easy to see the case involves an addition of a pollutant into navigable waters.
However, the court decided that human beings cannot be point sources. Had Congress intended to punish
individuals for violations of the CWA it would have included language in the statute to do so.
Dissent: The term “point source” has been broadly construed by Congress. Therefore, there is no reason why it
should not apply to a human being. The main objective of the policy is to reduce waste and it shouldn’t matter if
it’s from a person or land. This is not the same thing as a child peeing in the water because this was an
organized means of disposing waste.

TAKE AWAY FROM THIS CASE:

- Demonstrates a novel situation where the court underwent an analysis about what constitutes a point
source.

56
US v. Plaza Health Laboratories
- Blood thrown into river – knowingly discharging pollutants at a point source without a permit, charged
under EPA
- Didn’t deem D to be a point source of pollutant
- Human beings not listed as being point source
- Dissent
o Would have found D to be point source
o People intentionally dumping things into the river
- Instead of paying for dumping of blood, he’s dumping it himself to save money

Navigable Waters of the US

Navigable Waters: This is a term of federal law that predates the CWA. Traditionally it referred to
navigable in fact, as those waters that are subject to the ebb and flow of the tide shoreward to the
mean high-water mark, presently or past used, or susceptible to use in transport. However, the CWA
was reluctant to define this term because they feared it would be interpreted too narrowly. The
committee intends to give this term its broadest possible constitutional interpretation. Broadly defined
as the waters of the US, including territorial seas.
Waters of the US: EPA definition of waters of the US:
- (a) all waters currently used, past used, susceptible to foreign commerce, subject to the ebb
and flow of tide
- (b) interstate waters and wetlands
- (c) all other waters such as interstate lakes, rivers and streams, etc. whose degradation could
affect interstate or foreign commerce
- (d) impoundments of water, Tributaries of water
- (f) territorial sea
- (g) wetlands
Navigable Waters
- Michigan floating log test
- Navigability test – Rivers and Harbors act of 1899
- CWA defines navigable waters as waters of the US
o Lots of litigation over this
- Waters deemed navigable at the time of statehood, are federally navigable
o Ex: when Michigan became state in 1836, all waters at time of statehood are navigable
- Navigable in fact = people actually navigate on them
- Wetlands
- Most contentious and confusing part of CWA
- Michigan
o All great lakes navigable
o All major rivers – Flint, Kalamazoo, Detroit, Rouge, etc. – all navigable
o State maintains a list of navigable waters

Clean Water Act Continued…

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Waters of US
- Navigable waters for Michigan – float the log, if you can canoe or kayak in Michigan, navigable
- Federal navigability
o Waters of US
▪ SWANCC and Rapanos – difficulty of navigable waters
▪ P. 536
▪ Waters of US = all waters used or have been in past… ebb and flow of tide, all
interstate... (2014, Regulation promulgated by EPA and Army Corps of Engineers)
▪ Any water adjacent to navigable water is water of US
▪ Definition comes from US v. Riverside case
o To ensure navigability of ships and connecting canals etc., army of Engineers related to
navigability. In CWA corps of Engineers have permit authority for activities dealing with
navigation, wetlands, etc.
o Corp of Engineers the agency doing the work or agency regulating the work in many major
projects, ex: locks in Sault St Marie, New Orleans
▪ Navigation history involved with Corp of Engineers
- Clear Law
o Navigable waters meeting p. 535 definition
▪ EPA defined “waters of the United States” to mean:
• All waters which are currently used, were used in the past, or may be susceptible
to use in interstate or foreign commerce, including all waters which are subject to
the ebb and flow of the tide;
• All interstate waters, including interstate “wetlands;”
• All other waters such as intrastate lakes, rivers, streams (including intermittent
streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds the use, degradation, or destruction of which would
affect or could affect interstate or foreign commerce…
• All impoundments of waters otherwise defined as waters of the United States
under this definition
• Tributaries of waters identified in bullets 1-4 of this definition
• The territorial sea; and
• “Wetlands” adjacent to waters (other than waters that are themselves wetlands)
identified in bullets 1-4 definition
- Shaky ground
o Wetlands
o Wetlands close to navigable water

Solid Waste Agency of Northern Cook County (SWANCC) v US Army Corps of Engineers

Rule of Law: The Migratory Bird Rule in the Clean Water Act does not grant permit jurisdiction to the
U.S. Army Corps of Engineers over isolated, non-navigable waters of the United States.

Case Facts: An old quarry is being looked at by a couple of municipalities to dump garbage in. However, it has
been lying vacant and pools of water have emerged that have become bird landing areas.

Court Holding: Skeptical of the migratory bird rule and said that these ponds were too far away from a
navigable water to be considered US Bodies of Water.

TAKE AWAY FROM THIS CASE:

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 - Migratory Bird Rule: core of engineer clarification of navigable waters subject to CWA because the
presence of migratory birds this implies interstate commerce, which requires federal involvement
o Is a factor to help determine if the body of water is considered NWOUS but other factors must be
considered
- There must be a physical proximation or a connection to a US body of water
- Can establish jurisdiction if the wetlands are physically proximate (here they are not). Even if you meet
the migratory bird rule you must be physically proximate OR connected to a US body of water.
- This case complicates the holding in Bayview Homes where wetlands are included under Waters of the
US. This fact is even further complicated by Rapanos below

Class Notes: Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers
- Whether water to be filled in for landfill fell under CWA?
- Migratory birds relevance here for analysis?
o Would destroy habitat of migratory birds to build here
- Whether or not gravel pit fill in is a water protected under CWA and navigable water of US?
- Rehnquist majority
o Procedurally reversed lower courts finding of authority stemming from commerce clause
o Commerce clause gives feds jurisdiction over stuff primarily governed by the state
o Before CWA would have been purview of the individual state
o Rehnquist trying to limit Congress’ coverage, of opinion that regulatory state spiralling out of
control, reign in coverage of Congress, using commerce clause a way to do that
- SWANCC eliminated CWA protection from isolated waters (ex: ponds)
- Interesting about case: old pond surrounded by successional forest, pretty decent habitat with 121
species of birds using the water
- Court different way from Chevron?
o Too broad interpretation
o Rehnquist saying on the facts, regulation of particular water is beyond scope of CWA
o Saying Chevron should apply to migratory birds is beyond the scope of the statute
o Rehnquist wanted to establish hard boundaries for CWA and eliminate jurisdiction for isolated
wetlands
o This case had alarming effect on wetlands in many states
▪ CWA, CLA, etc. set baseline, uniform across country, states have to meet minimum
standards to have more or less cohesive laws
▪ States can regulate and be more protective – ex: Michigan goes above and beyond CWA
o In this case, CWA drops out, if states do not have their own wetlands protection/programs in
place to protect areas going forward, dramatic impact
- While SWANCC was supposed to draw a line, didn’t exactly solve the problem hoped for

Rapanos v US
Rule of Law: Under the Clean Water Act, the “waters of the United States” includes only relatively
permanent, standing, or flowing bodies of water such as streams, oceans, rivers, and other waterways
forming geographical features and does not include lands only intermittently saturated with water.
Significant Nexus Test
- Have to have some sort of connection to navigable waters that is more than fleeting, a “sometimes” or
“rarely” connection

Case Facts: Rapanos owns a plot of land and wants to develop it. However, the land is on a body of water that
is far from a navigable water BUT IS hydrologically connected by a stream to one.

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Issue: Under the Clean Water Act, do the “waters of the United States” include only relatively permanent,
standing, or flowing bodies of water such as streams, oceans, rivers, and other waterways forming geographical
features?
- What is a connection?
- What is the end result of the case? Have a plurality, concurrence and dissent

Plurality Court Holding: This opinion is premised on the continuous surface connection notion that Scalia gets
from the dictionary. Basically, it means a body of water must be on the surface and be continuous. Also implicit
in this is the body of water must be permanent (this permanency narrows the jurisdiction of the court.
- This reasoning follows Chevron, which grants deference to agency determinations. Here the term water
is ambiguous and does not extend to all bodies of water.

Concurrence: Kennedy wrote the concurrence. IT IS THIS CONCURRENCE PRINCIPLE THAT IS MOST
ACTIVELY FOLLOWED BY COURTS TODAY! Kennedy takes a sophisticated view and says there must be
some genuine connection between the bodies of waters. Must see if the navigable water is actually impacting
the other body of water. He says let’s look at the reality and determine if our goal is to protect the Nations water
there should be jurisdiction here.
- Kennedy believes the rationale in Chevron should be removed and rather we should look to see if this is
reasonable. This takes support from the Acts stated purpose and the structure of the act.

Dissent: It is reasonable to conclude that the Corps may have permit jurisdiction over “waters,” even those
intermittently saturated like the property owned by Rapanos. We must look at what the act is trying to
accomplish, and we should look at it in it by its BROADEST sense (if they have a function they should be
viewed as Waters of the US).

TAKE AWAY FROM THIS CASE:

- Difficult to understand what tests courts should apply going forward. Scalia’s “relatively permanent” or
Kennedy’s “significant nexus tests. To address this issue the Corps of Engineer issued joint guidance in
2007. It helped to identify these waters through a tiered analysis.
o Per se Waters of the US: traditional navigable waters and adjoining wetlands
o Relatively permanent non navigable tributaries of TNW’s and wetlands
o Tributaries adjacent to wetlands that fall outside the above 2 categories if they can be shown to
have “significant nexus” with eh TNW
- The term significant nexus is defined as combination of the water bodies above that significantly affects
the chemical, biological or physical integrity of water identified above. This test also identifies types of
waters that should not be included.
o Water treatment systems
o Prior converted cropland
o Certain types of ditches
o Certain features: swimming pools, puddles
o Groundwater: generally regulated through the Underground Injection Control program
o Stormwater control features
o Wastewater Recycling Structures
- What Rule Do We Apply Now? Courts must have a sufficient understanding that you can explain
based on the plurality opinion or Kennedy’s concurrence opinion BUT must show how you qualify
under one or the other.
o Plurality Opinion: too narrow and sets up the court to litigation
o Concurrence (Kennedy): Most courts follow the substantive nexus test
1. Follow this guideline but are careful to not push the envelope too far
o EPA WOTUS RULE: When this rule was implemented there were immediate law suits that
argued this ruling was an overstep of the agency
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 1. The rule says the you cannot just withdraw from this rule you must go through the entire
notice process. (still in flux)
Class Notes
- Plurality

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 - Continuous surface connection – times of year have rushing river than arid temp happens and it dries up
- Under Scalia
o Jurisdiction of CWA would have been restricted by agency practice at that time
- Kennedy concurrence
o Two requirements
1. Permit standing water, continuous flow of some months – small drop of water could be
significant concern
2. Course jurisdiction over wetlands significant nexus
o Significant nexus test is holding applied by federal circuit courts of appeal
- Roberts concurrence
- Justice Breyer
- Roberts, Kennedy and Breyer
o All saying agencies need to make rule on what waters of US are “WOTUS”
- Takeaway: significant nexus test, corporation of engineers trying to apply this in their permit
- Significant Nexus test
o Have to have some sort of connection to navigable waters that is more than fleeting, a
“sometimes” or “rarely” connection
After Rapanos – development of the clean water rule
- P. 552 and 553
o Eight categories of water bodies and landscape features that the agencies would – or would not –
consider “waters of the United States.” The new rule specifically identified eight categories of
water bodies and landscape features that would – or, on a case-by-case basis, could – be
considered “waters of the United States.” These eight categories are as follows:
1. All waters which are currently used, were used in the past, or may be susceptible to use in
interstate or foreign commerce, including all waters subject to the ebb and flow of the
tide
2. All interstate waters, including interstate wetlands;
3. The territorial seas
4. All impoundments of waters otherwise identified as waters of the United States under this
section
5. All tributaries, as defined in (c)(3) of this section, of waters identified in paragraphs
(a)(1) through (3) of this section
6. All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this section,
including wetlands, ponds, lakes, oxbows, impoundments, and similar waters
7. All waters in paragraph (a)(7)(i) through (v) of this section where they are determined, on
a case-specific basis, to have a significant nexus to a water identified in a paragraphs
(a)(1) through (3) of this section …
• Prairie potholes
• Carolina bays and Delmarva bays
• Pocosins
• Western vernal pools
• Texas coastal prairie wetlands
8. All waters located within the 100-year floodplain of a water identified in paragraphs
(a)(1) through (3) of this section and all waters located within 4,000 feet of the high tide
line or ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of
this section where they are determined on a case-specific basis to have a significant nexus
to a water identified in paragraphs (a)(1) through (3) of this section…
- Developed Clean Water Rule in Obama administration
- Rolling in wetlands that would have been excluded under SWANCC and Rapanos, expanding definition
of WOTUS to a degree

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 - Push back on Clean Water Rule came from agriculture and real estate development
o Parts of their property rolled into be considered waters of US that were previously not covered
- Clean water rule came out in 2015
o Law suits filed to challenge it
o Election in 2016
o Trump admin decided to undo Clean Water Rule
1. First paused implementation
2. Then figured out how to undo it
3. Trump admin going to release a new rule about what WOTUS means (waters of the US)
4. Rescinding the Clean Water Rule, 2015 will be challenged in court as well
- Rule-making under Administrative Procedure Act, which governs rule making and agency process, you
cannot just rescind a rule without substantial evidence. Have to show prior rule making decision was
flawed. Cannot just undo something because new party in power
o Will likely be hard to show agency in 2015 was abusing discretion and not relying on evidence
“No Net Loss” of Wetlands in US
- Require creation of new wetlands if filled in or rehabilitate natural areas
- Rouge River was concrete and over the years trying to restore and make it more natural
- Common law viewed water and water on land as an enemy – wanted to get water off land for productive
use for agriculture
o If you had marshy, swamp, wanted to drain it

USA Today Delaware/Virginia affiliate

- Tells us where we are at today
- EPA revoked two regulations last month dealing with Clean Water and air
- Trump admin weaken clean water act
- The 2015 Clean Water Rule expanded WOTUS definition
- Even if strong state laws, can only impact stuff within your own state
o Might have stronger environmental laws in Chesapeake bay area but the other states not having
these strong rules will still get into the state
- EPA noted expanding federal jurisdiction over clean water…
o EPA revoked rule on Sept 17, 2019 that is counter to this
- At this point, if advising a client now, need to go back to Rapano case, grey area

Clean Water Act Administration

Cooperative Federalism
Implementation authorities are shared between EPA and states as well as the US Army Corps of
Engineers. EPA is the presumptive lead agency and the EPA Administrator is charged by the CWA
with a number of duties: making grants to states and cities for sewage treatment plants, set standards
for pollution controls, approve these standards, review facility records, take enforcement actions, and
issue permits for pollution discharge. The Corps of Engineers are charged with issuing permits, taking
limited enforcement actions, rulemaking to implement CWA and other related duties in cooperation
with EPA.
- Struggles between the EPA and the Core of Engineers persist since the EPA is more PRO
environment WHEREAS the Core of Engineers are builders by trade so both groups have
conflicting attitudes

CWA programs are to be implemented by the states consistent with national standards. Congress has 2
principal meanings for engaging with states:
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 - 1. States assume responsibilities for the issuance and enforcement of discharge permits and
- 2. States establish water quality standards subject to federal floors
Questions to ask regarding state jurisdiction
- 1. How states obtain authority
- 2. How state implementation remains subject to EPA oversight
Key EPA Provisions
S 101: EPA is the presumptive agency for state violations
- EPA can veto any engineer ruling, but rarely do
- EPA is set up to administer the problem of pollutant discharges into WOTUS
S 404: Gives the core jurisdiction over discharge of dredge and fill materials into Wetlands
EPA and Corps of Engineers
- Decision making authority
- P. 558 – middle of second paragraph
o Anything putting into navigable water constitutes fill
o Dredging operation/undertaking = shovel of some sort that digs material out of a water body

Coeur Alaska Inc. v Southeast Alaska Conservation Council

Rule of Law: The U.S. Army Corps of Engineers has exclusive authority under § 404(a) of the Clean
Water Act to issue permits for the discharge of dredged or fill material.

Case Facts: Want to open a gold mine and need discharge permits. COE granted permit on the condition that
the mining company fulfills their requirements and purifies the residual matter. This was agreed on by all
parties

Issue: Can the Core issue a permit for this under S 404 OR does this fall under another permit procedure
because the lake constitutes navigable water?

Court Holding: Core can issue this permit under S 404 because if the EPA doesn’t agree they have the right and
power to veto it. By them not doing so they are presumed to have no objection to the permit.

TAKE AWAY FROM THIS CASE:

- This case highlights the inherent tensions between the EPA and the corps of engineers
- The issue between EPA and 404(a) permits is resolved because of the permit requirements.
o Plaintiff’s wanted the permit to be issued under the EPA rather than the Core because the EPA
sets a higher standard for what the “fill” material must be like prior to discharging. EPA permit
requires the best possible technology (BAT). However, court decided that 404(a) trumps the
EPA permit.
o This was decided because the higher EPA standards will be too difficult for industries to meet.
o This issue between EPA and 404(a) permits

State Implementation
How States Obtain Authority
States have no obligation to carry out CWA programs. If they don’t then the EPA retains principal
responsibility for permit issuance and enforcement. However, states usually take over control of both
of these because they don’t want the Feds getting in the middle of their business. All but 4 states have
taken over this jurisdiction. States take on this administrative role by setting up a State
Implementation Plan (SIP), which lays out the fed standards that the states will follow The
implementation of a SIP must follow a specific process:
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 1. Letter form state’s governor describing the capacity of the state to implement the program
2. Letter from the States Attorney certifying that the states laws can carry out the program
3. The EPA will then approve the program if it is federally recognized and the state has legal
control over the water resources seeking to be regulated UNLESS the 4 main criteria points are
not discussed.
a. Issued without compliance to substantive standards permitted by the EPA
b. Program doesn’t allow for monitoring and inspection of the facility
c. EPA, public and state doesn’t receive notice and an opportunity to comment
d. Provision that makes violations subject to civil or criminal penalties
Concern is how closely these state/ tribal CWA programs must reflect the federal program to be
authorized.
Tribes can also qualify to administer their own adherence to the CWA but they must meet the same
uniform standards as the States

Natural Resources of Defense Council Inc. (NRDC) v US EPA

Rule of Law: The cooperative federalism administration process is based on balancing rights between
state autonomy and uniform standards.

Petitioners challenged 2 regulations for the implementation of state permit programs.

- Notice of Hearing: Argues this provision does not provide adequate public notice and doesn’t give the
people a chance to speak. (can you bring a citizen suit against the state?)
o state level citizen suits are not commanded by the act and find no impropriety in the
Administrators failure to require state programs. The regulations provide adequate opportunity
for public participation
- Size of penalties: Issue that States can’t exercise the max penalty because if these penalties are too
small than companies will just keep on violating because its more cost effective to pay the fines then
implement the BAT.
o The section doesn’t refer to enforcement powers RATHER ONLY effluent limitations and
similar standards. The agency has determined that it is necessary to set specific minimum levels
of fines which states have the authority to recover

TAKE AWAY FROM THIS CASE:

• This case gives you an understanding of the administration process of the Clean Water Act and the
balancing act that must be exercised.

How State Implementation is Overseen

Many mechanisms in the EPA ensure they maintain their delegated authority. If the EPA
determines a state is not administering the act properly it remains the right to withdraw
approval. Usually this isn’t required and the EPA will simply provide written comments
identifying the problems. If these problems are not resolved, then they can veto their approval.
Most common EPA compliance procedures are periodic reviews.

Wetlands
Section 404/ 33 USC § 1344
This is the section that deals with Wetlands. It is also premised on the notion of cooperative
federalism. Federal government sets minimum standards, which change depending on the medium

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included. If a state wants to apply a higher standard they are free to set one but they are prohibited for
setting a lower standard.
- Look at 301(b) closely (discussed in the Weyerhauser Case)

33 USC § 1344 Permits for Dredged or Fill Material (P 561):

- (a): discharge into navigable waters at specified disposal sites
- (e): General permits on State, regional, or national wide basis
- (g): State Administration

This Provision operates in 2 ways under the Clean Water Act:

1. Sets up Discharge Permits for All Kinds of Industries
i. EPA Standard: Best Practicable level of cleanup
1. Sets a uniform standard – must meet this NEPDS standard but the state
can determine how best to meet this standard through their own
administration processes
a. Exp: X amount of Steel per day and can’t discharge more than X
amount into the water.
b. Point sources must deal with discharge permits ALWAYS
2. Sets Up Standards for Clean Water Act Guidelines
Section 301/ 33 USC § 1301
Prohibits the discharge of a pollutant in WOTUS. This can be administered by the State through EPA
guidelines.
- If the EPA doesn’t agree with how a state is administering the EPA guidelines they can object
and throw it back to the State to fix because it doesn’t comply.
33 USC § 1301 Effluent Limitations (P 466): Illegality of discharges of pollutants from point
sources into navigable waters of the US.
- (B): Requirements for listing
- (K): Innovative Technology
- (L): Toxic Pollutants
Bayview Homes, SWANCC and Rapanos Remaining Wetland Questions
These 3 cases further complicate the EPA’s definition of wetlands and what constitutes as a wetland
under jurisdiction of the EPA as a Water of the US.
Questions that remain after the disjointed holdings in these cases
- What are wetlands under CEA?
- What are the substantive requirements for wetlands subject to CWA?
The protection of wetlands will only become more vital as purpose of climate change mitigation and
adaption.
Wetlands Determinations
CWA does not define wetlands, but the EPA and Corps of Engineers define it as: areas inundated by
surface or groundwater at a normal frequency that it supports vegetation and wildlife based on their
unique soil conditions.
- Question: how far do these wetlands extend? Wetlands Delineation Manual
Lands that are subject to the CWA require landowners to follow legal requirements if they wish to use
the land for an activity that is triggered under the act.
Corps of Engineers jurisdictional determinations on land being considered wetlands or not, are
imposed for the benefit of landowners, who want to know if permitting requirements affect them.
- However, if the Corps of Engineers jurisdictional determination has consequent impacts on
property value, should owners have the right to due process?

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US Army Corps of Engineers v Hawkes Co Inc.

Rule of Law: A jurisdictional determination of the United States Army Corps of Engineers is a final
agency action ripe for judicial review. This case ties the Corps of Engineers to Jurisdictional Elements.

Case Facts: Involves a property where the owners want to build a Peet Mine on their land. The owners notice
some standing water and cattails and call the Corp of Engineers to do a land assessment. The Corp’s
JURISDICTIONAL DETERMINATION says this is likely wetland and you will likely have to apply for a
permit that won’t be cheap. Land owners file a suit contesting the Core’s determination as not final. P’s are
suing now because if they go ahead with construction and find out they needed a permit they are risking a lot in
fines, but if they get the permits and don’t end up needing them they are wasting a lot of money. Here P’s are
Testing the jurisdiction of the Cores in the off chance the court will rule akin to Rapanos and go back on this
jurisdictional dispute. Likely this was a test case because the litigation here likely cost more than what the
permits would have costed.

Issue: Is a jurisdictional determination of the United States Army Corps of Engineers a final agency action ripe
for judicial review?
- This is relevant because under the EPA you can only challenge a final action. P says that the Core’s
determination was not a final determination.

Court Holding: The core’s determination is a final action (final action requires something that is defining).
- DOWNSIDE of the Core’s determination being final is that any challenges to this wetland determination
will have to undergo expensive litigation (exhausted administrative processes)

TAKE AWAY FROM THIS CASE:

• This case defines the role of the Corps of Engineers and highlights that their jurisdictional
determination is final and ripe for judicial review.
o The jurisdictional determination is a Corps function separate from the permitting process. The
decision of whether wetlands are U.S. waters is distinct from the decision of whether to issue a
permit to mine on those wetlands. These actions are independent and do not directly affect one
another. Thus, these actions can both constitute final agency actions

Dredge and Fill Requirements

Dredge and fill are not defined in the act but is by the Corps of Engineers.
- Dredge: material that is excavated from the waters of the US
- Fill: material placed in waters that replaces a wet portion with dry or changes the bottom
elevation of the waters
- Fill Material: rocks, sand, soil, etc.
Determining dredge and fill activities is more difficult when it involves wetlands due to the scope and
frequency of contact with industries. Dredge and fill is broad but has some exceptions written in i.e.
Normal farming exception, de minimus exemption (incidental fall back).
- Tulloch Rule: did away with the exemption of incidental fallback, triggering a successful
challenge by industry. In response the EPQ reinstated the exemption but made it so the burden
of showing the activity does not destroy waters falls on the project proponents.

If a permit is required what is needed?

- Each permit is subject to application guidelines (non-compliance = denial of the permit)
- Guidelines = fundamental precept that dredge/ fill should not be discharged into the aquatic
system and will not be permitted if there is a practicable alternative. Even without a
practicable alternative a permit may be denied if it violates water quality standards, or
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 threatens species OR if the appropriate steps have not been taken to minimize the potential
adverse effects

Thousands of general permits are given every year based on categories of activities where dredge or
fill only causes minimal adverse environmental effects. To proceed, proponents must first conduct a
wetlands delineation, and provide the corps with a Pre-discharge Notification. The Corps of Engineers
can then issue Regional permits and After the Fact permits if the Corps finds unpermitted activities.
Technology Based Standards
CWA imposes different technological standards for different industries and different dischargers.
Three broad discharge categories are: direct discharges, Publicly Owned Treatment Works (sewage
treatment plants), and pretreaters (industrial dischargers).
- BPT (Best Practicable Technology): average of best performing technology. This was the
first step in setting these uniform standards. The rationale was once this standard was set and
all factories were adhering to it we can ratchet it up from there (bringing the bad guys up to
this BPT standard did a pretty good job in cleaning up the water).This is still the standard to
day for conventional pollutants. Lower standard than BAT because these pollutants are not
toxic
- BAT (Best Achievable Technology)

These standards say if you want to operate you must cut down pollutants to whatever amount is
enforced by the state. The EPA will be testing your pipes randomly and ensure you are meeting
EPA/State CWA standards. This is the strategy used for guaranteeing adherence to the Uniform
Standards .
- Weyerhauser: demonstrates what a huge task this actually is.
304(b)(1)(B)/ 33 USC § 1314
EPA must take into consideration the cost in relation to the benefits. They also must discuss
other things that should be taken into account.
304(b) Effluent Limitations (P 481): Administrator shall publish regulations providing
guidelines for effluent limitations and revise when appropriate
- (B): Specify factors to be taken to determine control measures and practices
applicable to point sources. This shall consider the technology in relation to the
total cost and the effluent reduction benefits.

Types of TBELS (technology based effluent limitations)

1. Best practicable technology currently available (BPT) – conventional pollutants
2. Best available control technology economically achievable (BAT) – deals with toxic pollutants

Conventional pollutants
- Non toxic
- Pg. 592
- Dissolved solids
- Phosphorous and nitrogen
- Agricultural run off
- Fecal coliform – natural conferring bacteria
- Added oil and grease in 1979 by EPA
- Sediments, organic pollutants
- BCT is the best control right now

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Toxic pollutants
- Heavy metals, carcinogens, mercury, asbestos
Substantive Standards
Heart of the CWA is the program that allows continued discharge of pollutants through permits
NPDES (National Pollutant Discharge Elimination System) that regulates and restricts through
effluent limitations discharges. Permit writers must consider technology-based standards and water
quality-based standards in providing permits.

Weyerhaeuser Co v Costle

Rule of Law: So long as the EPA pays some attention to the congressionally specified factors the section
on its face lets the EPA relate the various factors as it deems necessary.

Case Facts: Deals with a paper company that has a big plant on the ocean. BPT standard says that you must
treat the stuff coming out of the pipe and into the ocean. Weyerenhauser argues that this is ridiculous because
the ocean is so big that anything bad they are pumping out is being diluted and has no effect on the water
quality.

Court Holding: Court did not agree with their assertion that the ocean is an unlimited toilet, and that
discharging pollutants into it is harmless. Court further emphasised the idea that this is a UNIFORM
STANDARD that EVERYONE must follow it regardless of your unique situation (is not fair to paper plants
that aren’t on the ocean and must adhere to the discharge treatment CWA requirements).

TAKE AWAY FROM THIS CASE:

• This case emphasis that uniform standards must be adhered to by all regardless of their unique
situations.
• Case is basically a run-down of why we have technology based
• Case looks at how standards developed and applies to industries
• Bigger takeaway: all of this complexity that makes it difficult to stay on top of pollution under the CWA
and for regulators to stay ahead of industry and new emerging chemicals because constantly being
released into marketplace and if they aren’t listed as pollutants under CWA, then aren’t regulating

Pollutant Categories
CWA amendments created a scheme requiring different standards based upon categories of pollutants.
Any industry discharging pollutants must meet BAT standards.
- Toxic Pollutants: hazardous substances
- Nonconventional Pollutants: subject to standards set through ad hoc variances
- Conventional Pollutants: must meet best conventional pollutant control technology
Economically Achievable: industry subject to the standard must be able to achieve it, even if industry
facilities cannot EPA can challenge an industry to improve performance and also reject a technology
standard where it may have serious economic impacts
Variances: Statute allows individual facilities to seek variances form technology based standards on
various bases Variance for Fundamentally different factors.
New Sources: variances only apply to existing sources NOT new sources. New sources must meet
BADT (Best Available Demonstrated Control Technology)
Water Quality Based Standards
- Looking at receiving water or navigational water where point source discharged and figuring out how
much pollution water body can absorb without having negative environmental effects

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Idaho Mining v. Browner
Issue Whether the Environmental Protection Agency (EPA) exceeded its authority under the
Administrative Procedures Act and the Clean Water Act (CWA) when it promulgated a rule
establishing revised water quality standards for (3) water body segments in Northern Idaho
Procedural P alleges that the EPA failed to comply with the requirements of the APA when it promulgated
history revised water quality standards for certain Idaho water in 1997
P alleges new standards will significantly affect the ability of P’s members to discharge mining
pollutants into the affected waters pursuant to the NPDES permits and will negatively impact the
economic viability of the mining industry in Idaho
Holding EPA’s reliance on a rebuttable presumption that fishable uses are attainable and must be
protected by water quality standards
Court found that EPA had acted arbitrarily and capriciously in relying on its presumption
Court granted summary judgment in part of both parties, denied in part for both parties and
remanded the part in question to the EPA for further consideration in accordance with the
findings of the court
EPA reasonably interpreted its regulations as requiring an aquatic life use designation
unless a UAA demonstrates that aquatic life uses are unattainable. Although the regulations
do not explicitly contain the phrase “rebuttable presumption,” the Court finds that it was neither
arbitrary and capricious, an abuse of discretion nor contrary to law for the EPA to construe them
as such
Court agrees with D that Congress has not directly spoken to the precise question at issue
i.e. “what showing should be required for a water body to avoid (or receive) a particular
designated use”
Court finds that the EPAs presumptive use interpretation is a permissible construction of
the statute and is therefore entitled to deference from this court

Environmental Law Changes

Environmental Laws are not set up to deal with these kind of SYSTEMATIC FAILURES
- This is why people have to use the common law and the constitution to charge wrong doers
We must change the environmental law to deal with this stuff so people don’t have to rely on civil suits and
common law.

The Clean Air Act

Pg. 305 – 358
Introduction
- The Clean Air Act was crafted in its modern formulation in 1970 and subsequently amended by
Congress in 1977 and 1990
- The Act serves to regulate the most common, harmful air pollutants called “criteria pollutants”
through the establishment of National Ambient Air Quality Standards (“NAAQS”)
- The Act also has requirements regarding the Prevention of Significant Deterioration in clean air
“attainment areas”, the control of toxic air pollutants, and the limitations placed on newly constructed
sources of air pollution
Basic Statutory Provisions
107: Air Quality Regions
- What makes this complex is that there’s not one approach over the entire State of Michigan.
Each of these regions operates differently and separately and don’t necessarily comply with
geography. There are 200 air regions and each has a separate SIP.
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 -Issue with this is the fact that something that happens in one geographic region may affect the
air quality in another (think Detroit incinerator and Ontario).
108: Air Quality Criteria
- Essentially identifies pollutants that are numerous and diverse (identifies what they are and the
criteria that applies to each of them). This pollutant criteria assessment was something that was
carried over from the initial CAA.
- When the EPA sets up this criteria they are invariable setting up air quality control standards
109- National Air Quality Control Standards (NAQCS)
- Ambient Standard: This is based on outdoor air and how much pollution you would find if
you were standing on the sidewalk and breathing in)
- This standard being set demonstrates the most extreme use of cooperative federalism
S 110: States Must adhere to NAQCS Ambient Standards
- So long as a manufacturing plant existed at the time that S 110 was enacted, the state must
regulate and enforce ambient standards on the pollution emissions from these manufacturing
facilities.
- These plants must adhere to NAAQS standards
S 111: New Sources
- Cheaper to build something right the first time rather than retrofitting it at a later date
S 112: Hazardous
- More focus on particular areas/ venues (look at hazardous pollutant emissions from localized
sites i.e. ozone, lead, etc.)

In Our Backyard: Area Code 48217

- Most polluted zip code in Michigan
- High concentration of industry – coal plants, oil refinery
- Cancer, kidney, liver problems
- High concentrations of pollution making people sick

Clean Air Act and Area Code 48217

- Minimum standards
- NAAQS = national ambient air quality standards
o Ambient air is the air around us
o Standards intended to keep air pollution at appropriate levels to protect human health and
environment
o Doesn’t mean default position is no pollution
o Set at levels that provide buffer for safety – ex take sulfur dioxide, need margin for safety that if
emission limit, we aren’t all going to get sick (requisite buffer for safety)
- SIP = state implementation plan
o Each state has to have approved plan showing compliance with NAAQS
o State can opt out of doing own permitting and EPA would handle permitting and compliance
with NAAQS under CAA

Hierarchy of Authority
CAA → NAAQS → SIP → EGLE

Six criteria pollutants in NAAQS

1. Carbon monoxide
2. Lead
- Air pollution from major industrial facilities
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 - Lead in the ground from gasoline from old cars
- Improved cognitive function because we have less lead exposure
3. Nitrogen oxide
4. Ozone
5. Particulate matter
6. Sulfur dioxide
- Breathing irritation, leads to asthma attacks
- South East Michigan was in nonattainment for sulfur dioxide. This means that not meeting NAAQS for
sulfur dioxide
- If not in attainment start agency has to figure out how to ration down pollution levels to get into
attainment
- In every NAAQ we set numeric limits for 6 criteria pollutants. Keep level below that amount that harms
the environment
- The trigger certain kinds of review
- Can effectively control because we can measure them

PSD = prevention of significant deterioration

- For areas in attainment and you have facility seeking out permitting, insures stay within NAAQS
- PTI = Permit to install
o What facility needs before starting construction
- ROP = renewable operating permit
o Every 5 years
o Similar to CWA 5 year review
o For public, this means have an opportunity to comment on a permit every 5 years

If state regulator doesn’t require it, won’t see companies invest in environmentally friendly tech unless forced to
- Ex: Boeing do no more or no less than what legislation expects of them

Common Law Approaches to Air Pollution Control

- The common law doctrines of nuisance and trespass, along with local smoke abatement ordinances
form the legal foundations on which the modern public law on air pollution control stands
Boomer v Atlantic Cement Co. (1970) (Court of Appeals, NY)
Facts Atlantic Cement Co. (Atlantic) (defendant) is a cement plant in the Hudson River valley. Its
surrounding neighbors (Boomer) (plaintiffs) brought suit alleging that the pollution Atlantic
produces as a by-product of its operation is a nuisance and causes damage to the plaintiffs’
properties. Special term determined that this situation is a nuisance. Temporary damages were
awarded, but an injunction was denied. The plaintiffs appealed to the Appellate Division, which
upheld the special term’s ruling. The plaintiffs petitioned for certiorari to the Court of Appeals of
New York.
Issue/ Are permanent damages appropriate in a situation where the harm caused by a nuisance is
Hold significantly less than the benefit to the party causing the nuisance?
Yes.
Reason Boomer is entitled to an injunction that will be lifted once permanent damages are paid by
Atlantic. A permanent injunction will not be awarded as defendant’s operations provide
significantly more economic benefit to defendant than the damage caused to plaintiffs. Generally,
an injunction is appropriate in cases where a nuisance would otherwise persist after a trial.
However, an injunction in this case would require Atlantic to completely close its operation
unless a cleaner method of producing cement could be found. This would be unfair to Atlantic, as
the problem of pollution is one that is experienced by all cement factories, not only Atlantic.
Since the economic benefit of keeping the factory open is greater than the harm suffered by
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 Boomer, the most equitable solution is to award an injunction that will be lifted once Atlantic
pays permanent damages to Boomer. By awarding an injunction that will be lifted once
permanent damages are paid, Atlantic may keep its business open, and Boomer will be
compensated for the harm he may suffer. Thus, the ruling of special term is reversed and
remanded with instructions to apply the proper standard.
Ratio Permanent damages, rather than an injunction, are appropriate when the damages
resulting from a nuisance are significantly less than the economic benefit derived from the
party causing the harm.
Notes - A significant worry at the trial stage was the importance of the plant to the economy.
- This case was brought as a private nuisance case, but in some cases it may be
advantageous to sue for public nuisance, especially where members of the affected
community arrive after the nuisance was already in place (as most states do not permit
damage recovery under private nuisance where a plaintiff has ‘come to the nuisance’)
** While state common law claims remain available for air pollution, federal common law
claims have been displaced by the Clean Air Act.

National Ambient Air Quality Standards (NAAQS) and State Implementation Plans
(SIPS)

- The Clean Air Act provides for the establishment of several distinct, yet complimentary sets of
requirements for the control of air pollution emissions from stationary and mobile sources
- The statute is regulated by the EPA but also affords a significant regulatory role to the states
- Criteria Pollutants: air pollutants from numerous or diverse sources, that, in the EPA’s judgment, may
reasonably be anticipated to endanger public health or welfare (Clean Air Act §108, 42 U.S.C. §7408)
o Under the Act, the EPA Administrator was initially required to:
1. List such pollutants in the Federal Register, and then, prepare “air quality criteria”
documents that identify effects on public health or welfare, as well as the techniques that are
available to prevent or control their emissions (Clean Air Act §108(a)(2), 42 U.S.C.
§7408(a)(2)).
2. Following the identification of “criteria pollutants” the EPA was compelled to establish
National Ambient Air Quality Standards (NAAQS) to each listed criteria pollutant. (Clean
Air Act §109; 42 U.S.C. §7409) These standards were to reflect the EPA’s determination of
the limit on ambient air pollution that is necessary to protect the public health and public
welfare. Health-based standards in the act are referred to as “primary standards” and
welfare-protective NAAQS are known as “secondary standards”
➢ The Clean Air Act directs the EPA to set all primary standards with an “Adequate
Margin of Safety”. This language has been interpreted by the Supreme Court to mean
“as not permitting the Agency to consider implementation costs when it establishes
such standards”
3. Once NAAQS are established for criteria pollutants, each individual state is required to
identify and designate those air quality control regions within the state that do and do not
meet the standards, as well as those that cannot be classified. (Clean Air Act §110; 42 U.S.C.
§7410).
4. Each of the states is then responsible for adopting a State Implementation Plan (SIPS) that
contains enforceable limitations that will assure the implementation and maintenance of
NAAQS in all air quality control regions throughout the state.
5. SIPS must be prepared following a “satisfactory process of consultation” with general
purpose local governments and designated organizations of elected local officials. They must
meet a detailed list of requirements set forth in the statute, as well as be the subject of a
public hearing prior to the adoption (Clean Air Act §110(a)(2); 42 U.S.C. §7410(a)(2))
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 6. Once a SIP has been adopted, it must be submitted to the EPA for whole or partial approval,
conditional approval, or disapproval. Where a state fails to adopt a plan, or the EPA
determines that a state’s plan is inconsistent with the Act’s mandates, the EPA is authorized
to adopt a plan for the state, commonly known as the Federal Implementation Plan (FIP).
After EPA approval- a SIP or FIP is legally binding under both federal and state law (Clean
Air Act §110(a)(1), 110(c)(1) and 304; 42 U.S.C. §7410(a)(1), 7410(c)(1) and 7604).

- When states prepare SIPS, they must require stationary sources of air pollution in non-attainment
areas to adhere to standards established by the EPA.
- The states must require the already-existing stationary sources in these dirty air areas to apply
“reasonably available control technology” (or “RACT”) (Clean Air Act §172(c)(1))
- This requirement is generally defined by the states in their SIPS through the application of “Control
Techniques Guidelines” (CTGs)
What must a SIP contain?
Union Electric Co. v EPA (1976)
Facts The 1970 amendments to the Clean Air Act (CAA) required each State to formulate, subject to
approval by the Environmental Protection Agency (EPA) (defendant), a state implementation plan
(SIP) designed to achieve national ambient air quality standards. A SIP could be challenged in
federal court within 30 days of approval, or after 30 days if new information was learned by the
petitioner. The State of Missouri submitted its plan to the EPA for approval of a reduction in sulfur
dioxide emissions around the St. Louis metropolitan area. The EPA Administrator approved
Missouri’s SIP. Thereafter, Union Electric Company (UEC) (plaintiff), St. Louis’ largest emitter of
sulfur dioxide, challenged the State’s SIP in federal court after the 30 days period had lapsed. UEC
argued that it could not comply with the State’s SIP because its sulfur dioxide-reducing emissions
requirements were economically and technologically impossible. The court of appeals dismissed
UEC’s petition for lack of jurisdiction. The U.S. Supreme Court granted certiorari to review.
Issue/ May a claim of economic or technological infeasibility be considered upon petition for review
Hold based on new information and filed more than 30 days after approval of a state implementation
plan pursuant to § 307(b)(1) of the Clean Air Act?
No.
Reason Rather than filing a petition for review of Missouri’s SIP in federal court within the allotted 30-day
timeframe, UEC instead chose to apply to various state agencies for variances from the sulfur
dioxide emissions requirements. It was only after UEC was informed by the EPA Administrator
that it was out of compliance with Missouri’s SIP did it seek review in the court of appeals.
Pursuant to § 307(b)(1) of the CAA, a petition for review of a SIP may be filed in federal court
more than the required 30 days if the petition is “based solely on grounds arising after such 30th
day.” Here, UEC’s only claim is that it is economically and technologically impossible to comply
with the emissions requirements. UEC possessed this information prior to the expiration of the
30th day. The EPA Administrator has no power under the CAA to reject a SIP on the ground that it
is impossible to comply with. In fact, so long as the state’s SIP meets national air quality standards
pursuant to the CAA, the EPA must approve the plan. If a state goes beyond the requirements of
the federal statute to require particular air quality standards by a certain date, the CAA does not
provide a basis for the EPA Administrator to reject such a plan. That is not to say that claims of
economic or technological infeasibility cannot be raised in situations where consideration of such
claims will not substantially interfere with the primary congressional purpose of prompt attainment
of the national air quality standards. However, that was not the case here. The judgment of the
court of appeals is affirmed.
Ratio A claim of economic or technological infeasibility may not be considered upon petition for
review based on new information and filed more than 30 days after approval of a state
implementation plan pursuant to § 307(b)(1) of the Clean Air Act.
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Notes - This case highlights the “technology forcing” nature of the Clean Air Act, a feature it
shares with other statutes from this era of environmental legislation
*practice problem on pg. 317
Setting National Ambient Air Quality Standards
Whitman v American Trucking Association, Inc. (2001)
Facts Section 109(a) of the Clean Air Act (CAA) requires the Administrator of the Environmental
Protection Agency (EPA) (defendant) to promulgate National Ambient Air Quality
Standards (NAAQS) for certain air pollutants. Section 109(b)(1) of the CAA directs the
EPA to set ambient air quality standards, the attainment and maintenance of which in the
judgment of the Administrator are necessary to protect the public health. In July 1997, the
Administrator revised the NAAQS for particulate matter and ozone. The American Trucking
Associations, Inc. and others (plaintiffs) challenged the new standard in federal court. The
U.S. Court of Appeals for the District of Columbia found that § 109(b)(1) of the CAA
delegated legislative power to the Administrator in contravention of Article I, § 1 of the
United States Constitution because the EPA had interpreted the CAA to provide no
“intelligible principle” to guide the agency’s exercise of authority. The appellate court
further held that Whitman is prohibited from considering the costs of implementation in
setting NAAQS under the CAA. The appellate court remanded the NAAQS to the EPA. The
case then came before the United States Supreme Court.
Issue/Holding (1) Does § 109(b)(1) of the CAA delegate legislative power to the Administrator of the
EPA? and (2) Under § 109 of the Clean Air Act, may the EPA Administrator consider
implementation costs in setting national ambient air quality standards?
No.
Reasoning Scalia: In a delegation challenge, the constitutional question is whether the statute has
delegated legislative power to the agency. When Congress confers decision making
authority to agencies, it must set forth in a legislative act an intelligible principle to which
the person or body authorized to act is directed to conform. An agency may not cure an
unlawful delegation of legislative power by adopting a limited construction of the statute
because doing so is itself an exercise of unlawful legislative authority. The degree of agency
discretion that is acceptable depends upon the scope of the power that Congress has
conferred. Here, the text of § 109(b)(1) of the CAA places limits on the EPA’s discretion
that are similar to those that this Court has approved in earlier cases. Additionally, the scope
of discretion that this statutory provision allows for falls within the outer limits of this
Court’s nondelegation cases. Accordingly, the lower court’s decision is reversed, and the
case is remanded for reinterpretation that would avoid a supposed delegation of legislative
power.
(2) No. Section 109(b)(1) of the CAA instructs the EPA to set primary ambient air quality
standards, NAAQS, “the attainment and maintenance of which are requisite to protect the
public health with an adequate margin of safety.” However, the appellate court in Lead
Industries Assn., Inc. v. EPA, 647 F.2d 1130 (D.C.Cir.1980), held that economic
considerations may play no role in the promulgation of NAAQS under the CAA. Instead, the
EPA identifies the maximum airborne concentration of a pollutant that the public health can
tolerate, decrease that concentration to provide an “adequate” margin of safety, and then set
the standard at that level. Plaintiffs contend that economic costs of implementing stringent
NAAQS can cause detrimental effects on the public health. Although plaintiffs’ claims may
have some validity, the plain and unambiguous text of § 109(b)(1) make clear that cost
considerations do not enter the decision-making process for establishment of NAAQS. The
judgment of the court of appeals is affirmed on that point.
Ratio When Congress confers decision making authority to agencies, it must set forth in a
legislative act an intelligible principle to which the person or body authorized to act is
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 directed to conform; and (2) Under § 109 of the Clean Air Act, the EPA Administrator
may not consider implementation costs in setting national ambient air quality
standards.
Notes REUQIRING EPA TO WAIT TILL CONCSLUVILY DEMONSTRATE IMPLICATES
HEALTH… NATURE OF EPA ADMIN STATUTORY RESPONSIBILITIES

Lead Industries Association, Inc. v. EPA

Ratio The Clean Air Act authorizes the Administrator of the Environmental Protection Agency to
allow for an adequate margin of safety when setting air quality standards that impact the public
health and welfare.
Facts The Lead Industries Association, Inc., a non-profit trade association representing 78 members
who producer and commercial consumers of lead, along with St. Joe Minerals Corporation
(plaintiffs) filed a petition in federal court against the Environmental Protection Agency (EPA)
(defendant), challenging the agency’s air quality regulations for lead under §§ 108 and 109 of
the Clean Air Act (CAA). Plaintiffs claimed the EPA Administrator exceeded his authority
under the CAA by setting air quality standards for lead that went well beyond what was
contemplated by the statute without considering the economic impact on the industry the
regulations would have.
Issue Does the Clean Air Act authorize the Administrator of the Environmental Protection Agency to
allow for an adequate margin of safety when setting air quality standards that impact the public
health and welfare?
Holding Yes
Reasoning Plaintiffs first argue that the EPA Administrator exceeded his authority under the CAA by
promulgating air quality standards for lead that are more stringent than required by the statute.
Plaintiffs contend that the CAA only authorizes the Administrator to set air quality standards
that are known to be clearly harmful to the public health. However, there is no basis in the
language of the CAA to support plaintiffs’ claims. Instead, Congress specifically directed the
EPA Administrator in the statute to allow an adequate margin of safety to protect against likely
harmful effects before they have been uncovered by research or verified through scientific
methods. It is illogical to require the EPA to take a “wait and see” approach to see which
airborne pollutants “clearly harm” the public health before the agency takes action. Additionally,
Congress has acknowledged that more often than not, the “margins of safety” that are
incorporated into air quality standards are actually very modest or even nonexistent, as new
information reveals adverse health effects at pollution levels once thought to be harmless.
Congress authorized the Administrator to use his judgment in setting air quality standards so that
he could act in the face of uncertainty and err on the side of caution in order to protect the public
health. Plaintiffs’ petition is denied.

EPA v EME Homer Generation (2014)

Facts The Clean Air Act creates a federal-state partnership that aims to control air pollution in the
United States. The Act requires the Environmental Protection Agency (EPA) to both establish air
quality standards and gives the states significant freedom to implement plans in order to meet
those standards. Among the problems the Act sought to prevent was the possible spread of air
pollution from "upwind" states to "downwind" states.

In 2011, the EPA created the Transport Rule, a rule which sets emission reduction standards for
28 "upwind" states based on the air quality standards in "downwind" states. Various states, local
governments, industry groups, and labor organizations brought suit in the U.S. Court of Appeals
for the District of Columbia Circuit and argued that the Transport Rule created federal standards
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 with no deference to the states, which violated federal law. The court held that the Transport Rule
violated federal law because the Clean Air Act allows states to implement their own plans to curb
air pollution.
Issue/Hold 1. Did the U.S. Court of Appeals for the District of Columbia Circuit have jurisdiction to hear
this case? Yes.

2. Did the Court of Appeals correctly interpret the statutory language in the Clean Air Act when
it reviewed the EPA's actions? No.

3. Is an upwind state free from any obligations under the Transport Rule until the EPA has
quantified that state's contribution to downwind states' air pollution? No.
Reason Ginsburg: Justice Ruth Bader Ginsburg delivered the opinion for the 6-2 majority. The Court
held that the Clean Air Act supports the EPA's contention that if a state implementation plan
(SIP) is determined to be insufficient, then the EPA has an absolute mandate to create and
enforce a federal implementation plan (FIP) at any point within the next two years unless the
state revises the SIP in question. Nothing in the Act required the EPA to provide states with
specific metrics regarding upwind states' contributions to the pollution of downwind states,
especially since this schedule could prolong the process by instituting a delay that Congress did
not order in the Act. The Court held that the Transport Rule was necessary for the EPA to fulfill
its statutory requirement to balance the possibility of under-and over-control of emissions
standards. The Court also held that there was no jurisdictional bar to the Court of Appeals and
then the Supreme Court hearing the case.
Ratio The Clean Air Act does not require the EPA to provide specific metrics to states before states are
requires to submit a state implementation plan demonstrating compliance with the national
ambient air quality standards
Massachusetts v EPA (2007)
Facts After the Environmental Protection Agency (EPA) (defendant) declined several private petitions to
issue regulations governing greenhouse gas emissions from new automobiles, a group of states
(including Massachusetts) (plaintiffs) brought suit against the Environmental Protection Agency
(EPA) (defendant) seeking declaratory relief on the issue of whether the EPA had the statutory
authority to regulate greenhouse gas emissions under the Clean Air Act; and if so, whether its
stated reasons for refusing to do so were consistent with the Clean Air Act. The state of
Massachusetts alleged inter alia that the EPA’s failure to regulate these emissions would ultimately
result in loss of its coastal lands due to increased global warming from the emissions. The EPA
claimed that the Clean Air Act (CAA) did not authorize the agency to issue regulations to address
global climate change and, moreover, that Congress had not yet finished investigating the scientific
merits of climate change. The EPA further argued that it was not wise to regulate such emissions at
that time. The Court of Appeals for the District of Columbia Circuit agreed and held in favor of the
EPA. Plaintiffs appealed. The U.S. Supreme Court granted certiorari to review.
Issue/ (1) Does the Clean Air Act provide the Environmental Protection Agency with the statutory
Hold authority to regulate new motor vehicle emissions greenhouse gases as an “air pollutant”? (2) For
standing to be appropriate, must an actual case or controversy be present, characterized by a truly
adversarial relationship? (3) Is an agency’s refusal to promulgate rules subject to judicial review?
Yes.
Reason Stevens: Section 202(a)(1) of the Clean Air Act clearly provides that the EPA Administrator shall
promulgate standards applicable to the emission of any air pollutant from any class or classes of
new motor vehicles or new motor vehicle engines that, in the Administrator’s judgment, may
reasonably endanger the public health or welfare. The EPA argues that carbon dioxide, the basis of
greenhouse gas emissions, is not an “air pollutant” within the meaning of the CAA. However, the
definition of “air pollutant” is broad enough to encompass any air pollutant, including “any
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 physical, chemical…substance or matter which is emitted into or otherwise enters the ambient
air….” 42 U.S.C. § 7602(g). The EPA further claims it should not be required to issue regulations
addressing new car emissions standards because Congress has failed to issue a clear directive to do
so. Merely because Congress continues to review the plethora of scientific literature surrounding
global climate change does not negate the clear statutory authority provided to the EPA to regulate
new vehicle greenhouse gas emissions. Additionally, the EPA’s reliance on FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120 (2000), is similarly misplaced. In FDA, the Court held
that tobacco products are not “drugs” or “devices” subject to regulation under the Food, Drug, and
Cosmetic Act. Congress never intended tobacco to be classified as a drug or device subject to
regulation by the FDA. Conversely, Congress afforded the EPA with clear statutory authority to
curtail the emission of substances that may cause harm to the public. Finally, the EPA’s claim that
it is not wise to issue regulations “at this time” is unavailing. The agency has failed to offer any
reason or explanation regarding why it is unwise to regulate greenhouse gas emissions. (2) Yes.
For standing to be appropriate, an actual case or controversy must be present, which is
characterized by a truly adversarial relationship. A plaintiff can show the existence of a truly
adversarial relationship by demonstrating that he has suffered a concrete and particularized injury
that is either actual or imminent; that the injury is fairly traceable to the defendant; and that it is
likely that a favorable decision would redress that injury. In a class action suit, only one member of
a class of petitioners must meet the required elements of standing to sufficiently demonstrate an
adversarial relationship. Massachusetts adequately met these requirements and standing is thus
appropriate. Although it is unusual for a sovereign state such as Massachusetts to have standing to
bring suit in federal court, Congress made no other provision for states to sue the EPA for failing to
regulate greenhouse gas emissions according to its Clean Air Act obligations. Massachusetts
already showed the existence of a concrete and particularized injury because it is well-documented
that exposure to greenhouse gas emissions would further exacerbate the problem of global
warming and would ultimately cause Massachusetts to lose coastal lands. Additionally, there is
sufficient causation between the EPA’s failure to regulate greenhouse gas emissions and this
injury, as the lack of regulations contribute to the problem of environmental damage from
greenhouse gases. Finally, although the impact would be small in light of the global problem of
greenhouse gas emissions, the EPA’s regulation of domestic emissions would, in fact, have an
impact on decreasing the amount of emissions in the environment and thus reducing the amount of
environmental damage to Massachusetts. On the merits, the EPA does have the authority under the
statute to regulate greenhouse gases. If the EPA refuses to do so, the EPA must state the reasons
for its refusal. (3) Yes. Although an agency’s refusal to initiate rulemaking is subject to judicial
review, such review is extremely limited and highly deferential. A court may reverse an agency
action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law. Once the EPA responds to a rulemaking petition related to the emission of pollutants, its
reasons for action or inaction must conform to the Clean Air Act. Under the Clean Air Act, the
EPA may only avoid taking further action if it determines that greenhouse gases do not contribute
to climate change or if it provides some reasonable explanation as to why it cannot or will not
exercise its discretion to determine if they do. Here, the EPA refused to comply with the clear
statutory demands of the Clean Air Act. In failing to offer a reasoned explanation for its refusal to
decide whether greenhouse gases cause or contribute to climate change, the EPA acted in a manner
that was arbitrary, capricious, or otherwise not in accordance with law. The judgment of the court
of appeals is reversed and the matter is remanded for further proceedings consistent with the
opinion.
Ratio The Clean Air Act provides the Environmental Protection Agency with the statutory
authority to regulate new motor vehicle emissions greenhouse gases as an “air pollutant.” (2)
For standing to be appropriate, an actual case or controversy must be present, which is
characterized by a truly adversarial relationship. (3) Although an agency’s refusal to initiate

78
 rulemaking is subject to judicial review, such review is extremely limited and highly
deferential.

Hazardous Pollutant Standards

The Clean Air Act amendments of 1990 established a new approach to the regulation of Hazardous Air
Pollutants (“HAPS”) that are not criteria pollutants. These Amendments were brought on due to congressional
concern that these specific pollutants were the cause of cancer, birth defects and other seriously harmful health
hazards (even in small concentrations).
- HAP controls are directly enforced by the EPA (unlike criteria pollutants for which states implement
their own implementation programs to attain EPA-set NAAQS).
- The legislation includes a list of 187 specific toxic substances that are presumed to require stringent
control. The EPA is required to regularly review this list and add to it if a pollutant is found to present an
adverse effect on human health or the environment.
- Any person is also allowed to petition the agency for the addition or deletion of particular hazardous
substances.
- The statute requires the EPA to publish a list of all categories and subcategories of “major sources” of
the toxic substances that were specifically identified in the statute
o “Major Sources” are defined as sources that are within a contiguous area, under common
control and that emit (or have the potential to emit) at least 10 tons per year of hazardous
pollutants or 25 tons per year or more of any combination of hazardous air pollutants.
- The statute also requires the EPA to list all categories and subcategories of area sources of hazardous
substances
o “Area Sources” include 90% of the area source emissions of the 30 hazardous area pollutants
presenting the greatest threat to the public health in urban areas – are subject to emission
standards less stringent than the standards that apply to major sources
- Once the EPA has listed the categories/subcategories of toxic pollutants, the agency is responsible for
establishing technology-based emissions standards for such category or subcategory, with respect to
both new and existing sources.
o The standards are to be based upon the maximum achievable control technology (MACT) for
major sources
- With respect to the new sources, they must reflect the emission control that is achieved in practice by the
best controlled similar sources
- When a new major source of hazardous pollutants is modifies, constructed, or reconstructed before EPA
has issued a relevant MACT standard, the permitting authority for the state is the in which the source is
located must determine MACT for the facility on a case-by-case basis
- The EPA may choose to apply MACT to all or may allow area sources to use “generally available
control technology” (GACT)
- The Act has established a 10 year timeline for the EPA to establish a MACT standard
- Once a MACT standard has been established with respect to a new source, no person or entity may
operate such a source in violation of that standard. For an existing source, the EPA establishes a MACT
standard compliance schedule
- Where an agency has failed to promulgate a MACT standard in a timely fashion (with respect to
hazardous air pollutants subject to regulation) the EPA or state must determine MACT or its equivalent
on a case-by-case basis when it issues a permit for the emission of the pollutant in question
- MACT standards are at the crux of the Clean Air Act’s regulatory scheme for controlling
hazardous air pollutants.
- The legislation also requires that the EPA report to Congress within 6 years on any public health risks
that will remain once MACT standards have been implemented
- The Act also permits each state to develop a program and submit it to the EPA for approval
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National Mining Association v United States Environmental Protection Agency D.C.
Circuit Court, 1995
Facts In 1990, Congress amended §112 of the Clean Air Act, which regulates emissions of hazardous air
pollutants. Congress moved from health-based regulation of hazardous air pollutants to a detailed,
technology-based regulatory scheme. Under the amendments, “major sources” of HAPs are
potentially subject to more strict regulatory control than “area sources” (e.g. in order to get permits
they have to comply with MACT which is a tougher standard).
The amendments included §112(a)(1)’s definition of a “major source”:
Means any stationary sources located within a contiguous area and under common control that
emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of
any hazardous air pollutants or 25 tons per year or more of any combination of hazardous air
pollutants.

In the preamble of the Act, the EPA made clear that in determining whether a source is major,
emissions from all sources of hazardous air pollutants within a plant site must be aggregated so long
as the sources are geographically adjacent and under common control.

The petitioners were Grand Electric Company and four trade associations (including the National
Mining Association). They argued that the EPA could not, in determining whether a site is a major
source, include emissions from all facilities on a contiguous plant site under common control. The
petitioners asserted that for purposes of major source determinations, EPA may aggregate emissions
from different facilities on a contiguous plant site under common control only when the facilities fall
within a similar industrial classification. (Their theory is that under certain site sources, they should
have to comply with the major source requirements and some areas of the plant would have to
comply with area source).

The Petitioners also argued that the EPA’s definition of considering controls (in §112(a)(1)-
defining a major source) was a restrictive decision and disregards emissions limitations imposed by
state or local regulations not deemed ‘federally enforceable’.
Issue/ (1) Was the EPA’s definition of ‘major source’ incorrect because it did not distinguish between
Hold different types of sources that may be present on a contiguous plant site?
No, the EPA’s definition is consistent with the provision and compelled by statutory language.

(2) Was the EPA’s definition of controls as ‘federally enforceable’ in §112(a)(1) incorrect?
No.
Reason (1) The Court says that Section 112(a)(1) says nothing about combining emissions only from sources
within the same source categories or SIC codes.

(2) The Court says that the EPA’s definition of controls as ‘federally enforceable’ is correct. This is
because state and local regulatory approaches can be deemed ‘federally enforceable’ (so it is taking
into account those other levels).
Ratio EPA’s definition of “major source” set forth in the preamble to the final rule, is faithful to the
language of §112(a)(1) and reasonable. More than one source category on the EPA’s source
category list may be represented within a plant that is a major source of HAPs (as is the case with a
large chemical manufacturing complex).
Notes The determination in this case that the EPA may determine whether a source is major based on its
overall emissions, regardless of how many source categories it falls into is a practical and sensible
approach.

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Michigan v EPA Supreme Court, 2015
Facts The Clean Air Act directed the Environmental Protection Agency (EPA)
(defendant) to consider promulgating regulations that would decrease hazardous
air pollutants emitted by power plants. The act stated that the EPA should
promulgate these regulations if the EPA found it “appropriate and necessary.”
The EPA promulgated regulations decreasing emissions. The EPA declined to
consider costs as a factor when determining whether to issue the regulations. The
EPA later did consider cost in determining the extent of its regulation. The
regulations cost power plants approximately $10 billion per year. The regulations
were challenged in the United States Court of Appeals for the D.C. Circuit. The
court of appeals upheld the regulations. The United States Supreme Court
granted certiorari.
Issue/Hold Is agency action reasonable under Chevron only if it rests on a consideration of
all relevant factors?
Yes.
Reason (Scalia): Agency action is reasonable under Chevron only if it rests on a
consideration of all relevant factors. Chevron states that an agency’s
interpretation of an ambiguous statute must be reasonable. Agency action is
unreasonable if it fails to consider factors relevant to the action. In this case, the
EPA’s interpretation of “appropriate and necessary” was unreasonable. The EPA
thus exceeded its authority under the Act. The phrase “appropriate and
necessary” is broad and ambiguous. The EPA thus has Chevron authority to
interpret the phrase, considering all relevant factors. Contrary to the EPA’s
assertion, the phrase “appropriate and necessary” in the context of whether to
regulate necessarily encompasses an analysis of cost. A regulation that would
impose minor benefits at enormous cost would be inappropriate under that
standard. Cost cannot be ignored because it is a relevant factor in determining
whether any regulation at all is appropriate and necessary. Because the EPA
did not consider cost in the promulgation of the initial regulation, the
regulation cannot stand. The judgment of the court of appeals is reversed, and
the case is remanded.

Concurrence (Thomas): In Chevron, the Court held that if an agency administers

a statute that is ambiguous or silent on an issue, then a court will defer to a
reasonable statutory interpretation from the agency on that issue.
This Chevron deference raises serious questions about constitutional
separation of powers. First, Chevron allows an agency to infer what Congress
would have said if Congress had worded the statute less ambiguously or with
direct reference to the issue in question. This empowers an agency in the
executive branch of government to supplant the role of the legislative branch. It
is Congress's role, not an agency's, to define the legislative intent that underlies a
statute. Second, Chevron allows the executive branch, through the agency, to
supplant the role of the judicial branch. Since Marbury v. Madison, 5 U.S.
(Cranch 1) 137 (1803), it has been for the courts, not agencies, to interpret the
meaning of the legislative branch's enactments and infer legislative intent from
statutory silence and ambiguity. However, in this case, even under the overly
broad Chevron rule, the EPA exceeded its authority. This shows
how Chevron emboldens executive-branch agencies to circumvent the roles of
the legislative and judicial branches of government.

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 Dissent (Kagan): The majority incorrectly discounts the EPA’s extensive
consideration of cost in determining the regulation’s scope. The EPA’s finding
that it was appropriate to consider cost at a later stage in the regulatory process
was reasonable. The majority improperly micromanages the EPA’s decision-
making process. Further, when the EPA did consider cost at the later state of the
process, it determined that the benefits of the regulations outweighed the costs.
The regulation should be upheld.
Ratio Agency action is reasonable under Chevron only if it rests on a consideration
of all relevant factors.
Notes In this case, the Court found ambiguity in the statute, so this case was decided on
Chevron step 2, meaning that EPA’s interpretation of its discretion is not
reasonable. The majority here finds fault with when and how the EPA considers
costs in this analysis – arguably this can be seen as a scaling back of Chevron
deference.

New Source Performance Standards

Stationary sources of air pollutants are potentially subject to several sets of emissions standards:
1. New Source Performance Standards (NSPS)
2. New Source Review (NSR) Requirements: major sources of criteria pollutants in non-attainment must
satisfy this.
3. Prevention of Significant Deterioration Standards (PSD): air pollution sources in attainment areas are
obligated to comply with these.
In establishing NSPS, the EPA was required to comply with the six year time table set forth in the 1990 Clean
Air Act amendments.
➢ The EPA was authorized to distinguish among classes, types, and sizes within categories of new
sources, for standard-setting purposes.
➢ The agency carried this out by publishing in the Federal Register, specific standards that apply to
certain stationary source categories (e.g. pulp and paper mills, electroplating facilities, municipal waste
incinerators, etc.)

New and modified sources of criteria pollutants in non-attainment areas are subject to another more stringent
set of limitations, referred to as “new source review.”
➢ They must satisfy the technology based standards that reflect the lowest achievable emission rate
(LAER)
o This is defined in the Act as the most stringent achievable emission limit contained in the
implementation plan of any state for the class or category of source in question, or any more
stringent emission limitation that is achieved in practice for that source class or category

New major stationary sources in non-attainment areas must also comply with “emission offset” requirements.
These are legally enforceable reductions in emissions from other sources in the same nonattainment area, above
and beyond any reductions that would otherwise be mandated for those other sources.
➢ Owners and operators of proposed new or modified sources in nonattainment areas must demonstrate
that all major stationary sources that they own or operate within the same state are in compliance, or on
a schedule for compliance with all applicable Clean Air Act emission limitations.

ASARCO, Inc. v EPA (F. 2d 319) D.C. Circuit 1978

Facts ASARCO Incorporated and a few other companies as well as the Sierra Club
challenged regulations issued by the EPA. The companies challenged provisions

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 modified previous regulations implementing §111 of the Clean Air Act which
mandates national emission standards for new stationary sources of air pollution by
introducing a limited form of what the parties call the “bubble concept.”
Under the Act, NSPS applied to ‘new sources’- and a new source was defined as a
stationary source, the construction or modification of which.
The “bubble concept” is based on defining a statutory source as a combination of
facilities, such as an entire plant and applying the NSPSs only when the new plant is
constructed or when an existing plant is physically or operationally changed in such
a way that net emissions of any pollutant form the entire plant increase.
Sierra Club argued against and said that this definition was inconsistent with the
plain language of Section 111.
Issue/ Was the EPA’s implementation of the ‘bubble concept’ correct?
Hold No, it is inconsistent with the purpose of the Act.
Reason The Court quotes the goal of the Clean Air Act and says that it is to enhance air
quality and not merely maintain it. The Court says that by applying the bubble
concept they’d be going against the purpose of the Act because it postpones the time
when the best technology would be employed and at best, maintains the present
level of emissions.
Ratio The Clean Air Act defines “source” as an individual facility, as distinguished from a
combination of facilities such as a plant and that the bubble concept must therefore
be rejected.
Notes Years after this decision under Reagan they switched to the bubble approach.
Environmental Defense v Duke Energy Corporation (2007)
Facts In the 1970s, Congress amended the Clean Air Act (CAA) to include two air
pollution control mechanisms: New Source Performance Standards (NSPS) and
Prevention of Significant Deterioration (PSD) provisions. Environmental Protection
Agency (EPA) regulations implementing NSPS provided that any physical or
operational change to an existing facility that resulted in an increased emissions rate
was deemed to be a “modification” and required the facility to use the best
technology in making the modifications. Another part of the CAA amendments
required a PSD permit to be issued by the EPA before a major emitting facility
could be constructed or modified as defined in the NSPS provisions. Duke Energy
Corporation (Duke) (defendant) updated its coal-fired electric generating units at
eight plants to extend the overall life of the plants but also to allow the plants to run
longer each day. Environmental Defense and others (plaintiffs) filed suit in federal
court against Duke alleging it violated the CAA by not obtaining permits for its
“modifications” as required by the CAA. Duke argued that its modifications did not
result in increased hourly emissions and, thus, it was not subject to the PSD
permitting requirements. The district court agreed and granted summary judgment to
Duke. The court of appeals affirmed. Plaintiffs appealed. The U.S. Supreme Court
granted certiorari to review.
Issue/ In promulgating regulations pursuant to the Clean Air Act, may the Environmental
Hold Protection Agency interpret a single term has having two different definitions or
meanings? Yes.
Reason Based on the Court’s previous ruling, the court of appeals concluded that the term
“modification” had to be defined the same in the NSPS provisions as in the PSD
provisions. See Rowan Companies, Inc. v. United States, 452 U.S. 247 (1981).
However, principles of statutory construction are not so rigid. There can be some
variation in the meanings of the same term within a statute depending on the
context. There is no “effectively irrebuttable” presumption that the same term in
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 different provisions of the same statute must be interpreted identically. Here, while
it is true that the CAA instructs the reader to refer back to the NSPS provisions
regarding the term “modification,” there is nothing in the text or legislative history
to suggest that Congress intended the terms to be defined identically. Absent any
iron rule to ignore the reasons for regulating PSD and NSPS “modifications”
differently, EPA’s statutory must only be reasonable. Additionally, the PSD
regulations do not define a “major modification” in terms of an increase in the
“hourly emissions rate.” In fact, PSD regulations specify no rate at all, hourly or
annually. Instead, the regulations merely require a physical or operational change
that would result in a significant net emissions increase of any pollutant. The
judgment of the court of appeals is vacated and the matter is remanded for further
proceedings consistent with the opinion.
Ratio In promulgating regulations pursuant to the Clean Air Act, the Environmental
Protection Agency may interpret a single term has having two different
definitions or meanings when Congress has not required a single meaning to
apply to the term.
Notes
Citizens Against the Refinery’s Effects, Inc. (“CARE”) v EPA – 4th Circuit, 1981
Facts CARE appealed the final ruling of an Administrator of the EPA who approved
Virginia’s SIP for reducing hydrocarbon pollutants. The plan required the Virginia
Highway Dept. to decrease usage of a certain type of asphalt, thereby reducing
hydrocarbon pollution by more than enough to offset expected pollution from the
Hampton Road Energy Company’s (HREC) proposed refinery.
In order to encourage states to fulfil the NAAQS, the EPA proposed that states
develop ‘offset programs’ (SIPs) to allow construction of new pollution sources
where accompanied by a corresponding reduction in an existing pollution source.
The offset program has two requirements: (1) a base time line (usually the first year
of the SIP) and (2) the new source must adopt the Lowest Achievable Emissions
Rate (LAER) using the most modern technology available in the industry.
HREC proposed to build a petroleum refinery, the Virginia Board proposed to offset
the plan by reducing the amount of cutback asphalt used for road paving in three
highway districts.
Issue/ CARE raised four issues with the state plan:
Hold (1) the geographic area used as the base for the offset was arbitrarily determined and
that it violates the regulations
(2) CARE contends that the EPA should have used 1975 as opposed to 1977 as the
base year to compare usage of cutback asphalt
(3) CARE insists that the offset plan should have been disapproved since the state is
voluntarily reducing usage of cutback asphalt anyway
(4) CARE questions the approval of the plan without definite LAER
Holding: Court rejects the challenges to the SIP and finds no evidence of arbitrary or
capricious action in approaching the plan.
Reason The ruling permits a broad area to be used as the offset basis.
Ratio Congress intended that the states and EPA be given flexibility in designing and
implementing SIPs. This flexibility allows the states to make reasoned choices as to
which areas may be used to offset new pollution and how the plan is to be
implemented. Further, because the SIP was designed to encourage economic growth
this will be a factor in its validity.

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Resource Conservation and Recovery Act (RCRA)
Overview of RCRA (Resource Conservation and Recovery Act)
- Be familiar with terms and how statutes operate
- RCRA trying to address landfill overfill and hazardous waste harming public health and environment
- Before RCRA, widespread dumping and landfill issues, different degrees of state regulation
- RCRA regulates and tracks lifecycle of hazardous waste from cradle (when becomes waste) to grave
(ultimate disposal)
- RCRA for present and future waste disposal
- SURPLA (for past)
- Goal of RCRA is to prevent future contaminated sites
- Much cheaper to regulate disposal of waste on front end then clean up on back end
- RCRA covers all solid waste, medical waste. But law focuses on hazardous waste
- Congress wanted EPA to deal with problem, which didn’t happen because funding issues Carver
administration and during Regan admin
- Solid Waste Disposal Act amended in 1976 became RCRA
- After CWA and CAA – gap for hazardous waste
- Regulating pollution from smoke stacks under CAA but weren’t dealing with hazardous waste problem
from other areas, weren’t regulating how we dispose of pollution captured under CWA or CAA
o If have factory controlling point source by pulling pollution out of the water, once the waste
pulls out of the water what do they do with the waste?
- Land Ban – cannot just dispose of waste without a permit, a ban on disposal on land of any waste
included in amendments

Cradle to Grave Regulation of hazardous wastes: an overview of RCRA

1. Generators
- Generating waste
2. Transporters
- Trucks, trains, haulers, people taking stuff from generator to disposal
- Important step because want to make sure covered
- In instance of spill or some type of accident, they would be the first responders
- Key issue here – track waste from generation to ultimate disposal
- Uniform hazardous waste manifest – key paper trail for #1-#3
3. Treatment, storage, disposal facilities
- Have to show financial responsibility, show on the up and up and that the books are not cooked

A lot of things we dispose of that are hazardous waste

- Batteries – corrode over time
- Cleaning products
- Animal waste
- Used motor oil
- Inert compounds – Teflon, forever chemical (PFOS)
- Electronics
- Old clothes
- Household waste diff from hazardous waste
- Food waste
- Yard waste
- Packaging

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How we define waste
- Solid waste – detailed statutory definition
- Hazardous waste
o Sec 69.03(5) “solid waste or combo which because of quantity or infectious characteristics may
cause or contribute to increase in mortality or irreversible illness
o EPA promulgate regulations – toxicity, persistent in environment
- Bioaccumulation – ex: mercury from fish accumulates in our body
- Flammability
- Corrosiveness

Four ways waste becomes hazardous

1. Characteristic approach
- Looking at things like ignitability, corrosivity, toxicity, etc.
2. Specific list
- Nuclear waste, waste from inorganic chemical industry (stuff coming out of facility), other things
discarded
3. Mixture
- Any mixture of listed waste with another solid waste is deemed to be hazardous
- Mix hazardous waste with any other type of waste = mixture rule
4. Derived from
- Any waste derived from treatment, storage or disposal of a listed waste
- Ex: Waste collect with scrubber deemed hazardous because treating disposed hazardous waste

Exemptions in statute
- Nonhazardous waste not regulated by federal govt
o Disposal of household waste largely regulated in Michigan
o Municipal solid waste

RCRA Recap
- Today waste
- Track it to see where coming from and where going
- Hazardous waste own category – (4) has to go to facility
- Land ban – idea that full stop not allowing waste on land unless permanent facility
- 48/50 states have state solid waste management plan, if not Feds impose RCRA on them

Comprehensive Environmental Response and Compensation and Liability Act

(CERCLA)

RCRA Recap
- Present waste
- Works through data collection – manifest tracks waste from cradle (when becomes waste) to grave
(ultimate disposal or bio-degradation)

CERCLA
- Existing contamination sites
- Clean-up of contaminated sites
- Orphan contaminated sites
o Where we cannot find PRP (potentially responsible parties)
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 - CERCLA calls any entity responsible for contamination a PRP
- Big problem in Love Canal NY
o Niagara Falls, NY
o In 1978 88 chemicals identified
o In 1980 EPA conducted study saying increased chromosomal abnormalities for residents of Love
Canal
o Lois Gibbs
o Superfund established for other disasters
▪ Led to 400 toxic sites being addressed
- Uses liability rather than preventative (RCRA is preventative, stop from happening)
- CERCLA says harm there, attach liability to it
- Liability approach also creates deterrent for future problems

Liable actors under CERCLA

- Owners, operators of facility (vessel)
- Prior owner/operator
- Arrangers – middle people
- Transporters
- Any of the actors could be on the hook for cleanup – can be costly endeavour

Defences to CERCLA
- Act of God
- Act of War
- Acts or Omissions of Third Parties
o Due care or lack of due care
o Reasonable precautions
- Defendants known as Potentially Responsible Parties (PRPs)
o Potentially liable for
▪ Removal and remedial actions not inconsistent with National contingency plan
▪ Responsible for natural resource damages
▪ Liable for health assessments and health effects

Joint and several liability

- Congress intent under CERCLA would allow us to recover from deep pockets or company that can pay
resources for clean up

Difference between CERCLA and Common law

- CERCLA has no personal injury
- CERCLA looking to put back to use
- CERCLA Want to recover for natural resource damages
- CERCLA won’t go the route of personal damages, that is left to common law

Hypo
- 1 acre parcel worth $1m if clean
- Property is dirty, had dry cleaning facility
- Client ca purchase this property for $100,000, estimate clean-up cost of $900,000
- A lot of uncertainty in these clean-up costs in the estimate amount and what it actually costs
- For purposes of CERCLA, buy property but on the hook to clean it up
- Different standards of remediation depending on what the use of property will be

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 - CERCLA doesn’t care about the value of the property

Exam Hypo
- What is potential value of property when cleaned up vs cost of liabilities

P. 737 – Section 104 of CERCLA

- Section 104 authorizes president and EPA to …
- Diff response action whether removal or remedial, broad grant of authority to executive branch to deal
with this problem
- Have to be release or threat of release of pollutant or contaminant
- Remediation and removal pretty broad
- EPA cannot just go around, need plan and feasibility study

Practice
- EPA has 10 regional offices
- Michigan is region 5, office in Chicago, they are determining what level of removal or remediation is
required. They have staff at regional level to put all of these plans into place to make sure they are
followed through
- EGLE does have remediation division, solid and hazardous waste division
- EPA driving the bus on CERCLA
- CWA and CAA permits happen from EGLA
- CERCLA, Superfund happens through EPA

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Schematic of CERCLA Response Action Procedures

- Multiple things can be going on at once in the chart, could have site assessment at the same time as an
emergency renewal

United States v. W.R. Grace & Co

- Asbestos
- Removal v remedial per EPA
- Courts determining if response within statutory limits

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 - Go through Chevron test – essentially saying distinction between removal and remedial is based on facts
- Useful case for distinguishing removal and remedial
- Challenges when you have sloppy written statute
- Court ultimately says distinction between removal and remedial – EPA doesn’t have time to take
procedural steps for remedial. If EPA doesn’t have time to consider long term, it is an emergency, time
sensitive threat
- 9th circuit reluctant to second guess EPA and defer to EPA statutory interpretation
- Long discussion in full case about Chevron and whether Chevron should apply. Whether less deferential
case
- Court concerned with question of deference because weight placed on removal memo (court called
informal interpretation)
- Removal memo not done by EPA superfund program but officer of emergency and remedial response,
court trying to decide whether informal determination by staff person entitled to Chevron deference or
something less should apply
- Question is, whether EPA”s decision to invoke removal action authorities for expensive widespread
response to asbestos
- Whether EPA correctly classified as removal actions depended on EPA statutory interpretation which is
a question of law. Court applied Chevron and concluded EPA persuasive enough to pass review from
court in this instance
- Court applied arbitrary and capricious standard because under statutory section of CERCLA
- EPAs removal gave Chevron deference
- Arbitrary and capricious used for other questions
- Rule: In order to state a claim for emotional distress, a plaintiff must have suffered physical harm

Review notes 5-7 following the case (starting on p. 757)

- Summary of how Superfund works
- How Superfund relates to Love Canal

Note 5
- NCP = National Oil and Hazardous Substances Pollution
- NCP more generally “lead agency.” The lead agency is usually EPA, but not always
- A state agency, conducting a CERCLA response action by agreement with EPA, may be the lead agency
- For spills into coastal waters of the US, the Coast Guard is the lead agency. For released at or from
federal facilities, the federal agency in charge of the facility is the lead agency.
- Many Superfund sites are found on military bases, a legacy of past war preparation or military
production during which environmental considerations were far from the topmost priority
- Each federal agency is responsible for CERCLA cleanups on the property it manages
- The NCP applies to all response actions taken under the authority of CERCLA regardless of the identity
of the lead agency

Note 6
- The goal of a CERCLA response action is to protect human health and the environment from the risks
posed by released and threatened releases of hazardous substances
- EPA has placed central importance on risk assessment: assessing the health and environmental hazards
presented by a release, identifying the pathways by which human and non-human receptors might be
exposed and quantifying the resulting risk to health or ecological conditions
- Congressional dissatisfaction with some of EPA’s remedial choices in the first years of the Superfund
program led to the enactment, in SARA, of a statutory standard for the degree of cleanup that remedial
actions (not removals) must achieve
- ARARs = applicable or relevant and appropriate requirements

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Note 7
- Love Canal illustrates the complexity that a CERCLA response action can entail

Type of removal/remedial action

- Difficult
- Often litigated
- Main hammer/crux of law is liability – strict liability? Joint and several liability?

CERCLA Review
- CERCLA
o Owner/Operator of facility
o Prior owner/operator
o Arrangers
o Transporters
- Potentially Responsible Party (PRP)
o Liable for
▪ Removal/rehabilitation consistent with NCP
▪ Natural resource damages
▪ Health assessments
▪ Health assessments/Health assessments studies
• Short or long term outcomes of living near contamination area
- Defences
o Act of God
o Act of War
o Acts or omission of third party
▪ If
• Due care OR
• Reasonable precautions
US v. Monsanto
- Rule: The Comprehensive Environmental Response, Compensation, and Liability Act imposes a
strict liability scheme on site owners and waste generators for the response costs of the release of
hazardous waste and permits imposition of joint and several liability in cases of indivisible harm.
- S. 107 b – liability causation
- Strict liability can include liability without fault
- Important area for attorneys to be involved in real estate transactions in the purchase of companies
o Michigan Ex: Midland Dow Chemical
o Important to do due diligence and have environmental assessments done because you might be
on the hook for something a company did 50 years ago if you buy the land
▪ No cut off, could go back decades into the past
- Strict liability under CERCLA, no causation standard, don’t have to find specific party responsible for
hazardous substance being spilled
- There are ways to limit/avoid liability, advise clients to do environmental assessment before purchase of
property
- Case supports theme that enviro law is tied to statutory interpretation and how courts interpret the
language

GM and Chrysler bankruptcy/bail out

- When government backed them out, spun off a lot of old contaminated real estate and created a trust

United States v. Monsanto Co.

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 Rule The Comprehensive Environmental Response, Compensation, and Liability Act imposes a strict
liability scheme on site owners and waste generators for the response costs of the release of
hazardous waste and permits imposition of joint and several liability in cases of indivisible harm.
Facts Oscar Seidenberg and Harvey Hutchinson (defendants) leased a tract of land (the property) to the
Columbia Organic Chemical Company (COCC) (defendant). COCC’s principals incorporated
South Carolina Recycling and Disposal Inc. (SCRDI) (defendant) for the purpose of assuming
COCC’s waste-handling business. SCRDI contracted with waste producers for the transport,
recycling, and storing of hazardous waste. SCRDI haphazardly stored the waste on the property.
The waste was kept in rusted drums, without regard to the chemical compatibility of the various
waste products. As a result, in 1977, a toxic cloud formed when chemicals leaking from rusted
drums reacted with rainwater, resulting in the hospitalization of 12 firemen. In 1979, an explosion
and fire resulted when chemicals stored in glass jars leaked onto drums containing incompatible
substances. The site manager for SCRDI could not identify the chemicals that caused the
explosion, which made the fire difficult to extinguish. The United States (plaintiff) filed suit under
§ 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA) against SCRDI, COCC, Seidenberg and Hutchinson. Additionally, the United States
sued Allied Corporation, Monsanto Company, and EM Industries, Inc. (defendants), who had
generated the waste. The United States argued the defendants were jointly and severally liable for
the response costs of the toxic cloud, explosion, and fire under CERCLA. The defendants argued
their conduct did not cause the damage, and they could not be liable under CERCLA.
Alternatively, the defendants argued CERCLA’s liability scheme was retroactive and thus
unconstitutional. The district court held that all defendants were strictly, and jointly and severally,
liable under CERCLA. The district court further held CERCLA was prospective, directed at post-
enactment consequences of past acts, and not retroactive. Alternatively, the district held that
CERCLA, even if retroactive, was rationally related to a valid legislative purpose and therefore
constitutional. Seidenberg, Hutchinson, Allied, Monsanto, and EM Industries appealed.
Issue Does the Comprehensive Environmental Response, Compensation, and Liability Act impose a
strict liability scheme on site owners and waste generators for the response costs of the release of
hazardous waste and permit imposition of joint and several liability in cases of indivisible harm?
Holding Yes
Reason CERCLA imposes a strict liability scheme on site owners and waste generators for the response
costs of the release of hazardous waste and permits imposition of joint and several liability in cases
of indivisible harm. Section 107(a) of CERCLA explicitly covers any person who owns a facility
at which hazardous substances were deposited or contracts to have hazardous substances disposed
of at any facility containing hazardous substances. There is no requirement of culpability for
CERCLA to apply, resulting in a strict liability standard. Furthermore, CERCLA permits joint and
several liability if there is an indivisible harm that cannot be reasonably apportioned between the
tortfeasors. Here, Seidenberg and Hutchinson are subject to strict liability as the site owners, and
Allied, Monsanto, and EM Industries are subject to strict liability as waste generators who
contracted for waste disposal at the property. Because of the indiscriminate mixing of the
chemicals at the property, the district court properly found the harm was indivisible. Therefore, the
defendants are jointly and severally liable. Finally, the district court’s analysis of CERCLA’s
retroactivity is correct, and CERCLA’s liability scheme is constitutional. The defendants are
strictly, and jointly and severally, liable for the harm caused by the hazardous substance leakages,
and the district court’s judgment is affirmed.

Cost recovery
- EPA will order a certain type of cleanup to occur or they will do it themselves and seek the cost to
recover for clean up
- Litigation is usually cost recovery action – trying to get people money back for clean-up to Superfund
sites and contamination sites
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Note 2, p. 771
- Significance of holding of Monsanto? Traditional elements of tort absent from liability
o Estoppel isn’t available
o Can only use defences in statute
- Follow traditional tort case model?
o Comparative fault
- Midnight dumping
o Due care
Act of God defense
- Never succeeded as affirmative defence for CERCLA

Act of war
- Some 9/11 litigation
o Question of whether 9/11 attack was an act of war
- After WWII – act of war was put in all insurance companies

Something has to not be foreseeable for you to be liable (ex: earthquake in a typical earthquake zone)
- Due care provision for defense under CERCLA

Lack of quantitative threshold of amount or concentration of substance and lack of traditional tort causation
requirements
- Under CERLCA we don’t have threshold of chemical amount and we don’t have traditional tort
causation requirements
- CERCLA follows liability in statute

Note 3, p. 779
- CERCLA in Monsanto and Alcan fair, achieve strict liability?
o Effective
o Fair
o Some situations where someone gets not great portion of blame but cost of doing business in the
industry
- Number one criticism of CERCLA is EPA requirement too expensive (2) limit universe of people who
want to buy an old piece of property with contamination and limits development (3) limits transfer of
property `
- We’ve done a better job at limiting new sites from RCRA and threat of liability from CERCLA.
Problem is we don’t have money to clean up older contaminated sites
- Governments will often offer tax incentives
- Brownfields
o Sim to Superfund – either listed or known. Properties will take investment to get use of them
o Brownfield program run by states

United States v. Alcan Aluminum Corp

NY v. Shore Realty
- Who are responsible parties? What does that mean?
- Owner liability based on your status
- Like owners in Monsanto, Shore was liable under 107 a 1 and 107 a 2
- Shore’s tenants continued adding hazardous waste into tanks for a few months after the sale of the
property

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 - Shore not innocent because
o Did not get it after disposal of hazardous waste
o Before the purchase
- Gets complicated with real property transfers
Rule CERCLA imposes strict liability for cleanup costs on a current owner of a facility where hazardous
wastes have been released or there is a threat of release.
Facts The State of New York (plaintiff) filed suit in federal district court against Shore Realty
Corporation (Shore) and its principal officer and stockholder, Donald LeoGrande (defendants), for
injunctive relief and to recover cleanup costs under the federal Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) of a hazardous waste site owned by
defendants. Defendants acquired the land for a condominium development with full knowledge
that the site’s previous owner had used it to store over 700,000 gallons of toxic and carcinogenic
hazardous waste in underground tanks and that some of the chemicals had begun to leach into the
groundwater and surrounding natural waters. The district court held defendants liable under
CERCLA. Defendants appealed.
Issue Does CERCLA impose strict liability for cleanup costs on a current owner of a facility where
hazardous wastes have been released or there is a threat of release?
Holding Yes
Reason Pursuant to CERCLA, “the owner and operator of…a facility” may be held strictly liable for
cleanup costs associated with a hazardous waste site if there is a release, or a threatened release of
a hazardous substance which causes the incurrence of response costs. 42 U.S.C. § 9607(a).
However, strict liability is not absolute. Defenses to liability may be raised when it involves an act
of God, an act of war, or acts or omissions of a third party other than an employee of the defendant.
Here, there is no claim by defendants that they are entitled to any such defense. Defendants claim
CERCLA is not applicable because they did not own the site at the time of the waste disposal nor
caused the presence or release of the hazardous waste at the facility. However, the plain language
of the statute is clear. Section 9607(a)(1) covers current owners and operators while § 9607(a)(2)
imposes liability on prior owners and operators of a facility if it was owned at the time of disposal.
Further, if a current owner of a site could avoid liability merely by having purchased the site after
chemical dumping had ceased, waste sites would be sold to “new” owners to avoid liability under
CERCLA. Congress prevented such a scenario by imposing strict liability on current owners of
hazardous waste sites. Defendants argue that has been no “release” or “threat of release” of
hazardous chemicals. However, the court finds that leaking tanks, the ongoing leaching from
earlier spills, and leaking drums of hazardous chemicals constitute “releases” under CERCLA. 42
U.S.C. § 9601(22). The judgment of the district court is affirmed.

Love Canal
- Under CERCLA, could homeowner be liable for Love Canal Clean up?
o Basically if you have a current owner and the release caused by third party, then have to look for
contractual relationship between owner of property and third party, if no, and landowner is
innocent then can use the innocent property owner

US v. American Cyanamid
- Explosion at waste site for pig farm
- Court found joint and severally liable
- EPA had a lot of challenges defining and developing a Superfund clean-up program to track the real cost
of cleanup
- Often times will see PRPs suing the government
- Great deal of deference given to EPA because know this will be large, costly, time consuming action

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Enforcement and Compliance

Commonalities CWA, CAA, CERCLA, RCRA

- Main thing about these laws is they provide for information gathering, collection of information that
must be submitted to be turned into state or federal agencies
- Freedom of Information Act – good for enviro law, right to information. Can get all of this information
(the public)
- Self-reporting

Punish facility
- Fines are main way to punish
- There are some criminal penalties depending on the statute, main mode of trying to ensure compliance is
monetary penalty
- No criminal records about falsifying the water records in the instance of Flint – didn’t think agency
would allow people to be subjected to such high levels of lead

Compliance of permits
- Citizen suits
- Many key enviro enforcement cases have been brought as citizen suits – Friends of the Earth because
state or federal agency failed to act
- Sometimes facility owners and operates will sue the state because they were denied a permit

Gwaltney case
- Court making up
- Citizen suit

International Enforcement
- Canada: Trail, BC – Trail Smelter case
o Fined trail smelter
o Only time IGAC convened and arbitrated and issued fine
- Boundary Water Treaty between US and Great Britain – Great Lakes and rivers that flow
o Cautionary principal codified
o US and Canada agree that they will seek to prevent the pollution from boundary waters
o Created commission to enforce boundary waters IGAC (3 US, 3 Can) – ensure enforcement of
the treaty

Administrative process is always step 1, even for enforcement

- Could be admin process like a notice of violation letter
- Exhaust administrative remedies

Clean Water Act: Citizen Suit Outline

- Citizen suit provision which under certain circumstances, permits environmental groups, individuals and
others to enforce the Act
- Before citizen suit, prospective P has to comply with several pre-notice provisions
- Several defenses to liability

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CWA Citizen Suit
- Any citizen can file a citizen suit against any person who is alleged to be in violation of an effluent
standard or limitation (CWA. 33. U.S.C 1365 (2012).)
- Pre-Suit Notice Requirements
o Before a citizen suit under CWA can be filed in court, the Act requires that a “pre-suit” notice be
given. A P can only commence an action after 60 days prior notice to the EPA, the state where
the alleged violation occurred and the alleged violator (33 U.S.C 1365b)
o Under the CWA, the pre-suit notice must include “sufficient information to permit the recipient”
to identify the following:
▪ The specific standard, limitation, or order allegedly violated
▪ The activity constituting a violation
▪ The person(s) responsible for the violation
▪ The location of the violation
▪ The date(s) of such violation
▪ The full name, address and phone number of the person giving notice
o CWA requires that certain defendants and other interested parties be given “notice of intent” to
sue. CWA requires that the following be served with notice of intent to sue under the Act
▪ The individual or entity being sued
▪ EPA Administrator
▪ EPA Regional Administrator and
▪ Chief Administrative Officer of state water pollution control agency

Clean Air Act Citizen Suit

- Section 304 permits citizen suits against CAA violators
- Section 307 allows citizen suits challenging EPA actions made pursuant to the CAA

Enforcement: Ensuring Compliance with Environmental Laws

- Clean water act, clean air act, CERCLA, RCRA – provide for information gathering – collection of info that must
be submitted, turned into the state and/or federal agencies
- In Michigan, all kinds of monitoring data and info subject to these acts gets submitted to EGALE
- Can get all of this information through FOIA (Freedom of Information Act)
- Can get all of this information/data that is gathered by the agencies – can look it up, see the data and make sure
they are being held accountable
- Important to note that almost all of this is done through self-reporting
- All info submitted by the companies themselves
- Self-reporting is “fertile ground for fraud” – anyone who submits a report needs to sign off certifying that the info
is “true and accurate, subject to criminal sanctions”
- Negligence or outright fraud are punishable given this
- US of US Mail can bring in federal fraud charges as well
o Basically, can tack on additional charges for the method of delivery as well
- **Key point is that it is self-reported
- Inspections
o Can do spot inspections, though they are rare
o There are times that the agency doesn’t want them to know that they’re dropping by – for example, the
agency has been out of compliance in the past?
- To drop in with an inspection, do they need a permit?
o Not always – exceptions under the fourth amendment do apply
o No special authority unless worried about imminent danger to public health
→ Steel facility on the border of Dearborn – thousands of violations but weren’t shut down

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 - Both EGALE and EPA can enter into consent judgments with organizations – facility can get back into
compliance with permit without having to go into court
- Consent judgments can be put out for public comment
- Fines are the main method agencies use to punish a facility for exceeding its emissions limitations; there are some
criminal penalties depending on the statute – the main mode of attempting to ensure compliance is monetary
penalties unless there was outright fraud, falsifying records, etc.
- Flint – under the safe drinking water act, there were no criminal provisions for safe water testing, etc.
- Can be done administratively through consent judgment, can go to court
- If the state chose not to bring an enforcement action, the EPA could
- Citizen suits – another way to ensure enforcement
- Citizen suits tend to come about because they feel that governments or enforcement agencies are failing to act –
for example, through NGOs
- Sometimes facility owners and operators will sue the state for denial of a permit; or, they’ll sue over a rule made
via the Administrative Procedures Act
- Familiarize yourselves with the citizen suit provisions of the clean water act and the clean air acts
- For enforcement, exhausting administrative remedies is always the first step **exhaustion of administrative
remedies unless there is some kind of imminent threat**

US v Elias (pg. 925)

Facts - Unknown to workers, sludge inside tan by-product of cyanide leaching process that Elias had
patented; Elias denied knowledge of anything in the tank other than water and sludge
- Blood tests in the hospital confirmed Dominguez had extremely toxic levels of cyanide in his
body
Analysis/Holding The court found that EPA’s sample of the sludge taken outside the tank reflected the
characteristics of the tank waste that led to the employee’s collapse, making further sampling
irrelevant. Further, the court found that the EPA regulation classifying cyanide as a reactive
waste was not vague because Elias had the specialized knowledge required to understand
it. Regarding the jury instruction, the court found no error because the potential for
confusion in the definition of “intention” was such that it “would only afflict law students or
lawyers.”
Ratio The court found that the EPA regulation classifying cyanide as a reactive waste was not
vague because Elias had the specialized knowledge required to understand it. Regarding the
jury instruction, the court found no error because the potential for confusion in the definition
of “intention” was such that it “would only afflict law students or lawyers.”
Notes - first ever conviction for the crime of “knowing endangerment” under RCRA after the
provision had been added to the statute in 1980

Demonstrates:
1. Violations of environmental laws sometimes result in very serious harm to human health as
well as the broader “environment”
2. Violations of environmental laws sometimes lead to substantial penalties, up to and including
incarceration
3. Violations of environmental statutes sometimes raise implications for other areas of law,
such as the federal criminal code

When done effectively, environmental enforcement may serve three major functions:
(1) Fixing existing environmental problems;
(2) Promoting future compliance;
(3) Ensuring fairness and a level playing field among regulated entities

Federal Environmental Statutes

- Most federal environmental legislation authorizes EPA to inspect facilities and to compel regulated entities to
self-monitor and to report on their discharges and emissions

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 - Where violations are detected, EPA is generally empowered to respond with enforcement actions
- Citizens may bring suit against parties that are not in compliance with an environmental standard, permit
condition, or order
- Most violations of environmental law can be addressed through administrative tools, such as issuance of violation
notices, administrative orders, and administrative penalties
- For more significant cases, environmental agencies may file civil claims with a court of competent jurisdiction
seeking remedies that may include damages, injunctive relief, and declaratory judgments. In the most serious
cases, such as that of US v Elias, environmental agencies may work with prosecutors to seek criminal penalties,
including incarceration of individual defendants

Information Gathering
- Self-monitoring and self-reporting play important roles
- Due to constitutional prohibitions on self-incrimination, source-reported data may not be introduced as evidence
in an environmental criminal prosecution
- Self-monitoring reports may lead to increased attention by source managers to preventing pollution and achieving
compliance

Sierra Club v Union Oil Co (pg. 928)

Facts -Sierra Club brought a citizen enforcement action against Union Oil, who
violated the terms of its National Pollutant Discharge Elimination System
(NPDES) permit on seventy-six occasions
- At trial, district court found no violations of the permit; excused some of the
reported exceedances on the grounds that the reports of exceedances were
mistakes caused by sampling error
- Union oil argued reports were invalid due to sampling error
Issue Whether a permittee that has self-reported an environmental violation may defend itself
by contending that its reports were unreliable as a result of its own flawed sampling and
analysis
Analysis/Holding - The district court should not have excused these exceedances on the basis of
sampling error
A person self-monitoring must make the following certification: “I certify under
penalty of law that this document and all attachments were prepared under my direction
or supervision in accordance with a system designed to assure that qualified personnel
properly gather and evaluate information submitted.”
- Sections provide for heavy criminal penalties for anyone who knowingly
falsifies reports or knowingly makes any false statement
Legislative history surrounding 1972 amendments to the act supports the conclusion
that accurate reports are critical to effective operation of the act: “Enforcement of
violations of requirements under this Act should be based on relatively narrow fact
situations requiring a minimum of discretionary decision making or delay.”

Public Policy Argument: “Were we to accept Union Oil’s argument regarding the use
of sampling errors to excuse reported permit exceedances, we would be sanctioning
countless additional hours of NPDES litigation and creating new, complicated factual
questions for district courts to resolve. … the permittee might have additional
information unavailable to citizen groups indicating that sampling error rendered the
reports meaningless… allowing permittees to excuse their reported exceedances by
showing sampling error would create the perverse result of rewarding permittees for
sloppy laboratory practices. Such an approach would surely undermine the efficacy of
the self-monitoring program.”
Ratio When a permittee’s reports indicate that the permittee has exceeded permit limitations,
the permittee may not impeach its own reports by showing sampling error
Notes - Accurate reporting may be required directly by environmental statutes
themselves. For example – CWA – any person who “negligently violates”
requirements, including reporting and record keeping obligations, may be
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 punished by imprisonment for up to one year, while “knowing violations” of
the same may be punishable by up to three years
- One of the most common sources of information about a particular facility is
the facility itself

Marshall v Barlow’s, Inc

Facts - S 8(a) of the Occupational Safety and Health Act of 1970 (OSHA or the Act) empowers agents
of the Secretary of Labor (Secretary) to search the work area of any employment facility within
the Act’s jurisdiction. The purpose of the search is to inspect for safety hazards and violations
of OSHA regulations. No search warrant or other process is expressly required under the Act
- OSHA inspector, after showing his credentials, informed Mr. Barlow that he wished to conduct
a search of the working areas of the business
- Barlow refused the inspector admission to the employee area of his business; said he was
relying on his rights as guaranteed by the 4th amendment
- 3 months later, order issued compelling Barlow to admit the inspector; Barlow again refused
admission, sought his own injunctive relief against the warrantless searches assertedly permitted
by OSHA
- Court ruled in Barlow’s favor, holding that the fourth amendment required a warrant for the
type of search involved here and that the statutory authorization for warrantless inspections was
unconstitutional
Issue Whether representatives of government agencies must obtain a search warrant in instances where a
facility owner refuses to consent to an inspection
Analysis/Holding - The basic purpose of the [Fourth] amendment is to safeguard the privacy and security of
individuals against arbitrary invasions by government officials
- The critical fact of this case is that entry over Barlow’s objection is being sought by a
government agent What is observable by the public is observable, without a warrant, by the
Government inspector as well
- An employee is free to report, and the government is free to use, any evidence of non-
compliance with OSHA that the employee observes furnishes no justification for federal agents
to enter a place of business from which the public is restricted and to conduct their own
warrantless search
- We are unconvinced that requiring warrants to inspect will impose serious burdens on the
inspection system or the courts, will prevent inspections necessary to enforce the statute, or will
make them less effective. Whether the Secretary proceeds to secure a warrant or other process,
with or without prior notice, his entitlement to inspect will not depend on his demonstrating
probable cause to believe that conditions in violation of OSHA exist on the premises.
- Admin search is not held to a crim law standard → probable cause in the criminal law sense is
not required. For purposes of an administrative search such as this, probably cause justifying the
issuance of a warrant may be based not only on specific evidence of an existing violation but
also on a showing that “reasonable legislative or administrative standards for conducting an…
inspection are satisfied with respect to a particular establishment.”
- We conclude that the concerns expressed by the secretary do not suffice to justify warrantless
inspections under OSHA or vitiate the general constitutional requirement that for a search to be
reasonable a warrant must be obtained
Ratio Even under OSHA, for a search to be reasonable, a warrant must be obtained.
Notes - Does the statutory language of the clean water act authorize EPA inspectors to conduct
warrantless searches of facilities subject to regulation under the clean water act?
- In reality, EPA and state inspectors almost always gain access to facilities by the consent of the
facility owner or operator. Such consent, of course, would implicate no violation of the Fourth
Amendment so long as it was given freely and lawfully. In the rare cases where consent to enter
is withheld by the facility owner or operator, EPA and state inspectors may seek to obtain a
warrant to compel access to a facility while ensuring compliance with the Fourth Amendment
- The requirements for obtaining a warrant are laid out explicitly in the Fourth Amendment
Warrant Clause; the warrant clause makes no distinction between searches to support criminal
and civil or administrative actions; among other things, all searches require a showing of
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 probably cause. In the administrative context, probable cause in the criminal law sense is not
required
- Is a warrantless search ever permissible for the purposes of environmental enforcement? The
short answer is yes. The most familiar doctrine may be “exigent circumstances”, or while
engaged in the “hot pursuit” of a suspect – ex during an emergency response to the rupture of an
oil pipeline
- Another doctrine that may allow a warrantless entry in the environmental context is that of the
“pervasively regulated industry.” Under this theory, many industries that are heavily regulated
by the government should have an expectation of inspections of their property and thus no
warrant for entry may be needed
- Under the doctrine of “open fields,” regulators may collect information on a facility by making
observations from a public sidewalk or a nearby hill, by making use of Google Earth and other
mapping programs, or by flying overhead in commercial aircrafts
- The Court in Dow Chemical appeared to anticipate the question, noting “It may well be … that
surveillance of private property by using highly sophisticated surveillance equipment not
generally available to the public… might be constitutionally proscribed absent a warrant.” The
Court 15 years later drew a line on the use of thermal-imaging technology by drug enforcement
agencies to detect grow operations in private homes.

984-995
Citizen Enforcement
- Most environmental laws are subject to enforcement by concerned citizens and organizations
- Specific provisions for citizen enforcement are in most federal environmental statutes
- Moreover, for environmental statutes such as NEPA and FIFRA, which do not include specific provisions for
citizen suits, citizen enforcement may often be pursued through claims brought under the APA
- TVA v Hill was a citizen suit
- Three-fourths of all reported judicial decisions in environmental law over a certain period involved citizen suits
- In addition to standing requirements grounded in Article III of the US Constitution, citizen plaintiffs may face
additional hurdles established by environmental statutes; the provision of proper notice before a citizen suit can be
filed

Hallstrom v Tillamook County

Facts Petitioners own a commercial dairy farm located next to respondent’s sanitary landfill.
-
April 1981, believing the landfill operation violated standards established under RCRA,
-
petitioners sent respondent written notice of their intention to file suit. A year later,
petitioners commenced action.
- March 1, 1983, respondent moved for summary judgment on the ground that petitioners
had failed to notify Oregon’s Department of Environmental Quality (DEQ) and the EPA of
their intent to sue
- Respondent claimed that failure to comply with the notice requirement deprived the
District Court of jurisdiction
- The court noted that the purpose of the notice requirement was to give administrative
agencies an opportunity to enforce environmental regulations
- District Court held that respondent had violated RCRA
- The Court of Appeals for the Ninth Circuit concluded that petitioners’ failure to comply
with 60-day notice requirement deprived District Court of subject matter jurisdiction;
determined that permitting the plaintiff to proceed without giving notice would constitute
“judicial amendment” of clear statutory command. CoA remanded action to District Court
with instructions to dismiss
Issue Whether compliance with the 60-day notice provision is a mandatory precondition to suit or can be
disregarded by the district court at its discretion
Analysis/Holding - The citizen suit provision of RCRA permits individuals to commence an action in district
court to enforce waste disposal regulations promulgated under the Act. At least 60 days

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 before commencing suit, plaintiffs must notify the alleged violator, the State, and the EPA
of their intent to sue.
- Language of the provision is clear: a citizen may not commence an action under RCRA
until 60 days after the citizen has notified the EPA, the State in which the alleged violation
occurred, and the alleged violator
- Actions commenced prior to 60 days after notice are “prohibited”
- Because this language is expressly incorporated by reference, it acts as a specific limitation
on a citizen’s right to bring suit
- Under literal reading of the statute, compliance with the 60-day notice provision is a
mandatory, not optional, condition precedent for suit
- Petitioners do not contend the language of this provision is ambiguous; rather, they assert
that it should be given a flexible or pragmatic construction
- Whether or not a stay is in fact the functional equivalent of a pre-commencement delay,
such an interpretation of the provision flatly contradicts the language of the statute
- “we are not at liberty to create an exception where Congress has declined to do so”
- RCRA’s 60-day notice provision should be subject to equitable modification and cure
- Unlike the statute of limitations, RCRA’s 60-day notice provision is not triggered by the
violation giving rise to the action. Rather, petitioners have full control over the timing of
their suit: they need only give notice to the appropriate parties and refrain from
commencing their action for at least 60 days
- Citizen suits under RCRA are like any other lawsuit, generally filed by trained lawyers
who are presumed to be aware of statutory requirements
- Absent a clearly expressed legislative intention to the contrary, the words of the statute are
conclusive
- Requiring citizens to comply with the notice and delay requirements serves this
congressional goal in two ways:
(1) Notice allows Government agencies to take responsibility for enforcing environmental
regulations, thus obliviating the need for citizen suits;
(2) Notice gives the alleged violator an opportunity to bring itself into complete
compliance with the Act and thus likewise render unnecessary a citizen suit. This
policy would be frustrated if citizens could immediately bring suit without involving
federal or state enforcement agencies
- It is likely that compliance with the notice requirement will trigger appropriate federal or
state enforcement actions to prevent serious damage
- In sum, we conclude that none of petitioner’s arguments requires us to disregard the plain
language of the statute; we hold that the notice and the 60-day delay requirements are
mandatory conditions precedent to commencing suit under RCRA citizen suit provision; a
district court may not disregard these requirements at its discretion
- Where a party suing under the citizen suit provisions under RCRA fails to meet the notice
and the 60-day delay requirements, the district court must dismiss the action as barred by
the terms of the statute.
Ratio The notice and the 60-day delay requirements are mandatory conditions precedent to commencing
suit under RCRA citizen suit provision; a district court may not disregard these requirements at its
discretion. Where a party suing under the citizen suit provisions under RCRA fails to meet the
notice and the 60-day delay requirements, the district court must dismiss the action as barred by the
terms of the statute.
Notes - Advance notice not always required before citizens may file citizen suit under federal
environmental statutes
- CWA: Notice regarding an alleged violation shall include sufficient information to permit
the recipient to identify the specific standard, limitation or order alleged to have been
violated, the activity alleged to constitute a violation, the location of the alleged violation,
the date or dates of such violation, and the full name, address, and telephone number of the
person giving notice

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 - Notice is to provide “sufficient information to permit the recipient” to identify the nature
of the alleged violation, recognizing that the recipient may be better positioned to
understand the violation than members of the general public or a reviewing court
- In addition to complying with statutory notice requirements, plaintiffs in environmental
citizen suits must establish that the court has subject matter jurisdiction to hear their case

Gwaltney of Smithfield v Chesapeake Bay Foundation – limitations on the citizen suits that can be brought
Facts -Commonwealth of Virginia established federally approved state NPDES program
administered by Virginia State water control board in 1950
- In 1974, the board issued a NPDES permit to ITT-Gwaltney authorizing the discharge of
seven pollutants from the company’s meat-packing plant on the pagan river in Smithfield,
Virginia; permit established effluent limitations, monitoring requirements, and other
conditions of discharge
- Between 1981 and 1984, petitioner repeatedly violated the conditions of the permit by
exceeding effluent limitations on five of the seven pollutants covered
- Petitioner installed new equipment to improve chlorination system, which also helped to
control discharge of fecal coliform; also installed upgraded wastewater treatment system
which prevented further TKN violations
- Respondents sent notice in Feb 1984 to Gwaltney, the Administrator of EPA and Virginia
State Water Control Board indicating respondents’ intention to commence citizen suit under
act based on petitioner’s violations of permit conditions; respondents proceeded to file suit
in June 1984 alleging petitioner had violated and will continue to violate its NPDES permit
- Gwaltney moved in May 1985 for dismissal of action for want of subject matter jurisdiction
under the act; argued the language of §505(a) which permits private citizens to bring suit
against any person “alleged to be in violation” of the act requires that a defendant be
violating the act at the time of the suit; because its last recorded violation occurred several
weeks before respondents filed their complaint, district court lacked subject matter
jurisdiction over respondents’ actions
Issue Does §505(a) of the Clean Water Act confer federal jurisdiction over citizen suits for wholly past
violations
Analysis/Holding - To acknowledge ambiguity is not to conclude that all interpretations are equally plausible.
The most natural reading of “to be in violation” is a requirement that citizen-plaintiffs allege
a state of either continuous or intermittent violation – that is, a reasonable likelihood that a
past polluter will continue to pollute in the future
- The interest of the citizen-plaintiff is primarily forward-looking
- The most telling use of the present tense is in the definition of “citizen” as a “person having
an interest which is or may be adversely affected” by the defendant’s violations of the act→
use of present tense shows the harm sought to be addressed by the citizen suit lies in the
present or future, not in the past
- Follows logically that the purpose of notice to the alleged violator is to give it an opportunity
to bring itself into complete compliance with the act and thus likewise render unnecessary a
citizen suit. If we assume that citizen suits may target wholly past violations the requirement
of notice to the alleged violator becomes gratuitous
- The bar on citizen suits when governmental enforcement action is under way suggests that
the citizen suit is meant to supplement rather than to supplant governmental action.
Permitting citizen suits for wholly past violation so the Act could undermine the
supplementary role envisioned for the citizen suit
- §505 does not permit citizen suits for wholly past violations; because we agree that 505
confers jurisdiction over citizen suits when citizen-plaintiffs make a good-faith allegation of
continuous or intermittent violation, we remand the case to the Court of Appeals for further
consideration
- the statute does not require that a defendant be in violation of the act at the commencement
of suit; rather, the statute requires that a defendant be alleged to be in violation – this phrase
reflects a conscious sensitivity to the practical difficulties of detecting and proving chronic
episodic violations of environmental standards
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 Ratio Violation of the clean water act must be serious and ongoing
Notes Following the Court’s decision in Gwaltney, analogous language in the Clean Air Act was amended
to “fix” the Gwaltney problem, allowing citizen suits to proceed based upon identification of a
person alleged to have violated or to be in violation of certain requirements of CAA. Similarly,
RCRA authorizes citizen suits against any person who has contributed or who is contributing to past
or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste
→ Gwaltney cannot be a problem under CERCLA because CERCLA only seeks to remedy present
concerns with hazardous substances regardless of when the release occurred

1007-1014

International Enforcement
- whether and to what extent enforcement tools may be used to address environmental problems of international
scale
- another potential means for addressing international environmental problems: the direct application of domestic
law

Michael Robinson-Dorn, The Trail Smelter: Is What’s Past Prologue? EPA Blazes a New Trail for CERCLA
- Trail Smelter is located in Trail, BC, appx ten miles from the US-Canada border
- Now one of the largest integrated lead and zinc smelting and refining complexes in the world
- As the Trail Smelter grew, so too did its emissions; smelter emitted thousands of tons a month of sulfur dioxide
fumes that harmed crops and animals in Trail Consolidated Mining and Smelting Co
- As emissions continued and damages mounted, land owners on Canadian side of border near trail sought redress;
while Consolidated able to settle for about half of Canadian land owner claims, remaining half went through
extended arbitration process
- Economic damages and purchasing smoke easements in order to avoid future damages
- Trial Smelter’s emissions were also carried by prevailing winds into Columbia valley in Washington state
- American farmer’s claim against trail smelter was filed

Trail smelter arbitration

- This is the only time the IJC has come together to assess damages in this way
- Citizens Protective Association (“CPA”) eschewed individual settlements, enlisted the help of their Congressional
delegation, and ultimately received the assistance of the US State Department
- June 1927, US State Department forwarded official complaint to the Government of Canada; Consolidated
requested that Canadian government intercede on its behalf
- What essentially started out as a private nuisance suit by private parties against a private company had been
transformed into an international dispute
- International Joint Commission (IJC) made up of three members from each nation had been created in 1909 under
the Boundary Waters Treaty to address issues relating to transboundary waters between the US and Canada
o Between the Brits and US
o Was the first time we had a precautionary principle codified in an international agreement
o Says the US and Canada will seek to prevent the pollution of the boundary waters from one side to the
other
o Also created an enforcement commission – the IJC
▪ Job is to ensure the enforcement of the boundary waters treaty
- Pursuant to Article IX of the Treaty, either nation could refer any matter involving “the rights, obligations, or
interests of either in relation to the other or to the inhabitants of the other, along the common frontier,” to the
Commission for investigation and report.

Enviro Pre Writes

National Environmental Policy Act (NEPA)
1. Does NEPA apply?
- Section 102 requires all federal agencies to:
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 (i) Use a systematic interdisciplinary approach in planning and decision-making that will affect the
environment and
(ii) Develop methods to give “presently unquantified” environmental views “appropriate consideration”
in decision-making
2. If NEPA applies, do we need to do an Environmental Impact Statement (EIS)?
- For every “major federal action significantly affecting the quality of the human environment,” the
responsible official of the federal agency involved must prepare a detailed public statement, EIS that
includes information set for in NEPA
- EIS must:
(i) Accompany the proposal in question through existing agency review processes, and
(ii) Reflect the comments of other federal agencies with relevant expertise or jurisdiction

- Cases
o Hanly
o Calvert Cliff’s
o Strycker’s Bay
o Robertson v. Methow

Standing
- In many environmental situations, the standing-to-sue issue arises in the context of judicial construction
of Section 10 of the Administrative Procedure Act (APA), which allows “any person adversely affected
or aggrieved by an agency action” to seek judicial review of that action
- The US Supreme Court has ruled that, in order to have standing to sue under the “case and controversy”
provision of Article III of the Constitution, a plaintiff must allege a personal stake in the outcome of the
dispute that assures concrete adverseness. To establish standing a P must demonstrate:
o Distinct and palpable injury to the P
o Fairly traceable causal connection between the P’s harm and the challenged conduct of the D
and
o Likelihood that the plaintiff’s injury will be redressed by
- Cases
o Bennett v. Spear
o Sierra Club v. Morton
o Lujan
o Friends of the Earth v. Laidlaw

Clean Water Act (CWA)

- Goal of the Clean Water Act is to restore and maintain the chemical, physical and biological integrity of
the Nation’s Waters
- Zero discharge of pollutants into navigable waters
- Wherever attainable, an interim goal of water quality which provides for the protection and propagation
of fish, shellfish and wildlife and provides for recreation in and on the water
- Toxic discharge of pollutants is prohibited
1. NPDES Permit?
- The NPDES program is authorized by CWA. It pertains to applicable effluent limitations called for by
the statute into specific requirements that apply to individual industrial and municipal facilities
- Point sources must obtain a NPDES permit
2. Wetland issue?
- Under 404 of the CWA, the US Army Corps of Engineers has primary responsibility for issuing permits
for dredging and filling wetland areas

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 o EPA is authorized to veto individual Corps’ permits where proposed discharges will have an
“unacceptable adverse effect” on various environmental resources and amenities
- SCOTUS in Army Corps v. SWANCC has construed section 404 as not granting jurisdiction to the Army
Corps of Engineers to “regulate the dredging and filling of isolated interstate ponds and wetlands,
whether or not these wetlands provided habitats for migratory birds”
- In addition, in circumstances where a wetland is connected to navigable water by non-navigable
conveyances constructed by human beings, the legal test to determine whether the Army Corps has
regulatory jurisdiction appears to be whether the wetland in question “significantly affect(s) the
chemical, physical, and biological integrity of the other covered waters more traditionally understood as
navigable (Rapanos v. US)
o Cases
▪ Army Corps v. SWANCC
▪ Rapanos v. US
Resource Conservation and Recovery Act (RCRA)
- The active generation handling, transportation and disposal of hazardous waste (as well as non-
hazardous waste) is regulated by RCRA
- RCRA is intended to establish “cradle to grave” regulation of hazardous waste
- To be considered hazardous waste must be “solid waste” by being a material that has been discarded. If
a material is a solid waste, it may then be classified as a hazardous waste if
o It is on the EPA list of hazardous wastes OR
o After testing, it exhibits one of four hazardous characteristics
▪ Ignitability
▪ Corrosivity
▪ Reactivity
▪ Toxicity

Clean Air Act (CAA)

- Create to regulate outdoor air pollution and control of hazardous air pollutants
1. Require NAAQS?
- National Ambient Air Quality Standards → the Clean Air Act requires EPA to establish NAAQS
o These standards must be established for all criteria pollutants (the most significant air pollutants
with known adverse health effects)
o Two types of NAAQS
▪ Primary standards – intended to protect public health
▪ Secondary standards – established to protect public welfare
o Areas in which NAAQS are achieved are called “attainment areas”
o Dirty air districts where NAAQS are not achieved are referred to as “non-attainment” areas
2. Require SIPs?
- Under CAA, each state is required to prepare and submit to EPA, a state implementation plan (SIP) that
contains specific, enforceable emissions limitations designed to attain and maintain NAAQS
- Case
o Union Electric v. EPA

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or

“Superfund”)
1. Preliminary assessment?
- EPA representatives inspect and assess dangers posed by abandoned hazardous waste sites
- Standard set of procedures known as hazard ranking system
2. Post-assessment, EPA decides whether to take removal action or remedial action

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 - Removal action is short term measures intended to minimize acute dangers to health or the environment
- Remedial action is a long term measure intended to eliminate dangers on a permanent basis
3. National Priorities List?
- EPA will list a site on the NPL that is most dangerous and requires remediation
4. Remedial Investigation/Feasibility Study?
5. Record of Decision (ROD)
- The EPA’s final remedy selection is documented in a formal Record of Decision (ROD)
- Along with Remedial Investigation or Feasibility Study, the ROD constitutes the EPA’s administrative
record for purposes of judicial review
6. Consent Decrees?
- Rather than become involved in expensive, time consuming litigation, EPA often enters into Consent
Decrees with potentially responsible parties (PRPs)
- Decrees require settling parties to
o Perform environmental cleanup work and/or
o Reimburse the government’s cleanup costs and other expenses
- Decrees often provide major PRPs with a covenant not to sue, subject to specific provisions

Significant aspects of CERCLA

- Remedial action
o Remedial action priority must be given to
▪ Permanent on-site measures that significantly reduce the volume, toxicity and mobility of
wastes
o States must be offered an opportunity to participate in negotiations with PRPs
o Judicial review of EPA decisions must be based upon
▪ Administrative record and
▪ An arbitrary and capricious standard of review

Endangered Species Act (ESA)

- ESA defines endangered species as any species that is “in danger of extinction throughout all of a
significant portion of its range”
- A threatened species is defined as “any species likely to become endangered in the foreseeable future”
1. Is the species listed?
- Under the ESA, the US Secretary of Interior is required to
o Prepare a list of endangered or threatened species
o Designate the critical habitants of such species
▪ Such listings and designations are to be based upon the best scientific and commercial
data available
- The Sec of Interior must also develop and implement “recovery plans” for listed endangered and
threatened species
- Cases
o TVA v. Hill
o Northern Spotted Owl v. Hodel
o Babbit v. Sweet Home

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