ENVIRONMENTAL LAW

Spring Semester 2006

Professor Jamie Grodsky

Exam, closed notes + statute book, 2 pieces of paper type of both sides 11 point font, statute #s not
necessary unless we’ve used section consistently. Use §7(a)(2) & §7(a)(1) of ESA. We can tab statute
book.

State rule 1st & then analyze questions. Ex. CERCLA q re fact pattern re someone who owns property
you would get a point for saying past owners are liable, point for past owner has to own land at time of
disposal, point for owned property at time of disposal (split in circuits as to whether past owner has to
have an active role in disposal).

INTRODUCTION

I ENVIRONMENTAL VALUES
A. Envtl values play an increasing role in legal & judicial discourse.
B. Consensus in U.S. that envt is v. important but consensus breaks down in deciding
remedies.
1 Is it really practical to apply cost/benefit analysis to envtl rules? Is it possible
to monetize benefits of envtl regs? Benefits tend to be understated & costs
overstated.
2. Value preferences tend to shape perception of facts. In envtl law it is
particularly diff. to develop a set of facts that everyone agrees upon (i.e. global
warming debate). Tremendous difficulty in trying to get a common body of fact.
3. Environmentalism isn’t monolithic. It involves many of values drawing about
diff traditions. Very different value systems coalesce on envtl issue.
C. Various Scholars
1. Rachel Carson. 1970s beginning of envtl movement. Beforehand it was very
small. NEPA passed in 1969. Most envtl activities that have occurred in Clinton
& Bush Administration have been in form of regulation.
2. Aldo Leopold-land ethic. Ethic of envt rather then an ethic for use of envt.
Leopold’s work expressed value of envt even in its undisturbed state. Nature is
always in use even when left undisturbed. His views developed in the concept of
eco services. Recognizes non use values.
3 J. Thompson. Transcendentalist idea-strand of the preservationist ethic. Nature is
a place for spiritual renewal. Earlier in history nature was to be feared & that
began to change w/ romanticism & transcendentalism. Nature is like god or a
form of a good, it’s the way we can see god.
i. But even John Muir said that even the transcendentalist can say nature for
its own right.
4. Genesis. Dominion Notion. Economic idea that the earth exists to serve human
needs.
5. Pope John Paul II & National Association of Evangelicals. Stewardship.
Responsibility to be stewards of nature.
6. John Seed. Deep Ecology. Mystical, spiritual bond b/w people & nature. No clear
separation b/w one & another.

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 7. William Baxter. Classical economic approach. Differs from Leopold’s land ethic
b/c there is no intrinsic right for nature to exist in and of itself. But people will
preserve flora & fauna b/c people depend on them.
8. Evangelical Christian Movement Split. Some Christians believe that envt
doesn’t matter b/c the apocalypse is going, but a growing group of Christians
promote envtl stewardship.
II. ECONOMIC ASPECTS OF ENVIRONMENTAL LAW
A. Hardin 1968.Tragedy of the Commons.
1. Hardin’s Illustration: a hypothetical example of a pasture shared by local
herders. The herders are assumed to wish to maximize their yield, and so will
increase their herd size whenever possible. The utility of each additional animal
has both a positive and negative component: Positive component of adding an
animal & herdsmen gets all proceeds from adding the animal; Negative is
overgrazing of common area. Tragedy is that each herdsman acting rationally is
compelled to increase his herd to pursue his own goals and overgrazing will
occur. Illustrates that action of self-interested individuals cannot promote the
public good.
2. Shared Resource, limited resource, no right to exclude.
3. Social Norms to prevent people from maximizing their individual gain. Lack
of an external market. Not exceeding the carrying capacity of the land.
4. Solutions to the Tragedy of the Commons: create private property (fence the
property); regulate.
B. Tim Weiner. “In Mexico, Greed Kills Fish by the Sea full.” Although Mexico had
regulations, they were not enforced-external & black market. Gov’t subsidized fish boats
to keep them afloat when fish stocks are dwindling.
1. In many yrs of Nat’l resource law there has been misplaced resources.
2. In nat’l resources law, many of the laws on the books were designed at times
when the goals were not to conserve resources but to settle the west.
C. Tragedy of the Commons in pollution. Internalize externalities. Command & Control
Regulation, marketable permits, public pressure.
D. Free Market Environmentalist. Gov’t regulation unnecessary. Private legal
mechanisms to deal w/ pollution problem.
1. Barriers for private individuals to bring suit:
i. high transaction costs &
ii. free riding.
E. Eban S. Goodstein: Economics & Environment
1. Definitions
i. Internalize externality
ii. Free-access problem: arises when property is commonly held, occurs when people weigh
private benefits against private costs, they will overexploit common resources when
given free access.
iii. Free-Market Environmentalists: advocate eliminating many environmental regulations
iv. Public Goods Problem: public good are goods which are enjoyed in common & the
provision of public goods is a problem for free market due to free riding & transaction
costs.
a. Transaction Cost: particularly high b/c of public nature of injury.
b. Free-Ride: people might refuse to help out b/c they will benefit even if they
don’t help out-no way to exclude benefits.
(1) Downloading music files on the internet-A tragedy of the digital
commons.
2. Free riding & transaction costs deter private suits.
F. Economics & Environment
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 1. Who should pay?
i. Polluter Pays Principle: having the polluter pay for externalities or damages caused by its
pollution ensures that costs of production reflect costs of env damage.
ii. Beneficiary Pays Principle: recognizes some situations that don’t lend themselves to
polluter pays principle- i.e. int’l agreements or treaties b/c they operate under a rule of
voluntary assent by nations.
iii. Kyoto Protocol: US hasn’t signed b/c Bush want more concessions from developing
countries who are benefiting from U.S. reductions.
2. Valuing the Environment
i. Extremely difficult to measure envtl benefits of a reg. Usually based on how much an
indiv is willing to pay (or give up) for certain envtl resource.
ii. Contingent Valuation: controversial b/c it is based on willingness to pay principle
iii. Option Value: based on how much is an indiv willing to pay to reserve a future use or a
use for future generations.
iv. Willingness to pay doesn’t account for the fact that we are citizens & we may have
collective aspirations, or altruistic impulses. So what is rationale economic behavior? Is it
rational to consider social needs?
v. Replacement Costs: doesn’t depend on willingness to pay
vi. Mitigation Value: recognizing that a resource may not be fully destroyed
vii. Property Enhancement: various efforts to measure increases in property values related to
conservation measures (it has been found that proximity to parks, recreational activity,
etc, can enhance value of property.
viii. Ecosystem Services: recently ecologist & economists have been attempting to place a
monetary value on the services of resources in their natural state.
G. Comprehensive Regulatory Reform Act of 1995 (didn’t pass)
1. CBA to all major federal rules
2. Sponsored by Dole
3. Most controversial aspects of bill
i. requires that no final rule will be promulgated unless benefits outweighed the costs
ii. that there is no more cost effective alternative; &
ii. cts could set aside existing bills.
H. When should you factor in cost to industry when setting envtl standards? What role
should CBA have?
1. American Trucking: issue of costs. Amicus brief wrote by conservative think
tanks that CBA isn’t accurate enough to be used as a decisional tool but it is
important to inform agency regulatory decisions.
I. Ruhl, Valuing Nature’s Services: The Future of Environmental Law. In some
respects ecologists are breaking ranks w/ die hard “greens” by placing a monetary values
on natural resources & economists are breaking ranks w/ conservatism economists to
place a value on ecosystem services. But it’s still very controversial in valuing ecosystem
services b/c how, for example, do you define size of ecosystem.

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 PRESERVING BIODIVERSITY
THE ENDANGERED SPECIES ACT

I. INTRODUCTION
A. E.O. Wilson, Biophilia
1. Utilitarian: we use diversity for food, medical cures, etc.
2. Ecological: The more ecologically diverse, the more an envt can deal w/ stress,
the more diverse an ecosystem the more productive
B. Causes of Species Extinction
1. Pollution
2. Habitat Destruction/Modification-i.e. fragmentation of a road. One of the most
difficult causes to cure. No species has ever been delisted b/c of habitat
destruction
3. Invasive Species
4. Human activity: hunting, fishing, etc
C. Critics/Supporters of ESA
1. Critics: Improperly balances species
2. Supporters: law is critical, under enforced, fraught w/ loopholes to allow
developers to go forward w/ projects.
3. No Timetables-Delay is huge problem.
D. Structure of ESA
1. Characterized as a roadblock statute.
2. Provides a clear rule & helps insulate non market values from market
pressures. No explicit mention of any economic interest but can find economic
balancing in other areas of statute.
3. Key Provisions: §3, §4, §7, §9, §10
E. Purpose of ESA: §2b- to provide means whereby ecosystems may be conserved. Purpose
is not only to preserve species themselves but also ecosystems upon which they depend.
Takes a species by species approach. ESA only applies to a species actually threatened or
on brink of extinction.
1. Pros/cons of ecosystem based approach v. species by species approach.
F. ESA’s changes over time: economic balance for critical habitat, no surprises policy, 4d
rule for threatened species, god squad & HCP,
G. Problems of ESA.
1. Little critical habitat designated,
2. under funded,
3. no statutory deadline in recovery deadlines,
4. Tremendously politicized. Cases live TVA where a tiny fish held up a massive
dam had tremendous adverse effect on public opinion. Think about whether ESA
is over protective of endangered species or under protective of endangered
species.
H. ESA Evaluation. Strong argument that you need roadblock statute knowing that the
political process will soften edges (i.e. TVA 3 branches of gov’t, public & press all
worked bin shaping envtl policy). Arguable that you need roadblock statute to get
creative solutions & bring parties to the table. Need threat in background for political will
to stimulate bargaining process.
1. Al Capone-you can get further w/ a kind word & a gun, then only w/ a kind word.
Maybe this is true in envtl law you need carrots & sticks.

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II. MAJOR PROVISIONS OF ESA
A. Section 3: Definitions
1. § 3(6) Endangered Species. Any species which is in danger of extinction
throughout all or a significant portion of its range.
2. § 3(20) Threatened Species. Any species which is likely to become an
endangered species w/in the foreseeable future throughout all or a significant
portion of its range.
3. § 3 take. Covers any possible conduct that could cause actual injury to an
endangered or threatened species: to “harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect or to attempt to engage in any such conduct.
i. Harm includes habitat modification as long as there is a showing of actual injury to
wildlife. See Sweet Home.
a. Habitat modification encompasses any activity that would significantly impair
essential behavioral patterns such as breeding, feeding, or sheltering.
***Take includes harm which includes habitat modification
4. §3 (5)(A) Critical Habitat. Area necessary for a species survival. Should critical
habitat be listed for the area that the species is listed at the time species is listed or
for its historical range?
B. Section 4: Listing Endangered & Threatened Species. No species receives full ESA
protection until it is listed. Listing determination is to be based solely on the basis of best
scientific & commercial data available. Economic considerations are not to be taken into
account during listing.
1. § 4(a): requires Secretary of Commerce or Secretary of Interior to determine
whether any species is “endangered” or “threatened” & to designate critical
habitat of such species.
2. 4(b): provides that listing determination is to be based solely on “best scientific &
commercial data available” & that designation of critical habitat is to be based on
“best scientific data available . . . taking into consideration economic impact, &
any relevant impact, of specifying any particular area as critical habitat.”
i. gives secretary a tremendous amount of discretion. Secretary gets to determine on his
own what animals are going extinct.
ii. strongest hook for a litigator is that Secretary failed to use “best scientific data available”
3. §4(b)(3): provides that citizens may petition to force listing determination.
4. §4(d): authorizes FWS to create different rules for threatened species. By & large
FWS has treated threatened species the same as endangered species.
i. Secretary can issue special rules & sometimes they have been challenged in Ct.
ii. § 4(d) is a hot area of ESA b/c Bush Administration had reorganized certain sub-
populations of gray wolf. Concluded that sub-population is no longer endangered & listed
a 4(d) rule. This became very controversial & Bush administration was accused of
gerrymandering certain population segments.
5. § 4(f): requires Secretary to develop & implement recovery plans for endangered
& threatened species unless he finds they won’t promote species conservation
i. recovery planning provisions have been very under enforced
ii. No teeth or timetables. One of the current problems w/ recovery planning provisions is
that they don’t have any teeth or timetables & language is very discretionary-i.e. “to the
maximum extent possible.”
iii. Debate over whether critical habitat occur later in process.
iv. Unsettled area of ESA. ESA has potential to do more then just prevent a species from
going extinct.
C. § 7: Review of Federal Actions. § 7 refers to public actions & any private activity that
requires a federal license or permit can be subject to § 7. Under § 7 only fed gov’t as an
actor can be liable.

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 1. § 7(a)(1): requires all fed agencies to carry out programs to conserve endangered
& threatened species.
i. Debate over whether there an affirmative duty on federal agencies to
promote species conservation? Language supporting both goals.
a. Is the Purpose of ESA is only to prevent extinction & that is only as far as FWS
will enforce?
(1) FWS has traditionally seen its role as preventing extinction.
b. Or does FWS have an affirmative duty to promote species conservation or
recovery species-i.e. is there an obligation to bring back species to their original
numbers?
(1) 5th Cir recently held there is an obligation to preserve species.
Therefore, FWS’s way of interpreting ESA is incorrect & that FWS
needs to interpret adverse modification prong. Strange b/c 5th Cir is
very conservative.
(2) 2 other circuits have followed 5th Cir’s lead.
2. § 7(a)(2): No jeopardy provision. Provides that all fed agencies must insure, in
consultation w/ Secretary, that any actions are “not likely to jeopardize the
continued existence of any endangered species or threatened species or result in
the destruction or adverse modification” of such species’ critical habitat.
i. Provides that each federal agency shall ensure that any action authorized funded or
carried out by such agencies aren’t likely to jeopardize species.
ii. FWS has traditionally focused on no jeopardy prong of § 7, rather than adverse
modification.
iii. Does action in question jeopardizes species? Why:
a. adverse modification prong can be overbroad & FWS has backed off b/c once
you’ve designated critical habitat almost anything can be designated as critical
habitat-its almost a political reason, &
b. FWS has only designated critical habitat for 10% of species.
3. Compare § 7 w/ §9.
i. § 7 liability attaches only to gov’t, § 9 liability attaches to anyone.
ii. § 7 treats endangered & threatened species same. § 9 prevents taking of only endangered
species.
D. Section 9: Prohibitions
1. § 9(a)(1)(B) & (C): makes it unlawful to “take” (broadly defined by section 3(19)
to cover harassing, harming, killing, capturing, or collecting) any endangered
animal species. 201
i. Applies to private actions
E. Section 10: Habitat Conservation Plans (HCP)
1. §10(a): authorizes issuance of permits allowing incidental taking of endangered
species to parties w/ an approved HCP to minimize & mitigate impacts of such a
taking where taking will not appreciably reduce likelihood of survival & recovery
of species in the wild.
i. Interpreted by FWS to mean that a HCP: (a) can’t jeopardize an endangered species; &
(b) taking has to be incidental.
ii. Taking can’t be primary purpose & no permit will be issued for incidental takings unless
permit applicant puts together a HCP.

II. ESA SECTIONS 4 & 7: Listing Designation of Critical Habitat & Review of Federal
Actions.
A. Preservation of Biodiversity.
1. TVA v. Hill (1978)  ESA requires fed actions to halt all actions that jeopardize
existence of an endangered species or destroy or modify habitat critical to an
endangered species.

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 i. Facts: Citizens concerned that operation of a dam on the Little Tenn. River would
jeopardize the existence of an endangered fish, filed a citizen suit to enjoin the dam’s
completion & operation.
ii. Posture. District Ct found that project would jeopardize species but did not feel
compelled to issue injunction. District ct wanted to balance equities: balance harm to
species against economic benefits of dam. But 6th Circuit rejected this approach & said
that Ct is compelled to issue injunction. This is unusual b/c in equitable common law
relief is traditionally discretionary & Ct has to grapple w/ these new envtl statutes against
common law traditions. But, Cong “has spoken in clearest of terms” & “intent of
Congress in enacting this statute was to halt & reverse the trend toward species
extinction, whatever the cost. SOP question: Ct notes that it doesn’t have discretion to do
a balancing test.
iii. Holding (Burger): upon finding that a federal agency action will jeopardize the existence
or harm the critical habitat of an endangered species, the Ct should enjoin the action
regardless of cost or degree of project completion. Recognized a conscious decision by
Congr to give endangered species priority over primary missions of federal agencies.
ESA makes value of every endangered species incalculable.
iv. Aftermath & Significance of TVA. Most important case in ESA history. Served as
catalyst for change & spawned a series of amendments & regulatory measurements that
ultimately modified ESA.
i. God Squad Exemption. Immediately after TVA Congress amended ESA &
created “god squad” exemption.
ii. Rider. Congr passed a rider exempting dam from § 7 & allowing its completion
& operation.
2. God Squad Exemption from § 7. In response to TVA, Congr created an
exemption procedure from § 7 no jeopardy provisions allowing an agency to
petition for an exemption from endangered species committee composed of high-
ranking gov’t officials (aka “God Squad”). God Squad is composed exclusively of
political appointees that change w/ each administration.
i. 5 out of 7 members of “God Squad” must determine that: (1) no reasonable alternatives
to the agency action exist; (2) the benefits of the action clearly outweigh the benefits of
any alternative course of action consistent w/ the conservation of species or its critical
habitat; (3) the action is in the public interest & of regional or national significance, and;
(4) neither the agency involved nor the exemption applicant has made an irreversible or
irretrievable commitment of resources.
ii. TVA was 1st agency before God Squad. Application was rejected b/c there were
reasonable alternatives to project & project’s benefits didn’t outweigh burden.
iii. God Squad process has been rarely invoked. Why?
a ESA isn’t being enforced so no need to go in front of God Squad.
b. Projects are allowed to go forward before getting to point of petitioning before
God Squad.
B. Section 4: Listing Process.
1. FWS can list species on its own or anyone can petition secretary. Most actions
to compel listing are brought by envtl groups under citizen suit provision 4(b)(3).
2. Species proposed for listing must meet 1 of 5 reqmts for petition to go
forward.
i. Present or threatened destruction, modification, or curtailment of its habitat or range;
ii. Over utilization for commercial, recreation, scientific or educational purposes;
iii. Disease or predation;
iv. Inadequacy of existing regulatory mechanisms; or
v. Other natural or manmade factors affecting its continued existence .
3. §4 requires Secretary to list species’ critical habitat, which represents
geographic area necessary for the species’ conservation & recovery from
endangerment. Species occupation of a habitat is not a prerequisite for the
classification.

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 i. Unlike the listing of a species economic impact may be considered in designating critical
habitat.
ii. Don’t need critical habitat designated prior to bringing suit. Plaintiffs in TVA could have
sued before critical habitat was designated. If species is in listing process that triggers
ESA.
iii. 1982 ESA Amendments: current language is that Secretary to max extent prudent &
determinable shall designate critical habitat concurrently w/ decision to list species as
endangered or threatened. Technically agency can delay listing up till 12 months.
4. Recovery Plans: Secretary must establish recovery plans for each listed species.
5. Due to limited funds there is huge backlog of proposed candidate species,
often categorized as “warranted but precluded” due to other species’ more urgent
listing demands. Ongoing debate w/in envtl community whether to push habitat
listing or recovery planning
i. Agency can prioritize a species over subspecies, a species w/ more limited ranges or
more endangered.
ii. Politics aren’t supposed to influence listing process.
6. Failure to List. Northern Spotted Owl v. Hodel (1988)  whenever the
designation of a species’ critical habitat is determinable at the time of listing, the
ESA dictates that the designation must be made at the time of listing. The goal is
to prevent a taking of the listed species in the designated area.
i. Facts: Experts concluded that northern spotted owl was endangered but FWS invites peer
review & although other scientists said they were going extinct FWS decided not to list.
4(b)(1)(A). Agency’s decision published in federal registry & was challenged.
ii. Holding: Status review, little or no empirical data, no explanation for agency’s findings.
Expert analysis to contrary. FWS hasn’t set forth grounds for failing to list. 2 years later
FWS lists Spotted Owl.
iii. Judicial Review of secretary’s decision not to list is based on APA’s A&C standard.
C. Critical habitat
1. FWS Status for Northern Spotted Owl. § 4 elements
i. Present or future destruction of habitat or range. Owl’s habitat is old growth forests &
much of the habitat can disappear in next 20 yrs. Owl habitat is directly in nat’l forest
which is mandated for multiple use (like timber habitat & recreational use). ~90% of
harvesting at time of suit is done by clear cutting, which raises issues of forest
fragmentation.
ii. Overutilization for recreational & commercial purposes. Not an issue here b/c spotted
owl isn’t a game bird.
iii. Disease or predation, yes
iv. Inadequacy of existing regulatory mechanisms.
2. Is Critical Habitat determinable?
i. Critical habitat isn’t determinable b/c of lack of info or if biological needs of species are
not sufficiently known. FWS has valid reasons for why info isn’t determinable: political
reasons (not very valid of a reason); uncertainty in science.
ii. If determinable agency can delay project up to 12 months-although delays have been
much longer.
3. Is designation of critical habitat prudent?
i. Not prudent if designation would further threaten species or if designation would provide
no add’l benefit to species.
a. People may try to eradicate the habitat on their private property so that there
property isn’t designated as critical habitat & subject to regulations.
ii. Prudent. Critical habitat designation (§7(a)(2)): triggers consultation under § 7 to
determine whether a species is jeopardized or adversely modified. FWS has traditionally
focused on no jeopardy prong.
4. Northern Spotted Owl v. Lujan (1991)
i. Facts: 22 Envtl orgs filed suit against Secretary of Interior, FWS & other fed Δs, alleging
the Service's decision not to list northern spotted owl under ESA was A&C & contrary to
law.

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 ii. Holding: Ct ruled in favor of Пs & remanded this matter to Service for further
proceedings. Secretary had violated ESA by failing to designate critical habitat in a
timely fashion & w/o extraordinary circumstances, stating that critical habitat designation
"is a central component of the legal scheme developed by Congress to prevent the
permanent loss of species." It continued, "Only under limited circumstances not
demonstrated here may FWS properly defer its habitat designation responsibilities."
iii. Aftermath: In 1989, Service proposed to list northern spotted owl as a "threatened"
species under ESA in Fed Register. In 1990, Service published its final rule confirming
that listing decision in Fed Register. In both the proposed & final listing rules, the Service
expressly deferred designation of critical habitat for the spotted owl.
iv. Clinton’s Attempt at Resolution. Clinton tried to resolve spotted owl controversy by
letting fed gov’t bear a lot of burden & issued Northwest Forest Plan, a comprehensive
plan, which took an ecosystem approach to planning & set sustainable timber harvest
levels & had effect of reducing timber harvesting significantly, but plan also attempted to
provide for economic transition (money for job training & move former loggers into envtl
restoration, federal payments to counties to get money to replace loss from timber sale).
v. 1992 God Squad exempted timber sales-this decision was overturned by ct b/c there were
ex parte contacts that were occurring by members of God Squad.
5. Defenders of Wildlife v. .Secretary of United States Dep’t of Interior (Similar
issue for the Muralite bird, old growth range. Create or look at entire range of
species.
D. Consultation Process
1. § 7 Consultation is Required for any project using fed funds, fed permits, fed
licenses, or any other type of fed agency cooperation.
2. Steps in § 7 Consultation Process
i. determine if there are listed species in area.
a. Agency proposing project (action agency) & expert agency (FWS);
ii. If there are listed species action agency prepares a biological assessment to determine
whether species is likely to be affected by the action;
a. Direct & indirect effects of proposed action must be considered in the
consultation process.
iii. if bi-op concludes that species is likely to be affected formal consultation process occurs.
Provide FWS w/ best scientific data to make adequate decision;
iv. if bi-op concludes that it will jeopardize then FWS will suggest various alternatives that
the action agency will need to take that will not jeopardize species (i.e. mitigating
measures-reasonable & prudent alternatives);
v. bi-op is judicially reviewable. There are frequently suits by envtl groups that it didn’t go
further or by regulated entity that there are too many restrictions.
vi. Options for Agency Action: abandon project, adopt an alternative, or go to god squad.
2 Thomas v. Peterson (9th Cir. 1985) an agency’s failure to prepare a biological
assessment once agency is aware that endangered species are present in an area
where the agency proposes to act is not a de minimis violation of ESA.
i. Facts: Local ranchers sued to enjoin construction of a logging road on the grounds that
Forest Service had not complied w/ ESA procedures prior to approving the road.
a. Building a timber road is problematic for (1) habitat fragmentation, & (2)
isolating populations.
b. Many roadless areas are potential candidates for wilderness designation & as
soon as you build road they lose the status.
ii. Holding: ESA’s procedural reqmts are essential & designed to ensure compliance w/
ESA’s substantive reqmts. Injunction pending compliance w/ ESA granted! Here, step 1
& 2 were omitted. Ct concluded that this was a procedural violation & certain steps
couldn’t be ignored. D Ct refused to enjoin construction of road and tried to distinguish
itself from TVA by saying that this was a rule of procedure rather then substance & so it
could refuse to issue an injunction. 9th Cir. rejected this argument b/c it ensured
substantive reqmts & make it impossible to understand whether there has been a violation
of the substantive provisions of the ESA.
iii. Remedy: enjoin construction of road pending compliance w/ ESA.

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 E. Affirmative Obligations
1. Carson-Truckee Water Conservancy (9th Cir. 1984)  ESA justifies agency
actions to actively conserve endangered species & does not limit agencies to only
those actions necessary to avoid jeopardizing endangered species.
i. Facts: A water district & power company sued to compel Secretary of interior to sell
water from a federally owned dam.
a. Carson-Truckee Water Conservancy District & Sierra Pacific Power CO alleged
that Secretary violated Washoe Project Act (reclamation laws) for refusing to
sell water for use in Reno & Sparks. Interior only need to comply w/ 7(a)(2) &
they don’t have an affirmative obligation under 7(a)(1). But, 7(a)(2) wasn’t
implicated in this case b/c the gov’t didn’t undertake actions, such as building a
dam or highway, that incidentally jeopardize the existence of endangered or
threatened species (in order to have a 7(a)(2) situation you would need to have a
situation, for example, where they were taking all water out of damn). §7(a)(2)
is triggered by a discrete agency action. Washoe Power Act anticipates, but
doesn’t require, Secretary to sell water to cover construction costs. Washoe
Power Act seems to be discretionary whereas ESA was a strong mandate. What
happens if there were two statutory mandates? Perhaps, if an agency has 2
conflicting authorities they would have to be balanced in some way.
ii. Holding: ESA § 7(a)(2) doesn’t apply when fed agencies actively seek to conserve
endangered species & doesn’t limit agencies to only those actions necessary to avoid
jeopardizing endangered species.
2. Sierra Club v. Glickmanct is trying to grapple w/ 7(a)(1), ct holds that there is
a specific reqmt to undertake conservation measures.
3. Defenders ct says that there is a mandatory duty to conserve under 7(a)(1) but
that doesn’t mean we can require very discrete conservation measures.

III. ESA SECTION 9: PROTECTION AGAINST PRIVATE ACTION

A. §9: Prohibited Acts. Only federal gov’t can be liable for a § 7 violation. But, § 9
prohibits any “person” (incl. any corporation, or other private entity, & any gov’t agency)
from taking, selling, importing, or exporting any protected species.”
B. What constitutes a “take” under §9? Still an open question!
1. Palila II (9th Cir. 1986)Ct held that finding of “harm” didn’t require a showing
of death to indiv members of a species, but rather only “an adverse impact on the
protected species.” But, it is very hard to prove “harm” if you don’t have dead
bodies.
C. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995)  the
prohibition on “harming” endangered species in § 9(a)(1) of ESA includes a prohibition
on modifying or degrading habitat essential to survival of the species.
1. Facts: Pro-logging plaintiffs sued the Secretary of Interior & Director of FWS claiming that those
agencies’ interpretation of ESA had harmed the П’s financial interest in logging.
2. Holding (Stevens): upholds Secretary’s definition of harm: (1) dictionary definition (injuring a
species to destroy habitat should fit into dictionary definition of harm); (2) broad purpose of ESA
(cite § 2, & a major goal of statute is to conserve; (3) fact that Congr added an exemption for
incidental takings suggested that § 9 intended to prohibit indirect as well as direct takings); and (4)
Canon of construction: when you see a string of words a word that seems to have a different
meaning then the others has a different words (Scalia uses a different canon of construction in his
dissent to argue the reverse).
3. O’Conner (concurrence): Secretary of Interior reasonably defined the term “harm” as used in § of
ESA as including modification or degradation of habitat essential to the survival of endangered or
threatened species. Regulation limited by its terms to actions that actually kill or injure indiv
animals. Resort to common law principles of proximate causation would be applied.
4. Scalia (dissent): imposes unfairness to point of financial ruin.

10
 5. Significance: Sweet home upholds validity of ESA by using strong language in support of ESA’s
statutory authority. Language is reminiscent of TVA v. Hill. Supporters of this approach would
say that they are instrumental from pressures of market place politics that would otherwise prevail.
D. Incidental Taking & Habitat Conservation Plans.
1. Incidental Taking. In Response to §9, Congress enacted §10 to soften the flat
ban of taking of Endangered Species. § 10 grants Secretary authority to issue a
permit for incidental “takes” pursuant to an otherwise lawful activity. Goal of
§10 is to balance development interests w/ conservation interests.
i. Permit revocation: Secretary has never revoked any incidental take permit that has been
granted. Thus far, many challenges made are out of granting of incidental take permit.
Few cases on point have generally questioned whether mitigation measures are
appropriate & whether plans are adequately funded. But, if Secretary did approve a
permit then they would be viable.
2. Habitat Conservation Plan: minimize & mitigate impacts of taking.
i. Process. Landowner, or developer, goes to FWS, & asks FWS to review their HCP. HCP
could also be joint effort of counties, developers & other players. HCP must specify
impact likely to result from taking, measures the applicant plans to mitigate impact.
Secretary has some leeway on what to require in HCP. 10(a)(2)(B). HCP can’t jeopardize
a species! Secretary’s decision to grant a HCP is judicially reviewable & Secretary is
authorized to revoke a permit if parties don’t comply w/ terms of HCP.
ii. What happens when parties are abiding by HCP and the science turned out to be wrong
and HCP is clearly jeopardizing the species?
a. Originally, FWS could reopen decisions if science was no longer sound. But this
deterred parties from HCP.
b. Clinton Administration initiated “no surprises policy” where fed gov’t can pay
for add’l reqmts.
(1) Lawsuit, Spirit of Sage Council sued DOI for issuing rule improperly.
Limbo b/c of procedural case. DOI reissued rule w/ proper procedures.
iii. HCP subject to §7 consultation reqmts of ESA. FWS is an action agency & expert
agency, it consults w/ itself (but usually it is diff. section of FWS).
iv. HCP Characteristics
a. Duration 1-100+ yrs.
b. Simple HCP: single landowner & single project.
c. Complex HCP: larger areas, multiple species, participants might include cities,
counties, real estate developers, etc.
d. Usually accompanied by an implementation agreement that translates into
contractually binding agreements in both sides. So there seems to be another
contractual claim that could be brought, could a non-profit bring that suit?
Citizens under ESA do have rights to sue.
v. Main criticisms:
a. not enough public participation in process;
b. not based on sound scientific evidence;
c. plans can fail to promote recovery of species; &
d. no will to monitor HCP for compliance or lack of effectiveness
vi. Benefits:
a. species may be better off w/ HCP (Jantzen);
b. effort to balance needs of species w/ needs of developers;
c. landscape wide plans can pull small landowners into it;
d. significant areas going toward conservation (corridors); &
d. goes beyond baseline of HCP.
vi. Friends of Endangered Species v. Jantzen (9th Cir. 1985). 1st HCP plan. Process began
in 1980. Congr amendments began in 1982. Example of Cts & Congr keying off each
other.
a. Facts: San Bruno Mountain was an undeveloped mountain in SF. Proponents of
this conservation plan lobbied heavily to this exemption to § 9 & this HCP
became the prototype when Congr wrote into language. When FWS grants an
incidental take permit it has to engage in § 7 consultation. FWS concludes that
granting an incidental take permit along w/ HCP won’t adversely affect
11
 endangered species or modify critical habitat. When FWS said that this HCP
wouldn’t result in jeopardy, it actually goes beyond statutory reqmt and enhance
likelihood of the survival of species. HCPs from standpoint of statutory design
they are interested in

IV. ESA & COMMERCE CLAUSE

A. Since Rehquist’s Federalism Revival there have been at least 6 challenges to ESA on
CCl basis. ESA is distinct from Lopez & Morrison b/c there has been a strong tradition
of fed gov’t involvement in wildlife protection in U.S., Fed gov’t has historically shared
the function w/ state govts so in this case we aren’t entering into a pure state regulated
activity.
B. National Association of Home Builders v. Babbitt (D.C. Cir. 1997) Use of ESA to
control intrastate activities doesn’t violate CCl b/c Congr could reasonably conclude that
protection of endangered species would substantially affect IC & would require control of
channels of commerce.
1. Facts: County & contractors sued to overturn federal decision to regulate a hospital & road project
in order to protect an endangered species of fly that was found only within CA.
2. Holding: Fed regulation of intrastate activities to protect endangered species is justified under CCl
when the regulation controls the channels of interstate commerce or substantially affects IC.
V. FUTURE OF ESA-Guest Speaker
A. Pombo’s Bill:
1. Critical habitat provision: Pombo has used critical habitat difficulties to
undermine support for this program. Unsure whether critical habitat issue can be
resolved w/o politics. Right now likely to be deadlock in Senate. Critical habitat is
one of sticking points. Likely ESA update process will stall.
2. Jeopardy Provision. Pombo bill weakens this part of law. Cumulative effects get
annoyed but from biologist standpoint these effects are fundamental.
3. Role of States: consensus that there is need to get states more involved. Unlike
other fed statutes which involve delegation of programs to state the ESA doesn’t
delegate. § 6 talks about relationship w/ states & it was thought that ESA would
be used by states but this role hasn’t been fulfilled. Pombo bill’s creates
loopholes. More intelligent ways to create roles.
4. Role of Science: misuse of science. Several large scale studies which show that
the way the act is structured is the best way.
i. Broad std-best available science.
ii. Pombo wants to increase role of non-science. Pombo’s bill talks about peer review &
modeling. Many scientists have serious concern with this approach & envtl groups don’t
want to change this.
B. Bi-Partisian substitute: more cost-sharing w/ fed gov’t, re-enacts no surprises policy.

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 NEPA

I. OVERVIEW
A Introduction NEPA requires fed agencies to consider likely effects of their actions on
the envt & consider alternatives. Applies only to fed actions or federally authorized,
funded, or permitted actions. Statute is short & supplemented by CEQ regulations
1. CEQ: congress created CEQ a central agency to coordinate agencies’ compliance
w/ NEPA. EO from Carter administration gave CEQ authority to promulgate
regulations on NEPA implementation that are binding on all fed agencies. Regs
have force of law. Importance of CEQ has fluctuated over time. Some
administrations have used CEQ to play a leadership role in CEQ regulations.
2. CEQ regs receive considerable deference from cts & are the 1st authority to turn
to in NEPA problem.
B. Structure Remarkably simple designed to mandate sig change in dm procedures of fed
agencies.
1. §101: establishes as continuing policy of Federal Gov’t the use of all practicable
means to create & maintain conditions under which man & nature can exist in
productive harmony.
2. § 102(C): requires all fed agencies to prepare an EIS on major fed actions
significantly affecting the quality of the envt. EIS must include a detailed
statement of envt impacts, alternatives to proposed action & any irretrievable
commitments of resources involved.
3. §102(2)(E): requires all fed agencies to study alternatives to actions involving
unresolved resource conflicts.
4. §201 requires Prez to submit to Congr an annual Envtl Quality Report.
5. §202 establishes a 3 member CEQ in the EO of the Prez
6. § 204 outlines duties & functions of CEQ including annual reporting on the
condition of the envt, info gathering, & review & appraisal of fed programs &
activities.
C. Ca;vert Cliffs Coordinating Committee v. United States Atomic Energy Commission
(D.C. Cir. 1971) NEPA requires agencies to consider envtl reports at every important
stage of the agencies’ decision making process.
1. Facts: An envtl group sued Atomic Energy Commission (AEC), charging that the Commission’s
rules governing the licensing procedures for nuclear power plants didn’t meet reqmts of NEPA.
2. Holding (Skelly Wright): AEC’s contention that NEPA requires that an EIS merely accompany a
license application made a mockery of NEPA § 102(C). AEC seems to be advancing the absurd
interpretation that § 102 just requires an EIS to travel around w/ other docs in a license application
folder. NEPA § 102 states that agencies must comply w/ its provisions “to the fullest extent
possible.” This is a very high std that reviewing cts must enforce. Agency actions aren’t
discretionary, & difficulty, delay & expense aren’t sufficient to overcome § 102 reqmts. If an
agency reaches a decision after required consideration of envtl impact, a ct will overturn the
decision only if decision was arbitrary. If, however, an agency makes any decision w/o full, good
faith consideration of envtl costs & benefits, a reviewing ct must reverse that decision. To comply
to the fullest extent, an agency must consider the EIS “at every important stage in the decision
making process.” NEPA requires that agencies balance envtl harms against economic & technical
benefits on an indiv case by case basis. The agency given the responsibility of a given gov’t action
must perform the complete balancing analysis for that action. Thus, certification from EPA that
the action doesn’t violate EPA’s air & water pollution stds doesn’t relieve the responsible agency
from its duty to balance all envtl costs against the benefits from the proposed license. As w/ the

13
 EIS, an agency must also “to the fullest extent possible” consider alternatives to proposed actions
as required by § 102(2)(E).
D. Strycher’s Bay Neighborhood Council, Inc. v. Karlen (1980)  NEPA doesn’t require
agencies to elevate envtl factors over other cost & benefit considerations.
1. Facts: U.S. Dep’t of Housing & Urban Development challenged a 2d Cir. ruling that it failed to
comply w/ NEPA when it approved a housing project at an environmentally inferior site b/c
alternatives sites would have entailed 2 year delays.
2. Holding: Agency determination that costs of delay outweighed envtl benefits didn’t violate NEPA
E. Procedural v. substantive. NEPA is different then ESA b/c it is a procedural, not a
substantive, statute.
1. NEPA Debate.
i. NEPA is not effective b/c its not substantive & b/c the NEPA process comes too late in
the decision making process.
ii. Effective b/c it can generate lots of info.
iii. “NEPA famously requires federal agencies to produce EIS prior to undertaking major
Federal action significantly affecting the quality of the human env’t. It requires little else,
& therein lies both its singular genius and its fatal flaw.”
2. Relationship b/w NEPA & ESA. Listing decision & designation of critical
habitat isn’t subject to NEPA. But, underlying action triggering § 7 consultation
usually requires NEPA. Sometimes it doesn’t if action isn’t “significant.” EA &
BIOP can often be part of same process.
F. Litigation has occurred over almost all stages of dm process. When should EIS
consider indiv projects individually & when should they be considered together as a
regional or national program? Interesting relationship b/w timing, scope of stmt & nature
of impacts.

II. UNDER WHAT CIRCUMSTNCES MUST AN EIS BE PREPARED? If done too early not
enough info about effects but if done too late then project may be a done deal & there isn’t much
to do. Cts have given agencies a lot of discretion.
A. Proposals for Legislation & Other Major Federal Actions. EIS must be prepared for
“proposals for legislation & other major Fed actions sig affecting the quality of the
human envt.
1. “Proposals for Legislation”
i. Legislative EISs rarely have been preformed.
ii. Andrus v. Sierra Clubagency’s requests to congress for appropriations aren’t proposals
for legislation w/in meaning of NEPA’s EIS reqmt.
iii. NAFTA. One condition for U.S. approval of NAFTA was successful negotiation of side
agreements governing envtl & labor concerns.
2. “Major Federal Action”
i. Major Fed action applies to private projects that require fed approval as well as fed
programs, polices, & rules. Include “actions w/ effects that may be major & which are
potentially subject to Fed control & responsibility.
ii. What is a “major” Federal action? No explicit monetary threshold. Case by case
determination. See Hanly (various factors to consider: money, time, etc)
ii. Who conducts EISs? DOI create EISs all the time, but EPA is generally exempted from
NEPA b/c of “functionally equivalent rule.”
iv.. Exemptions: EPA actions under CAA & many EPA actions under CWA, in particular
granting of air & water permits.
v. EA. If no exemptions from NEPA & an agency isn’t sure an agency has to do an EIS
agency will do an EA to determine if there will be significant impact. Goal is to provide a
reviewable envtl record. EA has been predominate way that agencies actually conduct
NEPA analysis. CEQ estimated that about 50,000 EAs were prepared as opposed to 5,000
EISs.

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 vi. Mitigated FONSI. Another trend is that in preparing EA if agency finds that impacts will
be significant but includes mitigating measures in result it can then make a “Mitigated
FONSI.”
3. Timing & Scope. Very difficult qs. Should agency prepare an EIS for its
formulation of nat’l policy so that it may consider the envtl consequences of
fundamental policy choices made at that stage? Should it prepare an EIS for each
region of country before nat’l program is implemented, so that particular
characteristics, needs & problems of the region can be considered? Should it
prepare an EIS for each action taken in implementing the program in the field, so
that it can evaluate envtl consequences on the basis of the concrete information
that only becomes available when one has proposal for specific action at a
specific site? Should it prepare an EIS at every one of these stages?
i. Kleppe v. Sierra Club (1976)  regional EIS is required only when an
agency acts or proposes to act on a regional scope or when various local
acts have a cumulative envtl impact.
a. Facts: DOI challenged a Cir Ct ruling requiring a regional EIS for development
of coal reserves in northern Great Plains States.
b. Holding (Powell): Multiple federal actions or proposals for action w/ respect to
related activities w/in a geographical region don’t require a regional EIS unless
there is a proposal for comprehensive regional action or sufficient cumulative
envtl impacts.
c. Aftermath: So, if there is a formal proposal on a regional level then a regional
EIS is required. Now, even if we don’t have a formal proposal, as defined by
CEQ or SCt, we may still need to include cumulative effects b/c of CEQ
definition of Scope.
d. Loophole: agency can get around this by not making a proposal. SCt gives lots
of discretion to agency as to when it has a recommendation or proposal. But an
agency can’t delay EIS process indefinitely. Look for permitting processes &
other formal signals that agency is proceeding on a project.
ii. In response to Kleppe, CEQ developed new regs
a § 1508.23 Proposal. Less formal definition of proposal. Preparation of an EIS
should be timed so that a statement should be included in time. A proposal may
exist in fact as well as by agency declaration that may exist.
b. § 1508.25 Scope. CEQ also responded to Kleppe by defining scope.
iii. Thomas v. Peterson (9th Cir. 1985)  NEPA requires a single EIS
covering overall impact of separate actions that are cumulative or
connected.
a. Facts: Conservationists sued to enjoin construction of a logging road & timber
sales until Forest Service prepared an EIS addressing the cumulative effects of
the road and the sales.
b. Issue: Whether road & timber sales are sufficiently related so as to require
combined treatment in a single EIS that covers the cumulative effects of the road
& the sales.
c. Holding: Yes, road & timber sales are sufficiently related. Even though agencies
are given considerable discretion to define EIS there are situations where an
agency is required to consider several actions in a single EIS. § 1508.25 (Scope)
the timber sales & roads are connected & cumulative actions. So, when separate
federal actions may have connected or cumulative impacts, the responsible
agency must prepare an EIS covering such impacts prior to undertaking any of
the indiv actions.
vi. Timing Hypo. When you get later in timing the range of alternatives is
less.
i. Imagine your building coal plant. If you do a programmatic EIS in the beginning
you would consider coal, gas, nuclear, wind & solar, if you wait till the end

15
 options would be less & you would
when you are building one plant your
be considering things like where to build the plant.
v. Scope Hypo. How do you know what the scope is?
i. Not sure! Imagine Federal Hwy is going to be built, for each segment effects
aren’t going to be significant enough but the entire project is significant. I.e.
Segmentation.
B. Significantly Affecting the Quality of the Human Envt.
1. Hanly v. Kleindienst (2d Cir. 1972)Sig. of envtl impacts from fed actions is
judged by comparing impact of action to current situation & by evaluating
absolute impact of action. A fed agency must provide public notice & opp’y to
comment prior to deciding whether proposed action requires agency to prepare
EIS
i. Facts: Local residents & business sued to enjoin construction of a fed jail & office
complex in Manhattan when the responsible fed agency failed to prepare an EIS.
ii. Issue: whether EIS must be prepared b/c proposed action is likely to significantly affect
quality of human environment.
iii. Holding: (1) a proposed federal action may significantly impact the human envt if it
either (a) deviates from the current character of the area where it will take place or (b)
combines w/ current impacts to create a significant impact. (2) A federal agency must
give the public notice & the opp’y to comment on proposed major federal actions prior to
the agency’s decision on whether the action requires preparation of an EIS.
iv. Dissent (Friendly): shows evolution of EA process unfolding.
2. Procedure for Determining Whether or Not to Prepare an EIS
i. §1508.9 EA. EA is a mini EIS & should include brief discussions of need for the
proposal, alternatives as required by section 102(2)(E), the envt impacts of the proposed
action & alternatives, & a listing of agencies & persons consulted.
a. EA serves 2 purposes, it:: (1) provides basis for agency determination whether
to prepare EIS; (2) is a vehicle for agency’s compliance w/ NEPA’s other
reqmts.
b. EA is an area of uncertainty.
3. Determining “Significance” of Action. “Significantly” requires consideration of
both context & intensity. See § 1508.27.
i. Context: significance of action must be analyzed in several contexts such society as a
whole (human, national), the affected region, the affected interests, & the locality.
Significance varies w/ settling of proposed action.
ii. Intensity: refers to severity of impact. Should consider: impact that may be both
beneficial & adverse, degree to which proposed action affects public health or safety;
unique characteristics of the geographic area; etc.
4. Note: If a major Federal action affects species that are not endangered it can still
be significant.
C. Debate whether “major” & “significant” can be defined independently or whether
they are inexplicable.
1. Some cts may say just b/c an action is major doesn’t mean that its effects are
significant-See Hanly.
2. CEQ regs adopted unitary approach. §1508.18 (“Major”) & § 1508.27
(“Significantly”)

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III. IS THE EIS ADEQUATE?
A. Each EIS must include: summary (to facilitate public review); an explanation of
purpose of and need for the proposed action; a description & comparative assessment of
alternatives; a description of the envt that will be affected by the action; and an analysis
of the envtl consequences of the proposed action.
1. Litigation centers on adequacy of agency’s assessment of alternatives & the
scope & detail of its analysis of envt consequences
B. Alternatives. Arguably most important part of NEPA.
1. 102(2)(E): agencies must “study, develop, and describe appropriate alternatives
to recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources.
2. Vermont Yankee Nuclear Power Corp. v. NRDC (1978) NEPA doesn’t
require agencies to consider every alternative suggested in administrative
proceedings.
i. Facts: Power company appealed a Ct of Appeals decision that the commission in charge
of licensing nuclear power facilities consider energy conservation measures as an
alternative to building a power plant.
ii. Holding: “rule of reason.” NEPA didn’t require AEC to consider energy conservation as
an alternative to building a nuclear power plant in an EIS prepared for use in the plant
licensing proceedings.
3. Std of review is highly deferential to agency.

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 CONTROLLING POLLUTION: COMMON LAW APPROACHES

I. PRIVATE NUISANCE
A Private Nuisance Background: CL cause of action that focuses on conduct that
unreasonably interferes w/ use & enjoyment of another’s land. Interference must be
substantial or significant & unreasonable. (Use & enjoyment aren’t synonyms-Odors &
noise may interfere w/ enjoyment but not use).
1. Restatement: Liability is imposed in those cases in which harm or risk to one is
greater than one ought to be required to bear under the circumstances at least w/o
compensation.
2. Limitation: (1) П must own the land (i.e. fisherman can’t sue for oil spill) or have
a possesory interest; (2) nuisance has to be significant, otherwise almost
everything would be a nuisance.
3. Problems
i. transaction costs
ii. free riding (particularly if you are going for an injunction).
iii. Not good at dealing w/ health problems associated w/ pollution. Private nuisance is
property focused.
4. Causation: reqmt that substantial interference be caused by Δ.
5. Theories
i. Intentional Tort (harm was foreseeable). Most of private action nuisance claims is
brought under intentional tort theory, Δ knew or should have known that interference
would occur. Interference has to be foreseeable.
ii. Negligence. Many times people aren’t being negligent
iii. Strict Liability. Many times activity is not abnormally dangerous, pretty routine process.
6. Remedies. Long tradition in Cts of balancing equities before granting injunction
remedies. Balancing process in which ct weight harm to П against the harm that
would occur to Δ if Δ would have to close down or pay.
i. Injunction.
a. Advantagesstops or abates the harm.
b. Disadvantages cost & benefits seem out of proportion. Balance
very frequently tips in favor of industry.
ii. Damages
a. Advantages  property owners can recover personally for certain
envtl externalities. П’s almost never can recover under envtl
statutes so tort law can be a great supplement to individuals.
b. Disadvantages  doesn’t stop the harm, not fully compensated for
the nuisance, is the amount really satisfactory, only the nearby
property owners who joined the suit will receive compensation
while the harm continues, doesn’t take into account future damages
b/c nuisance is ongoing.
7. Defense: “Coming to the Nuisance”
8. Shortcomings- difficult to make a private nuisance claim for groundwater
pollution & non-point sources.
i. Groundwater pollution-difficult to prove that interference from a Δ is foreseeable.
ii. Non point sources of pollution (i.e. pesticides, storm water, etc). П’s have to prove that
they suffered a substantial & unreasonable interference w/ their property use. Interference
has to be caused by Δ. Δ acted intentionally that interference would occur.
B. William Aldred’s Case
1. Facts: Pig sty is built adjacent to Aldred’s property

18
 2. Holding: Pig sty is a priv nuisance b/c the wretched stench that it generated interfered w/ Aldred’s
enjoyment of his property. If a non-trespassory invasion of property rights was sufficiently great,
air pollution was actionable as a private nuisance.
C. David, W. Chen, “A Sip of Wine, a Rustic View, & Hog Waste.” NY has right to
farm laws.
1. Coming to Nuisance Defense: happens when suburban sprawl goes into
farmland. Sometime you see trespass actions, a direct physical invasion of П’s
land.
2. Martin v. Reynolds (OR 1959)  the intrusion of fluoride particles constituted a
trespass b/c the particles invaded the property owner’s interest in exclusive
possession.
D. Madison v. Ducktown (1904)  an injunction against a private nuisance is left to the
ct’s discretion & is not appropriate when the benefit of the polluting company’s actions
outweigh the harm they cause.
1. Facts: Farm owners sued the owner of two copper smelters for an injunction & damages for
injured trees & crops & lost profits.
2. Holding: An injunction is not a proper remedy against a private nuisance when the benefit of the
polluting company’s conduct outweighs the harm it causes. Here, Madison has proven a case for
damages. However, injunctions are left to ct’s discretion. If injunction granted, copper smelters are
destroyed & that will significantly destroy half the taxable value of the community, & drive more
than 10,000 people from their homes. Injunction would shut down important manufacturing
enterprises worth nearly $2 million, in order to protect small farms worth less then $1,000.
Ducktown can’t conduct its activities in a different manner & can’t relocate to another remote
place. An injunction would practically confiscate Ducktown’s property w/o compensation. Ct
must balance rights of parties & here must grant Madison damages & deny injunction.
3. Class Notes: Theory. Intentional tort, no evidence of negligence (they seem to be pretty good faith
Пs b/c they were using best technology & even spent lots of money to try to invent better
technology). Causation: wasn’t really at issue in this case. Balance of Equities: injunction would
be huge burden on Δ w/ little benefit on П. Damages: no injunction, remanded for equities.
E. Boomer v. Atlantic Cement (N.Y. 1970) 
1. Holding: Creative solution of permanent damages. Ct issued a conditional injunction barring
operation of a cement plant whose air emissions had caused substantial damage to nearby property
until the plant paid surrounding residents the full value of their permanent damages if the plant
continued operation. Theory behind this approach was that the plant would opt to continue
operation only if operations had more economic value than cost of damage they produced.
2. Dissent: Nuisance should not be just about property damage. Other things should be taken into
account, like air pollution.
3. Theory of Liability: hard to answer, no evidence of negligence or unreasonableness on part of Δ so
assume intentional tort.
II. PUBLIC NUISANCE
A. Public Nuisance: CL cause of action, usually brought by a governmental entity, alleging
an unreasonable interference w/ a right common to the general public.
1. Less frequently used then private nuisance.
2. Offense against state & generally prosecuted by state. Δ had to have interfered
w/ public right.
i. Special Injury Reqmt: If private П asks for damages under public nuisance
theory the П must show that he/she has some kind of special injury- i.e.
that his or her harm is different in kind then injury of others. Rationale:
must limit the potential П class somehow.
a. Example: Oil spill in Maine. Two suits: (1) Fisherman & (2)
owners of hotels & restaurants. Both groups claimed that oil spill
caused economic injury to their livelihood. Ct held that damage
suffered by fisherman was different in kind then restaurant & hotel

19
 owners, and was greater. The restaurant & hotel owners suffered
more of an indirect injury suffered by the town as a whole.
Therefore, only fisherman satisfied special injury reqmt.
3. Category of impacts that ct can consider is broader then a private nuisance
(public health, morals, safety, welfare, comfort, & convenience).
4. Don’t need to own or possess land. Sometime difficult to distinguish public or
private nuisance & there are situations in which you can sue under either theory.
5. As in private nuisance interference has to be unreasonable.
6. Can go beyond reqmt’s of contemporary envtl statutes.
B. Missouri v. Illinois (1906)  Proximate cause is an essential element of a public
nuisance case.
1. Facts: Illinois began dumping its sewage into Mississippi River, causing possible contamination of
the drinking water in Missouri.
2. Holding (Holmes): Missouri itself dumps sewage into the Miss., thus it may be responsible in part
for contaminating its water. Furthermore, the expert evidence about whether Ill.’s sewage actually
caused the increase in typhoid fever is very contradictory. In addition, while the number of cases
of typhoid fever has increased in Missouri since Ill. Opened the canal, typhoid rates have not
increased on the banks of the Ill. River, which would be the case if the canal were the true cause.
The evidence about the existence of the typhoid bacillus in the Missouri water is also unclear.
Thus, Missouri hasn’t proven that Ill. is the proximate cause of its water contamination.
3. Note: Envtl statutes can deal w/ scientific uncertainty b/c they can regulate against risk rather then
waiting for injuries to occur & they are precautionary in nature.
C. Spur v. Del Webb (1972) 
1. Facts: Retirement community moves to a feedlot.
2. Difficult to tell whether this is a private or public nuisance. Case was brought under public
nuisance theory b/c (1) coming to the nuisance defense is not a defense in a public nuisance
action; and (2) social harm to public as well as social utility of action is considered under public
nuisance theory.
3. Remedy: Creative solution. Del Webb has to pay damages to Spur for closing down the feedlot.

III. VALUES OF ENVIRONMENTAL TORT ACTIONS

A. Advantages of bringing tort/nuisance laws
1. Under CL citizens can recover & receive damages
2. Chronic problem of under enforcement of statutes so CL can fill in the gaps
3. Nuisance actions can get at different problems
4. Tort Law is a very valuable supplement & it fills in the holes in the statutes
B. Limitations of nuisance/tort actions
1. Balancing test tips in favor or industry.
2. Huge transaction costs (social inequality-rich communities can afford to sue &
poor communities can’t)
3. Damages-difficult of dealing w/ ongoing nuisance
4. Special injury for public nuisance is hard to meet.
5. Causation problems
C. Movement from CL to Modern Statutes
1. In 1800s, legislation in this area was left to state & local govts. Congr did enact
limited statutes. Generally motivated not for concern for public health & envt but
rather concern for promoting commerce.
2. Post WWII we begin to see an emerging federal rule 1945-1962. Generally
programs weak & consisted of federal grants for states to develop a pollution
control program w/ no oversight by federal gov’t.

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3. 1962-1970 beginning of modern envtl movement. Could perceive envtl movement
as a response to development of synthetic chemicals during WWII & then the post
war expansion of the use of synthetic chemicals in consumer products.

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 HAZARDOUS WASTE CLEAN-UP- CERCLA/SUPERFUND

I. CERCLA LIABILITY & DEFENSES

A. RCRA Background (not responsible on exam helpful as context in understanding
CERCLA).
1. Deals w/ management of hazardous waste.
2. Cradle to grave. Look at all phases of production.
3. Passed in response to expansion & development of petrochemical company.
Prior to RCRA hazardous waste were dumped everywhere & there was little or no
regulation.
B. CERCLA Background. CERCLA is a regulatory program but employs CL principles.
CERCLA embodies a liability based approach to litigation (compare to roadblock statute
(ESA) & informational statute (NEPA)).
1. Assigns & allocates liability for cleanup of hazardous waste.
2. Cleanup Statute: dealing w/ cleanup after it has occurred.
3. Passed in response to Love Canal incident. Congr realized that waste had been
mismanaged for decades & just improving current practices wasn’t enough.
4. Strict Liability. CERCLA is based on theory of strict liability-i.e. release of
hazardous waste in abnormally dangerous & hence amenable to a strict liability
theory.
5. Controversial b/c of broad sweep of liability provisions & enormous litigation &
transaction costs.
6. Effect. Raised cost of waste disposal & thereby encouraged reduction of waste at
source.
7. More envtl lawyers have worked on this statute then any other statute.
40,000 hazardous waste sites were effected by Superfund. CERCLA has been a
target for reform. Some people believe that the allocation of responsibility isn’t
fair.
8. Ambiguities. CERCLA was hastily drafted, some circuit splits
9. Prima Facie Case: Release or threatened release of a hazardous substance at a
facility and the release has caused the П to incur response costs & the response
costs have to conform to NCP.
i. Release or threatened release: threatened release would be stuff like buried
old drums of waste that are going to leak but haven’t yet.
C. CERCLA Provisions
1. § 101 Definitions: term “hazardous substance” is defined in § 101(14); “release”
is defined in § 101(22).
i. “Disposal” Circuit Split: Whether a past owner could be held liable for material that has
leaked. Policy Reason: incentive to get the pollution cleaned up & it makes someone
responsible.
ii. “Hazardous Substance” p. 1136. Circuit Split. Some Circuits say it can be a small
portion. Other circuits have created a de minimis exemption. Petroleum, nat’l gas &
crude oil are exempted from definition of hazardous substance but not petroleum
products that are processed. Broader then definition of hazardous waste in RCRA.
iii. “Facility” p. 1136. Doesn’t include consumer product in consumer use but it can include
a consumer product that has been disposed of (i.e. dumps & junkyards can be subject to
CERCLA liability).
2. § 103. Notification Reqmts. Requires reporting of releases of hazardous
substances to Nat’l response Center.

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 i. Automatic duty to report any known release. Fairly expensive civil & or criminal
penalties for releasing.
ii. Why report?
a. Still may be entitled to innocent landowner defense.
b. If you don’t report you get hit w/ potentially massive fines b/c frequently EPA is
on property for some other reasons.
c. Can’t assume you’ll get away w/ not reporting.
3. § 104. Response Authorities. Authorizes Prez to undertake removals or remedial
action consistent w/ Nat’l Contingency Plan to respond to actual or potential
releases of hazardous substance.
i. Administrative orders. If EPA doesn’t use money from trust fund it can issue
administrative orders followed up by ct orders to clean up site. Later that party can bring
a contribution action to sue other PRPs later on.
ii. Remedial actions must be consistent w/ NCP. If EPA has cleaned up a site & sues a PRP
for cost recovery, the PRP can argue that even if liable EPA went beyond reqmt’s then
NCP & spent more on the site so costs should be little lower.
4. § 105. Nat’l Contingency Plan: requires establishment of NPL of facilities
presenting greatest danger to health, welfare, or the envt based on a hazard
ranking system (HRS) & requires revision of Nat’l Contingency Plan (NCP).
i. All federal cleanup actions must be consistent w/ Nat’l contingency plan.
5. § 106. Abatement Orders: authorizes issuance of administrative orders requiring
the abatement of actual or potential release that may create imminent &
substantial endangerment to health, welfare, or envt.
i. EPA has tremendous power under CERCLA b/c it can issue 106 actions to force PRPs to
cleanup sites. Unlike its huge regulatory rule in CWA & CAA, EPA doesn’t have an
extensive amount of regulatory authority under CERCLA.
a. Non binding guidance documents w/ less rulemaking.
b. If EPA chooses not to cleanup a sit it can issue a 106 order (administrative order
followed up by ct order)
ii. Before EPA can issue a 106 order EPA must find imminent or substantial endangerment
to public. Lenient standard despite language.
a. Endangerment is anything that can create a risk to health of people, it need not
be deadly & it can happen anytime in future. .
iii. If PRPs don’t respond to administrative order under § 106 they are subject to penalties of
up to $25,000/day.
iv. If EPA cleans up you can get treble damages. So there is tremendous amount of pressure
to respond to admin order.
6. § 107 Liability: imposes liability on (1) current owners & operators of facilities
where hazardous substances are released or threatened to be released, (2) owners
& operators of facilities at time substances were disposed, (3) persons who
arranged for disposal or treatment of such substances, and (4) persons who
accepted such substances for transport for disposal or treatment. These parties are
liable for; (a) all costs of removal or remedial action incurred by federal gov’t not
inconsistent w/ NCP, (b) any other necessary costs of response incurred by any
person consistent w/ NCP, (c) damages for injury to natural resources, & (d) costs
of health assessments. Creates exemptions for innocent purchasers, bona fide
prospective purchasers & de micromis contributors.
7. § 111 Superfund. Creates a Superfund which can be used to finance
governmental response actions & to reimburse private parties for costs incurred in
carrying out NCP.
i. Originally trust fund was funded through taxes on chemicals.
ii. Fund ran out in 1995 & it is currently funded by taxpayers.
a. Bush Administration supports the current status.
b. Opponents say that fund has gone down.

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 8. § 113 Judicial Review & Contribution: bars pre-enforcement judicial review of
response actions & abatement orders, & authorizes private actions for
contribution against potentially responsible parties.
i. Goal is to clean up now so problems don’t get worse.
ii. If liability contested this usually occurs at later point of time b/c if gov’t
hasn’t filed suit it is difficult to force issues earlier.
iii. If you wait & EPA comes after you, you can wait & argue various issues
or if cleanup is done EPA no longer has incentive to cleanup first.
v. Contribution Action. PRP already spent money on cleanup on a site &
turns to other PRPs & tries to get reimbursed. Can arise in 2 contexts:
a. if PRP has been subject to 106 order by EPA requiring PRP to
issue site it can start a contribution action vis-à-vis other PRP; or
b PRP can voluntarily cleanup a site & then go after other PRPs.
(1) Aviall, has made it more difficult to bring these types of
contribution actions.
c. Lots of these cases end up in negotiating settlements.
9. § 116 Cleanup Schedules: establishes schedules for evaluating & listing sites on
NPL, commencement of remedial investigation & feasibility studies (RI/FSs), &
commencement of remedial action.
i. Short-term removal action.
ii. Long-term remedial action (permanent solutions to the problem).
10. § 121. Cleanup Stds. Establishes preference for remedial actions that
permanently & significantly reduce volume, toxicity, or mobility of hazardous
substances & requires selection of remedial actions that are protective of health &
the envt & practicable; requires cleanups to attain level of “legally applicable or
relevant & appropriate std, reqmt, criteria or limitation” contained under any fed
envtl law or more stringent state law.
11. § 122. Settlements: sets stds for settlements w/ potentially responsible parties.
D. Pros/Cons for Liability Attaching to Current & Past Owners
1. Positive: might not be able to find past owners, gives buyers incentive to inspect
land.
2. Negative: no one wants to buy for fear of allocation of liability-detrimental to
cities trying to revitalize cores brownfields/greenfields tension, costs to polluters
are disproportionate-someone who caused 1% of pollution is liable for 100% of
cleanup costs.
E. Defenses to CERCLA
1. Cause of Action, 107(b)((3) can’t be in a contractual relationship w/ Δ. Example
when this defense is used is “midnight dumper”
2. Innocent landowner & the bono fide prospective purchaser defense
i. Innocent purchaser defense-added in 1986 w/ SARA amendments. Found
in definition § 101(35).
a. Shore wouldn’t have been entitled to an innocent purchaser
defense b/c he knew.
b. Standard is higher for industrial buyer, lower for residential buyer.
c. Difference b/w innocent purchaser defense & 3rd party defense. 3rd
party defense release occurred before owner took control of
property.

24
 ii. Bona fide prospective purchaser. Trying to create some incentives to buy
properties. Have lots of developers that benefit. Obligation is to prevent
problem from getting worse.
3. Some exemptions for lenders & banks that might have a security interest in
property but not a management role.
E. United States v. Olin Corp. (11th Cir. 1997) Congr has power to regulate disposal of
hazardous waste under CCl & CERCLA may be applied retroactively.
1. Facts: Ct asked the parties to address whether CERCLA was con applicable to their consent decree
under CCl & whether CERCLA could be applied to activity that occurred prior to its enactment.
2. Holding CCL: Congr is regulating an intrastate activity that substantially affects interstate
commerce. Contrary to district ct’s ruling, under CCl, the regulated activity need not be economic,
Under Lopez, a statute is valid under CCl if it arises out of a commercial transaction which
substantially affects IC. (See Wickard Aggregate Test & Morrison Test where intra state effecting
intrastate must be economic). Here, waste disposal, whether on-site or off-site, substantially
affects IC. It is connected to the recent growth of the chemical industry & costs of handling its
waste. Chemical contamination has also caused increased agricultural losses. Even on-site disposal
that causes no off-site damage affects IC b/c it is part of Congr’s broader scheme to protect IC
from pollution.
3. Holding Retroactivity: While Landgraf reaffirms presumption against retroactivity, we must look
at Congr’s actual intent. Although statute contains no explicit statement regarding retroactivity,
Congr’s intent is clear. By imposing liability against former owners & operators, Congr
manifested its intent to reach conduct preceding CERCLA’s enactment. In addition, its reqmt that
former owners & operators notify the EPA of the existence of any facility where hazardous
substances are or have been stored addresses conduct that occurred before CERCLA’s effective
date. IN addition, the fact that an essential purpose of CERCLA is to impose liability for cleanup
on those responsible for the problems, & not on the taxpayers in general indicates Congr’s intent
that CERCLA apply retroactively to address contamination that occurred prior to its effective date.
Finally, congressmen commenting on the chief predecessor bill to CERCLA expressed the belief
that it would be applied retroactively.
F. B.F. Goodrich v. Betkoski (2d Cir. 1996)  definition of hazardous substance. It may
not need a waste per say. It can be a relatively small fraction of another product.
1. Holding:
i. Component: it is enough that a mixture or waste solution contain a hazardous substance for that
mixture to be deemed hazardous under CERCLA. The waste product itself need not be listed by
name instead of its constituent components to fall w/in the Act.
ii. Releasability: Δ was trying to argue that he isn’t liable b/c it was manufactured in such a way that it
will never be released in env’t in form that it is. Ct holds that non-releasability is not one of the 4
defenses in CERCLA. Can’t show non-releasability as a defense to liability. Ct says that in an
action for contribution you can factor this in & limit amount of response costs.
iii. Negligible Amounts: CERCLA doesn’t establish any threshold level. It can be a small amount.
G. New York v. Shore Realty Corp (2d Cir. 1985)  Current owners of contaminated land
are liable under CERCLA, even if they didn’t own the land at the time of the disposal or
cause the presence or release of the waste.
1. Facts: NY sued a landowner for cleanup of hazardous substances that were on the land before the
landowner purchased it.
2. Holding: Under § 9607(a)(1) CERCLA applies to all current owners & operators of contaminated
land. Unlike § 9607(a)(2), which applies to prior owners, § 9607(a)(1) doesn’t limit liability to
owners who owned or operated the facility at the time of the contamination. If it did, the
affirmative defenses in § 9607(b) would be superfluous. In addition, if Shore’s argument were
correct, CERCLA would be stripped of its power b/c owners of hazardous waste sites could sell
their land to new owners who would not be liable under CERCLA, & then disappear. Finally,
Shore may not assert the affirmative defense under § 9607(b)(3). The 3rd party described in the
statute can’t be the prior owner b/c the acts or omissions referred to in the statute must be those
occurring during Shore’s ownership of the property. If the 3rd party is the tenant on the property
after Shore owned it, the affirmative defense doesn’t apply b/c Shore didn’t take any precautions
against any foreseeable acts or omissions by the tenants.

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H. United States v. Bestfoods (1998)  a parent corporation that actively participated in &
exercised control over the operation of a polluting facility owned by a subsidiary is
directly liable as an “operator” under CERCLA.
1. Facts: Fed gov’t sued a parent corporation that actively participated in & exercised control over
the operation of a polluting facility owned by a subsidiary.
2. Holding (Souter): CPC may be liable under 2 diff. theories here: (1) derivative liability as parent
corporation; & (2) direct liability as an operator of a polluting facility. CERCLA incorporated
basic corporate law. Under corporate law, a parent corporation isn’t directly liable for its
subsidiary’s acts. However, the parent may be derivatively liable if the corporate veil could be
pierced. Thus, if CPC exercised control over OTT II, it would not be directly liable under
CERCLA. However, here, CPC may be directly liable as an “operator” of a polluting facility.
Under CERCLA, an “operator” is someone who directs the workings of, manages, or conducts the
affairs of a facility directly related to pollution. Contrary to the district court’s analysis, we should
look at the relationship b/w CPC & the facility, not at the relationship b/w CPC & OTT II. Thus,
the evidence shows that CPC operated the facility; whether CPC operated OTT II isn’t relevant.
The fact that directors of CPC also acted as directors of OTT II is not relevant. What is relevant is
whether CPC’s officers merely oversaw OTT II’s operation of the facility, or whether CPC
officers directly operated the facility. Remanded for determination of whether CPC is an operator.
3. Can establish direct liability of a parent as an operator under CERCLA if
i. Parent has to exercise control over facility (not control over subsidiary)
ii. Look at degree of involvement in facility (if some members of parent
company are on board of directors or supervises finance or budget
decisions still wouldn’t give rise to direct liability b/c you are looking for
owners involvement in a facility). No matter how much evidence of role
w/ subsidiary you are looking at role to hazardous substances.
4. Lender liability issues. Whether & to what extent are banks or lenders held liable
under CERCLA? Statute includes an exemption of owners & operators for lenders
who don’t participate in the management of the facility but said nothing about
lenders.
i. EPAtried to clarify the meaning of participation in a rule. That rule was
struck down in Kelly v. EPA (Ct held that Congr hadn’t given EPA
rulemaking authority over provisions of CERCLA).
ii. Congr added another amendment dealing w/ lenders. 101(20)(f) & tries to
define what participate actually means, & today statute says “actually
participate in management.” This is an example of the interplay b/w congr,
exec, & judiciary in env law.
G. Arranger Liability- Circuit Split
1. Pros & Cons to making arranger liable if there was knowledge & control.
i. Pros: creates incentives for arrangers to care about what happens to their
products as they go through the processes. deep pockets.
ii. Cons: arrangers may close their eyes & not want to get involved. don’t
want people to evade liability as arrangers by pawning off substances. You
also don’t want to discourage honest recycling efforts. Don’t want
dumpers getting a windfall. Recycling amendments were added in 1998
2. Δ may be liable even if there was no intent to be liable. United States v. Aceto
Agricultural Chemicals Corp. (8th Cir. 1989)  Under CERCLA a company
that provides a hazardous substance to a formulation facility & who has no
control over the facility may be liable as a “generator.”
i. Facts: EPA sued pesticide manufacturers who provided pesticides to a pesticide
formulation facility for cleanup costs.
ii. Holding: Under § 9607(a), any person who “arranged for” the treatment or disposal of
hazardous substance at a facility may be liable as a “generator.” This language must be

26
 interpreted very broadly in light of CERCLA’s broad remedial statutory scheme.
CERCLA’s goal is to impose responsibility for cleanup costs on all responsible parties.
This goal would be thwarted if we accepted Aceto’s characterization of its relationship w/
Aidex as merely one to formulate a useful product. While courts have refused to impose
liability where a substance is sold to another party who then incorporates it into a product
which is later disposed of, this is not the case here. Aceto retained ownership of the
hazardous substance & directed Aidex’s formulation. In addition, common law rules
regarding vicarious liability apply here. Affirmed.
iii. Contextual Inquiry: Ct looks past Δ’s own characterization & says even
though Δ arranged for sale ct is going to analyze whether there is a real
market, or if this is this a sham transaction, did Company dump before.
CERCLA can’t be circumvented by characterizing arrangers as sales. Ct
looked to control & knowledge of what was going on. Ownership of
materials.
3. Δ must have an intent to be liable. Amcast (7th Cir) emphasized intent & puts a
intent reqmt in.
4. Montalvio - totality of circumstance approach & looks at several factors- all of
them are relevant but none of them are dispositive.
5. Hypo: Company A owns wood products facility. Company B manufacturer
chemicals to treat wood. Company A sues Company B as PRP. Chemical
manufacturer helped design & build wood producers facility. Chemical
manufacturer had full access to wood products facility.
i. Aceto no intent reqmt: yes
ii. Amcast: tougher to prove
iii. Circuit split b/c of perverse incentives created by Aceto approach.

III. ALLOCATION OF LIABILITY

A. EPA v. Monsato (4th Cir. 1988) 
1. Facts: In 1972 Hutchinson & Seidenberg leased a site to COCC. COCC later gets
into business of dealing w/ chemical waste. Incorporates & becomes SCRDI. 3
Generator Δ’s were chemical producers that had contacted w/ SCRDI for
disposal. SCRDI haphazardly deposited 75,000 drums w/ virtually no
maintenance, no attention paid to compatibility of chemicals, there were noxious
fumes & fires. EPA & South Carolina clean up site & spend lots of money on
response costs. They allege that owners & operators were strictly liable.
2. Site-Owners Arguments: lease was verbal & they didn’t really know what COCC
was doing & then SCRDI grew. But Ct analyzes this from a 3rd party defense
standpoint & rejects the site-owners arguments b/c they accepted rent, they
admitted that they became aware of the disposal. Main thing the ct said was that
there was no evidence that you took precautionary action against COCC &
SCRDI. You knew you were contracting w/ a company that produces chemicals
& the statute doesn’t sanction willful or negligent blindness.
3. Generators arguments: (1) it wasn’t their materials; (2) constitutional argument re
retroactivity; and (3) 3rd party defense.
i. Elements of 3rd Party defense: 107(b)(3) can’t be in a contractual
relationship w/ Δ, Δ has to establish that he exercised due care w/ respect
to hazardous substances, Δ had to take reasonable precautions against
foreseeable acts of 3rd party.
ii. Generators argued that none of the wastes contributed. CERCLA requires
proof that the specific substances that they generated were hazardous.

27
 Generators were looking at language on 107(a)(3) arrangers or generators.
Must fingerprint wastes at cite to hold arranger liable.
2. Holding: Under CERCLA all you need to do is show chemical similarity. Then
you go on to say that to require a П under CERCLA is to eviscerate the statute.
Joint & Several Liability Issues: Site Generators were arguing that the harm is
divisable by identifying the percentage of waste. Ct says no. There is way too
much co-mingling to segregate waste based on volume. Harm must be divisible
otherwise joint & several liability applies. We can account for different volume
amount later in contribution actions. Here, in liability phase we can’t go on
volume. Some substances are more toxic then others. Waste are migrating from
one spot to another. It would be technically infeasible by segregating harm based
on volume. Harm is somehow greater then the individual parts.
B. Situations in which you could apply a volumetric method of apportioning liability
1. Geographic distinct areas
2. All the same product
3. Perfectly labeled drums in distinct sites
4. All the same time period
C. In Re Bell Petroleum Services (5th Cir. 1993)  No commingling problem, only one
substance, 2 successive owners, ct proportions on volume.
1. Holding: went through common law & situations in which a harm would be
divisible. I.e. when you can determine contribution in each in causing a single
harm, & successive harm when 2 Δ pollute, & distinct harms (i.e. 2 Δs shoot П
one wounds in arm & one in leg).
D. Circuit splits
1. Monsato is strong majority.
2. But Alcan approach where the Δ can escape liability all together if he can prove
that waste didn’t apply to response costs in any way (i.e. pollution at site was no
higher then background level).
3. The Moderate approach A&F Case says that even if there is no way of
apportionating liability the ct can still retain discretion to refuse to impose joint &
several liability if the ct decides it would be inequitable. Maybe ct should decide
now rather then later, why are we deferring the allocation of liability, lets let
equitable factors come in later.
E. Kamb v. Coast Guard (N.D. Ca. 1994) 
1. Facts: shooting range.
2. Holding:

IV. SETTLEMENTS, CONTRIBUTION, BROWNFIELDS, & SUPERFUND REFORM

A. Contribution: CERCLA has been softened over time through a series of Amendments.
SARA softens blow of joint & several liability in a variety of ways. Most significantly
the amendments cause a statutory § 113(f), it promoted settlements by EPA by providing
better terms for de minimis parties.
1. “Gore Factors,” Equitable Factors: method to apportion joint & several liability.
Factors are neither an exhaustive nor exclusive, it’s a totality of circumstances
approach:
i. Ability of the parties to demonstrate that their contribution to a discharge, release, or
disposal of a hazardous waste can be distinguished;
ii. Amount of hazardous waste involved;
iii. Degree of toxicity of hazardous waste;
iv. Degree of involvement of the parties in generation,

28
 transportation, treatment, storage, or disposal of the hazardous waste.
v. Degree of care exercised by parties w/ respect to hazardous waste concerned, taking into
account the characteristics of such hazardous waste; and
vi. Degree of cooperation by parties w/ Federal, State, or local officials to prevent any harm
to the public health or the env.
2. Aviall: makes it difficult, if not impossible, for PRPs who volunteer to clean up
site
3. CERCLA Authorizes EPA to enter into preliminary non-binding settlements.
These EPA settlements always have to be approved by a Ct. For people who have
been practicing Superfund law is that PRPs are primarily responsible for hashing
out settlements on their own (but must be entered in Ct & Consent Decree). De
minimus PRP get far better terms in settlement process usually a bifurcated
settlement process. People who have very little role in problem get off easier.
Might not have qualified can get out.
4. De minimimus & de micromis exemption
5. EPA sees more money if you wait to settle. For better or for worse encourages
settlements because earlier settlers tend to do better. As parties settle the whole
amount EPA tries to get back reduces in volume. Thumbscrew approach toward
settlement.
6. Orphan Shares. These provisions authorize EPA to enter into mixed funding
settlements. Orphan Shares occur when there are PRPs who can’t be found or
don’t have any money. Provisions relating
7. Covenant not to sue. If you settle you generally get a covenant not to sue which
protects EPA. Most of these settlements have a reopener provision that in certain
circumstances if EPA finds that the cleanup is much more expensive then
anticipated they can potentially reopen the process & get more money out of
PRPs. Most PRPs add a premium on to what they would otherwise owe. You may
be liable for $30,000 but you add $20,000 of a premium that gives you a
covenant not to sue.
8. Lionshare
9. United States v. Vertac Checmical Corp. (E.D. Ark. 1999)  in resolving
contribution claims, the ct may allocate response costs among liable parties using
whatever equitable factors the court determines are appropriate.
i. Facts: Hercules (Δ) & Uniroyal (Δ) were the two remaining Δs in an action by gov’t to
recover EPA’s costs in cleaning up a hazardous waste site.
ii. Issue: Should allocation of hazardous-waste cleanup costs be determined exclusively
under the volumetric approach?
iii. Holding: No. Volumetric approach is an appropriate starting point in allocating hazardous
waste clean-up costs b/c it takes into account the relative involvement of Hercules &
Uniroyal at the site & their level of contribution in the contamination of the site.
However, CERCLA §9613 provides that: “the ct may allocate response costs among
liable parties using such equitable factors as the ct determines are appropriate. The “Gore
factors” are often used to arrive at what would be an equitable resolution. The sixth of
these factors is the degree of cooperation by the parties w/ federal, state, or local officials
to prevent any harm to the public health or the env’t. Under the volumetric approach,
Uniroyal’s liability for the cleanup costs should be 1.76% of the balance of the cleanup
costs incurred by EPA. However, application of the 6th Gore factor warranted an upward
departure from Uniroyal’s percentage of liability b/c, while Hercules responded
immediately to EPA’s orders under 106 of CERCLA & undertook extensive remediation,
Uniroyal took the position that it had cause to disregard those same orders, Consequently,
Uniroyal’s percentage of liability was properly increased to 2.6% & the percentage of
liability assigned to Hercules was decreased to 97.4%.
B. Brownfields Policy

29
 1. Successful? Depends on the state.
2. Envtl groups need to be vigilant at state level.

Federal grants to municipalities

Bonafide perspective purchaser agreements
Structure is no enforcement if you participate in certain agreements. These reqmt’s are stringent & it’s
easy to fall off the wagon.
Tax incentives
Bond program, tax credits
Brownfield context brings up envtl justice questions.
C. Superfund Reform
1. Many proposals for reform over years: Industry proposes to abandon joint &
several liability all together. Move liability to giant public fund paid by tax
payers.
2. Do away w/ retroactive liability? But, that problem is going away on its own.
3. Eliminate joint & several liability for smaller PRPs.
4. Lots of lobby groups argue for certain exemptions. Eg. Municipalities want
exemption for their dumps-like when indiv throw away paints & such.
5. Policy issues surrounding remedies. How clean is clean? Do we focus on
hazardous solutions or institutional controls (i.e. fences around site or clay liners
or use restrictions for former superfund sites). Tension in language of statute. Are
institutional controls sufficiently being monitoring. Some argue that institutional
controls are just delaying the problem & although cost effective initially they
might cost a lot.

D. Video/Conclusion
1. 3 ways to clean up a site
i. EPA can issue an order & make someone do the work. Not a very good way to do it b/c if
people don’t want to clean it up they aren’t going to do a good job.
ii. EPA Cleans up the site. Today $300 million goes into cleanup. 1/3 emergency removals
(Katrina, fire, explosion), 1/3 overhead, 1/3 cleanup.
iii. Settle, this is the preferred method. In the golden days EPA would receive about $1
billion, today the number is about $800 million.
2. 106 option isn’t used much anymore.
3. At any given time there are a couple hundred cost recovery actions under
§107(a).
4. Defenses: Divisibility, EPA doesn’t have to worry about divisibility in most
Superfund cases. But see Bellcamp. Midnight dumpers. Innocent purchaser.
5. 2 Phases of CERCLA Cases: (1) Liability; & (2) cost recovery
6. EPA usually goes after big PRPs. I.e. exon valdez, GE on Hudson. Landfills
7. Lots of cleanup that occurs w/o EPA. Sites that EPA will never get to. Some are
done by voluntary state programs. Most occur after real estate deal you start
digging & you find a substance. It used to be easy to sue each other. Aviall makes
it necessary for EPA to file a recovery action before they can sue. Aviall has an
impact on 20-40,000 sites.

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March 16, 2006

ENVIRONMENTAL JUSTICE
THE INTERSECTION OF ENVIRONMENTAL LAW & CIVIL RIGHTS LAW

I. PURSUING ENTL JUSTICES

A. Introduction
1. Ensures public participation in envtl decision making-i.e. permitting
2. Distribution Disproportion Element-geographic or demographic distribution of
risk. Does envtl law have a duty to protect those who are most susceptible? Envtl
law has begun to set stds. These stds determine the permissible levels of pollution.
Should these stds protect more vulnerable groups. Sometimes this could be
correlated w/ race or ethnicity.
i. NRDC v. EPA-std wasn’t necessarily sufficient to protect subsistent
fishers. Local case involving Indian tribe that relied on fishing. Decision
was that agency needed only to protect general population.
ii. CAA-nat’l ambient std for lead is met in a given metropolitan area but
there are certain industrial neighborhoods where people are exposed to
higher concentrations.
a. Definition of Envtl Justice. Definition changes depending on who is defining it, it
means diff things to different people. Many think of envtl racism & there has to be a
racial component. But it also takes into account income disparities. Compare
Clinton’s definition w/ Bush’s definition form handout.
i. Clinton: “Fair treatment means that no group of people, including a racial,
ethnic, or socioeconomic group, should bear a disproportionate share of
the negative envtl consequences resulting from industrial, municipal, &
commercial operations or execution of federal state, local & tribal
programs & policies.
a. Clinton’s EO on Envtl Justice, directs Federal Agencies to
develop envtl programs & explicitly mentions consumption
patterns. “Each Federal agency shall make achieving envtl justice
part of its mission by identifying & addressing, as appropriate
disproportionately high & adverse human health or envtl effects of
its programs, policies & activities on minority populations & low-
income populations in U.S. & its territories. . .” EOs don’t create
new rights or benefits.
ii. Bush: “EPA has this goal for all communities & persons across this
Nation. It will be achieved when everyone enjoys the same degree of
protection from envtl health hazards & equal access to the dm process to
have a healthy envt in which to live, learn & work.”
a. Critics say Bush’s change has deemphasized its commitment to
envtl justice is supposed to benefit minority populations.
5. Push & pull b/w EJ & sprawl. EJ pressures might want to keep industry out of
industrial areas & anti sprawl movement wants to prevent it from coming in. How
do we reconcile this? These dimensions might force us to create real incentives
for pollution control. Some members of community want to bring industry into
community for jobs & economic revitalization. But, at the least all agree that envtl
risks need to be minimized or mitigated. Mitigation measures rather then outright

31
 denial of permits. Sometimes we see examples of industries deciding not to locate
in an area b/c of envtl justice but usually mitigation is what occurs.
6. Emergence of EJ. First suits emerged over unfair allocation of envtl benefits
(failure to provide infrastructure, paved roads, etc), rather then unfair distribution
of envtl burdens. Racially restricted covenants, zoning regulations, often forced
minorities into bad communities. Major impetus for modern vision is attributable
to a series of studies that took place in 1980s. 1987 Study by Church of Christ
Toxic Race & Waste in U.S. which correlated minority populations in zip codes
throughout United States w/ sitting of toxic waste.
I. VEHICLES PURSUING EJ
A. EP Clause. Philip Weinberg, “Equal Protection”. Hard to pursue EJ through EP b/c you
have to show intent to discriminate which is very difficult. You usually need to have
some circumstantial evidence.
1. Most EP claims get rebutted b/c:
i. Cumulative effects. Lots of effects not w/ in jurisdiction of agency.
ii. Justification defense. There is usually always some non discriminatory
justification.
iii. Industry responds that they have also permitted facilities in non minority
neighborhoods.
iv. Not enough evidence, not enough facilities to show statistical analysis.
So w/o circumstantial evidence cts usually won’t find EJ violation.
2. But cts may find EJ violation when there is:
a. Change in procedures
b. Selective enforcement. Yick Woo.
c. Statements by decision makers that they intended to discriminate
(although many cts don’t use this).
d. Gerrymandering, altering boundaries-Lightfoot.
But you really need a smoke & gun to prove EJ violation & Пs usually lose on EJ
claims.
3. Bean v. Southwestern Waste Management concerned a challenge to a state
permit for a solid waste landfill on outskirts of Houston.
i. Chicken & Egg problem. Presence of sites provide lower property values
& minority communities move in b/c land is cheaper. Argument made in
lots of law review articles.
ii. Couldn’t consider action of other agencies not mentioned in suit.
iii. Other stats that showed that they created landfills where non minorities
lived.
iv. That was where the industry was located.
4. East Bibb Twiggs v. Macon Planning & Zoning Commission Ct found no EJ
violation.
5. As a rule the only winners under EP have been denial of benefits-i.e. unequal
allocation of city services-rather then unequal burdens b/c it is much more
difficult for gov’t to justify why they didn’t provide benefits. Also, difficult it is
easier to make comparisons-i.e. deal w/ paved streets in white neighbors v.
unpaved roads in minority neighborhoods. Also there is rationally restrictive
covenants that forced minority groups into certain neighborhoods.
6. Miller v. City of Davis (N.D. Tex. 2002)  denial of benefits was violation of
EJ.
i. Facts: History of horrible race discrimination in area.

32
 ii. Holding: substantial circumstantial evidence of discrimination test. Also
departures from normal substantive procedures in zoning population- i.e.
lead smelter wasn’t required to get a special use permit in this area where
a permit was required in other neighborhoods.
B. Statutes. Title VI of Civil Rights Act & Fair Housing Act, increasingly used.
1. Background. Title VI prohibits discrimination on basis race or nat’l origin from
programs receiving federal funding. There must be federal funding nexus. But,
federal funding doesn’t require federal agencies. EPA is subject to EP Clause &
EO but isn’t subject to Title VI-although EPA has pledged to follow Title VI.
Federal envtl law usually delegates permitting function to states-cooperative
federalism. EPA gives out lots of funding.
2. Title VI handout.
i. Section 601 No person shall, on ground of race, color, or nat’l origin, be
excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving federal financial
assistance.”
ii. Section 602 authorized federal agencies “to effectuate the provisions of
sec. 601 by issuing rules, regulations, or orders of general applicability.”
iii. SCt has held that agency regulations issued under 602 may prohibit
discriminatory effects. So it’s easier to show discriminatory effects then
intent.
a. SCt seemed to be looking around at existing regulations under
Title VI.
b. Sec 601 allows successful Пs to recover damages whereas sec 602
only gives injunctive relief so since relief is more limited you can
have an easier to satisfy stds.
3. Title VI written before EJ was on the radar screen. Much of envtl law is
barrowed from title VII employment law & many principles from employment
law are being put in. For example when П is trying to show disparate effects how
do we define affected population & a comparative population.
4. Title VI, Regs not enforced by EPA till Clinton Admin.
5. Prima Facie Case.
i. П has to show, or EPA must find, that Δ’s facially neutral actions have a
significant adverse disproportionate impact on minority group.
ii. Action in question has to have caused the disproportionate impact.
iii. If a disproportionate impact is shown the burden shifts to the Δ
iv. If Δ can’t rebut then Δ must show evidence of legitimate
nondiscriminatory reasons for locating where they have located.
Justification defense.
v. Case goes back to П & П has to show that justification is merely a pretext
for discrimination or Δ failed to adopt a less discriminatory. . .
6. 2 ways to bring a Title VI Action.
i. Administrative Complaints.
a. Complaint against state agency that grants permits.
b. Complainant sends complaint to EPA
c. EPA undertakes an investigation. EPA had interpreted title VI to
apply to new & renewed facilities.
d. If EPA concludes that Title VI has been violated they will engage
in negotiations w/ state agencies to mitigate. During these

33
 negotiations there can be a modification of the terms of existing
permits-rebuttable compliance. See, eg, Select Steel (company in
compliance w/ Nat’l Air Ambient Std, but it is a rebuttable
compliance w/ title VI).
ii. Private right of action. Virtually eliminated by Sandoval decision. 602 is
no longer an avenue. All that is left is a private right of action under 601 in
which П has to show discriminatory intent, a much higher std.
7. Advantages & Drawbacks to Administrative Complaint
i. Advantages: cheaper, simple to get in door, don’t need to hire a lawyer.
ii. Drawbacks: lots of agency discretion, backlog of complaints, little or no
opportunity for communities to challenge the rejection of an
administrative complaint but the state agency can appeal a finding of a
Title VI violation, no clear time limits for EPA to make a finding. EPA
guidance. Remedy-no damages. Ultimate remedy is termination of funding
but EPA tries to resolve these things informally & work through
mitigation measures if it can rather then being to heavy funding. EPA
doesn’t want to withdraw funding b/c EPA’s mandate is to protect env’t &
these state agencies are using funding to protect env’t.
8. Shintechuge plant destined to locate in Cancer Alley. EPA undertook a lengthy
investigation. Facility decided not to locate & moved to poor, rather then minority
claim.
9. Select Steel Flint MI. Only case w/ former admin decision. Established
rebuttable presumption of no adverse impact.
10. EPA Investigative Guidance. Written to clarify how agency will investigate title
VI complaints. Factors that agency will look at. EPA has also issued recipient
guidance designed to be used by states themselves. Provides states w/ examples of
affirmative measures they can undertake to avoid a title VI challenge in 1st
instance-suggests states do inventories of LULUs. Pg. 3967. Industry often argues
it will be fair to us. Permit actions. If Permit causes net increase. Allow title XI to
get at existing problems.
i. Area Specific Agreements. State enters into a memo of understanding w/
minority communities & come up w/ a statewide agreement. 3967(b)(1).
ii. In its investigation EPA can include background sources of info to
determine whether impact in q is diverse. When trying to make diversity
determination look at all kinds of problems in communities. But when
making disparity decision EPA will only look at impacts w/in recipients
legal authority to regulate (narrowing range of sources). Confusion over
what this means. EPA is trying to find ways to include noise & odor while
reducing practical problems of comparing apples & oranges. Huge
problem. Civil Rights Groups argue that you need to address broad range
of impacts & companies are saying you shouldn’t look at things beyond
control. Push/pull. EPA tends to look only at permitted facilities. Universe
of sources for adversity decision is broader then final disparate impact
decision.
iii. How do you characterize affected population v. comparison population.
Pg. 39681. EPA says that it is difficult to define effective population.
Comparison to access disparity is equally complicated.
iv. Case law under Title VII cts are split as to whether it has to be
comparatively effective or equally effective. Comparatively effective is

34
 more П friendly. But EPA will consider cost & technical feasibility which
works against Пs.
C. Presidential EO on EJ 1984 requiring Federal agencies.
D. Inherent Authority in our laws that have openings where mitigating measures can be
put in place. I.e. NEPA can bring out EJ considerations in EIS.

March 23, 2006

Garden Valley.
Demographics:
Even if you don’t have a majority minority neighborhood П’s could make majority
Facilities listed in this complaint tend to be municipal.
How should you define universe of sources. On one hand you should include as many impacts as
possible b/c the idea of EJ is to address cumulative. But, EPA said that universe of sources is probably
going to be broader when making adversity determination. But, when you start at end of process and
making disparity determination you run into a lot of problems b/c you face lots of apples & oranges
questions. Lots of problems when you are actually trying to do analysis. If EPA were to investigate
Garden Valley’s complaint would the agency consider declining property values & pedestrian safety in
these areas? These are issues that the neighborhood cares deeply about. For example, it might consider
air admissions from trucks going back & forth, rather then traffic problems or safety. Funny language in
guidance if state had state NEPA maybe we can consider those kinds of impacts addressed under NEPA.
As a general rule universe of sources in adversity can be broader then in the disparity situation. What
about mitigation? What would qualify as less discriminatory alternatives. Condition permit so that plant
can’t burn contaminated waste. New roads for trucks so they don’t go through the neighborhoods.
Challenge of trying to deal w/ these complaints.

Camden v. New Jersey

As result of SCt’s Sandoval decision there is no longer a private right of action under section. . . .
Only private right of action is to address int’l discrimination under section . . .

П’s are a citizens group living in Waterfron South, brought a private action asking for an injunction
pertaining to issuance of air permits for a proposed cement facility. Пs allege that states granting permits
will have a discriminatory impact. Same problem here as in garden valley, many toxic materials will be
emited from plant. 500 additional in bound trucks, 200 additional outbound trucks. Great magnitude of
project. SLC was going to be a good actor and build state of the art facilites and comply w/ all the envtl
laws. This neighborhood is 91% minority, very strong.

П’s allege that state of NJ failed to consider demographics of community, cumulative ent’l impacts,
tremendous ozone problems, & the health problems w/in community. Many other facilities in area.

Presume university of sources is broader in diversity & narrower in disparity.

Recent Big debate: if you read Fed EO on EJ one of the goals is to collect more info on health based on
race. In critical legal studies huge debate where people are pointing out dangers are a good idea.

Issue: whether compliance w/ envtl law should constitute compliance w/ Title VI. EPA guidance
explicitly says that compliance w/ envtl law is not per se compliance w/ Title VI.

35
EPA says if you are in compliance w/ ambient std that should create a rebbutable presumption that you
are in compliance. In this case the area would still be in compliance w/ ambient std for particulates even
if company moved in.

But, П’s say compliance w/ ambient std only create rebutabble presumption & here this presumption can
be rebbuted b/c of the data on health.

Battle of experts.

CT agrees w/ Пs & says compliance w/ envtl law doesn’t mean compliance w/ Title VI.

Other ways to rebut presumption: not in compliance w/ ozone stds, toxic pollutants not regulated by
ambient stds.

Causation issue: Δ’s said that there isn’t causation b/c permitting didn’t cause these problems. But for
the permitting these facilitates can’t operate.

Ct says Δ’s justification wasn’t sufficient.

Holding: NJDEP failed to consider evidence & Пs have established a prima facie case & granted PI. П
friendly case.

III. RECENT DEVELOPMENTS

A. Alexander v. Sandoval (2001) 
i. Facts: Ala. Dep’t of Public Safety, a federally funded entity.
ii. History: District Ct held the program was in violation of Title VI.
iii. Holding: no private right of action under § 602 but you can still bring private right
of action under § 601. No congressional intent to create a private right of action
under § 602.
iv. Note: This decision has tremendous implications for many civil rights law. Not
limited to envtl cases applies to any federally funded programs.
v. Dissent: precedent suggests that there is always a private right of action.
vi. Future: We are at a crossroads. importance of greater oversight of federal
agencies that enforce Title VI, including EPA. Black Caucus & civil rights
advocates are trying to get a new civil rights restoration act through.
B. Other vehicles for pursuing envtl justice
1. EO: require federal agencies to. EO deals w/ low income & minorities. No
judicial review. No private right of action. No legal enforceable obligations. EOs
are a funny animal under law b/c they create no legally enforceable obligations
but agencies take them very seriously. Technically speaking the only remedy
speaking is if Prez removes head of agencies. Also, EPAs mantra is that
compliance w/ envtl law is
2. dfdf
C. Citizens Against Runway Expansion v. FAA kj
NEPA applies to either federal, or federally funded process. Was EIS adequate. EIS did include an EJ
analysis & concluded that increase in pollution & noise wouldn’t be disproportiantely born by low
income or minority populations. So CARE seeks review of EIS. D’s argue that EJ analysis was
undertaken pursuant to EO which expressly creates right to judicial review. Ct holds that once decision
was made, even though FAA exercises its discretion, that analysis is properly subject to A&C review
under APA b/c it is part of NEPA review process. Problem w/ EIS according to Boston is that it didn’t

36
take into account the whole city. It can be outcome determinative yet it is somewhat arbitrary. FAA’s
choice of comparison population was allegedly biased. Argument was that FAA should have used
greater Boston Metro area. Ct concludes that FAA’s methodology was reasonable. 2004 EJ NEPA.
NEPA is potentially a vehicle for consideration of a broader range of effects.

Also, in considering EJ effects must agencies include EJ analysis as part of NEPA process? Memo that
accompanied Prez EO on EJ & it specifically refereed to obligations under NEPA. Memo accompanying
Prez EO. Effects on minority and low income communities. CEQ drafted regulations on NEPA wrote an
extensive memo about what would be considered under NEPA. Also proposed bills in Congr that would
require analysis of effects of fed actions that would include effects on minority & low income
populations.

D. FINAL Vehicle for Pursuing EJ: Inherent Authority. EPA Statutory & Regulatory
Authorities Under Which EJ Issues May be Addressed in Permitting. Top of pg 3 RCRA
§ 3005 provides that each permit issued under this section issues for waste treatment
facilities shall contain such terms & conditions as the administrator and state & EPA has
interpreted this.

37
 CLEAN AIR ACT

Note: Many principles in CAA have other implications in regulatory law-i.e. food safety, work product.

CAA raises many elemental legal & policy debates. Regulatory efficacy of command & control v. non
regulatory-market based programs (pollution trading). Other elemental themes relate to precautionary
measures of envtl regulations. Regulate in face of env risks. Exceptions in both tort & regular law. When
we deal w/ risk there is lots of complexity-how do you regulate in face of scientific uncertainty. Practical
problems inherent in risk based determination. All of today’s cases deal w/ problem of risk based
evaluation.

I. INTRODUCTION
A. CAA is Front & Center of many current envtl policy debates.
1. Political Pressure to change CAA. Prez Bush is very interested in domestic
energy production wants to change parts of CAA particularly those re energy
production.
2. Climate Change. Ongoing debates of whether CO2 should be regulated under
CAA
b. Command & control v. regulatory or non regulatory alternatives.
i. Command & Control. Much of CAA employs trad’l command & control.
ii. Regulatory. Trading raises envtl justice issues-i.e. presumption that we
shouldn’t be trading in particulates that concentrate. If dirty companies
have rights to buy pollutants they can pay to continue to pollute and there
is some important EJ & trade issues.
iii. Non regulatory. Market based programs are being woven into command &
control.
4. CAA has had considerable success. Annual levels of total emissions for the
criteria pollutants have decreased
5. CAA has become prime target of critics & reformers who argue that the
usefulness of existing regulatory approaches have been exhausted & new
strategies must be adopted to make further progress wrt our remaining air quality
issues.
B. Major Provisions of CAA
1. Title I
i. Section 108: requires EPA to identify “air pollutants” anticipated to
endanger public health or welfare & to publish air quality criteria.
ii. Section 109: requires EPA to adopt NAAQSs for criteria air pollutants.
iii. Section 110: requires states to develop & submit to EPA for approval
SIPs specifying measures to assure that air quality w/in each state meets
the NAAQSs.
iv. Section 111: requires EPA to establish nationally uniform, technology
based stds for major new stationary sources of air pollution-New Source
Performance Stds (NSPSs).
v. Section 112: mandates technology-based stds to reduce listed hazardous
air emissions from major sources in designated industrial categories, w/
additional regulation possible if necessary to protect public health w/ an
“ample margin of safety.”

38
 vi. Part C (Sections 160-169A): specifies reqmts to prevent sig deterioration
of air quality (PSD) for areas w/ air quality that exceeds the NAAQSs.
vii. Part D (Sections 171-178): specifies reqmts for areas that fail to meet the
NAAQSs (nonattainment areas).
2. Title II (Sections 202-216): requires EPA to establish nationally uniform
emissions stds for autos & light trucks that manufacturers must meet by strict
deadlines.
3. Title III
i. Section 304: authorizes citizen suits against violators of emissions stds &
against EPA administrator for failure to perform nondiscretionary duties.
ii. Section 307: authorizes judicial review of nationally applicable EPA
actions exclusively in D.C. Cir.
4. Title VI (Sections 401-416): creates a system of marketable allowances for SO2
emissions from power plants & major industrial soruces to reduce acid
precipitation.
5. Title V (Sections 501-507): requires permits for all major industrial sources w/
state administration & fed oversight.
6. Title VI (Sections 601-617): establishes a program for controlling substances that
contribute to depletion of stratospheric ozone.
B. CAA Employs 2 types of Regulatory Stds. Debate re relative merits of health based v.
technology based stds.
1. Health Based/Ambient Stds: sets level of quality for receiving medium-i.e.
surrounding air shed. Stds require regulators to determine the “safe” level of
pollution. Fed gov’t will set a max level & rule will say something like “this
allowable amount can be exceeded only x times per year, for x hours.”
i. Industry’s cost of compliance can’t be factored in.
Technological feasibility can’t be factored in.
ii. Costs considered at a later point in time when states implement NAAQS.
iii. Stds designed to force industries to develop new technologies.
Tremendous debate in Congr when designed. Whenever NAAQS are
issued there is tremendous outcry from industry. But what has happened is
that new technologies have been developed & they’ve ended up being
cheaper.
a. But cynic might say that reason the NAAQS haven’t been
implemented is that slippage occurs.
iv. NAAQS can be viewed as cornerstone of CAA.
2. Technology stds tied to existing technologies. Based on what is practically
possible to do technologically. Focus’ on admission stds that can be achieved,
what is possible to do technologically.
i. Design stds.
ii. Performance stds: sets an emission rate-amount of air or water emissions
allowed over a period of time. Frequently agency derives this rate from
looking at prevailing technologies and seeing what companies can
achieve.
3. Big debate b/w technology & health based std. Debate doesn’t follow party
lines.
i. Advantages of technological based stds:

39
 a Able to regulate more stds (today far fewer pollutants regulated
under health based std.-b/c w/ health based std you regulate more
effectively but w/ less pollutants
b. Technology based stds pushes not performing companies to the
top.
c. Easier to administer-quicker to implement
ii. Disadvantages of technological based stds
a. Doesn’t take into account cumulative effects
b. Might not be best way to solve problem-inefficient b/c it requires
more technology then you need. Might not be the right fit.
c. Technology freezing effect-nobody wants to build something new-
doesn’t create proper incentives to push technology forward. Also
can create perverse incentives to stop technology.
d. Doesn’t create direct incentives to gather info re health risks.
iii. Advantages of Health Based Std
a. Aspirational goal: goals have practical ramifications.
(1) Safe Drinking Act: forces EPA to set a purely health based
goal for drinking water where costs can’t be taken into
account. Then it sets enforceable std based on technological
feasibility. So it is arguable that this will drive to higher
performance.
b. Counts for cumulative effects
c. Forces technology: pushes for technologies that doesn’t even exist
when std is envisioned-i.e. Catalytic Converter.
d. Public health: slanted more toward public health.
e. Deals more w/ risks.
f. Generates more info to analyze risks to public health.
iv. Disadvantages of health based stds
a. Hard to do so you don’t regulate as much
b. Slippage: when states are implementing you might not be getting
what you want.
c. Difficult to revise stds once it sets. When you revise NAAQS all
SIP have to be changed-massive overhaul that will effect most of
the economy.
4. CAA Basic Principles
i. CAA Amendments of 1970, 1st in a series of
comprehensive, medium based fed regulatory statutes enacted in 1970s to
protect the envt. Modern version of all other envtl programs looked to
CAA for precedent.
ii. Amendments modified in 1977 & again in 1990.
iii NAAQS are centerpiece of CAA.
a. NAAQS control six conventional pollutants. ((1) Particulates-
industrial combustion, agricultural burning; (2) SO2-coal
combustion; (3) CO; (4) PB; (5) NOx; & (6) O2).
b. Cooperative Federalism-fed gov’t gives states authority to
implement programs but EPA makes NAAQS.
(1) Through EPA, fed gov’t establishes NAAQSs for criteria
pollutants.

40
 (2) State gov’ts decide how the numerous existing sources w/in
their jurisdiction whose emissions contribute to ambient
levels of these pollutants ought to be controlled in order to
meet those NAAQSs for their jurisdictions. Each state’s set
of regulations to meet the NAAQSs is called its SIP (§
110).
(3) SIPs have to get approved by EPA.
c. Cooperative Federalism: Also saw this idea of Cooperative
Federalism come up in Title VI which applies to federally funded
programs.
4. CAA is Very nuanced. Must think on several dimensions: geographic
(attainment area? Nonattainment area?-this will effect nature of pollution control
required); what pollutants should be admitted b/c this area could be in attainment
for one pollutant and non attainment for another; new source or old source-
sometimes old sources get grandfathered in.
i. Non-attainment areas: parts of the country that continue to exceed the
NAAQS are classified as non attainment areas. There are several diff.
degrees of non attainment severity depending on how far out of attainment
a region is. Depending on how far out of attainment a region is will
determine if additional conditions on polluting activities are imposed.
These additional controls could include participation in a clean fuels
program, use of market incentives to encourage utilities to switch to low-
polluting fuels, and programs to promote development of low-emissions
vehicles.
ii. Prevention of Significant deterioration (PSD) program: designed to
maintain healthy air in areas of the country that have air quality better than
the NAAQSs.
7. Listing is very important b/c it triggers everything!
March 30, 2006
II. NAAQS
A. Establishing NAAQS
1. Regulatory Burden involved in establishing a NAAQS is demanding. EPA has
strong incentives to avoid making frequent changes in such stds much less
promulgate new ones. Every time a new NAAQS is promulgated every SIP must
be amended & reviewed.
2. In 1970 air quality criteria had been promulgated for 5 major pollutants:
sulfur dioxides, particulates, carbon monoxide, hydrocarbons, and photochemical
oxides. In 1971 nitrogen oxide was added.
3. Only one other pollutant, lead, has been added since then. NRDC v. Train
(2d Cir. 1976)  ct held that EPA has a nondiscretionary duty to set nat’l ambient
stds.
i. Facts: EPA had formally recognized health risk of airborne lead when it
promulgated regs under section 211 to limit lead in gasoline. All sorts of
info in record that EPA documented health effects of lead.
ii. Holding: EPA has a nondiscretionary duty to set nat’l ambient stds.
Although the language of section 211, “in his judgment” suggests there is
some discretion Ct says that any interpretation of discretion would run
contrary to the thrust of statute. Ct looks specifically at leg history which
says Congr intended to take a stick to the states. EPA already had reports

41
 on the record documenting the health effects on lead Ct says this
constitutes a judgment on the part of the Admin that section a & b had
been met.
4. CO2: Can CO2 be regulated under NAAQS?
i. 2003 lawsuit mirrored Train. AG’s of several Northwestern states sued
EPA for failure to regulate CO2 (Creative effort to regulate CO2). Argued
EPA had a non discretionary duty to regulate C02 b/c EPA has already
made a judgment that CO2 will adversely effect human health & welfare.
AGs attempted to show that EPA is on the record for saying there are
negative implications of C02 buildup. What happened in the lawsuit?
ii. Other creative lawsuits to try to regulate CO2 include: (1) nuisance action
against power plants; (2) force EPA to regulate CO2 from mobile sources
(Cert. petitions to SCt are being written); & (3) include CO2 emissions to
develop technological based stds).
iii. It would be hard to regulate CO2 under CAA b/c effects can vary all over
world & there wouldn’t really be in attainment/non attainment zones, can’t
regulate internationally, etc.
iv. You could put other types of limitations on CO2: i.e. Cap & trade
program-set cap on emissions from diff sources & buy right to pollute.
4. Lead Industries Association v. EPA (D.C. Cir. 1980)  (1) Section 109 of
CAA precludes EPA from considering costs when formulating NAAQSs. (2)
Statutory command that EPA set primary sds at a level protecting public from
“adverse health effects” is not limited to effects known to be clearly harmful.
i. Facts: Lead manufacturers & users sued EPA for setting NAAPS for lead
at too low a level.
ii. Holding:
a. Section 109 doesn’t preclude EPA from considering costs &
feasibility when formulating NAAQSs. Industry’s argument that
EPA must consider economic impacts of its air quality stds is
“totally w/o merit.” Industry can’t show any support for
interpreting CAA to require EPA to consider costs. Statute & its
legislative history show that Congr intended EPA not to consider
economic impacts when formulating NAAQSs. When Congr
intended EPA to consider economic impacts and technological
feasibility, as in § 111, it explicitly said so. Furthermore, leg
history shows that Congr, fed up w/ lack of progress on air quality,
designed § 109 & others to be “technology-forcing” rules.
b. Environmental Law is designed to be precautionary. EPA doesn’t
need to limit its primary stds to a level preventing only “clearly
harmful” effects of a pollutant.” Statutory language requiring
EPA std to leave an adequate margin of safety refutes idea that
EPA is limited to stds which address only clearly harmful effects.
Leg history of CAA shows that Congr didn’t intent to limit EPA to
settling stds only when effects of pollution are clearly harmful.
Statute is precautionary in nature. Senate Report to EPA instructed
agency to set stds that guarantee an absence of adverse effects.
EPA need not wait for medical consensus on harms b/c waiting
allows only reaction not prevention.

42
 iii. Other points in Lead Industries Association not mentioned in our
excerpt but discussed in class. If you can’t consider costs & technology
feasibility, what does it mean to protect public health? Case points to other
parts of CAA’s legislative history.
a. How do we define public in public health? Big & emerging issue is
degree to which health based stds need to account for sensitive
decisions. Every indiv needs to be protected? What does this
mean?
b. How do we define health in public health? Stds have to be set in
which there is an absense of health to sensitive indiv.
c. What is an identifiable adverse affect? Lead said sub-clinical
affects (not diagnosable) can be considered adverse
B. Revising NAAQS
1. 109(d): EPA is required to review & revise its NAAQSs at 5 year intervals.
2. American Lung Association v. EPA (D.C. Cir. 1998)  EPA administrator
much adequately explain conclusion that no public health threat exists.
i. Facts: On behalf of it’s asthmatic members the American Lung
Association & Envtl Defense Fund challenged EPA’s refusal to revise the
primary nat’l ambient air quality stds for SO2. Declining to promulgate a
more stringent nat’l std, EPA administrator concluded that substantial
physical effects experience by exercising asthmatics from exposure to
short-term, high level SO2 bursts don’t amount to a public health problem.
EPA argued that short term peak concentrations of SO2 didn’t’ constitute
type of ubiquitous public health program that establishing a NAAQS
would be appropriate. Despite language in leg history EPA has
consistently said that even though it recognizes it should protect sensitive
group it isn’t obliged to protect the most sensitive indiv w/in these groups.
ii. Holding (Tatel): EPA didn’t adequately explain its conclusion that
asthmatic effect didn’t constitute a public health problem.
iii. Aftermath: To this day EPA hasn’t responded to the remand. It has been
experimenting w/ various way of collecting data.
iv. Ways in which EPA could deal w/ SO2 bursts:
a. EPA could ask states to impose more stringent reqmts. BUT, it
may get more difficult at state level b/c of cost & politics.
b. EPA could bring a § 303 emergency powers action which allows
EPA to bring suit if there is an imminent & substantial
endangerment. BUTt, if you start bringing these actions it
functions as if EPA is admitting that there is an emergency & the
std isn’t good enough. In other words, it could be creating a nat’l
std by bringing a § 303 action.
v. How to measure NAAQS? Where should you put these monitors? If you
move monitors you could move an in attainment area into non attainment.
3. Should cost be taken into account? Huge Dilemma! Grodsky is a believer in
CAA b/c CAA’s empirically ambient air pollution has gone way down.
i. Toxic Substance Control Act. Opposite of CAA in sense that cost is
assessed upfront. TSCA has been considered a major failure b/c it doesn’t
end up regulating toxic chemicals.
4. Problems P. 508-509

43
 i. Question one: EPA could base a std on temporary effects. Must listen to
CASAC but doesn’t have to follow. But if EPA doesn’t follow CASAC,
EPA must explain adequately why they aren’t going to follow CASAC’s
advice.
ii. Question two:
a. Why should they have to take the pill?
b. Population has to self-identify (may not know they have asthma),
puts costs on indiv & some might not be able to afford medication.
c. This doesn’t solve the envtl problem.
d. Ozone alert day.
5. Smoking out the Disabilities Act. Case of 1st impression. American Disabilities
Act dealing w/ Clean Air problem. Judge asked for help from DOJ, they figured
out how statute can be reconciled but in a footnote said that if we get more of
these cases we won’t be able to handle them.
III. NONDELEGATION & NAAQS
A. Statutes §§ 108(a); 109(b)
1. § 108(a): Air pollutant list; publication & revision by Administrator;
issuance of air quality criteria for air pollutants.
2. § 109(b): Protection of public health & welfare. (1) “nat’l primary ambient air
quality stds . . . shall be ambient air quality stds the attainment & maintenance of
which in the judgment of the Administrator, based on such criteria and allowing
an adequate margin of safety, are required to protect the public health.
i. Note: EPA is given some discretion-it’s a blend of science & judgment.
B. Nondelegation Doctrine. Art I of Con states “All legislative powers shall be vested in
Congr.”
1. Intelligible Principle. SCt has interpreted this doctrine as a grant of power to
Congr & restriction of delegation of power to Executive branch or another
institution-i.e. private party. Thus, Purely legislative powers need to stay w/in
legislative branch. But, SCt has taken a pragmatic view of doctrine as long as
Congr has laid down an intelligible principle to guide agency action.
2. Only twice in history has SCt found a violation of nondelegation doctrine.
This occurred in Panama Refining & Schecter cases which involved creation of
new agency overnight in an emergency efforts to pull nation out of depression.
3. Is the nondelegation doctrine dead? Probably. Unless someone challenged
Homeland Security, another agency created virtually overnight. Or, unless there
was an unbelievable broad delegation.
C. American Trucking (D.C. Cir.)  case presented a challenge to regulatory state!
1. Facts: П’s argued that EPA had failed to dictate an intelligible principle & EPA
should come up w/ determinative criteria for line drawing. But EPA says they
looked at: (1) severity of health effect; (2) probability of health effects occurring;
& (3) size of sensitive population.
2. Holding (Williams & Ginsburg): EPA had failed to articulate an intelligible
principle to channel its discretion in choosing among a range of envtl stds. This
argument is odd b/c it didn’t even examine language of CAA. Longstanding
principle of intelligible principle was somehow morphed into a concept of
determinative criteria. Case remanded to EPA to cure con defect.
3. Dissent (Tatel): very strong.
C. Whitman v. American Trucking Associations (2001)  EPA isn’t required to consider
economic costs in setting NAAQS.

44
 1. Facts: Administrator of EPA was required to review NAAQS it promulgated at 5-
year intervals & to make appropriate revisions. After reviewing NAAQS for
particular matter (PM) & ozone, the Administrator determined that they needed to
be revised. American Trucking Associations as well as other private companies &
certain states, challenged new stds.
2. Issue: On Cert SCt considered (1) whether Administrator could consider the costs
of implementation in setting NAAQS under § 109(b)(1), & (2) whether the ct of
appeals had jurisdiction to review the EPA’s interpretation of § 109(b)(1) in
setting NAAQS, and if so, whether the EPA’s interpretation was permissible.
3. Holding (Scalia) (unanimously reversed D.C. Cir): The administrator of EPA
cannot consider costs of implementation in setting NAAQS under § 109(b)(1) of
CAA b/c the statute doesn’t expressly condition the setting of NAAQSs on this
consideration. Several other provisions of CAA expressly provide for
consideration of economic costs, but such consideration applies w/ regard to
implementing the air quality stds, not establishing them. A showing of a textual
commitment of authority to EPA to consider costs in setting NAAQS would be
sufficient to establish that EPA was required to consider economic costs in setting
NAAQS. However, to show a textual commitment, there must be clear showing
that one is present. None of the phrases or terms in § 109(b)(1) is sufficient to
show a textual commitment to considering economic costs in setting NAAQS.
Finally, although a number of provisions in the CAA require attainment cost data
to be generated, the purpose of these provisions is only to enable the administrator
to assist states in carrying out their statutory role as implementers of the NAAQS.
Decision of ct of appeals affirmed wrt its finding that the Administrator wasn’t
required to consider costs of implementation in setting NAAQS.
4. Class Notes: Implications of SCt decision: advocates of structural change in CAA
would have to address Congr or states.
IV. STATE IMPLEMENTATION PLANS (SIPS)
A. The State Role
1. While EPA promulgates NAAQS, deciding how to achieve NAAQS is left
largely to states, subject to EPA review & approval.
i. Section 110 gives each state responsibility of developing a SIP that details
how compliance w/ NAAQSs will be achieved in each air quality control
region (AQCR).
ii. SIPs are at heart of CAA’s “bold experiment in cooperative federalism.”
2. Process to develop a SIP-very complicated.
i. Each state determines existing & projected levels of criteria air pollutant
in each AQCR w/in state’s boundaries. This is used to determine what
emissions reductions are necessary to comply w/ the NAAQS for the
pollutant.
ii. State inventories sources of emissions & projects their expected future
grown.
iii. State decides what control strategies to employ & how to allocate the
burden of emission reductions among sources. This is a politically
sensitive task. States have greatest control over existing sources. The SIP
has to contain various elements i.e. emission limits, timetables, limits on
interstate pollution, etc.
iv. State demonstrates to EPA that the measures adopted in its SIP are
adequate to attain & maintain compliance w/ the NAAQS.

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 a. If a state fails to submit an adequate SIP it is subject to sanctions-
i.e. Fed gov’t can deny highway funding to state.
b. Or, if State fails to win approval from EPA for proposed SIP EPA
is required by law to promulgate a FIP (however EPA prefers to
give sanctions).
v. Can be enforced by Federal & State authorities.
vi. States are constantly revising their SIP. EPA can issue a SIP recall in
times were new information suggests that a SIP needs revision. States are
also changing SIPs informally-often in form of rule. States actually have
most authority when regulating existing stationary sources & developing
transportation control plans.
3. CAA § 126
4. Union Electric Company v. EPA (1976) EPA may not consider economic
impacts or technological feasibility when evaluating SIPs under CAA § 110.
i. Facts: Utility company challenged EPA approval of Missouri’s SIP b/c
utility claimed the plan was economically & technologically impossible.
Union Electric also argued that SIP can’t be more stringent then federal
std.
ii. Holding (Marshall): Under CAA § 110, EPA may not consider economic
impacts or technological feasibility when evaluating a SIP. SIPs can be
more stringent then Fed gov’t requires.
iii. Class Discussion: Place to take claims of economic & technical feasibility
is to the state: “Perhaps the most important forum for consideration of
claims of economic & technological infeasibility is before state agency
formulating SIP. So long as nat’l stds are met, State may select whatever
mix of control devices it desires, & industries w/ particular economic or
technological problems may seek special treatment in plan itself …” P.
524.
B. Federal Implementation Plans (FIPS)
1. EPA must promulgate a FIP 24 months after finding deficient a SIP. But,
EPA has been reluctant to exercise this authority. EPA had some disastrous early
experiences w/ FIPs in which state & public reaction to their plans was intensely
hostile. In 1074 Congr stripped EPA of authority to use land use or transportation
controls. EPA has been reluctant to find SIPs deficient.
2. Alternatives. CAA provides EPA w/ some options short of writing a FIP.
i. Section 110(k)(4) permits EPA to grant conditional approval of SIPs.
ii. EPA can apply sanctions against states that fail to submit satisfactory
SIPs, including suspension of fed highway funds & increasing ration of
pollution offsets required before new pollution sources can be located w/in
non attainment areas.

April 6, 2006

In setting health based ambient air stds there is great challenge of determining safe level of pollutants.
How much should we force technology? Health based std might push technologies to some degree b/c
they are building blocks of pollution trading system; & technology based stds have interesting trading
program.

46
V. REGULATION OF INDIVIUDAL SOURCES. 1970 Amendments required EPA to
promulgate NAAQS for most persuasive & common air pollutants. .
A. New Source Performance Standards (Federal NSPS Program): added in 1970 found
in Section 111. Applies to new source, stationary source or modified sources. Also,
applies if you are in attainment or non-attainment area. NSPS puts in federal floors to
help prevent race to the bottom among states.
1. New Source:
i. §7411(a)(2). BACT Std: 1st technology based std in envtl law.
ii. Std of Performance.§ 7411(a)(1): can’t be a pilot program, EPA considers
cost. BACT std might be different depending on which criteria pollutant.
Technology levels for various pollutants are published in Fed Reg, EPA is
supposed to revise each year. NSPS technology stds impose federal floors
industry can’t go below.
3. 1977 Amendments
i. added std for existing sources-std is technology only needs to be
reasonable-not federally defined states define this on their own
ii. Concept of attainment & non attainment areas was introduced-this is the
basis for new source review.
B. New Source Review. Added in 1977. New sources in non-attainment areas. Can be
looked at as overlays on top of NSPS std.
1. Major new or modified sources in non-attainment areas. Major Source
§302(j). If you fall into category of major, new, or modified source you get hit w/
tough reqmts.
2. Technology based std-i.e. LAER (lowest achievable emission rate). Stringent
std-2nd most stringent (MACT is most stringent). LAER is more stringent & can
be either (1) most technology feasible; or (2) most stringent emission category
that any state has included in its SIP.
i. State’s SIP has to be approved & any other sources have to be in
compliance w/ SIP.
ii. Before initiating a NSR permit application you have to analyze alternative
sites & demonstrate that benefits of proposed source significantly
outweigh envt & social costs imposed. Permit reqmts §173(a)(5).
a. This is a prime example where you might be able to take a look at
Envtl justice implications.
3. VARIOUS WAYS ONE MIGHT AVOID NSR STATUS
i. Existing source would try to argue routine maintenance.
a. States were left free to regulate as they saw fit. Existing sources
were grandfathered (see below) in b/c of
(1) Reliance interests; &
(2) Political questions (couldn’t otherwise drum up political
support). Subject to relevantly lenient RACT std. RACT is
not federally defined, case-by-case or by state’s SIPS.
b. When should a modification of an existing source put that source
into the new source category?
ii. New source could reduce scale-emit less then 100 tons/year-so it isn’t
considered a “major” source.
iii. Relocation to an attainment area.
iv. Bubble
v. Offsetting emissions.

47
 4. Mobile Sources. Stds are set by Feds but Cal can set its own stds & other states
can follow Cal’s lead.
5. GRANDFATHERING. Huge issue b/c stringent reqmts come onto new or
modified sources. Big question whether a change in an industrial plant amount to
a modification for purposes of CAA.
i. Modification CAA 111(a)(4)-“any physical change in, or change in
method of operation of, a stationary source which increases the amount of
any air pollutant emitted by such source or which results in the emission
of any air pollutant not previously emitted.
a. BROAD definition!
b. EPA has added by rule 2 exceptions: (1) de minimis- significance
threshold; & (2) routine maintenance rule.
ii. Policy issue: don’t want to create perverse incentives but don’t want to
exempt offenders.
a. Goal of most power plants is to modify w/o actually “modifying.”
A lot of oldest & dirtiest plants have been saying no modification
just routine maintenance.
b. Current status of Debate.
(1) In 1999 various states cracked down on several of these
utilities-lawsuits particularly against coal plants in mid-
west & south-lots of settlements.
(2). Bush Administrator issued a rule that would have made it
easier to get out of reqmts.
(3) Rule struck down in D.C. Cir. last week.
(4) But, Bush Administrator says it has enforcement discretion.
So debate is moving into enforcement arena.

VI. OFFSETS, BUBBLES, EMISSIONS TRADING

A. Offseting
1. Offset Definition: emissions from one source being offset by reducing emissions
from other sources. It’s a reqmt for obtaining a new construction permit w/in
nonattainment areas.
2. Three ways to offset
i. Offset from facility that you own in same air quality control region.
ii. Buy pollution rights from another facility in the same air quality control
region that is polluting below the std.
iii. Get an offset from another air quality control region if 2 conditions are
met:
a. equal or worse classification then yours; &
b. you must be down wind from the other air quality control region so
emissions from that one is contributing to violation of your region.
B/c offset is going to benefit your air quality control region.
3. Nonattainment Offset Program. Among EPA’s 1st experiments w/ incentive-
based or market-based techniques under CAA.
i. §173(c)-incoming source in nonattainment area needs to offset. Generally
this is a more then one to one ratio.
4. Potential to Emit v. Actual Emissions.
i. Potential to emit-what is permitted by law.
ii. Actual emissions-what you are actually emitting.

48
 a. In some situations actual emissions might be lower then potential
to emit stds.
b. If you want to sell good behavior & benefit from it monetarily you
are going to have to go back & get terms written into permit b/c
they have to be enforceable.
iii. Debate how do you calculate baseline. If you are in non-attainment area &
your permit allows you to emit 200 tons/year & you only emit 100
tons/year there is a debate b/w whether you can you can sell full 100
tons/year or whether you can only sell less.
a. For exam, presume that in a dirtier, non-attainment, area what you
have been doing for the past few years becomes the base line and
you have to reduce further.
B. Bubbles
1. Bubbling Definition: refers to placing multiple co-located emissions sources
under an imaginary bubble & then treating the total emissions emerging from the
bubble as the amount that has regulatory significance.
2. Reasons why you might not be able to get out of modification reqmt b/c you
can’t bubble.
i. States don’t let you
ii. Not technically possible-already doing best you can.
iii. Too costly
iv. Can’t bubble if modification would bring in new pollutant that you can’t
offset.
3. Chevron USA v. NRDC (1984) Ct must defer to EPA’s reasonable
interpretation of statute.
i. Facts: Envtl group challenged EPA’s definition of term “stationary
source” in CAA to include all pollution-emitting devices in a plant.
ii. Holding (Stevens): Cts must defer to agency interpretations of statutes,
unless the interpretations are unreasonable. Apply test. Here, once Ct of
Appeals determined that Congr didn’t define statutory source, it should
have looked only at whether EPA’s definition was reasonable. It shouldn’t
have imposed its own judgment on what is appropriate. Agencies have
more expertise in technical matters than cts do, & agencies’ interpretations
represent accommodations of competing interests. Finally, agency
decisions should be left to political process. Reversed.
iii. Chevron Test
a. Step 1: Look at whether Congr’ intent is clear in the statute. If
intent is clear, we must follow it. If statute is silent or ambiguous
go to step 2.
b. Step 2: Look to whether agency’s interpretation is based on a
permissible construction of the statute. Agencies have the authority
to fill in the gaps left by Congr in statutes.
iv. Chevron’s Mandate often ignored. Despite Chevron’s unambiguous
mandate to give agencies deference to their interpretations of statutes, Cts,
including SCt, have not always followed it. Cts can take advantage of their
right to determine whether a statute is ambiguous.
4. Evaluation of Bubbling
i. Good-LAER applies to entire plant rather then indiv smokestacks. Balance
b/w

49
 ii. Bad- Keeps things at status quo rather then clean up air. Problematic b/c it
keeps so many sources out of LAER reqmts & stifles innovative
technologies.

C. ATTAINMENT AREAS. Single AQCR can be in attainment under one pollutant & out
of attainment in another area.
C. Program in Prevention of Significant Deterioration (PSD)
1. Sierra Club v. Rucklehause-another example of legal decision getting codified
as a statute (see also Jantzen) -EPA previously had permitted clean air areas to
denigrate up to NAAQS.
2. PSD imposes BACT control technologies on new or modified sources in
attainment areas. Technology based std used for federal NSPS. Case-by-case
BACT, stds set by states & applied in case-by-case process. §169(3)-Best
available control technology-state can take into account all sorts of factors.
3. Baseline is set in ambient air quality that existed when 1st source applied to a
PSD permit in that area. Whenever a major new or modified source . . . Then an
increment is set above baseline & each new level is only allowed to . . .
4. Each attainment area is designated as a certain class class 1( highest level-
i.e. Nat’l parks), class 2 (most attainment areas), class 3 (states can make their
own reqmts).
E. AIR TOXICS PROGRAM, CAA § 112
1. Hazardous air pollutants are less widely emitted but are highly toxic & aren’t
covered under NAAQS.
2. Hazardous Air Pollutants Standard (HAPS)
i. applied to new & existing sources, major sources & area sources (dry
cleaners, gas station, landfills, sewage treatment plants, etc.).
ii. Federal gov’t sets stds based on maximum achievable control technology.
Most stringent of all technology based stds.
a. Can be very experimental.
iii. Definition of major source for HAPS pollutant is somewhat different then
from definition of major- § 112(a)(1). Generally, Available Control
Technology (GACT). Prior to 1990 Amendments HAPS started out as
health based std. Std was to protect public health w/ ample margin of
safety. But, agency froze up & b/c many of these are carcinogens where
exposure to molecule can result in some risk of harm (same problem as in
American Trucking). HAPS are used as poster boy for those who oppose
health based std b/c so few meant it didn’t work. But, some argue that
there was a lack of political will for why agency froze up.
c. In 1990 Amendments Congr said that if EPA doesn’t come forward to list they
will list & they did. See §112(b)(1). Congr came up w/ a tiered or hybrid approach.
i. In 1990 Congr announced it would move from health based std to
technology based std BUT health based std would be used as a backstop if
technology based std doesn’t work.
ii. Congr authorized EPA to establish technology based std for air pollutants
based on MACT but there would be a second phase (residual risk phase) 8
years after to assess whether technology based stds are working.
iii. Technology 1st approach-followed by risk analysis 8 yrs later.
vi. Now, question is will EPA move on this 2nd phrase? EPA has assessed
coke oven. Interesting experiment.

50
F. Economic Incentive Program (Emission Trading Programs). Effective v. ineffective
trading programs. What are important elements? Pollution programs successful (Compare
HCP in ESA context).
1. S02 Program. Most developed trading programs put into 1990 amendments. In
1994 EPA created economic incentive program. Federal reviews trading program.
If state has followed rules EPA can authorize sate to approve trades w/o case-by
case analysis. Program allocates a certain amount of pollution allowances that can
be bought & sold & traded on market. Those not in favor see it as “right to
pollute.”

i. Effective v. ineffective? Effective(1) Viewed as successful effort to add

market based incentives to a regulatory model; & (2) serves as a model for
CO2 trading envisioned under Kyoto program.
ii. SO2 program-goes beyond current regulatory reqmts. S02 Program
presumes that sources are already in compliance w/ mandated technology
based stds. (remember for existing sources this may only mean RACT).
This is one way to put stronger legal hooks into existing sources.
iii. New commodity-pollution allowances are currency of this trading system.
Initial set of quotas. If you want to sell allowances in order for them to
count they have to be: (1) surplus-only reductions not already required by
SIP & not used by source to meet other regulatory reqmts are permitted to
be sold; (2) enforceable-reductions in order to be converted into emission
reduction credit has to be memorialized in your permit; & (3) permanent.
iv. EJ context-some pollutants concentrate in hotspots & others are more
diffused.
2. S02. ACID RAIN PROGRAM. Ironically Acid Rain increased after CAA b/c to
meet NAAQS in their attainment area polluters installed tall stacks to emit.
i. Goal was to cut SO2 emissions by 50% of 1980 emissions levels by 2005.
ii. Phase 1: Congr listed in statute each facility could emit. For several plants
emissions allowances were based on 1/2. Initial pollution allowances
given to each of these plans §404(e) given based on past stds. Ironically a
lot of the dirtiest plants were given most allowances. How many initial
allowances do you give out? Too many not worth anything, too few
political fallout.
iii. Phase 2. after 2000 EPA can’t allocate allowances that would allow S02
emissions to exceed 8.9million tons. Includes fewer allowances purposely
making them a more precious commodity. So companies will have
incentive to change technology.
3. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT (SCAQMD)
p. 539 -takes clunker cars w/ terrible emissions off the road. SCAQMD is an
interesting blend of disparate sources. We had a declining cap here. Sources
couldn’t emit more pollution in sources they own. Interestingly, program
permitted scraped cars from coming from anywhere. Most of emission credits
were purchased by 4 oil refineries in San Pedro. EJ issue & emission trading.
i. Could you use EO in this case?
a. Yes-
b. No- EO can only be enforced to extent it is permitted by law-EPA
would have to approve a SIP if state scheme complies w/ NAAQS
& EO can’t say no.

51
 ii. Title IV issue? Possibly-state program has effect of discriminating against
minority groups & go through prima facie case & maybe you do have a
title VI & SCAQMD has to mitigate.
iii. Ways to mitigate?
a. Cap how many extra you are allowed to buy to prevent one
company being the “super polluter,”
b. Geographic restriction for market for trading.
c. Restrict kinds of facilities in region that could trade-refineries
trading w/ other refineries
d. Trading program only traded pollutants that don’t concentrate &
create hot spots
e. Establish some kind of maximum emission level based on some
level of risk.
4. Criticisms of trading programs
i. don’t have enough public participation-these trades happen on open
market often w/o much oversight;
ii. few empirical studies being done on whether this is beneficial to envt;
problems w/ fraud.
iii. Monitoring & oversight are problems.
a. These problems are also being raised by Kyoto protocol. You need
some kind of continuous technical monitoring. Kyoto protocol has
interesting questions-i.e. whether forests can serve as carbon sinks-
can you get emission credits? Who should be getting these
emission reduction credits? Gov’t or indiv companies w/in the
countries? If gov’t gets it then it can disperse benefits to
population.

52
 CLEAN WATER ACT & WETLANDS

I. INTRODUCTOIN & SCOPE OF NPDES PROGRAM

A. History of Emergence of CWA
1. Prior to CWA few alternatives for combating water pollution- had to bring
nuisance action or action balancing equities.
2. Rivers & Harbors Act (Refuse): Act was narrow b/c it only controlled stuff that
gets in way for navigation.
3. Early models for CWA where fed gov’t provided grants to states & let states put
together their own water pollution programs.
4. 1965-Gov’t enacted set of ambient water quality stds, states were supposed to
scramble & try to figure out what safe level of water was. This was problematic
b/c of difficulty for states to figure out ambient level & translate them into
pollution controls.
5. Modern version of CWA emerged from major amendments in 1972.
6. Comparing CWA & CAA
i. CWA & CAA- massive statutes were debated in Congr during same time
period (CAA 1970 w/ Amendments in 1977)
ii. Centerpieces of CAA & CWA
a. CAA-NAAQS.
b. CWA-Effluent Stds (similar to NSPS in CAA). Effluent limitations
are expressed in terms of rate-amount (i.e. 1 lb x pollutant per ton
of steel, or time-1 lb of x pollutant per day).
ii. Similar sequence in both CWA & CAA-First, establish technology based
std & then if those aren’t working states have ability to establish health
based std.
B. Structure of Clean Water Act
1. § 101 Goals. Declares nat’l goals of fishable/swimming waters by 1983 & the
elimination of pollutant discharges into navigable waters by 1985.
i. § 101 (a): Sets forth very ambitious objectives
ii. §101(a)(7): added in 1987 & set forth a new goal of developing &
implementing programs for control of non point sources of pollution.
iii. Aspirational std. Criticized as being expensive & unfeasible-but Grodsky
believes these ambitious goals have a purpose & they become functional.
2. § 301 Effluent Limitations. P. 415. Prohibits “the discharge of any pollutant”
(defined in § 502(12) as the addition of any pollutant to navigable waters from
any point source) except those made in compliance w/ terms of the Act, including
the permit reqmts of section 402. Imposes multi-tiered effluent limitations on
existing source whose stringency & timing depends on nature of pollutant
discharged & whether outfall is directed to a water body or a publicly owned
treatment works (POTW).
i. Heart of CWA-requires nationally uniform, technology-based limits on
point source discharges administered through a nat’l permit program.
ii. Definition of discharge has been highly litigated. –how do we define
“addition”, “pollutant”, “navigable water” & “point source”
a. “Pollutant” §502(6)-very broad, even includes things that are
naturally occurring like heat.
b. “Addition” –case law has defined this term

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 c. “Navigable water” definition of navigable waters isn’t limited to
navigable waters.
d. “Discharge Permits”-See § 402 NPDES Permit Program
(Establishes nat’l permit program, the pollution discharge
elimination system (NPDES), that may be administered by EPA or
by states or Indian tribes under delegated authority from EPA).
e. “Point Source” § 502(14).
(1) Exemption for farming-normal agriculture
(2) No exemption for Concentrated Animal Feeding
Operations (CAFO). CAFOs are considered to be point
sources
(3) Regulation of non point source pollutions weak. Some
provisions for non point source pollution, but, for most part
CWA is very weak for non-point pollution b/c there is o
real enforcement mechanisms-i.e. no teeth nor deadlines.
Only sanction states could be subjected to by fed gov’t is
lose of funding from EPA.
(i) Mary Graham’s book re: morning after earth day.
Argues that next generation of envtl law will move
from regulating at end of pipe to unregulated diffuse
levels of pollution. Will change behavior of small
actors-i.e.urban runoff, timber & construction
runoff, etc.
3. §302 Water Quality Related Effluent Limitations. Authorizes imposition of
more stringent effluent limitations when necessary to prevent interference w/
attainment or maintenance of desired water quality.
4. § 303 Water Quality Stds & TMDLs. Requires states & tribes to adopt & to
review every 3 years water quality criteria & stds subject to EPA approval, to
identify waters where effluent limits are insufficient to achieve such stds, & to
establish total maximum daily loads (TMDLs) for such waters.
i. Process to Develop Water Quality Stds:
a. State identifies waters throughout state that are impaired (not
meeting water quality std);
b. State develops TMDLs that indicate how much of a given pollutant
is possible to maintain good waters, If state designates the water as
fishable/swimable (default std) the state must figure out how much
loading can be maintained & still have fishable/swimmable std.
(1) If state fails to develop TMDLs, EPA must step in &
develop TMDLs for the state
c. Once state figures out TMDL, state must figure out all the sources
that are emitting & go to industry & tell them to reduce the level of
pollutant.
ii. 2 Components of Creating Water Quality Std
a. Designate use-i.e. fishable/swimming
b. Develop water quality criteria
Combination of a & b becomes the std.
5. § 304 Federal Water Quality Criteria & Guidelines. Requires EPA to adopt
water quality criteria & guidelines for effluent limitations, pretreatment programs
& administration of NPDES permit program.

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 6. § 306 New Source Performance Stds. Requires EPA to promulgate new source
performance stds reflecting best demonstrated control technologies.
i. Originally CWA mandated: “Best Practicable” control technologies by
1977 & “Best Available Technology” (BAT) by 1983. New dischargers
required to meet BAT reqmts.
ii. Companies couldn’t meet these reqmts & Congress adopted major
amendments to CWA in 1977 & again in 1984.
7. § 307 Toxic & Pretreatment Effluent Stds. Requires dischargers of toxic
pollutants to meet effluent limits reflecting Best Available Technology
Economically Achievable. Requires EPA to establish pretreatment stds to prevent
discharges from interfering w/ POTWs.
8. § 309 Enforcement Authorities. Authorizes compliance orders & administrative,
civil, & criminal penalties for violations of Act.
9. § 319 Non-point Source Management Programs. Requires states & tribes to
identify waters that can’t meet water quality stds due to non-point sources,
identify activities responsible for problem, & prepare management plans
identifying controls & programs for specific sources.
10. § 402 NPDES Permit Program. Establishes nat’l permit program, the pollution
discharge elimination system (NPDES), that may be administered by EPA or by
states or Indian tribes under delegated authority from EPA.
11. § 404 Dredge & fill Operations. Requires a permit from Army Corps of
Engineers for disposal of dredged or fill material into navigable waters w/
concurrence of EPA unless associated w/ normal “farming.”
12. § 505 Citizen Suits. Authorizes citizens suits against any person who violates an
effluent std or order, or against EPA for failure to perform a nondiscretionary
duty.
13. § 509 Judicial Review. Authorizes judicial review of certain EPA rulemaking
actions in U.S. Cts of Appeals.
14. § 518 Indian Tribes. Authorizes EPA to treat Indian Tribes as states for purposes
of Act for tribes that have governing bodies carrying out substantial govtl duties
& powers.
B. Scope of Federal Authority to Regulate Water Pollution.
1. “Navigable Waters” defined in § 502(7) to mean “waters of U.S., including
territorial seas. Q’s of how broadly to interpret “waters of U.S.” have generated
considerable litigation. In U.S. v. Riverside Bayview Homes, Inc. (1985)  SCt
held that adjacent wetlands are “waters of U.S.” under CWA.
i. Facts: Gov’t sought to enjoin a housing developer from dumping landfill on property that
gov’t believed was a wetland protected under CWA.
ii. Holding (White): Wetlands adjacent to other protected bodies of water are “waters of the
United States” under CWA, even if adjacent bodies of water don’t regularly flood
wetlands. Corps’ construction of statute is entitled to deference if it is reasonable & not
in conflict w/ expressed intent of Congress. Congress intended to broadly define
“navigable waters” covered by CWA due to its concern for protection of water quality &
aquatic ecosystems, & Corps have determined that adjacent wetlands play a key role in
protecting & enhancing water quality. Thus, it is reasonable for Corps to interpret term
“waters” to include wetlands that are adjacent to waters as more conventionally defined.
This conclusion holds true even for wetlands that are not inundated or flooded by
adjacent lakes, rivers, or streams. Riverside was therefore required to have a permit in
this case.
iii. Class Notes: Case revolved around statutory q’s. Under § 404 a discharge of fill materials
is forbidden unless authorized by a permit. Cases dealing w/ navigable waters are
important b/c they are relevant to all of CWA. Corps interpretation at issue was that they

55
 believed wetland was anything inundated w/ water sufficient to support vegetation but
wetland didn’t need to be inundated by water of the navigable waterway. SCt says we
have moved away from Rivers & Harbors Act whose sole focus was on navigablility.
Term used in act is of limited import. SCt says Corps definition is reasonable. Just need
saturation sufficient to support vegetation & doesn’t need inundation of navigable water
itself. Pre Lopez decision.
iv. Left open qs-what kind of connection? if hydrological will groundwater suffice?
2. Navigable waters” & Commerce Clause. Preamble of Corps regulations
suggests that “Waters of the United States” includes waters that could be used as
habitat by migratory birds or endangered species or to irrigate crops sold in
interstate commerce. After Lopez, which limited Congress’ CCl power, this
definition was challenged in Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers (“SWANCC) (2001)  SCt held that Army
Corps could not issue a permit for nonnavigable wetlands not adjacent to open
waters.
i. Facts: Solid Waste Agency selected abandoned sand & gravel pit, w/ excavation trenches
that had evolved into ponds as solid waste disposal site, but was denied permit by Corps.
ii. Holding (Rehnquist): Authority of Corp to issue permits under § 404(a) of CWA doesn’t
extent to non-navigable wetlands that are not adjacent to open waters b/c text of statute
doesn’t permit such authority. In Riverside Bayview Homes SCt determined that Corps
had jurisdiction, pursuant to § 404(a), over wetlands. However, in Riverside, the wetlands
actually abutted a navigable waterway. In this case, they don’t. Absent nexus b/w
wetlands & navigable waters, Corps had no jurisdiction under § 404(a). Fact that Congr
had, in the past, failed to pass legislation that would have overturned extension of
jurisdiction in § 404(g) was insufficient to indicate a legislative intent that wetlands not
adjacent to navigable water were w/in jurisdiction of Corps. Migratory Bird Rule, in
absence of § 404(a) addressing authority over nonnnavigable, nonadjacent wetlands,
didn’t create jurisdiction over site b/c nothing in language of § 404(a) extended
jurisdiction over an abandoned sand & gravel pit, even though it was a migratory bird
habitat.
iii. Dissent (Stevens): Corps is entitled to § 404(a) jurisdiction b/c § 1362(7) of CWA
establishes its scope of jurisdiction to encompass all waters of U.S. & doesn’t limit that
jurisdiction by requiring actual or potential navigability. Viewed in light of history of
federal water regulation, & the fact that instructions of Congr in its conference report
indicated that the definition of navigable waters under § 502(7) was to give broadest
possible con interpretation of term “navigable waters” operates in § 404 (a) as waters
over which federal authority may be properly asserted. Even if Congr didn’t extend
jurisdiction in CWA to reach beyond navigable waters & their navigable tributaries,
Congr’s rejection of efforts to cut back extension of jurisdiction in § 404(g) was
sufficient to indicate a leg intent to grant that jurisdiction.
iv. Class Notes: EPA in Corp’s regulatory definition listed several examples of where
intrastate bodies of water would contribute to IC. Corps said § 404 extended to intrastate
waters which could be used as habitat for migratory birds-“Migratory Bird Rule.” But
this definition was passed w/o formal notice & comment procedures of APA.
a. Petitioners argued on 2 grounds: (1) statutory-Corps exceeded statutory
authority to interpret CWA to include isolated wetlands; & (2) Congr lacked
power under CCl.
b. Holding: SCt fell short of making CCl decision & decided case on purely
statutory grounds. Ct focused on Congressional intent & said that in terms of
adjacent wetlands, Congr had approved of including adjacent waters of U.S. but
here there was no indication by Congr on subject of non adjacent wetlands. Lots
of language in case re Federalist concerns.
c. Dissent. Case isn’t distinguishable from Riverside, definition of navigable
waters was meant to be extremely broad. Dissent very strong.
d. Aftermath. Some thought states would step in to try to regulate isolated waters
but as it turned out the state hasn’t done so.

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 e. Note. Terrible case to try to bring case that would extend CWA –it was a gravel
pit (kind of like Delhi Sand Fly).
3. Rapanos/Carabell. Case falls b/w Riverside & SWANCC. Issue is whether
wetlands adjacent to ditches & drains that reach tributaries that eventually reach
navigable waters are “waters of the United States” & therefore under jurisdiction
of the U.S.
i. Gov’t argued that b/c what gets dumped upstream eventually winds up
downstream, their interpreted that phase “waters of the U.S.” to include
not only large lakes and rivers, but also their smaller tributaries and
wetlands near those tributaries, is reasonable. Gov’t argues that any
narrower interpretation would cripple the Clean Water Act. States alone
could not do the job, the administration argues.
a Grodsky felt that govt’s strongest argument is that b/c the major
purposes of CWA is to control pollution then if you limit reach of
wetlands then it would be disastrous to pollution control b/c
tributaries run into “waters of the United States.”
b. Manmade v. Natural Channels. Gov’t argued that so many of our
natural waterways have been channelized so how could you leave
these out.
ii. Petitioners argued this was a violation of CCl & there should be case by
case argument of whether they reach navigable waters.
a. Gov’t responded that you can’t have a case by case approach &
petitioners have offered no made case by case argument of why
iii. No clue how this will come out.

II. TECHNOLOGY –BASED EFFLUENT LIMITATIONS ON “POINT SOURCE”

DISCHARGES.
A. Do We have A point Source
1. Definition of Point Source is Vague & Blurry
i. Point Source has included: overflows from mining spoils pile, railroad
cars, tug boats depositing dirt, etc.
a. Usually to be a point source there is some human effort somewhere
in process.
b. Point sources also include controllability-extent which point source
can be controlled. See CARE
ii. Analysis to determine whether a point source exists: (1) look to see if
there is some human effort & some chaneralization you might have a point
source. It just depends. (2) compare case law.
2. Human Beings are not Point Sources. United States v. Plaza Health
Laboratories, Inc. (2d. Cir. 1993)  a human being is not a “point source” under
CWA.
i. Facts: Villegas disposed of numerous vials of human blood generated from his blood-
testing laboratory business, Plaza Health, in Hudson River. Upon discovery, Villegas &
Plaza Health were indicted & convicted for violating CWA.
ii. Holding (Pratt): A human being may not be a point source as defined in CWA. CWA
doesn’t expressly recognized a human being as a “point source.” If Congr had intended to
include human beings as point sources, it could have done so very simply. CWA
generally targets industrial & municipal sources of pollutants. Legislative history of
CWA confirms the Act’s focus on industrial polluters. Additionally, CWA doesn’t make
structural sense when “human being” is included in meaning of “point source.” Term
“point source” as applied to a human being is at best ambiguous, & in crim prosecutions,

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 rule of lenity requires that ambiguities in statute be resolved in Δ’s favor. CWA didn’t
clearly proscribe Villegas’ conduct & didn’t accord him a fair warning of sanctions law
placed on that conduct. Under rule of lenity, therefore, persecutions must be dismissed.
iii. Dissent (Oakes): “Point Source” has been broadly construed to apply to a wide range of
polluting techniques, so long as pollutants reach navigable waters by human effort.
Unlike nonpoint sources, a point source isn’t difficult to identify or to control. Villegas’
activities more closely resemble a point source discharge than a nonpoint source
discharge b/c source of pollution was clear & would have been easy to control. Villegas’
stream of activity functioned as a “discrete conveyance” or point source. Under
majority’s holding, a corporation could have its employees stand b/w company trucks &
the sea & dump pollutants w/o violating CWA. I would read CWA as ambiguous as
applied to individual litterers, but not to disposers of industrial & municipal waste, the
principal targets of CWA.
a. Dissent’s main arguments: prosecutional discretion, no de minimis exemption,
legislative history, Δ was acting for his industry, definition is broad.
Controlability theory-a point source can be identified & controlled.
iv. Analysis Framework:
a. Pollutant? Yes, Blood is considered a pollutant, pollutant has been
construed very broadly.
b. Addition? Not an issue here-gray area w/ regard to dams (dams
aren’t adding pollutants into water quality even if they change
conditions dramatically-Warren Case in SCt will settle this issue.
c. Waters of U.S.? Yes, Hudson river. Beware of fact patterns of
something that appears a point source but never goes into water.
Gray Area-ground water (cases have gone both ways).
d. Determine if there is a point source.
3. Concerned Area Residents v. Southview Farm (“CARE”) (2d. Cir. 1994)
liquid manure spreading operation was a point source under CWA.
i. Issue: (1) Is this a Concentrated animal feeding operation (CAFO)? (2) Are discharges
subject to any agriculture exception?
ii. Holding (Oakes-dissenter in Plaza Health) (unanimous decision): Yes, this is a CAFO
therefore Southview is a point source. (2) Yes. SCt looks at manure operation &
determines that it is not subject to agriculture stormwater discharge exception &
concluded that these were point source discharges b/c the liquid manure was collected by
human effort & channeled through ditches that led to a stream, the operation was a point
source. Alternatively, manure speaking vehicles used by operation were point sources b/c
they collected liquid manure & discharged it into fields from which manure directly
flowed into navigable waters. Ct Rejects arguments that operation involved “agricultural
storm-water discharges” exempted from definition of point source in §502(14), finding
that it instead involved kind of concentrated animal feeding operation specifically listed
in point source definition-just b/c discharge occurs on rainy days doesn’t exempt
polluters from CWA reqmts.
4. Analysis Framework“the discharge of any pollutant” (defined in § 502(12) as
the addition of any pollutant to navigable waters from any point source) is
prohibited under CWA.
i. Pollutant? Remember pollutant has been construed very broadly.
ii. Addition? gray area w/ regard to dams (dams aren’t adding
pollutants into water quality even if they change conditions
dramatically-Warren Case in SCt will settle this issue.
iii. Waters of U.S.? Beware of fact patterns of something that appears a
point source but never goes into water. Gray Area-ground water
(cases have gone both ways).
iv. Determine if there is a point source. Point Source is very blurry line &
can go both ways.

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B. Technology-Based Effluent Limitations applicable to all point source dischargers &
implemented through enforceable permits. Congr intended effluent limits be uniform
throughout nation for “similar point sources w/ similar characteristics” in part to prevent
geographic competition for industry from undermining water pollution control stds.

1. Technology sources under CWA (similar conceptually to NSPS under CAA).

Based on industrial category, nationally uniform & set by Fed gov’t.
2. Summary: there are a # of diff. levels of tech based reqmts in CWA
depending on:
i. type of pollutant. Kinds of pollutants include:
a. conventional less stringent stds then toxic-include oil & grease,
bacteria, fecal coliform, suspended solids, ph acidity, fish parts;
b. toxic pollutants have more stringent stds then conventional.
Health-based stds to control toxic pollutants that don’t take cost
into account in order to satisfy §101’s objective of prohibiting
discharges of toic in toxic amounts.
(1) listed by EPA-EPA published regulatory list of toxic water
pollutants-kind of like Toxic air pollutnats
(2) b/c program was so ambitious EPA can’t take cost into
account proposing health based std for toxic water
pollutants was very difficult & EPA couldn’t promulgate a
defensible std & only 9 toxic pollutants were regulated.
Envtl groups sued and Flannery Decree resulted.
(3) Flannery Decree: settlement where EPA agreed to
promulgate effluent guidelines for 65 toxic pollutants based
on technology stds w/ tight deadlines. These has been
broadened to cover 126 toxic pollutants known as “priority
pollutants.”
c. unconventional (anything that doesn’t fit into 1st 2 categories-
chlorine, color).
ii. whether we have an existing or new source, 1972 sought to force existing
dischargers to employ progressively more stringent pollution control
technology in 2 phases: (1) BPT, best practicable technology by 1977 &
(2) BAT, best available technology by 1983. New sources were required
by §306 to meet a more stringent reqmt through application of best
available demonstrated control technology (BADT).
iii whether we have a direct or indirect discharger-i.e. whether someone is
discharging directly into “water of United States” or indirectly into a
public water treatment plant.
3. Permit Program. Effluent generated by public treatment plant or center must be
permitted by EPA or states.
i. EPA can order states or tribes to administer permit program. Remember
that EPA sets technology based stds (see above on what EPA looks at in
setting std)
ii. In cases where EPA has delegated administration of programs to states
EPA retains oversight authority over state programs.
iii. EPA can revoke states authority but it can also review & disapprove indiv
permits if EPA believes they are inconsistent w/ reqmts of CWA.

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 iv. When State proposes a permit EPA has 90 days to object. Ambient water
quality stds where states will then examine stds for receiving waters & can
add on to technology based stds.
4. Applications to Industrial Discharges
i. Development of Effluent Limitations. 1972 sought to force existing
dischargers to employ progressively more stringent pollution control
technology in 2 phases: (1) BPT, best practicable technology by 1977 &
(2) BADT, best available demonstrated technology by 1983. New sources
were required by §306 to meet a more stringent reqmt through application
of best available demonstrated control technology.
ii. Effluent Stds for Toxic Water Pollutants. Congr turned to technology
based effluent std b/c of wide agreement that water quality based
approaches were far more difficult to implant.
iii. Variances. Variances play larger role in CWA. If individual permit
applicant can argue the attributes of its facility are diff then what EPA
considered when it created its std then you might be able to have std
adjusted.
iv. Effluent Limitations: State of the Art. Frustation w/ technology-based stds
is inspiring proposals for more flexible & more efficient approaches.

III. WATER QUALITY STDS

A. Water Quality Stds
1. 3 Components
i. Designated use-purpose for which each water segment is going to be
protected. Default is fishable/swimable.
a. Limited Discretion. States have some flexibility in establishing
designated use in water bodys of their states but there are limits.
b. Ambiguous statutory language. § 303(c)(2)(a)-language has been
interpreted by EPA by rule to require at a min that water quality
stds meet the fishable/swimable goal of § 101(a)(2) unless that
goal would be unattainable (severe policy, social & economic
impact).
c. If state wants std lower then fishable/swimable they will have to
prepare a detailed statement to demonstrate severe policy &
economic impacts.
ii. Water quality criteria. § 304(a) direct EPA to develop water quality
criteria on which stds are based.
a. EPA criteria are considered to be suggestions/ scientific
recommendations to states. States aren’t required to follow EPA’s
criteria.
b. If states choose not to follow EPA’s criteria they must be
scientifically defensible. Numerical or narrative. See NRDC v.
EPA.
c. Exception for toxic water pollutants. Toxic water pollutants must
be framed in terms of narrative criteria or stds. Difficult to come
up w/ scientific numerical criteria. Statute says toxic pollutants
must have numerical criteria.
d. If EPA disapproves of a renewed or revised water quality std &
state doesn’t provide then EPA can promulgate its own std.

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 iii. Stds- states & tribes have to review every 3 years & have to submit stds to
EPA for review & approval.

2. Listing & Priority Ranking Process. § 303(d). Each state must list waters in
state for which existing technology based stds are inadequate to achieve place
based water quality stds. Following this there must be a priority ranking of
impaired waters of state-that aren’t obtaining relevant std. Sequence after is the
establishment of TMDLs.
i. TMDL. For each water identified as being impaired state has to establish
TMDL of pollutants that the particular water body can assimilate w/o
violating water quality std.
a. TMDLs-open q of whether they need to incorporate total loadings
of point sources & non-point sources See Pronsolino.
3. Water Quality Criteria. NRDC v. EPA (4th Cir. 1993)  EPA can approve state
stds more lenient than recommended by EPA’s criteria so long as they were
scientifically defensible.
i. Facts: EPA approved VA & MD water quality stds even though these std allowed level of
dioxin which exceeded EPA’s own guidance criterion.
ii. Holding: EPA could approve stds more lenient than recommended by EPA’s criteria so
long as they were scientifically defensible & protective of designated uses, even though
there were based on assumptions different from those employed by EPA in assessing
toxicity of dioxin. States have the primary role in establishing water quality stds & that
EPA’s decision to approve them should be upheld if there is a rational basis for it in the
record. Availability of new data doesn’t obligate EPA to update its water quality criteria
guidance documents, & such docs aren’t subject to judicial review under APA b/c they
don’t represent final agency action.
iii. Class Notes: blow to envtl groups. Native American subsistence fishers in area & std
selected by state & approved by EPA was not protective of these fishers. Envtl Justice
issue-how can we give special treatment to groups who are discriminated b/c of pollution.
Could you use EO in a situation like this. EJ is moving into std setting sphere. Ct could
have said something like “we have to take into account sensitive subpopulation when we
look at water quality stds” but they didn’t. Ct recommended warnings.
4. Total Maximum Daily Loadings (TMDLs). Pronsolino v. Nastri (9th Cir. 2002)
 EPA has authority over waters w/ non-point sources of pollution.
i. Facts: EPA required CA to identify a certain river as a water body w/ insufficient
pollution control & to set TMDLs for pollution entering the river.
ii. Holding: Language & structure of CWA, along w/ § 303(d), supports position that
TMDLs are required for all waters that are not able to achieve water quality stds through
technology-based controls on point sources of pollution. States must establish water
quality stds for all waters, including waters that fail to meet water quality stds solely as a
result of non-point source pollution. TMDLs are a primary info tool useful in helping to
accomplish this goal. Although CWA only authorizes fed regs for point source pollution,
it is necessary that states have access to TMDLs, as an information tool, for waters w/
non-point source pollution sources. Therefore, the “not stringent enough to implement
any water quality std” language of § 303(d)(1)(A) must be interpreted to apply to water
w/ non-point sources of pollution, as well as waters w/ point sources of pollution.
iii. Class notes: Congr was silent about non point sources in § 303 & explicitly addressed
non point sources in § 319. §303(d) language suggested that program only applied to
point sources. Also П’s brought up federalist concerns. Ct held that water quality stds
don’t depend on particular source of pollution. Ct did acknowledge that non point sources
can be included in TMDLs but states must implement TMDLs regarding non point

61
 sources only to extent where they don’t want to lose federal money. Implementation
problem-EPA doesn’t have any authority to enforce. Substance of TMDLs
B. Application of Water Quality Stds to Interstate Pollution. Arkansas v. Oklahoma
(1992)  EPA may require an upstream discharger to comply w/ water pollution regs of
a downstream state.
1. Facts: Okl challenged a permit granted by EPA that authorized a plant in Ark. to discharge
pollutants into a stream that empties into Ill. River in Okl.
2. Holding (Stevens): EPA has authority to require an upstream discharger to comply w/ water
quality stds of a downstream state. Although CWA may not require such action, it clearly doesn’t
limit EPA’s authority to mandate such compliance. EPA has broad discretion to establish
conditions for NPDES permits to ensure compliance w/ applicable water quality stds of all
affected States. Consideration of state water quality stds. Ct of Appeals invalidation of permit is
reversed.
3. Class Notes: Here EPA decided to follow molecules to figure out if there was an impact. SCt held
that (1) EPA has authority to require upstream discharger to comply w/ water quality stds of a
downstream user; but (2) EPA is not required (at least that question isn’t reached).
C. Tribal Water Quality Stds. Albuquerque v. Browner  EPA can approve water
quality stds higher then EPA’s recommended std.
1. Facts: Albuquerque operates waste treatment facility & brought action challenging EPA’s
approval of water quality stds set by Indian Tribe recognized as state under CWA. Indian Tribe’s
std was higher then EPA’s std.
2. Holding: upstream dischargers have to meet downstream stds. EPA has authority to require
upstream permit dischargers to comply w/ downstream water quality stds. Establishment clause
challenge was dismissed b/c EPA’s actions don’t have primary affect of advancing a religion-EPA
has other goals (a cleaner envt).
IV. WETLANDS & FUTURE DIRECTIONS IN WATER POLLUTION CONTROL.
Ecosystem provides many services including: spawning grounds for fish & water purification.
Current estimates suggest that about 200,000 acres of natural wetlands are lost per year. But
Norton announced that we aren’t losing wetlands anymore.
A. What Constitutes a Discharge?
1 Tulloch Rule invalidated in 1998.
i. Purpose: designed to prevent developers from making an end run around §
404 permit program by draining wetlands so they would no longer be
wetlands & not subject to permit programs.
ii. Function: defined discharge as including any addition of dredged material
including redeposit of dredged material w/in “waters of U.S..” Redeposit
encompasses incidental fallback from dredging. Mere fallback isn’t
sufficient to be considered dredge or fill.
2. 2001 New Reg says there is a rebuttable presumption that use of mechanized
earth moving equipment results in discharge of dredged material unless activity
only causes incidental fall back
3. Still tremendous controversy over what constitutes a discharge.
B. Draining Wetlands. Borden Ranch Partnership v. Army Corps of Engineers (9th Cir.
2001-affirmed by equally divided SCt )  a real estate developer’s “deep ripping”
activities were subject to regulation.
i. Facts: Borden Ranch Partnership w/o permission of Corps engaged in an activity called
“deep ripping” in the wetlands area of ranch in order to prepare the land for conversion
into vineyards & orchards.
ii. Holding (Hawkins): Corps & EPA have authority to regulate “deep ripping” in wetland
areas. CWA provides that is unlawful to discharge pollutants into wetlands w/o a permit
from Corps. CWA defines “discharge” as an “addition of any pollutant.” Activities such
as “deep-ripping” that destroy ecology of wetland are not immune from CWA merely b/c
they don’t involve introduction of material brought in from somewhere else. In
Rybanchek v. EPA it was decided that removing material from a steambed, sifting out

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 gold, & then returning material to steambed was an “addition of a pollutant.” This
situation is no different than what the real estate developer did. The “deep ripping”
wrenched up the soil, the trapped water drained out & the soil was deposited somewhere
else. Since the real estate developer’s “deep ripping” activities resulted in an “addition of
a pollutant” the Army Crops & the EPA had authority to regulate those activities.
Decision of district ct affirmed wrt its findings that Corps had jurisdiction over deep
ripping in jurisdictional waters.
a. Majority rejected argument that deep ripping was exempt from permit reqmt
under § 404(f) –exemption for discharges from normal farming . . . & ranching
iii. Dissent (Gould): CWA doesn’t prohibit “deep ripping” in context of this case b/c return
of soil in place isn’t a discharge of a pollutant. There is no significant removal or
“addition” of material to the site, only hydrological regime is modified (as a result of
water being drained out) & the CWA speaks only in terms of discharge or addition of
pollutants, not in terms of changes of hydrological nature of the soil. This instance can
also be distinguished from decision in Rybachek b/c in the present case, the “deep
ripping” didn’t move any material into a substantially different location.
C. 404 Permit Program. Corps conduct public interest review of whether to deny a
permit or condition a permit; consideration of alternatives; mitigation measures. EJ
concerns can come into play in public interest review.
1. Heavily Criticized by developers & environmentalists
i. Developers argue that process is too cumbersome & takes too long.
ii. Environmentalists argue that Corps has been far too lenient in granting
permits to development interests & that EPA has been too willing to defer
to the Corps.
2. EPA guidelines prevent discharge into wetlands when practicable
alternatives exist. Decisions on whether to grant a §404 permit turn largely on
the analysis of alternatives. § 404(b)-“no discharge of dredged or fill material
shall be permitted if there is a practicable alternative . . . which would have less
adverse impact on the aquatic ecosystem.
i. “Practicable” is defined as available & capable of being done after taking
into consideration cost, existing technology & logistics in light of overall
project purposes.
ii. Guidelines are designed to place a heavy burden on developers who seek
approval to locate in wetland areas projects that don’t require access or
proximity to water. For such non-water dependent projects, guidelines
presume that a less damaging alternative is available unless clearly
demonstrated otherwise. Developer bears burden of proving that no
alternative is available, no other property could reasonably be obtained to
fulfill the basic purpose of the project.
iii. “Water-dependent” & “Non-water-dependent” projects. How a project is
defined has a major effect on analysis of availability of alternatives under
§ 404.
a NWF v. Whistler (8th Cir. 1994) purpose of project was defined
as providing boat access & therefore Corps found project to be
water dependent. Ct deferred to Corps decision.
b Bersani (2d Cir. 1988) availability of alternative property should
be assessed at a project’s inception or at the time of permit
application.
(1) Facts: EPA had vetoed issuance of a § 404 permit for a
shopping mall b/c a non wetland site subsequently
purchased by another developer had been available when

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 permit applicant entered market & purchased wetlands
property.
(2) Holding: Upheld EPA’s denial of permit & upheld “market
entry” theory denial was premised on. Purpose of
practicable alternatives analysis required by § 404(b)(1)
guidelines is to create an incentive for developers to avoid
choosing wetlands when they could choose an alternative
upland site. If analysis were applied at time of permit
application rather than at time of site selection it would
remove incentive for a developer to search for an alterative
site at time such an incentive is needed.
(3) Dissent (Pratt): EPA’s market entry theory in effect taints a
particular developer wrt a particular site, while ignoring
crucial q of whether site itself should be preserved.
iv. NEPA-requires an alternatives analysis. Most std permitting activities
(NPDES & Clean Air permits) are usually exempted from NEPA b/c it
already has goal of protecting air quality. But § 404 wetlands permit is
subject to NEPA if project meets major & significantly threshold. But
alternatives analysis under § 404 & NEPA can get folded together. 2
analysis overlap & are different.
D. Role of mitigation.
1. Unclear before 1990 question had been raised whether mitigation can be
considered an alternative-i.e. if a developer says he will mitigate his project does
that suffice as an alternative?
2. 1990 Corp & EPA entered into Memorandum of Agreement on Mitigation
requiring that proposed discharges respond to potential wetlands loses in
following sequence: (1) by avoiding them, (2) by minimizing them, & (3) by
compensating for unavoidable adverse effects.
E. Mitigation Banking: a wetland area that has been restored, created, or enhanced & then
set aside to compensate for future loses of wetlands from development activities.
Developers needing to mitigate wetlands losses can purchase credits from a mitigation
bank rather than restoring or creating wetlands in the vicinity of the development site.
1. Environmentalists criticize mitigation banking by arguing that natural &
manmade wetlands aren’t comparable. Mitigation banking it encourages: (1)
off site mitigation that can’t replace many wetlands values which are site specific;
(2) an excess of certain kinds of wetlands, such as marshes & shrub wetlands b/c
they are easier & cheaper to create than other wetlands types; & (3) issuance of
fill permits based on wetlands creation when avoidance & minimization
alternatives exist.
2. Uncertainty whether restoration projects work over long term-want to
encourage restoration but q becomes whether we are getting fair trades or values.
F. Future Issues. Despite sig progress in controlling pollution from point sources, serious
water quality problems remain due in large part to non point sources.
1. Federal Efforts to Control Nonpoint Source Pollution have largely been
unsuccessful. This could be because (1) it has been a largely nonregulatory
approach which seeks to encourage states to voluntarily to adopt control measure,
(2) inadequate state resources to invest in control measures; and/or (3) lack of
technical info concerning what control measures work.

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2. Federal policy has shifted emphasis toward community & watershed based
envtl protection & ecosystem management policies.

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