This action might not be possible to undo. Are you sure you want to continue?
1-23 and 26-31 in the casebook NEPA § 101, pp. 973-974 in the Statutory and Case Supplement pp. 1-2 of the Statutory and Case Supplement, and Info from slides EPA Definition of “Environmental Justice”: o “Environmental justice”: “The fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies.” o “Fair treatment”: “No group of people, including racial, ethnic, or socioeconomic group should bear a disproportionate share of the negative consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local and tribal programs and policies.” Executive Order 12898 (p.19) o §1-101: Agency Responsibilities o §1-102: Creation of Interagency Working Group on Environmental Justice o §1-103: Development of Agency Strategies o §2-2: Federal Agency Responsibilities for Federal Programs o §6-609: Judicial Review History of the Environmental Justice Movement o 1979 first lawsuit challenging dump siting on civil rights grounds o 1982: Warren County, N.C. PCB landfill protests o 1983: GAO Study on Hazardous Waste Sites o 1987: UCC Commission for Racial Justice Report o 1991: First National People of Color Environmental Leadership Summit o 1992: National Law Journal enforcement study In re Louisiana Energy Services (1997) (p.20) Stage of Screening Process Number of Sites Under Percentage of Affected Consideration Population African-American 1 78 28.35% 2 37 36.78% 3 6 64.74% 4 1 97.1% Bob Kuehn’s Taxonomy of Environmental Justice o Distributive Justice: fairness in the distribution of benefits and burdens o Procedural Justice: fairness in procedures by which policy decisions are made o Corrective Justice: correcting for past injustices o Social Justice: expanding the concept of environmental justice to embrace larger inequities in society
Cost-benefit Analysis, Ecosystem Services and the Tragedy of the Commons. Read pp. 31-43, and 49-60 in the casebook. From slides Ethyl Corporation v. EPA (D.C. Cir. 1976) o “Where a statute is precautionary in nature, the evidence difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge, the regulations designed to protect public health, and the decision that of an expert administrator, we will not demand rigorous step-by-step proof of cause and effect. Such proof may be impossible to obtain if the precautionary purpose of the statute is to e served.” II. ENVIRONMENTAL LAW: A STRUCTURAL OVERVIEW The Common Law Roots of Environmental Law: Private and Public Nuisance. Read pp. 61-88 in the casebook. From slides The Common Law Roots of U.S. Environmental Law o Aldred’s Case (1611) (p.65): even nontrespassory invasions can be actionable as nuisances o Tenant v. Goldwin (1702) (p.65): sic utere principle o Bamford v. Turnley (1862) (p.65): overrules Hold v. Barlow (1856) to hold that the lawfulness of an activity is no defense to nuisance liability o St. Helens Smelting Co. v. Tipping (1865) (p.66): copper smelter held liable for damage to trees and crops o Sturges v. Bridgman (1879): nuisance liability depends on the character of the neighborhood Baltimore & Potomac R.R. Co. v. Fifth Baptist Church (1883: There are many lawful and necessary occupations which, by the odors they engender or the noise they create, are nuisances when carried on in the heart of a city… No permission given to conduct such an occupation within the limits of a city would exempt the parties from liability for damages occasioned to others, however carefully they might conduct their business.” What remedy should courts impose for private nuisances? o Smith v. Staso Milling (2nd Cir. 1927): court enjoins some activities, but not others o The Coase Theorum and Boomer v. Atlantic Cement Co. (NY 1970): imposition of a conditional injunction Interstate Public Nuisance Cases in the Supreme Court o Missouri v. Illinois (1906) (p.77) o Georgia v. Tennessee Copper (1907) o New York v. New Jersey (1921) o Wisconsin v. Illinois (1929) o New Jersey v. City of New York (1931) o Illinois v. City of Milwaukee (1972) & City of Milwaukee v. Illinois (1981 Lessons from the History of the Ducktown Litigation (Georgia v. Tennessee Copper) o The Supreme Court recognized that states have a right to protect their citizens from substantial harm caused by pollution originating in another state.
Courts were reluctant to shut down economically important enterprises, but the threat of doing so created incentives for the development of improved technology to control pollution o The Court established a kind of equitable remedy requiring the smelter to use the “best available control” technology to control transboundary emissions Georgia v. Tennessee Copper Co. (1907) Facts: Copper smelter in Tennessee was spewing pollution across state lines into Georgia. Holding: A state has an interest in the earth and air within its domain. o
The Rise of the Regulatory State, Environmental Federalism, Environmental Legislation and Preemption of Federal Common Law. Read (1) pp. 88-104 in the casebook “Environmental Legislation in Historical Perspective” on pp. xii-xv of the Statutory and Case Supplement, American Electric Power v. Connecticut on pp. 1123-1128 in the Statutory and Case Supplement. Slides Six Stages in History of U.S. Environmental Law o 1. Pre 1945: Common Law and Conservation Eras o 2. 1945-1962: Federal Assistance to States o 3. 1962-1970: Modern Environmental Movement o 4. 1970-1980: Erecting Regulatory Infrastructure o 5. 1980-1990: Improving regulatory Strategies o 6. 1991-2009: Reinvention and Legislative Gridlock Federal Environmental Legislation o National Environmental Policy Act (NEPA)-1970 o Clean Air Act (CAA)- 1970 o Clean Water Act (CWA)- 1972 o Federal Insecticide, Fungicide & Rodenticide Act (FIFRA)- 1972 o Endangered Species Act (ESA)- 1973 o Safe Drinking Water Act (SDWA)- 1974 o Toxic Substances Control Act (TSCA)- 1976 o Resource Conservation and Recovery Act (RCRA) – 1976 o Comprehensive Environmental Response, Compensation, and Liabilit Act (CERCLA)- 1980 o Emergency Planning and Community Right-to-Know Act (EPCRA)- 1986 o Oil Pollution Act (OPA)- 1990 Important Features of the Federal Environmental Laws o The laws generally seek to establish comprehensive, national regulatory programs o They generally authorize federal agencies to set national standards to be implemented by states through delegated authority. o They generally authorize citizen suits against: (a) agencies for failure to perform mandatory duties and (b) violators of the environmental laws
o The laws employ a wide spectrum of approaches to regulation Illinois v. City of Milwaukee (p.87) o Facts: Illinois seeks to sue four Wisconsin cities and Milwaukee City & Count Sewearge Commission for discharging 200 million gallons of raw or barely treated sewage into Lake Michigan daily. o Milwaukee I Decision (1972): Court refuses Illinois leave to file a bill of complaint. However, Justice Douglas said, “It may happen that new federal laws and new federal regulations may in time preempt the field of federal common law of nuisance.” [CWA was enacted in following October] o Milwaukee II (1981): International Paper v. Ouellette (1987) (p.101) o Facts: Post Milwaukee II Supreme Court Decisions o Middlesex County Sewerage Authority v. National Sea Clammers Ass’n (1981): neither CWA nor Ocean Dumping Act create implied private right of action for damages. Federal common law of nuisance fully preempted for water pollution. o Exxon Shipping Co. v. Baker (2008): CWA does not preempt private claims for punitive damages for water pollution caused by reckless conduct. Connecticut v. American Electric Power o Facts: Eight states, NYC, and land conservation groups filed suit against four electric power companies and the TVA (the largest sources of GHG). The lawsuit alleged that the utility companies, which operate facilities in 21 states, are a public nuisance because their carbon-dioxide emissions contribute to global warming. The companies argue that only the ePA can set emissions standards. o Trial Court Holding (S.D.N.Y. 2005): Trial court dismisses common law nuisance action over GHG emissions as a nonjusticiable “political question” o 2nd Circuit Holding (2009): It is not a political question, plaintiffs have standing to sue, and the suit is not preempted by the Clean Air Act. o Supreme Court Holding (2010): Reversed. The Clean Air Act and the EPA action the act authorizes displace any federal common-law right to seek abatement of CO2 emissions from fossil fuel fired power plants. Comer v. Murphy Oil, USA (5th Cir. 2009) o Facts: Action against oil companies arguing that their contribution to climate change increased Hurricane Katrina damage. o Holdings: Not a political question, state law action not preempted by federal law, plaintiffs have standing to sue Native Village of Kivalina v. ExxonMobil Corp. (N.D. Cal. 2009) o Facts: Residents of small coastal village in Alaska seek $400 million in damages from 24 oil companies and powerplants due to climate change. o Holding: Court dismisses the case as nonjusticiable “political question.” State Standing, Environmental Federalism, and Forms of Collective Action. Read (1) pp. 104-119, 125-139 in the casebook, (2) Oil Pollution Act §1002(a) & (b) on p. 916 of the Statutory and Case Supplement, and (3) Oil Pollution Act §1004(a) on p. 919 of the Statutory and Case Supplement. Slides
Article III §2 “Case or Controversy” Requirement o “The Judicial Power shall extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority… to Controversies to which the United States shall be a Party.” Standing Requirements: o I. Constitutional Elements 1. Actual or Threatened Injury-in-Fact 2. Traceable to the Challenged Action 3. Redressable by Judicial Action o II. Prudential Restrictions 1. Prohibition of Third-Party Standing 2. Generalized Grievances (taxpayer) 3. “Zone of Interest” Requirement Evolution of Injury Concept of Standing Doctrine o Initial focus was on common law notions of “legal injury” to regulated industries o New questions raised by enactment in 1960s and 1970s of regulatory statutes to protect more diffuse interest of consumers, environment o Sierra Club v. Morton (1972): aesthetic injury to persons who alleged an interest in the subject matter is sufficient, as long as there is close enough connection between person and allegedly harmful act. Should trees have standing? o Yes, according to William O. Douglas Massachusetts v. EPA o Standing issues: Actual or threatened injury-in-fact (harm to public health, coastal resources, water supplies, agriculture and ecosystem)- is it sufficiently imminent? Traceable to the challenged action- are defendants’ emissions of GHGs a significant contributing cause to climate change? Redressability- can judicial action redress the harm plaintiffs allege? Is this a “generalized grievance” that affects everyone equally and thus precludes standing? o Justice Roberts’ Dissenting Opinion: Three Models of Federal-State Relations in Environmental Law o Federal government supplies only financial assistance while encouraging states to regulate- old approach, now largely confined to land use issues o Cooperative federalism (federal agency sets standards but states may qualify to issue and enforce permits subject to federal supervision)- predominant approach o Preemption of state standards by federal law- rare in federal environmental law (e.g., mobile source provisions of CAA, products regulated under TSCA and FIFRA pesticide labeling) Constitutional Authority for Federal Regulation o Can the DSA constitutionally prohibit private parties from harming the endangered Delhi Sands Flower-Loving Fly which is found only in two California counties?
EPA (8th Cir. if rational. if the hypothesis is correct. TSCA: gives EPA authority over any chemical substance or mixture (other than regulated by FIFRA of FDA) . Risk Regulation in the Face of Uncertainty: How Precautionary Should Regulatory Policy? a. Lead manufacturers claimed the statute required EPA to have “proof of actual harm” before it could order limits. Holding: The plant needs to stop dumping. importance of the burden of proof i. v. Holding: Where a statute is precautionary in nature (like CAA). the court will not demand rigorous step-by-step proof of cause and effect. but we still need reliable predictors that something is harmful b. and the decision that of an expert administrator. will form the basis for healthreglated regulations under the “will endanger” language of section 211. the health consequences would be huge. 1975) (p. Ethyl Corp established that there are two variables: magnitude of harm and probability of harm occurring ii. but not immediately. the company should be given time to figure out a new disposal method. II. 1976) Facts: EPA decided that lead in gasoline presented a substantial risk of harm and ordered reductions in the lad content of gasoline. Ethyl Corp. Cir. EPA (D. There is also major harm in closing down a major economic center. PREVENTING HARM IN THE FACE OF UNCERTAINTY (started on class 6) I. Statutory Authority for Regulating Risks a. uncertain or conflicting ecause it is on the frontiers of scientific knowledge. Shifting the burden of proof to the polluters once a reasonable risk threshold has been passed Reserve Mining Company v. the regulations designed to protect the public health. However. Before an agency or court is authorized to regulate a substance a threshold finding must be made that relates to the harmful potential of the substance or product to be regulated i.185) Facts: Large mining plant was dumping asbestos fibers into Lake Superior. Plaintiffs tried to shut down the operation even though they did not know how the asbestos fibers caused harm when consumed rather than inhaled (multiple tests had been inconclusive). the probability of danger is low. Engaged in a balancing test: based on the record. Can be satisfied by high probability of lesser harm or lower probability of a greater harm c. the evidence difficult to come by.o Does it depend on what activity harms the fly? Construction of a hospital? Children riding dirt bikes? III. Principle: We are always better off when we prevent harm instead of compensating afterwards. Complex array of statutory authorities address risks presented by toxic chemicals i. If the Administrator’s conclusions are rationally justified he may engage in a risk assessment that. Therefore.C. Decision was based on several suggestive but inconclusive studies.
SDWA. FDCA d. Risk-benefit balancing statutes: require that regulators balance the threat to public health against the cost of regulation when setting regulatory standards 1. Restrictions on use and labeling. Statutes differ in amount and kind of evidence that must be hsown before a substance can be regulated and in the type of controls that they authorize regulators to impose i. FDCA) ii. to the maximum extent possible. Health-based statutes: standards be based exclusively on concerns for protecting public health 1. TSCA: EPA must be notified 90 days prior to manufacture of a new chemical or the application of an old chemical to a significant new use iii. FIFRA: governs EPA regulation of pesticides iii. ii. Problems and uncertainties 1. used to evaluate proposed rules to reduce exposure to toxic substances i. “Standard setting laws”: require agencies to establish standards limiting toxic emissions. OSHA) iii. CAA: hazardous air pollutants v. “How safe is safe” under the statutes: i. Quantitative risk assessments (QRA) are. SDWA iii. Table on p.III. controlling worker exposure to toxics. FIFRA.245 Risk-Benefit Balancing Approaches a. Feasibility-limited standards (subset of Technology. CWA. Very controversial and difficult to do ii. CWA: toxic water pollutants b. CAA and CWA c. Necessity of making assumptions liking data to policy-related conclusions 3. SDWA: contaminants in public drinking water systems iv. TSCA. Differ in extent to which they require review or approval prior to manufacture or use of substances i.based standards): direct that threats to health be regulated as stringently as feasible 1. Uncertaincies of data 2. QRA anticipates adverse health effects and environmental effects in terms of their dollar values 1. or reporting requirements (TSCA) iv. or mandating warning labels on products 1. Authorize establishment of emission standards or ambient concentration limits (CAA. FIFRA ii. Outright prohibitions on manufacture or use of certain chemicals (TSCA. Decision making on the “frontiers of science” . FDCA: approval of marketing ii. warning. OSHA. OSHA. NAAQS of CAA. TSCA.
In determining whether a substance poses an unreasonable risk. 252-264. Example: Toxic Substances Control Act i. Corrosion Proof Fittings v. QRAs are routine v. 311-319 & 323-331 in the casebook and (2) §§6(a)&(c)(1) of the Toxic Substances Control Act. and reasonably ascertainable economic consequences of regulation iii. 181-198 & 243-252 in the casebook. Substitutes exist. or disposal of any chemical substance ona finding that there is a reasonable basis to conclude that such an activity presents or wil present an unreasonable risk of injury to health or the environment ii. REGULATING WASTE MANAGEMENT I. IV. processing. on pp. use. (2) §211(c)(1)&(2) of the Clean Air Act on p. Waste management was considered a local responsibility ii. EPA’s effort to ban asbestos under §6 of TSCA i. Early Stage: Local responsibility i. Information.iii. and the rule includes an exemption for instances in which technology hasn’t advanced sufficiently by the time of a ban to produce substitutes ii. TSCA explicitly requires EPA to make findings for benefits of various uses of the substance. Lay out all the risks of asbestos and conclude that it is an unreasonable risk to human health 2.starved 3. History of Waste Disposal a. EPA must regulate “to the extent necessary to protect adequately against such risk using the least burdensome requirements” iv. EPA announcement (1989) 1. Principal Provisions (p. Criticism of QRA 1. EPA (5th Cir. Produce little abatement b. 86-87 of the Statutory and Case Supplement. distribution. How Safe Is "Safe"?: Cost/Benefit Balancing and the Asbestos Ban and Regulation by Revelation. Are impacted by political pressure 5. Most wastes were dumped without treatment wherever it was convenient.248) c. Many assumed nature could assimilate the wastes without harm b. availability of substitutes for it. 1991): A total ban on asbestos did not consider less costly alternatives Read (1) pp. Very expensive to do 2. Government did not consider the environmental consequences of toxic waste disposal iii. 652 of the Statutory and Case Supplement. Feature manipulation of data 4. (1) pp. Grants EPA broad authority to regulate the manufacture. Congress enacted regulatory legislation in the 1970s: .
II. This is a misnomer because there was no victim compensation scheme vi. recycle it iii. air emissions from treatment plant and sludge incineration i. later amended to ban ocean garbage dumping b. Added Subtitle C: provided for comprehensive regulatory program to ensure that hazardous waste was managed from cradle to grave v. Statute Clean Water Act All discharges to surface waters. Balancing. including 126 priority toxic pollutants. with healthbased backup Technology . Ocean Dumping Act: bans dumping of waste in the ocean without a permit. Comprehensive Environmental Response. Disposal: last option Waste Managemen t Objective Protect and improve surface water quality Pollutants/waste s Covered Regulatory Approach Basis for Controls Primary Transfers to another Medium Sludge to land. Clean Air Act (1970) Clean Water Act (1972) Ocean Dumping Act (1974) Resource Conservation and Recovery Act (1976) 1. 4. Compensation and Liablity Act (1980) 1. imposes strict liability for cleanup costs d. Source reduction: design production processes to prevent creation of waste in the first place ii. ambient standards Technology with healthbased backup Marine Protection Research and Sanctuaries Act Safe Drinking Water Act Limit dumping into ocean All wastes except oil and sewage in the ocean Protect public drinking Contaminants found in drinking Use restrictions (prohibited unless done with permit) Ambient standards. RCRA: requires EPA to regulate hazardous waste management from cradle to grave c. CERCLA: creates “superfund” and procedures for cleaning up dumpsites. Treatment: ensure it won’t cause any long term environmental hazard iv. iv. Pollution Prevention Act: establishes preferred hierarchy of waste management practices i. ii. Emergency Planning and Community Right-to-Know Act (1986) Federal Laws regulating waste management a. 3. 1. 2. iii. Performanc e standards (emissions limits). Recycling: to the extent you can prevent creation of waste.
information disclosure Performanc e and design standards Health: technology Sludge and incinerator residues to land Health Air through incineration. incineration. encourage waste reduction and recycling Cleanup of abandoned hazardous waste sites. Compensation and Liability Act Surface mining control and reclamation Act Nuclear Waste Policy Control hazardous and solid wastes. with costeffectiveness constraint Surface coal mining wastes Performanc e standards Health (or environment ) Health (or environment ) Releases to water Commercial highlevel radioactive waste Use restrictions Low level radioactive waste policy act Uranium mill tailings radiation control Toxic substances Cmmercial highlevel radioactive waste Use restrictions Health (or environment ) Uranium mill tailings Performanc e standards Health (or environment Air from dust Wastes from production or use Use restrictions Balancing . and dust Release or threatened release of hazardous substance Health.supply Clean Air Act Protect and improve air quality water and wastes injected into deep wells All emissions to air Resource Conservation and Recovery Act Comprehensiv e Environmental Response. design and performanc e standards. water through sewage treatment plants Air through volatilization . performanc e standards (emissions limits) Use restrictions. emergency response Control pollution from surface coal mines Control disposal of high-level radioactive wastes Control disposal of low-level radioactive wastes Manage uranium mill tailings Prevent unreasonable Hazardous and solid wastes design and performanc e standards Ambient standards.
§3003: Regulation of transporters 4. including solid liquid. semisolid or contained gaseous material. corrosiveness or ignitability 2. Subtitle D (§§4001-4010): applies to all non-hazardous solid waste (mostly municipal garbage) . Requires EPA to issue regulations identifying hazardous waste and governing management of it from cradle to grave iii. Bans export of hazardous waste unless the country receiving waste has consented or adopted treaty d. Subtitle C: Hazardous Waste 1. refuse. Or that exhibits a characteristic of a hazardous waste (remains hazardous only so long as it exhibits toxicity. corrosivity. §3001: Identification and listing of hazardous waste a. storage and disposal of facilities (TSDs) 5. and ignitability) 3. Structure i. “Hazardous Waste”: 1. Wastes that exhibit hazardous characteristics (toxicity. §3004: Regulation of treatment. resulting from industrial. and from community activities. Jurisdictional term: “solid waste” (§1004(27)) and “hazardous waste” (§1004(5)) i. Enacted in 1967 to prevent environmental damage from improper management of hazardous waste ii. commercial. Mixture rule: wastes mixed with a listed waste 4. §3002: Regulation of generators 3.control act risk from chemical substances of industrial chemical substances III. or air pollution control facility and other discarded material. §3005: Permit requirement for TSDs ii. or transporters of hazardous waste how to treat it b. Main point: RCRA is largely regulatory statute because EPA can tell generators. Can be from a waste stream that is specifically said to be hazardous (always a hazardous waste) b. sludge from a waste treatment plant. “Solid Waste”: defined in §1004(27) to included “any garbage. Overview i. Listed waste: waste streams that are specifically listed as hazardous by EPA 2. reactivity.” ii. mining and agricultural activities. treatment. Derived-from rule: wastes derived from a listed waste 5. water supply treatment plant. reactivity. **Problem: it is usually left up to the producer to decide whether a waste was hazardous or not c. The Resource Conservation & Recovery Act a.
1. Cir. In 2008. Recycled Materials i.356) . it is not subject to RCRA) h. iii. EPA amended its regulations defining “solid waste” to create a “generator controlled exclusion” and a “transfer based exclusion” (if you transfer materials for recycling to someone else and you can show they are useful for recycling purposes. Initial Implementation of RCRA by EPA i. pp. EPA issued its RCRA regulations only after the EDF brought a lawsuit ii. Difficulties in identifying hazardous waste (requirements for testing wastes to determine if they meet hazardous characteristics are vague) ii. recycling. it is subject to regulation under CAA. EPA found it extremely difficult to develop clear regulations identifying which wastes were hazardous. §7002: Citizen suit provisions 2. and (3) Solid Waste Disposal Act §§ 1004(5) & (27). not RCRA ii. American Mining Congress v. EPA eventually realized that in all cases where wastes are dumped on land they eventually will leak out in ways that damage the environment iv. Extent of regulation does not vary with the degree of hazard. §7003: gave EPA the authority to bring suit to halt imminent & substantial endangerment (many fewer suits today as a result of CERCLA) e.C. AMC II: AMC I only applied to closed loop. 1987) (p. Solid waste cannot be gasified in order to bypass RCRA g. Problems with RCRA program i. If something comes out of production as a gas (it is a gas in its natural state).either a waste is hazardous and its management is strictly regulated or it is not hazardous and it is largely unregulated i. EPA (D. Sludge stored in unlined surface impoundment could be regulated under RCRA when company said that at some point they intended to recycle it. The initial regulations did not require most facilities handling hazardous waste to use new technology to control releases iii. and wastes dumped in sewers are exempt) iii. Amended in 1984 by banning land disposal of untreated hazardous waste and adding hammer provisions (incentivized industry to push for EPA regulations to avoid hammer provision) f. 338-341 & 343-366 in the casebook 2) RCRA Legislative History Timeline and Outline of Principal Provisions of the Solid Waste Disposal Act on pp. 300-301 in the Statutory and Case Supplement. AMC I: EPA exceeded its authority by including recycled materials in its definition of solid waste ii. 305-306 and 307 in the Statutory and Case Supplement. Exemptions may leave many hazardous substances unregulated (household wastes. Read (1) pp. Note on gaseous waste: i.
IV. including decontamination) iv. state governments and federal authorities can engage in joint cleanup vii. it should be dealt with. not ongoing manufacturing process. Superfund 1. Notification Requirements : requires reporting of releases of hazardous substances to the National Response Center. The plan of the producer to ultimately use the material has nothing to do with whether or not it is causing an environmental danger while stored. Definitions: the term “hazardous substance” is defined in 101(14). 2. Lack of new funds has been slowly starving program for funds for cleanups that are not paid for by potentially responsible parties b. . where a material goes straight back into production process. However. EPA has the authority to order private parties to undertake actions to abate actual or potential releases of hazardous substances in order to prevent imminent and substantial endangerment. but did include anything else. Basic principles i. Originally funded through tax on chemical feedstocks and petroleum. The definition did not include raw materials. Therefore EPA exceeded its authority. If it was a closed loop. §105 instructs EPA to place at least 400 sites needing cleanup on the initial NPL and to prepare a National Contingency Plan for dealing with hazardous waste cleanup vi. The core of the act is its liability provisions and its authorization to EPA to spend monies from the Superfund for removal operations (short-term action to address immediate hazards) and for remediation operations (long-term solutions. if it sits around for a while it should be regulated because there is potential for danger. 105) v. CERCLA a. EPA is authorized to incur expenses respondingto imminent threats to health and the environment under removal authorites. Direct extension of common law principles of strict liability for abnormally dangerous activities ii. Holding: The court applied Chevron and found that the term “solid waste” is unambiguous. viii. Main purpose: to make spills or dumping of hazardous substances less likely through liability c. “release” is defined in section 101(22) §103. Tax expired in 1995 and hasn’t been reauthorizd. Principal Provisions §101. Mikva Dissent: We should defer to the expert agency here. but can only spend money on remediation for sites that it has placed on the National Priority List (§§104.Facts: EPA amended its definition of solid waste to include recycled materials. If EPA sees this as part of the problem. it won’t be regulated. RCRA was enacted to deal with solid waste disposal. Modeled on Clean Water Act’s oil spill liability program iii.
§105. (c) damages for injury to natural resources. using permanent solutions to the maximum extent practicable. toxicity. §107. Cleanup Standards: establishes preference for remedial actions that permanently and significantly reduce the volume. and de micromis contributors. or the environment based on a hazard ranking system (HRS) and requires revision of National Contingency Plan (NCP) §106. welfare. imminently hazardous chemicals regulated under §7 of TSCA. and additional substances as designated by EPA . Creates exemptions for innocent purchasers. §121. requires cleanups to attain level of “legally applicable or relevant and appropriate standard. requirement. (2) owners and operators of facilities at the time substances were disposed. §116. Settlements: sets standards for settlements with potentially responsible parties.§104. Superfund: creates a Superfund which can be used to finance governmental response actions and to reimburse private parties for costs incurred in carrying out the NCP. §113. Definition of “Hazardous Substance” 1. toxic water pollutants regulated under section 307 of the CWA. or mobility of hazardous substances and requires selection of remedial actions that are protective of health and the environment and cost-effective. Cleanup Schedules: establishes schedules for evaluating and listing sites on NPL. Includes just about every toxic substance other than petroleum -hazardous waste subject to regulation under subtitle C of RCRA. (3) persons who arranged for disposal or treatment of such substances. Very broadly defined 2. (b) any other necessary costs of response incurred by any person consistent with the NCP. commencement of remedial investigation and feasibility studies (RI/FFs) and commencement of remedial action. §122. §111. Response Authorities: authorizes the president to undertake removals or remedial actions consistent with the National Contingency Plan to respond to actual or potential releases of hazardous substances. d. hazardous air pollutants under section 112 fo the CAA. National Contingency Plan: requires establishment of a National Priorities List (NPL) of facilities presenting the greatest danger to health. Liability: imposes liability on (1) current owners and operators of facilities where hazardous substances are released or threatened to be released. criteria or limitation” contained under any federal environmental law or more stringent state law. and (d) costs for health assessments. Abatement Orders: authorizes issuance of administrative orders requiring the abatement of actual or potential releases that may create imminent and substantial endangerment to health. substances other than oil that have been designated as hazardous of CWA. welfare. Judicial Review and Contribution: bars pre-enforcement judicial review of response actions and abatement orders. bona fide prospective purchasers. These parties are liable for: (a) all costs of removal or remedial action incurred by the federal government not inconsistent with the NCP. and (4) persons who accepted such substances for transport for disposal or treatment. Liability Provisions i. and authorizes private actions for contribution against potentially responsible parties. or the environment.
Ocean Dumping Act. pouring. they did not have actual or constructive knowledge of the presence of hazardous substances at the time the land was acquired 2. RCRA. Constitutional challenge: impermissible retroactive legislation iv. they acquired the land by inheritance or bequest iii. emptying.3. Application of pesticides registered under FIFRA b. New York Shore Realty: owners who purchased after the time of disposal are still liable unless the realeases and threats of release were caused solely by the tenants or Shore took precautions against foreseeable acts ii. discharging. iii. Purchaser’s specialized knowledge or experience . they are gov’t entities acquiring the land through involuntary transfer 3. In determining whether purchaser satsifed “all appropriate inquiry” criteria. containers. Responsible parties 1. CAA. leaking. Innocent Purchaser? i. dumping. Definition of “Release” 1. or disposing into the environment (including the abandonment or discarding of barrels. SDWA. leaching. Any spilling. courts were originally supposed to consider: 1. Also gives CERCLA jurisdiction over substances not listed in any categories of hazardous substances if it is a pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare ii. Exempts “federally permitted releases” (which includes discharges authorized by permits issued under CWA. pumping. Petroleum (including natural gas and crude oil) are specifically exempted [they are covered instead by §311 of CWA] 4. emitting. and other closed receptacles containing any hazardous substance or pollutant or contaminant [§101(22)] 2. escaping. injecting. AEA and certain fluid injection practices for producing oil or natural gas. 1986: SARA (Superfund Amendments Reauthorization Act) created a defense for innocent land purchasers if they can establish that [response to fairness claims] 1. Owners a. Specifically exempts: a.
No: US v. Passive Liability: Are owners who engage in no active conduct relating to disposal themselves but who owned the land at a time when wastes deposited on the land before their ownership continued to leak or spill onto the land? i.2. agreement. 2002: Congress created §107(r): exempts bona fine prospective purchasers from owner or operator liability if they satisfy all the requirements of §107(r) b. to acknowledge passive owner liability would vitiate innocent disposal purchaser defense ii. Interviews with past and present owners 3. “any person who by contract. Arrangers: §107(a)(3) a. Individual with training in conducting environmental audits b. or otherwise arranged for dispoal or treatment. by any other party or entity. Obviousness of the likely presence of contamination 5. This exception is not necessarily available under state Superfund statutes vi. at any facility or incineration . Relationship of purchase price to value of uncontaminated property 3. Operators 3. Reasonably ascertainable information about the property 4. EP must submit written report of findings 2. CDMG: The words used to define dispoal are active. Many other due diligence measures v. of hazardous substances owned or possessed by such person. or arranged with a transporter for transport for dispoal or treatment. Purchasers need to retain services of an environmental professional a. Yes: Nurad: not recognizing a passive owner would mean that an owner could avoid liability by standing idle while an environmental hazard resters on the property 2. Ability to detect such contamination by inspection iv. EPA established final rule establishing standards and practices for AAI: 1.
who mixed products and sold them. c. e. A generator shipped hazardous substances to the facility 2. d. Manufacturers were liable for Aidex facility cleanup because they knew that spills of raw materials were an inherent part of the formulation process. ownership or possession 2. Knowledge alone is insufficient to prove that an entity “planned for” the disposal. There had been a release of hazardous substances at the site iii. control Supreme Court resolved issue to hold that an entity qualifies as an arranger when it takes intentional steps to dispose of a hazardous substance (Burlington Northern) i. ii. Aceto: Pesticide manufacturers shipped raw materials to Aidex. so a truck spill on the way to the facility doesn’t count (they didn’t hire the truckers to spill chemicals) iv.b. Government’s case is satisfied once it has proved that 1. Shell must have entered into the sale of D-D with the intention that at least a portion of the product be disposed . particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused. knowledge 3. ii. Detrex: “arranged for” implies intentional action. Hazardous substances like those present in the generator’s waste were found at the facility 3. vessel owned or operated by another party or entity and containing such hazardous substances” Imposes liability on non-negligent generators of hazardous substances This creates a power incentive for such persons to ensure that wastes are managed carefully – generators now must select treatment and disposal options and monitor their implementation with care Initially there was circuit split over arranger liability i. useful product. In order to quality as an arranger. South Water Management Dist: totality of the circumstances approach v. 3rd Circuit: most important factors are: 1.
1985) (p. Exemptions for arrangers: i. 2001 3. Superfund Recycling Equity Act: exempts arrangers and transporters who arrange for recycling of recyclable materials 1. Small Business Liability Relief and Brownfields Revitalization Act: “de micromis” generators or transporters 1. there must be some nexus between the potentially responsible party and the disposal of the hazardous substance that is premised upon the potentially liable party’s conduct with respect to the disposal or transport of hazardous wastes. Part of which must have occurred before April 1. certain small businesses. They argued that they were not liable under CERCLA because they . People who contribute less than 110 gallons of liquid materials or 200 pounds of solid materials 2. or location of disposal.402) Facts: Shore Realty bought a property that they knew was occupied by tenants who were illegally operating a waste storage facility.of during the transfer process by one or more of the methods described in the statute iii. and is denied to anyone who had an objectively reasonable basis to believe that the materials would not be recycled ii. New York v. manner. Doesn’t apply if President determines that the hazardous substances contributed significantly to the response costs or if person seeking to qualify for the exemption impeded the response action or committed a crime 4. Shore Realty Corp. SBLRBRA: §107(p) exempts homeowners. However. Shell’s insistence that B&B improve their maintenance shows that they did not intend for such spills to occur f. Arranger liability can attach to parties who do not have an active involvement in the timing. Requires proving a number of conditions have been met. (2nd Cir. and certain nonprofits from liability for generation of MSW iii.
with additional regulation possible if necessary to protect public health with an “ample margin of safety. 405-406. 408-409. v. but for an ample margin for safety of human health. Not covered by the affirmative defense in 9607(b)(3) because they were aware of the nature of the tenants’ activity. Clean Air Act a. Holding: §9607(a)(1) unambiguously imposes strict liability on the current owner of a facility from which there is a release or threat of release. AIR POLLUTION CONTROL I. §109: requires EPA to adopt nationally uniform ambient air quality standards (NAAQSs) for criteria air pollutants §110: requires states to develop and submit to EPA for approval state implementation plans (SIPs) specifying measures to assure that air quality within each state meets the NAAQSs. without regard to causation. Major Provisions TITLE I §108: Requires EPA to identify “air pollutants” anticipated to endanger public health or welfare and to publish air quality criteria.” *This is a separate program for hazardous pollutants. Claims they are not covered by 9607(a)(1) because that could not have been intended to cover all owners. EPA is to regulate not just to provide an adequate margin for safety. technology-based standards for major new stationary sources of air pollution – New Source Performance Standards (NSPSs) §112: mandates technology-based standards to reduce listed hazardous air emissions from major sources in designated industrial categories.erlsp. Accepting Shore’s argument would open a huge loophole (would allow the owner of a site to avoid liability by purchasing the site after the dumping had happened). For pollutants that are carcinogens. (2) edited excerpt from General Electric Co.com). on pp. 402-403 in the Statutory and Case Supplement. If. and (4) §§ 101(14). because that would render the word “owned” in 9607(a)(2) redundant. 107(a)&(b). there is still a 1 in 1 million risk. *at first EPA was nervous this was too stringent so they only regulated 6 things. §111: requires EPA to establish nationally uniform. etc. 4 Updates” on the casebook website (www. But in 1990 Congress named 178 specific chemicals that will be deemed to be hazardous air pollutants to be dealt with by maximum achievable control technology. 434435. (2006) (p. (3) CERCLA Legislative History Timeline and Outline of Principal Provisions of CERCLA on pp. Jackson posted under “Ch. 401-408 & 418-428 in the casebook. 393-397.. after applying MACT. and 101(35) of CERCLA. and 410-411of the Statutory and Case Supplement. 101(22).neither owned the site at the time of disposal nor caused the presence or the release of the hazardous waste.421) Facts: Holding: Read (1) pp. V. EPA decides whether to continue . Burlington Northern & Santa Fe Railway Co.
Wrote into the Act the way in which EPA was implementing 2. Areas of the country which are in attainment are classified v. Circuit TITLE IV: creates a system of marketable allowances for sulfur dioxide emissions from power plants and major industrial sources to reduce acid precipitation TITLE V: requires permits for all major industrial sources with state administration and federal oversight. TITLE VI: establishes a program for controlling substances that contribute to depletion of stratospheric ozone. But then utilities had an incentive to operate old sources for as long as possible and tried to update through “routine maintenance” vi. State governments then decide how the numerous existing sources within their jurisdictions whose emissions contribute to the ambient levels of these . TITLE III §304: Authorizes citizen suits against violators of emissions standards and against the EPA administrator for failure to perform nondiscretionary duties §307: Authorizes judicial review of nationally applicable EPA actions exclusively in the U. 1970: Clean Air Act was the first of the regulatory statutes ii. forced radical technological innovation 3. Federal: EPA establishes national ambient air quality standards for criteria pollutants ii. b. History of Clean Air Act i. State-Federal Roles i. Provisions of the 1990 Amendments: 1. Problems with initial implementation: 1. possible because the political situation was different: both parties were trying to prove that they were greener iii. Title IV: created cap and trade program for SO2 that cause acid rain that gave initial allowances c. It said nothing about what to do in areas where the air quality was pristine enough so that it already complied [Sierra Club argued that EPA had a duty to slow down deterioration in pristine areas iv. Grandfathering in existing sources was a premise of CAA. Court of Appeals for the D.C. targeted mobile sources 1. Part D: specifies requirement for areas that fail to meet the NAAQS (nonattainment areas) TITLE II: requires EPA to establish nationally uniform emissions standards for automobiles and light trucks that manufacturers must meet by strict deadlines. Clean Air Amendments of 1977 1.S.Part C: specifies requirements to prevent significant determioration of air quality (PSD) for areas with air quality that exceeds the NAAQSs. Problems with CAA after 1977 1. required 90% reduction in pollution from mobile sources within 5 years 2.
EPA must prepare a federal implementation plan (FIP) that ensures the NAAQSs will be met v.) a. Congress is aware of climate change: if they had wanted EPA to regulate GHG they would have said so in the 1990 amendments (largely based on FDA v.” ii. EPA argued it did not have the authority to regulate GHGs because they are not air pollutants. SIP must avoid interfering with the efforts of other states to achieve compliance with NAAQSs d. SIPs must be submitted to EPA. EPA regulation was not preempted by DOT’s mandate to deal with tailpipe emissions 2. or contributes. EPA authorized to restrict or prohibit the use of any fuel additive that “causes. Nonmobile sources i. which approves their adequacy to accomplish statutory requirements iv. What is an “air pollutant” that may be regulated under the Clean Air Act? i. Brown & Williamson because they would not have to ban the product entirely. chemical. EPA’s second argument: even if they could regulate it. Other states can adopt CA’s program (otherwise preempted by federal statute) but must adopt any revisions CA makes . Each state’s set of regulations to meet the NAAQSs is called its state implementation plan (SIP) iii. California has Zero Emission Vehicle standards hasn’t created ZEV but have been technology forcing ii. Alternative Vehicles i. EPA: 1. All state authority to regulate mobile sources is preempted by federal statute. radioactive… substance or material which is emitted into or otherwise enters the ambient air. except California iii. biological. Brown & Williamson Tobacco Corp. Up to the federal government ii. like they would have had to with tobacco ii. This is not FDA v. Mass v. If state does not prepare an SIP that meets the requirements fo the act. they won’t because of judgment that this would not be e. Statutory definition: “any physical. Supreme Court rejects EPA’s argument that they do not have authority to regulate GHG i. to air pollution which may reasonably be anticipated to endanger the public health or welfare” (§211(c)) g. States can create Transportation Control Plans (TCPs) f.pollutants ought to be controlled in order to meet those NAAQSs for their jurisdictions 1. Fuel Content i.
504-507 of the Statutory and Case Supplement. EPA (2007) (p. not just because of political strategy (cannot be divorced from statutory text). National Ambient Air Quality Standards a. Questions left open by the text: a. Read (1) pp.553 1. Primary Standards: to protect the public health “allowing an adequate margin of safety” 2. What is a health effect? – any change in blood chemistry. Secondary Standards: to “protect the public welfare from any known or anticipated adverse effects” of air pollution 3. Early problems establishing NAAQS 1.509) Facts: EPA argued they did not have the authority to regulate GHG and if they did they declined to do so. Establishing NAAQS i. Even as we do more studies. based on the ambient air quality criteria and allowing an adequate margin of safety. What population should be used as the measure of effects? 4. Holding: The broad definition of air pollutant forecloses the EPA’s reading. §109: requires the EPA administrator to set primary NAAQSs at the level “which. or only hanges proved to have an adverse effect on bodily functions b. Concentrations of pollutants specified by the standards are expressed in terms of averages over different periods of time II. in the judgment of the Administrator. Current NAAQSs on p. . And they can only decline to exercise authority if they make a judgment on scientific endangerment. 499-528 in the casebook and (2) Clean Air Act Legislative History Timeline and Outline of the Principal Provisions of the Clean Air Act on pp. Regulatory burden in establishing NAAQSs is so demanding that EPA has incentives to avoid making frequent changes or to promulgate new standards a. Whenever EPA promulgates or revises an ambient standard. Scientific data lacking or inconsistent 2. every SIP must be amended and reviewed iv. supposed to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air” iii.they have authority. are requisite to protect the public health” ii. experts disagree on meanings 3.Massachusetts v. What constitutes “adverse”? c.
iii. The Administrator is entitled to err on the side of caution as long as there is evidence in the record which substantiates his conclusions about the health effects on which the standards were based. EPA (D. LIA: air quality standards must also protect individuals who are particularly sensitive to the effects of the population [asthmatics. she can err on the side of caution. Lead Industries Ass’n: The Administrator should take precautionary measures and is not limited to setting limits that are supported by medical consensus. but this is clearly not the case. emphysematics] Lead Industries Association v. American Trucking Ass’ns (2001) (p. 1980) (p. 546-573 in the casebook and (2) Clean Air Act §§108 & 109 on pp. vi. But the Administrator must make some decision regarding the reviewion of the NAAQSs that would be subject to judicial review. Cir. As long as there is evidence in the record which substantiates Administrator’s conclusions about the health effects on which the standards were based. EPA has been reluctant to revise NAAQSs because of the enormous administrative burden such revisions would generate 1.554) Facts: EPA wanted to set lead limits lower than what was currently known to be the trigger for adverse health affects.564) Holding: The text of §109(b) unambiguously bars cost considerations from the NAAQS-setting process. without balancing those considerations against the costs of meeting them 1.v. Economic criticism: justifying uniform standards as efficient would have to assume that the costs of a given level of pollution and a given level of control are the same across the nation. Revising NAAQSs i. CAA requires NAAQS to be set based on public health considerations alone. State must prepare a revised SIP and then submit it for EPA approval iv. EDF v. By publishing revised creitera documents [about sulfur oxide]. Whitman v.C. 522-524 of the Statutory and Case Supplement. EPA is required to review and revise its air quality criteria and the NAAQSs at five year intervals [§109(d)] ii. Holding: This is permissible because Congress directed the Administrator to allow an “adequate margin of safety. EPA usually cites to scientific uncertainty in declining to revise NAAQSs v. b.” The Administrator not limited to acting to prevent health effects that are known to be clearly harmful. Thomas: court cannot dictate to EPA whether or how the NAAQSs should be resvised. How much protection should NAAQSs afford sensitive populations? 1. . EPA triggered a duty on its part to address and decide whether and what kind of revision is necessary. Read (1) pp.
Army Corps of Engineers (for dredged materials). Statutory Authorities i.S. a. Amended in 1990 to require states to adopt programs to control nonpoint sources of coastal water pollution. §402: Discharges of pollutants in navigable waters 2. Introduction to the Clean Water Act and the Scope of Federal Jurisdiction. including the permit requirements of section 402.VI. Two permit programs: 1. and restricts activities that threaten sole-source aquifers. ii. The structure of the CWA §101 Goals: Declares national goals of fishable/swimmable waters by 1983 and the elimination of pollutant discharges into navigable waters by 1985. Cheney loophole: defines underground injection by excluding hydraulic fracturing activities [hydraulic fracturing cannot be regulated by existing federal environmental laws] vi. Ocean Dumping Act: prohibits all dumping of wastes in the ocean except where permits are issued by EPA (for non-dredged materials) or by the U. Goals of the CWA i. iv. Anytime a federal permit is required for a project. v. waters. 1. and imposes minimum design standards to prevent spills by vessels operating in U. the Federal government asks the state to certify water quality d. §404: governs dredged or fill material iii. establishes an Oil Spill Liability Trust Fund to pay response costs. Imposes multi-tiered effluent limitations on existing sources whose stringency and timing depends on the nature of the pollutant discharged and whether the outfall is directed to a water body or a publicly owned treatment works (POTW) . Permits are conditioned on a showing that the dumping will not unreasonably degrade the environment iii. establishes a permit program regulating the underground injection of hazardous waste. Oil Pollution Act: Makes owners of vessels discharging oil liable for costs of cleanup. RCRA and CERCLA: considerable relevance for groundwater protection and remediation b. Coastal Zone Management Act: provides financial assistance to encourage states to adopt federally approved coastal management plans. and requires statewide planning for control of pollution from nonpoint sources.S. Very ambitious goals ii. Clean Water Act: prohibits all unpermitted discharges into the waters of the United States of pollutants from point sources. Predecessor to CWA: Federal Water Pollution Control Act of 1954 (gave money to the states to deal with water pollution) c. Safe Drinking Water Act: regulates the quality of drinking water supplied by public water systems. requires federal actions in coastal areas to be consistent with state programs. CONTROL OF WATER POLLUTION I. §301 Effluent Limitation: Prohibits “the discharge of any pollutant” (defined in §502(12) as the addition of any pollutant (as defined in §502(12) as the addition of any pollutant to navigable waters from any point source or to the waters of the ocean or contiguous zone from any point source other than a vessel) except those made in compliance with the terms of the Act. imposes effluent limitations on dischargers.
§302 Water Quality Related Effluent Limitations: Authorizes the imposition of more stringent effluent limitations when necessary to prevent interference with the attainment or maintenance of desired water quality. e. the national pollution discharge elimination system (NPDES). Definitely not when wells are not connected to surface waters. Court of Appeals. §518 Indian Tribes: Authorizes EPA to traet Indian tribes as states for purposes of the Act for tribes that have governing bodies carrying out substantial governmental duties and powers. §309 Enforcement Authorities: Authorizes compliance orders and administrative. or against EPA for failure to perform a nondiscretionary duty. §505 Citizen Suits: Authorizes citizen suits against any person who violates an effluent standard or order. identify the activities responsible for the problem. Scope of Federal Authority to Regulate Water Pollution i. and prepare management plans identifying controls and programs for specific sources. Navigable Waters 1. §509 Judicial Review: Authorizes judicial review of certain EPA rulemaking actions in the U. §401 State Water Quality Certification: Requires applicants for federal licenses or permits that may result in a discharge into navigable water to obtain a certification from the state in which the discharge will occur that it will comply with various provisions of the Act. and to establish total maximum daily loads (TMDL’s) of pollutants for such waters.S. §307 Toxic and Pretreatment Effluent Standards: Requires dischargers of toxic pollutants to meet effluent limits reflecting the best available technology economically achievable. §303 Water Quality Standards & TMDL’s: Requires states and tribes to adopt and to review triennially water quality criteria and standards subject to EPA approval. Courts are split about whether EPA can regulate discharges to groundwater or deep well injection of wastes in order to protect surface waters. §306 New Source Performance Standards: Requires EPA to promulgate new source performance standards reflecting best demonstrated control technology. Requires EPA to establish pretreatment standards to prevent discharges from interfering with POTWs. §404 Dredge and Fill Operations: Requires a permit from the Army Corps of Engineers for the disposal of dredged or fill material into navigable waters with the concurrence of EPA unless associated with “normal” farming. §402 NPDES Permit Program: Establishes a national permit program. Riverside Bayview: should be understood broadly to effectuate the purposes of the act 2. and administration of the NPDES permit program. Jurisdictional term: “navigable waters” (defined in §502(7) as “the waters of the United States.” ii. and criminal penalties for violations of the Act. that may be administered by EPA or by states or Indian tribes under delegated authority from EPA. §304 Federal Water Quality Criteria and Guidelines: Requires EPA to adopt water quality criteria and guidelines for effluent limitations pretreatment programs. to identify waters where effluent limits are insufficient to achieve such standards. §319 Nonpoint Source Management Programs: Requires states and tribes to identify waters that cannot meet water quality standards due to nonpoint sources. iii. EPA has declined to assert jurisdiction. EPA and Corps definition: . civil. including the territorial seas.
653) Facts: Respondent wanted to fill its wetlands that are continguous to a lake. . standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance s “streams… oceans.” Solid Waste Agency of Northern Cook County v. Inc. wet meadows. Which are or could be used for industrial purposes by industries in interstate commerce b. prairie potholes.658) Facts: Abandoned sand and gravel pit turned into two ponds that migratory birds visited. Which are or could be used by interstate or foreign travelers for recreational or other purposes. degradation or destruction of which could affect interstate or foreign commerce including any such waters: i. Holding: Isolated ponds wholly located within Illinois do not fall under §404(a)’s definition of “navigable waters” because they serve as a habitat for migratory birds. wetlands. mudflats. rivers and lakes. a water or wetland must possess a “significant nexus” to waters that are or were navigable in fact or that could reasonably be so made United States v. Army Corps of Engineers asserted jurisdiction when owners wanted to turn it into a landfill.S. are “adjacent to” such waters and covered by the Act. or ii. so that there is no clear demarcation between “waters” and wetlands. Holding: Applied Chevron deference and found that Army Corps of Engineers had §404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. the use. sandflats. EPA and ACE issued joint memo that SWANCC. There is no Chevron deference because there is no ambiguity: Congress did not intend what ACoE did. or natural ponds. “squarely eliminates CWA jurisdiction over isolated waters that are intrastate and nonnavigable. This would give the term “navigable” no effect whatsoever. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce.” 3. streams (including intermittent streams). After SWANCC. where the sole basis for asserting federal jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross state lines in their migrations.All other waters such as intrastate lakes. The “significant nexus” between the wetlands and the navigable waters made it permissible to include wetlands that abutted on navigable waters in the statutory term “navigable waters. Army Corps of Engineers (2001) (p.” The phrase does not include channels through which water flows intermittently or ephemerally. or channels that periodically provide drainage for rainfall. Riverside Bayview Homes. The word “navigable” is of “limited import” and Congress evidenced its intent to regulate at least some waters what would not be deemed “navigable” under the classical understanding of that term.661) Holding: The phrase “the waters of the United States” includes only those relatively permanent. playa lakes. (1985) (p. sloughs. a. They relied on the “Migratory Bird Rule” that they had promulgated. Only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right. Rapanos v. or iii. rivers. Wetlands that only have an intermittent hydrologic connection to waters of the US do not satisfy the “significant nexus” test. U. “Significant Nexus” test: To constitute “navigable waters” under the Act. United States (2006) (p.
684) Facts: EPA wanted to exempt because it would be hard to come up with actual limits. Defining “Addition of Any Pollutant” i. Cir. Challenged in National Mining Association v. The Corps accepted the notion that this constituted a discharge.” d. Section 502(12) defines a discharge of a pollutant to include any addition of any pollutant to navigable waters from any point source” or “to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. and biological integrity of other covered waters more readily understood as “navigable. The Corps/EPA say that it is a pollutant because it can have a negative environmental impact. However. The trade association argued that incidental fallback is not a discharge so therefore it cannot be regulated. Holding: The Court rejects EPA’s decision because there is no dredged material.Kennedy Concurrence: The plurality and dissent did not apply the significant nexus test. “any discernable.C. . however temporary or small. Costle (D. What is a “point source” 1. The case should be remanded for proper consideration of the nexus requirement. II. Borden Ranch Partnership v. Effluent Limits. Statutory references: Clean Water Act Legislative History Timeline and Principal Provisions of the Clean Water Act on pp. channel or tunnel) “from which pollutants are or may be discharged 2. 404(a) & 502(6)&(7) on pages 818. Holding: Finds for NRDC but says that EPA can do other things to lessen the burden. Holding: Normal farming activities are exempt from §404. confined and discrete conveyance” (sucha as a pipe. They want to save their money and time for big sources that matter more. 1977) (p. 1998) (p. and Clean Water Act §§ 301(a). either alone or in combination with similarly situated lands in the region. a. Cir. Army Corps of Engineers Facts: Man used deep ripping equipment to punch holes in clay pan to drain wetlands constitutes adding a pollutant. 886 and 896 of the Statutory and Case Supplement. ditch. including the permit requirements of section 402 (discharge of pollutants) and section 404 (discharge of dredged or fill material) b. Wetlands possess the requisite nexus if they. it need only convey the pollutant to “navigable waters” (Miccosukee) NRDC v. Army Corps of Engineers National Mining Association v. such as general permits. ii. Regulation of Point Sources of Water Pollution.671) Facts: Army Corps of Engineers promulgated the Tulloch Rule which said that if you do any dredging.C. 762-763 in the Statutory and Case Supplement. Army Corps of Engineers (D. Tulloch Rule: excavation activities producing any incidental redeposit of dredged materials. Water Quality Standards and Total Maximum Daily Loadings. so a permit would be required. this was not normal farming activities/ he wasn’t trying to drain for a legitimate farming purpose. Any incidental fallback is not a net addition. the point source need not be the original source of the pollutant. they presume it will result in incidental redeposit.” c. significantly affect the chemical. §301(a): “the discharge of any pollutant by any person shall be unlawful” except in compliance with certain sections of the Act. physical.
The Miccusukee Case – Behind the Scenes during the Litigation. 714-719. Problems with WQ Standards: i. 2002) Issue: Whether or not a body of water that fails to meet water quality standards entirely as a result of non-point source can be subject to TMDL Holding: It is up to the state to deal with the problem of when a water body fails to meet water quality solely as a result of non-source point pollution. 670-678. Depends on where you sample the water to determine how toxic it is/ what toxins are present d. WQ Standards and Designated Uses i. Pipes moved water. states and tribes promulgate water quality standards and submit them to EPA for approval. . III. Holding: The pipes are a point source. 739-748 in the casebook and (2) §§ 402(a). Water Quality Standards a. Total Maximum Daily Loads Pronsolino v. Mere transfer or movement of pre-existing pollutants form one water body to another not an addition of pollutants b. 502(12) and 502(14) of Clean Water Act on pp. States and tribes must review and revise their water quality standards every three years. After consulting EPA’s water quality criteria. States and tribal authorities identify designated uses for each body of water within jurisdiction ii. EPA can say that water quality standards are being violated. b. Traditional test: pollutant must be added or introduced to the navigable waters from the outside world. 698-701. not individuals like a kid throwing a candy wrapper into the ocean. Supposed to meet fishable/swimmable goal unless that would result in substantial and widespread economic and social impact c. Train (1977) Holding: EPA needs to start issuing permits even if they don’t have numerical effluent limits established yet 3. Unitary Waters idea was not developed at lower level. Process for setting them: i. 880 and 896 in the Statutory and Case Supplement. v. but they cannot directly regulate the non-point sources.S. Dupont v.U. Nastri (9th Cir. 683-690. Unitary Waters Test a. Limitations of toxicity testing ii. This is to be addressed on remand in Miccosukee Miccosukee Facts: Florida had a diversion program for flood protection. Plaza Health Laboratories Question Presented: Is a person a point source? Holding: Legislative history makes clear that Congress wanted to go after big sources. so should be addressed on remand. Read (1) pp. iii. even though they don’t add pollutant themselves.
the FOE v.798) The Modern Revival of Regulatory Takings Jurisprudence. City of New London (2005) (p. v. Amber Realty Co. (1926) (p. Teleprompter Manhattan CATV Corp. McMahon (1922) (p. City of New York (1978) (p. Read pp. Read pp. SFWMD Response Brief. that is just smart business. the FOE v.794) Penn Central Transportation Co. Federal and State Regulations and Introduction to Regulatory Takings. except to the extent that background principles of nuisance and property law independently restrict the owner’s intended use of the property (Lucas) If it doesn’t fit in one of these two categories. the extent to which the regulation interferes with reasonable investment backed expectations. depending on a complex of factors including the regulation’s economic effect on the landowner. . This is not followed. 678-683 of the casebook. SFWMD Cert Petition (you do not need to read the Appendices). and the FOE v. LAND USE REGULATION Regulatory Takings Overview Categories of per se takings o 1. a taking nonetheless may have occurred. A regulation that completely deprives an owner of all economically beneficial use of her property. If the government requires an owner to suffer a permanent physical invasion of her property it must provide just compensation (Loretto) o 2. and the character of the government action.786) Pennsylvania Coal v. Loretto v. Some regulations may so unreasonably limit the property owner’s rights that it should not be outcome determinative if they but it after the regulations (Palazzo) Courts now follow O’Connor’s concurrence in Palazzo: when the owner bought the land in relation to the enactment of the regulation is evaluated as part of the investment-backed expectation factor in the Penn Central test o Scalia had argued that there isn’t a problem with the developer getting a windfall. 769-799 in the casebook.784) Kelo v. Village of Euclid v.795) Holding: When a regulation places limitations on land that fall short of eliminating all economically beneficial use. (1982) (p. look to Penn Central test (weigh three factors when looking at all facts and circumstances) o Character of the government action o Degree to which it harms investment backed expectations o Extent of economic burden that it imposes on property Regulatory takings claims very rarely survive Land Use and the Environment. VII. Read (1) pp. 799-824 in the casebook. SFWD Opposition Brief by the Solicitor General (all three of these briefs are posted in a folder that follows this section of the Courseware website).
Keystone Bituminous Coal v. (Dolan) Government action must substantially further state purpose (Agins). Holding: Rejected the notion that post-regulation acquisition of property serves as an automatic bar to regulatory takings claims. California Coastal Commission (1987) (p. Also rejected RISC’s ruling that case was not ripe (because he could still appeal for permit) because it was clear from oral argument that Rhode Island was not going to give him a permit. However. First English Evangelical Lutheran Church v. Commission granted the permit conditioned on the Nollans’ granting the public an easement to pass along property. the test in Agins (“substantially advances”) is not a complete test.814) Facts: Palazzo came into possession of waterfront land after the state had designated it as coastal wetlands that could not be developed without a permit.799) Facts: California law made invalidation of the law the only remedy for a takings violation. the Constitution “requires that the government pay the landowner for the value of the use of the land during this period. County of Los Angeles (1987) (p.799) Facts: Identical to Pennslyvania Coal Holding: A law restricting the exercise of mineral rights was not a taking because it was designed to protect public health and safety by preventing subsidence of surface areas. This finding should then be compared with what the city is asking the private owner to give up. South Carolina Coastal Community (1992) (p. and therefore did not meet the nexus test between the condition and the justification for the ban. Lucas v. O’Connor holds that a regulatory takings argument must also consider the burden on the landowner. In Lingle. Holding: While invalidation of an ordinance could make any taking a temporary one. Holding: The permit condition was unconstitutional because it did not serve the same governmental purpose as the development ban. Distinguished Pennsylvania Coal because there was no basis for finding htat the law made it impossible for the company to profitably engage in its business or that it had unduly interfered with investment backed expectations. there must be a nexus between the dedication and the construction that satisfies the rough proportionality test (Dolan) The rough proportionality test is satisfied by quantifying findings for individualized determination about the nature and extent of the environmental impact of the development.799) Facts: Nollans wanted to build a small house on beachfront property that was in between two public beaches. Holding: Created a new categorical taking for when all economic value is lost. Regulatory Exactions. therefore the .801) Facts: Lucas bought beachfront lots but was not allowed to build on them because of risk of hurricane damage and beach erosion. Evolving Conceptions of Property Rights and Judicial Takings Regulators sometimes condition approvals of development projects on the developer’s agreement to do something to provide benefits to the public If you ask an owner to do something as a condition of a permit. Note: This almost never applies because it is Palazzo v. Rhode Island (2001) (p.” Nollan v. DeBenedictis (1987) (p.
(2) NEPA Legislative History Timeline and Principal Provisions of NEPA on pp. 971-972 of the Statutory and Case Supplement. The runoff problem could be dealt with in less troublesome ways. Dolan v. arguing that there was a judicial taking when the FL Supreme Court ruled that they hadn’t lost anything. Structure of NEPA Structure of NEPA §101: establishes as the continuing policy of the Federal Government the use of all practicable means to create and maintain conditions under which man and nature can exist in productive harmony. alternatives to the proposed action and any irretrievable commitments of resources involved. Chevron (2005) (p. Penn Central.845) Holding: Overrules “substantially advances” test of Agins. FL law provided that the state could erect no structures and gave homeowners absolute right of access over strip. 887-897 in the casebook. §102(2)(C): requires all federal agencies to prepare an environmental impact statement (EIS) on major federal actions significantly affecting the quality of the environment. The EIS must include a detailed statement of environmental impacts. City conditioned permit on making the area near a creek (which flooded regularly) public and allowing a bike/ pedestrian path. Agins: Lindle v. ENVIRONMENTAL IMPACT ASSESSMENT Read (1) pp. 870-872. Penn Central.833) Facts: Store owner wanted to expand and pave parking lot. Owners sued. Holding: There is a nexus. or Nollan/Dolan analyses. v. Florida Dept. Inc. 857-869. 974-975 in the Statutory and Case Supplement. I. However the nexus does not satisfy “rough proportionality” so the city loses. and forcing the owner to give up a part of her property to the city is too essential a component of property ownership to be relatively necessary. as the prevention of flooding and concern about traffic have a nexus to the requested action (unlike Nollan). of Environmental Protection (1160 SCS) Facts: Florida put new sand on beach to prevent erosion and then claimed that the new stretch of beach was public property. Lucas. Stop the Beach Renourishment. (3) §102 of NEPA on pp. Holds that the only ways to have a regulatory taking are through Loretto.only options for evaluating a taking are Loretto. Introduction to NEPA a. §102(2)(E): requires all federal agencies to study alternatives to actions involving unresolved resource conflicts §201: requires the President to submit to Congress an annual Environmental Quality Report §202: establishes a three-member Council on Environmental Quality (CEQ) in the Executive Office of the President . VIII. Holding: Court upholds Florida Supreme Court decision and splits 4-4 on whether there can be a judicial taking (Constitution does not say that it has to be Congress or Executive taking the land to make it a taking). City of Tigard (1994) (p. Lucas. or Nollan/Dolan nexus tests.
” a. Cir. their decision is sound. under §101. Strycker’s Bay Neighborhood Council. the AEC took the position that it did not have to consider the report unless parties raised specific challenges to it during the licensing process. Courts cannot reverse a substantive decision on its merits. v. The regulatory target of NEPA is federal agencies. which is what NEPA requires. II. Gives incentive to make accurate predictions because a company will be on the hook for environmental damage beyond what they forecast e. The goal of NEPA is to make it the job of every federal agency to factor environmental considerations into their decision making process. CCCC argued that AEC’s regulations violated NEPA because they did not require the agency independently to assess environmental impacts.S. if the decision was reached procedurally without individualized consideration and balancing of environmental factors. Atomic Energy Agency (D. However. Jurisdictional terms: i.864) Facts: HUD prepared EIS and acknowledged that they did not pursue some alternative locations for a low income housing facility because it would create an unacceptable delay. final action by the President (such as NAFTA treaty) is not judicially reviewable because he is not an agency ii. 1971) (p. Judicial Review of NEPA (as laid out in Calvert Cliffs) i. Karlen (1980) (p. When Must An Environmental Impact Statement Be Prepared: “EIS must be prepared for proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. “Proposals for legislation and other major federal actions” i. [NEPA allows for substantive discretion.it is the responsibility of the courts to reverse. and review and appraisal of federal programs and activities. Created CEQ iii. Holding: HUD did consider the environmental consequences of its decision. “major Federal actions” ii. “significantly affecting the quality of the human environment” d. Requires EIS ii. However. legislative EISs have rarely been performed 1. b. but has strict standard of compliance for procedure] Calvert Cliffs Coordinating Committee v.860) Facts: AEC issued regulations that required permit applicants to prepare an environmental report to accompany their applications. U. Therefore. not private industry.C. information gathering.§204: outlines the duties and functions of CEQ including annual reporting on the condition of the environment. Inc. c. “Major Federal Action” . unless the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values ii. Other requirements/ reasons for strength: i.conducted fully and in good faith.
Will it create new environmental harms. CEQ Regs definition: “actions with effects that may be major and which potentially subject to Federal control and responsibility. 2nd Circuit required an EIS for the detention center and Test: Whether a major federal action will “significantly” affect the quality of the human environment the agency in charge should normally be required to review the proposed action in light of at least two relevant factors: (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it. Adoption of official policy b. Holding: Before a preliminary or threshold determination of significance is made the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency’s threshold decision. Adoption of formal plans c. If it is a proposal that normal requires an environmental impact statement presumptively requires an EIS . DOE providing 10% of funding for international research project). Will it cause environmental harms. Action may include a failure to act by responsible officials if that failure would be reviewable under the APA or applicable law 4.887) Facts: Residents and businesses in Manhattan filed suit to force the government to prepare an EIS for the construction of a jail and related facilities. Procedure for determining whether to prepare an EIS 1.” 3. Adoption of programs d. If the government provides a minimal amount of funding and has no real control over the project (ex. “Significantly affecting the quality of the human environment” i. Government’s decision to follow temporary course of inaction is not an action 6. Agencies must affirmatively develop an reviewable environmental record to support the determinations that their actions would not “significantly affect the quality of the human environment” (from Hanly and other litigation ) this has become an environmental assessment 2. compared to current use 2. and (2) the absolute quantitative adverse environmental effects of the action itself. regardless of current use Hanly v. applies to private projects that require federal approval as well as federal programs policies. Typical categories: a. it is not an action b. Approval of specific projects 5. ii. Does it meet the “Significance test” of Hanly? 1. CEQ Categories/ Procedures: a.1. Kleindienst (2nd Cir. 1972) (p. an drules 2. including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.
then the NEPA review process is completed with the FONSI. Typically. If. the NEPA review process is concluded when a record of decision (ROD) is issued. When an EIS is prepared. as a result of the EA. or established in legislation. Provides the basis for the agency’s determination whether to prepare an EIS ii. a finding of no significant impact (FONSI) is appropriate. Environmental Impact Statement: The most intensive level of analysis is the environmental impact statement which is typically reserved for the analysis of proposed actions that are expected to result in significant environmental impacts. and a listing of agencies and persons consulted [mini EIS] b. If this is without precedent or similar to one that normally requires preparation of EIS. Purposes: i. then an environmental assessment is prepared. i. Include brief discussions of the need for the proposal. the EA is the vehicle for the agency’s compliance with NEPA’s other requirements Levels of NEPA Review Categorical Exclusion: A CE is a category of actions established in the department or agency procedures for implementing NEPA. of environmental impacts of the proposed action and alternatives. iii.b. When the agency concludes an EIS is not required. of alternatives. Environmental Assessment (from CEQ regs) a. EA shows no impact FONSI 1. the agency must make FONSI available for public review for 30 days before final determination ii. EA shows impact EIS 3. Environmental Assessment: When a CE is not appropriate and the agency has not determined whether the proposed action will cause significant environmental effects. Falls in neither category agency should prepare an EA to make the determination of whether or not to prepare an EIS on the basis of the results of that assessment. If it is a statement that normally does not require either an environmental impact statement or an environmental assessment presumptively do not require EIS (categorical exclusion) c. that are expected to not have individually or cumulatively significant environmental impacts. Determining the “significance” of action CEQ Regulations: how to interpret “significantly” . a CE is concluded with the determination that a proposed action is included in the category of actions and there are no extraordinary circumstances that indicate environmental concerns merit further environmental review. otherwise an EIS is prepared.
sites. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. 1. and the locality. (2) The degree to which the proposed action affects public health or safety (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources. What “effects” must be considered? i. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human. Effects may also include those resulting from actions which may have both beneficial and detrimental effects. indirect or cumulative. aesthetic. For instance. (8) The degree to which the action may adversely affect districts. parklands. This is similar to the doctrine of proximate cause from tort law . Significance varies with the setting of the proposed action. wild and scenic rivers.and long-term effects are relevant (b) Intensity. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. prime farmlands. cultural. national). or ecologically critical areas. and functioning of affected ecosystems). wetlands.” ii. Both short. structures. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impact on the environment. the affected interests. the affected region. historic. whether direct. structures. cultural.(a) Context. significance would usually depend upon the effects in the locale rather than in the world as a whole. CEQ Regs: “Effects includes ecological (such as the effects on natural resources and on the components. or local law or requirements imposed for the protection of the environment iv. social or health. economic. even if on balance the agency believes that the effect will be beneficial. highways. or historic resources. Judicial review of agency determination not to prepare EIS: “arbitrary and capricious” c. (10) Whether the action threatens a violation of Federal State. or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial (5) The degree to which the possible effects on the hman environment are highly uncertain or involve unique or unknown risks (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration. This refers to the severity of impact. in the case of a site-specific action. NEPA only applies if the harm has a sufficiently close connection to the physical environment. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. The following should be considered in evaluating intensity: (1) Impact that may be both beneficial and adverse.
Center for Biological Diversity v. d.” §1502.903) Facts: NHTSA prepared an EA for new fuel economy standards but made FONSI after concluding that the changes in GHG emissions caused by the standards would have little effect on the overall problem of climate change. Siegler: Fifth Circuit required the Army Corps of Engineers to prepare a “worst-case analysis” to assess the effects of a total cargo loss by a supertanker ii. Public Citizen (2004) (p. CEQ has since promulgated regulations on incomplete or unavailable information. so it doesn’t need to do an EIS for that effect.22 Incomplete or Unavailable Information When an agency is evaluating reasonably foreseeable significant adverse effects on the human .897) Facts: Surrounding community opposed restarting a nuclear power plant on Three Mile Island because of psychological effects. Holding: NHTSA’s failure to consider benefits of reducing carbon emissions is arbitrary and capricious. These regulations are entitled to “substantial deference. National Highway Traffic Safety Administration (9th Cir. but not the general effect of the increased number of trucks in the US. Analysis in uncertainty: What must agencies do to assess adequately effects that are highly uncertain? i. Courts must look to the underlying intent in order to draw a managemable line between those causal changes that may make an actor responsible for an effect and htose that do not 3. Note: Challenges like this tend to not get very far. the entry of the Mexican trucks is not an “effect” of its regulations. Public Citizen) Metropolitan Edison Co. Therefore. Holding: FMCSA lacks discretion to prevent the cross-border operations that would have the environmental impact. Where the EIS would serve “no purpose” in light of NEPA’s regulatory scheme as a whole. Holding: NEPA does not require agencies to evaluate the risk that restart of the nuclear power plant that is companion to the damaged Three Mile Island reactor would harm the psychological health of the surrounding community. but Obama raised CAFÉ standards. 2008) (p. Aslo. This one would have gone to the Supreme Court. There was no evidence to support NHTSA’s conclusion that the appropriate course was not to monetize or quantify the value of carbon emissions reduction at all.898) Facts: Bush said he would lift moratorium on Mexican motor carriers operating in the US as soon as FMCSA (Federal Motor Carrier Safety Administration) established regulations for the new carriers. Department of Transportation v.2. Petitioners argued that they should have prepared an EIS that considered effects on climate change before establishing new fuel economy standards. no rule of reason would require an agency to prepare an EIS (DOT v. People Against Nuclear Energy (1983) (p. they did an inadequate assessment NEPA violation. FMCSA prepared an EA concerning the environmental impacts of increased safety checks (such as roadside inspections). Sierra Club v. Rule of reason: ensure that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decision making process. v.
PRESERVATION OF BIODIVERSITY Why Preserve Biodiversity? a. Robert Dreher. is not based on pure conjecture. Five different kinds of impacts must be considered i. and other aquatic ecosystem and the ecological complexes of which they are a part I. marine. Macondo Well used NEPA.R. Deters federal agencies from bringing forward proposed projects that could nto withstand public examination and debate ii. (3) A summary of existing credible scientific evidence which is relevant to evaluating the ereasonably foreseeable significant adverse impacts on the human environment. (b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are nto known. How well does NEPA work? a. even if their probability is low. IX. For purposes of this section. the agency shall include within the environmental impact statement: (1) A statement that such information is incomplete or unavailable. the agency shall always make clear that such information is lacking. Transportation iv. and (4) The agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.environment in an environmental impact statement and there is incomplete or unavailable information. 985-986 and 995 of the Statutory and Case Supplement. Broadened agency awareness of environmental values iii. Impact of climate change on project itself IV. (2) A statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment. (a) If the incomplete information relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant. Construction materials/ equipment v. Has provided environmental lawyers with a strategic tool that has been used at times to slow down and sometimes stop development projects b. Direct operational effects ii.16 and 1508. What is it? – Variability among living organisms from all sources. and is within the rule of reason. but it couldn’t catch human error (2) NEPA Regulations in 40 C.8 on pp.F. provided that the analysis of the impacts is supported by credible scientific evidence. Problem Exercise: “to what extent should a project’s impact on GHG emissions and climate change be considered in an EIS?” a. NEPA under Siege i. III. . including terrestrial. Electricity purchased iii. “reasonably foreseeable” includes impacts which have catastrophic consequences. the agency shall include the information in the EIS. §§1502. Expanded public engagement in government decision-making c.
§4(f) requires the Secretary to develop and implement recovery plans for endangered and threatened species unless he finds they will not promote conservation of the species.” §4(b)(3) provides that citizens may petition to force listing determination. killing.b. Section 4: Listing Endangered and Threatened Species §4(a) requires the Secretary to determine whether any species is “endangered” or “threatened” and to designate critical habitat of such species. §4(d) requires the Secretary to issue “such regulations as he deems necessary and advisable to provide for the conservation” of under §9 for endangered species of fish. Section 7: Review of Federal Actions §7(a)(1) requires all federal agencies to carry out programs to conserve endangered and threatened species. Why protect it? – There are so many species out there that we don’t even know what the impact of the extinction will be or what benefits we could derive from them II. that their 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. import. or collection) any endangered animal species §9(a)(2)(B) prohibits removal or damage of endangered plants on federal lands or anywhere else if in knowing violation of state law. and plants. harming. wildlife. §4(c) requires the Secretary to publish in the Federal Register a list of all endangered and threatened species and to review the list every five years to determine whether any species should be removed from the list or changed in status. §7(c) requires federal agencies to conduct a biological assessment of any endangered or threatened species likely to be affected by an agency action if the Secretary advises the agency that such species may be present in the area of the proposed action. §4(b) provides that the listing determination is to be based solely on “best scientific and commercial data available” and that the designation of critical habitat is to be based on the “best scientific data available… taking into consideration the economic impact. §§7-(e)-(h) provide that if action is barred by a jeopardy determination . export. Introduction to the Endangered Species Act a. Statutory Text Major Provisions of the Endangered Species Act Section 3: Definitions §3(6) defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range. §7(a)(2) provides that all federal agencies must insure. or transport of any species listed as endangered §9(a)(1)(B)&(C) make it unlawful to “take” (broadly defined by section 3(19) to cover harassing. in consultation with the Secretary. its proponent may seek exemption from the Cabinet-level “Endangered Species Committee” Section 9: Prohibitions §9(a) prohibits sale. Section 10: Habitat Conservation Plans . capturing. and any other relevant impact.” §3(20) defines “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. of specifying any particular area as critical habitat.
list it as an endangered species. Then the snail darter was discovered in that section of the river. Action is in the public interest on a regional or national basis c.§10(a) authorizes the issuance of permits allowing the incidental taking of endangered species to parties with an approved habitat conservation plan to minimize and mitigate the impacts of such a taking where the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. Endangered Species Committee (9th Cir. Sent a very strong signal that ESA would be taken seriously ii. The court has equitable discretion.W. Holding: The 6th Circuit was correct in requiring an injunction. b. III. Bush agreed to list it as endangered ii. District Court Holding: The dam will wipe out stail darter. there is only one option for exercising that discretion.” Spotted Owl was then not exempted by God Squad. Can grant exemptions if three conditions are met: a. The dam would destroy its habitat and eliminate the species (by killing its food source). e. Congress clearly expressed an intent to protect endangered animals. Led to creation of the “God Squad” exemption from §7 1. Benefits of the action clearly outweigh the benefits of alternatives that do not jeopardize the species d. Hill i. c. Department of Interior. but it would be inequitable to stop the virtually complete dam (already put so much money into it). There are no reasonable and prudent alternatives to federal action b. Ramifications of TVA v. §7 Consultation Process . Bush unlawfully interfered with deliberations of the “God Squad. Hill (1978) (p. but then TVA did an EIS so the injunction was dissolved. Congressional appropriation of funds for the project did not constitute an exemption. Portland Audobon Society v. but when the only thing that will stop the species from being wiped out is an injunction. 6th Circuit: Reverses on abuse of discretion. Hill TVA v. Environmentalists first tried to stop it with NEPA. Polar Bears and the ESA i.942) Facts: TVA wanted to build a dam on the last free flowing section of the Little Tennessee River. Section 11: Enforcement and Citizen Suits §§11(a) & (b) provide civil and criminal penalties for violations of the Act §11(b) authorizes citizen suits against any person alleged to be in violation of the Act and against the Secretary for failure to perform any nondiscretionary duty.): Court held that President H. despite political pressure. Example of the power of the ESA: TVA v. God Squad and the Spotted Owl i. Obama reaffirmed this policy. Previous administration had explicitly said that they would not use ESA to do anything about climate change.
IV. Conclusions: i. §7(a)(1): affirmative duty for agencies to help conserve endangered and threatened species b. Property power (can regulate public lands) iii. Are there any species that are likely to be affected by the project? ii. Even non-commercial activity that harms US endangered species can be regulated as part of a larger regulatory scheme iii. Babbitt) iii. The prohibited activity that harms the species (Rancho Viejo) 4. 3. Rationales for Federal Authority i. Treaty Power (Migratory Bird Treaty Act and Missouri v. Constitutional sources of federal authority i. Regulatory takings challenges c. Babbitt) 2. documents agency’s conclusions and rationale for determining what the impact of the action will be on the listed species iii. problem with this argument is that it means that when a species is the closest to going extinct the federal government has the least power to protect it ii. Biodiversity has a substantial effect on interstate commerce 1. Claim that ESA exceeds federal constitutional authority to regulate intrastate activity ii. though the absence of such a .a. biological opinion may recommend “reasonable and prudent alternatives” to the proposed action to avoid jeopardizing or adversely modifying habitat Scope of Federal Authority. Most countries have explicit constitutional provisions providing the authority to protect the environment. Holland) ii. Power to regulate interstate commerce (allows regulation of intrastate activities that substantially affect interstate commerce b. If so. The species itself (Gibbs v. The regulatory program to protect the species (Gonzales) ii. Legal Challenges to the US Endangered Species Act i. 1. ask the agency to do a biological assessment to see it they are likely to be affected 1. 2. Babbitt) 3. Challenge to regulatory definition of “harm” encompasssign destruction of critical habitat (Sweet Home v. Process is similar to EIS process: i. Biodiversity as a whole (NAHB v. Congress has the constitutional authority to prohibit harm to endangered species through the exercise of its commerce power [though judges have argued on what the focus should be] 1. The regulated activity (construction) has an effect on interstate commerce d. a. FWS does formal biological opinion to decide whether or not the project can go forward 1. Spending power (may expend federal funds and attach reasonable conditions on their receipt) iv.
scientific research. much less interstate commerce. intrastate species as an essential or integral part of the comprehensive ESA program that regulates activities having a substantial impact on interstate commerce. 1000-1001 in the Statutory and Case Supplement. GDF Realty Investment LLC v.C. They cannot possibly by themselves have an effect of interstate commerce because it is not economic activity Rancho Viejo v. Sentelle dissent: Both connections to interstate commerce are ridiculous. Cir. What is a “harm”? . ESA within commerce power because it is designed largely to preserve commercial benefits of biodiversity. Babbitt (4th Cir. Dissent: The inquiry should be focused exclusively on the actual 41 red wolves. and (3) § 7(a) of the Endangered Species Act on pp. Raich Holding: Upheld right of federal government to prevent individuals from growing marijuana that is not for commercial use because it has a substantial effect on supply and demand for a commodotiy in a national market or that regulation of it is an essential part of a larger interstate regulatory scheme.950) Facts: Wald: ESA is constitutional because it protects current and future interstate commerce that relies on biodiversity and it controls adverse effects of interstate competition. which lack any known value in commerce.provision in the US Constitution has not been a significant obstacle to environmental protection National Association of Home Builders v. Babbitt (D. Jones Dissent: For the sake of 1/8 inch long cave bugs. There are several reasons why wolves affect interstate commerce: tourism. Cir. 1997) (p. The ESA is constitutional because protection of the fly substantially affects land and objects involved in interstate commerce. Holding: Congress can prohibit the taking of the experimental population. trade in fur pelts (if population grows).) Majority Holding: Congress has the authority to make a rational determination to conserve such noncommercial. Gonzales v. The regulated activity is commercial housing development and not the arroyo southwestern toad. 935-964 in the casebook. Norton (5th Cir. Holding:. the panel crafted a constitutionally limitless theory of federal protection. “Harm” in §9 a.) Facts: US gov’t wanted to protect an endangerd toad threatened by a large housing project. Read (1) pp. 2000) (p. Henderson: Construction of site will affect interstate commerce. Ginsburg Concurrence: You cannot regulate the loan hiker in the woods or the homeowner who moves dirt to landscape his property. (2) Endangered Species Act Legislative History Timeline and Principal Provisions of the Endangered Species Act on pp. V.C. 1011-1012 in the Statutory and Case Supplement. Norton (D. Scalia Concurrence: Congress may regulate intrastate activity that does not itself substantially affect interstate commerce if that regulation is necessary to more general regulation of interstate commerce Gibbs v.957) Facts: US put endangered red wolves on public land and prohbited nearby farmers from killing the wolves if they wandered onto their private land.
Babbitt (9th Cir. In re Polar Bear Endangered Species Act Listing (Sullivan Opinion. §10 would be redundant. V. Climate Change and Protecting Endangered Species Against Private Action.C.) . This is typically litigated as an anticipatory nuisance Palila v. Scalia Dissent: “take” is a term of art that means to reduce animals by killing or capturing to human control. If harm meant what Sweet Home meant. Habitat modification can only give way to liability if it is a foreseeable (proximate) cause of the einjury or death and not simply a but for cause (fertilizer deposited in lake by tornado that injures species is not covered). Hill) (3) Congressional intent is clear in the decision to amend §10.C. Cir. Holding.) Facts: Hawaii introduced a population of sheep to an island where the endangered Palila bird lived. This is reflected in other statutes that use the same word. Includes significant habitat modification or degradation (Sweet Home) b. What does the government have to do to show a violation of §9? i. Holding: A reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section 9 of ESA. A habitat modification which significantly impairs the breeding and sheltering of a protected species amounts to “harm” under ESA. The bird lived on a tree that the sheep would eat. Hawaii Department of Land and Natural Resources (9th Cir. Babbitt) iii. a. TVA v. (Marbeled Murrelet v. Rejects claim that habitat degradation that does not actually kill the species is not included in §9. Sweet home does not require proof of actual past injury to an endangered species before an injunction can be issued ii. Sweet Home Facts: Plaintiffs (property rights group) argued that the Dept. D. O’Connor Concurrence: The regulation says you must actually kill or injure an animal. Circuit: Harm only includes direct application of physical force to an endangerd species. A habitat modification which significantly impairs the breeding and sheltering of a protected species amounts to “harm” under ESA. Rationale: (1) Textual: the dictionary definition of harm is to injure (2) Purpose of ESA: the act is supposed to prevent against this exact type of harm (ex.i. of Interior’s definition of “harm” which includes “significant habitat modification or degradation where it actually kills or injures wildlife” is illegal because it is overly broad. D. 1996) Facts: Timber company argued that Sweet Home required proof of actual past injury to an endangered species before an injunction could be issued to prevent logging that would modify the habitat of an endangered bird. Marbeled Murrelet v. A reasonably certain threat of imminent harm to a protected species is sufficient for issuance of an injunction under section 9 of ESA.
X. capricious. ENVIRONMENTAL ENFORCEMENT I. we shouldn’t focus enforcement resources on imposing penalties. Both Bush and Obama thought ESA was better off if not used to address climate change. Philosophies of enforcement i. or uncertainty surrounding how they are interpreted b. 1018 in the Statutory and Case Supplement. ii. Inspectors have to gain access to facilities iii. Detecting violations 1. or contrary to law. 964-970 and 987-1009 in the casebook and (2) § 9(a) of the Endangered Species Act on p. it would be too difficult to establish proximate cause for an individual’s GHG emissions harming species (it is a global problem Read (1) pp. Climate change poses unprecedented challenges of science and policy on a global scale. complexity. Enforcement problems i. Deterrent: companies will only obey the laws if they are afraid of the consequences iii. Problems assessing compliance i. It is very difficult to find out about and prove violations ii. Sampling results have a wide margin of error. What is the point of penalties? – penalties should always recoup the economic benefits of the violation. Proving violations iii. c. We want a company to know they will never benefit from ignoring the law d. Judges who fail to understand the seriousness of environmental violations . Considering O’Connor’s concurrence in Sweet Home. b. Combination approach c. many lawyers believe it is not possible to achieve full compliance with the environmental laws because of their cost. August 1993 Survey on Corporate Compliance i. Cooperation: we should cooperate with businesses. and this Court must be at its most deferential where the agency is operating at the frontiers of science. we should focus on education (philosophy of Bush Administration) ii. It was not designed to be a vehicle for regulating GHGs. can fluctuate depending on weather and production e. 2/3 of corporate counsel admit that their companies have recently violated the environmental laws ii. Monitoring and Detecting Environmental Violations a.i. Most frequently brought to attention by whistleblowers ii. Agency’s decision that §4(d) of ESA is not useful or appropriate tool for alleviating the particular threat to the polar bear from climate change caused by global greenhouse gas emissions is not arbitrary.
authorizes EPA to pay a reward of up to $10. CERCLA. repeat violations b. Others made them both privileged and provided immunity for any violations discovered iii. The only sanction available to the agency if a state isn’t doing a good enough job is to pull the delegated authority . Whistleblowers may seek a hearing before an administrative law judge in the Department of Labor iii.1016) 1. RCRA. Companies were afraid that doing environmental audits was just going to help prosecutors ii.000 to anyone who provides information that leads to a criminal conviction or civil penalty under the Act ii. Eliminates gravity based penalties and criminal penalties if part of systematic audit process (75% reduction if not systematic) a. This still requires the violator to pay the economic value of the violation [maintains EPA policy that they will not settle for less than the economic benefit of the violation] 4. Remedies are subject to judicial review and enforcement g. Whistleblower provisions in environmental law: i. In order to get delegated authority. violations that cause serious actual harm or that violate orders c. States get delegated authority for administering federal programs i. EPA can veto if they think permits are inadequate ii. State response: 1. EPA was concerned that this was going to be a get out of jail free card promulgated Policy Statement on Incentives for Self-Policing (p. Prohibit an employer from discharging or discriminating against any employee who reports violations (CWA. Remedies may include back pay.f. SDWA) ii. Provides incentives for companies to voluntarily disclose and promptly correct violations 3. reinstatement or other relief iv. Environmental Audits: How do you encourage companies to monitor their own compliance with the environmental laws voluntarily? i. States frequently do the actual permitting. Bounty Provisions in Environmental Laws i. Voluntary discovery: if the discovery was inevitable. TSCA. CAA §113(f): added in 1990. Many states adopted audit privilege laws to make audits nondiscoverable 2. CERCLA 109(d) h. Applies at the federal level (not state) 2. it is irrelevant whether they were going to report it i. states must show they have legal authority and sufficient resources to carry out laws iii. CAA. Exceptions: a.
No Recommendation for Criminal Prosecution (a) If a regulated entity establishes that it satisfies at least conditions (D)(2) through D(9) of this Policy.EPA will reduce by 75% gravity-based penalties for violations of Federal environmental requirements discovered and disclosed by the entity. 2.iv. Incentives for Self-Policing 1. For example. Systematic Discovery The violation was discovered through: (a) An environmental audit. violations of Federal environmental law. EPA will not seek gravity-based penalties for violation of Federal environmental requirements discovered and disclosed by the entity. D. Department of Justice or other prosecuting authority that criminal charges be brought against the disclosing entity. Final Policy Statement on Incentives for Self-Policing of Violations (2000) C. Conditions 1. (b) Whether or not EPA recommends the regulated entity for criminal prosecution under this section. or willfull blindness to. Reduction of Gravity-Based Penalties by 75% If a regulated establishes that it satisfies all of the conditions of Section D of this Policy except for D(1) – systematic discovery. or . States spend much more on implementing environmental laws than the federal government does through EPA EPA. EPA will not recommend to the U. No Gravity-Based Penalties If a regulated entity establishes that it satisfies all of the conditions of Section D of this Policy. the Agency may recommend for prosecution the criminal acts of individual managers or employees under existing policies guiding the exercise of enforcement discretion 4. EPA may seek any information relevant to identifying violations or determining liability or extent of harm. as long as EPA determines that the violation is not part of a pattern or practice that demonstrates or involves: (i) A prevalent management philosophy or practice that conceals or condones environmental violations (ii) High-level corporate officials’ or managers’ conscious involvement in. No Routine Request for Environmental Audit Reports EPA will neither request nor use an environmental audit report to initiate a civil or criminal investigation of an entity. If the Agency has independent reason to believe that a violation has occurred. EPA will not request an environmental audit report in routine inspections. however.S. 3.
permit. the Agency may exercise its discretion to reduce or waive civil penalties in accordance with this policy. or may have. For example. the fact that one facility is already the subject of an investigation. (iv) The reporting of the violation to EPA (or other government agency) by a “whistleblower” employee. or consent agreement. or (c) Violations discovered through a compliance audit required to be performed by the terms of a consent order or settlement agreement. 2. or local agency inspection or investigation. 3. (iii) The filing of a complaint by a third party. (b) Violations of National Pollutant Discharge Elimination System (NPDES) discharge limits detected through required sampling or monitoring. or may have. or the issuance by such agency of an information request to the regulated entity (where EPA determines that the facility did not know that it was under civil investigation. Voluntary Discovery The violation was discovered voluntarily and not through a legally mandated monitoring or sampling requirement prescribed by statute. Discovery and Disclosure Independent of Government or Third-Party Plaintiff (a) The regulated entity discovers and discloses the potential violation to EPA prior to: (i) The commencement of a Federal. occurred begins when any officer. occurred. and EPA determines that the entity is otherwise acting in good faith. occurred. Prompt Disclosure The regulated entity fully discloses the specific violation in writing to EPA within 21 days (or within such shorter time as may be required by law) after the entity discovered that the violation has. or may have.(b) A compliance management system reflecting the regulated entity’s due diligence in preventing. employee or agent of the facility has an objectively reasonable basis for believing that a violation has. State. EPA may require the regulated entity to make publicly available a description of its compliance management system. rather than by one authorized to speak on behalf of the regulated entity (v) Imminent discovery of the violation by a regulatory agency (b) For entities that own or operate multiple facilities. inspection. information request or third-party complaint . (ii) Notice of a citizen suit. The regulated entity must provide accurate and complete documentation to the Agency as to how its compliance management system meets the criteria for due diligence outlined in section B and how the regulated entity discovered the violation through its compliance management system. unless the audit is a component of agreement terms to implement a comprehensive environmental management system. the policy does not apply to: (a) Emissions violations detected through a continuous emissions monitor (or alternative monitor established in a permit) where any such monitoring is required. regulation. director. and correcting violations. The time at which the entity discovers that a violation has. detecting. judicial or administrative order. 4.
If more than 60 days will be needed to correct the violation. can get up to 3 years c. 3 Tracks of Penalties 1. For most serious violations b. Effect on State Law.does not preclude the Agency from exercising its discretion to make the Audit Policy available for violations self-discovered at other facilities owned or operated by the same regulated entity. administrative consent order or judicial consent decree as a condition of obtaining relief under the Audit Policy.they get you on making false statements or obstruction of justice 2. Economic Benefit F. Where appropriate. Criminal Enforcement a. EPA may require a regulated entity to enter into a publicly available written agreement. EPA can get injnction to stop harmful action 3. Other Violations Excluded 9. Prevent Recurrence 7. EPA retains the authority to order an entity to correct a violation within a specific time period shorter than 60 days whenever correction in such shorter period of time is feasible and necessary to protect public health and the environment adequately. No Repeat Violations 8. and takes appropriate measures as determined by EPA to remedy any environmental or human harm due to the violation. the regulated entity must so notify EPA in writing before the 60-day period has passed. Regulation or Policy II. 6. 5. certifies in writing htat the violation has been corrected. Administrative enforcement action a. Correction and Remediation The regulated entity corrects the violation within 60 calendar days from the date of discovery. Cooperation E. Criminal Penalties a. particularly where compliance or remedial measures are complex or a lengthy schedule for attaining and maintaining compliance or remediating harm is required. “knowing endangerment” can end up with even higher penalties (15 years) d. Civil penalties a. If “knowing” violation. most criminal enforcement actions do not get convictions under enviornmnetal alws. to satisfy conditions D(5) and D(6).1023) i. Enforcement Authorities: The Clean Water Act (p. Usually for fairly minor offenses (§309(a)) .
III. United States v. Employees who knew or should have known that they violated regulations e. Have been routinely increased ii. Employees who make corporate decision iii. Weitzenhoff (9th Cir. EPA will tell the company they found a violation and propse a penalty that must be paid unless the company wants to contest it c.S. The first citizen suit provision was written into the CAA ii. This language was virtually copied in all other major federal statutes . FIFRA 14(b) c. Three managers were prosecuted for criminal violations of CWA after they ordered nighttime dumping in excess of NPDES permit. 1994) (p. What does “knowing” mean? only need to show the act was knowing. Citizen Suits and Standing a. v. International Minerals & Chemicals Corp (1971): “knowingly” refers to acts made criminal rather than knowing that regulations violated iii. Citizen suits in the U. Who can be held criminally liable when corporations violate the environmental laws? i. Reasoning: In most cases it is too hard to prove exactly what the defendants were thinking. If this were the standard. v. ALJ decides how much they should pay e. criminal violations of regulatory statute (FDCA) do not require showing of specific intent to violate the laws ii. i. Standards of Proof for Public Welfare Offenses i. Ex: 1. Park (1975): responsible corporate officials may be held criminally liable for violations without proving evil intent d. U.1039) Facts: An investigation showed that East Honolulu Community Services Sewage Treatment Plant was illegally dumping sewage.” This only requires the prosecution to engage in knowing conduct that is violative of the law (not commit a knowing violation of the law).b.S. Clean Air Act §113(c) 2. Clean Water Act §309(c) 3. we would never be able to prosecute violators criminally. Holding: It is a felong to “knowingly violate any permit. TSCA §§15 & 16 5. RCRA 3008(d) & (e) 4. Criminal provisions in federal environmental laws i. Can ultimately appeal to EPA Administrator and hten court b.S. Dotterweith (1943): where dangerous materials are involved. not that the violators knew the act would violate the law (Weitzenhoff) United States v. U. Responsible corporate officers [this gives them an affirmative duty] ii. If company contests they get a hearing before an administrative law judge d.
c. Most federal environmental laws authorize citizen suits against 1. Zone of interests (must be within the zone of interest protected by the statute) iii. Scalia’s campaign to restrict standing in citizen suits: 1. How provisions work: i. and b. This is a good thing. v. No generalized grievances 3. At least one member of the group would have standing to sue in his or her individual capacity. J. Citizen suits are the engine that propels environmental law. heralded in the hallways of Congress.Skelly Wright: judicial duty is to see that important congressional purposes are not lost in halls of democracy 2. Prudential restrictions 1. They are an important check on agency failures to implement the laws and a vital deterrent against future failures. Standing i. Traceability 3. can be lost or misdirected in the vast hallways of bureaucracies. Reagan administration wanted to eliminate standing for organizations 2. Doctrine of Organizational Standing (Automobile Workers v. Officials who fail to perform non-discretionary duties ii. National Wildlife Federation: NWF thought Reagan was illegally allowing too much development on public lands. Citizen suits are generally precluded if federal or state authorities are diligently prosecuting an action to require compliance prior to the citizen suit being filed iv. Prohibition against third-party standing 2. Injury in fact 2. important legislative purposes. Constitutional elements: 1. Violators of the law 2. Organizations have standing to assert the interests of their members so long as: a. Usually require 60 days notice: this is to give the agency the first crack at taking its own enforcement effort iii. Scalia: so long as no minority interests are affected. Gualtney: environmentalists don’t have to prove that they were in violation at the time the lawsuit was filed. Judicial Responses to citizen suits: two views 1. The interests the organization seeks to protect through the lawsuit are “germane to the organization’s purpose” iv. The court . Lujan v.iii. Redressability ii. b. Brock) 1. They only have to make a good faith showing that they have reason to believe that the violations will be recurring.
even though the only issue on appeal was whether the penalty was too high. Legal mistake: they settled the project they had clear standing over 2. the claim was insufficient to establish standing. unlike Steel Company. Note: Scalia was unable to completely wipe out environmental standing because Souter and Kennedy would not have joined. 4. Mass v. viii. the violations continued after the citizen suit was filed. but not for the whole law 3. Defenders of Wildife: plaintiffs lack standing to challenge decision not to apply ESA to actions of US agencies outside of the US. Steel Co. Magnesium: Court ordered supplemental standing briefs. Lujan v. Laidlaw Environmental Services (2000) 1. 3. Therefore there is a continuing deterrent effect. v. especially given the vast expanse of the national forest. 2. but this does not necessarily take us back to pre-Laidlaw days . not injury to the environment. The likelihood that he would go to the specific place that the Forest Service will subject to a categorical exclusion is very low. said that the plaintiffs need to show that they are actually using individual parcels about to be developed. The litigants only have to prove that as a result of the violations there was injury to themselves. 2. Gaston Copper: 4th Circuit said that the plaintiffs couldn’t show that the molecules that had violated the permit had somehow touched them and somehow harmed them 2. Citizens for a Better Environment (1988): made it harder to meet redressability requirement. a. The fine isn’t going to the plaintiffs. This made it virtually impossible to sue because they didn’t know what was going to be developed until bulldozers arrived. vii. Earth Island Institute: 1. Said they had no standing because they did not prove how the violation of the permit harmed them. so there is no redressability. This in effect was saying that a citizen must have the same amount of harm that would be required in a private lawsuit to get standing in a public lawsuit Friends of the Earth v. Satisfies redressability because. 3. In this case. or does it apply to all environmental law standing? Summers v. Impact of Lujan II: Lower courts went crazy because they didn’t know what degree harm had to be shown 1. EPA: is it a special case of parens patriae standing. Implications of Summers: Environmentalists will have a harder time with public lands. You can bifurcate standing: you may have standing for one area.vi. ix.
Like contracts: the binding nature comes from the willingness of parties to be bound ii. Now: 1. Originally. A copper smelter in British Columbia was polluting into Washington State iii. they would enter into arbitration ii. Arbitrators relied on Georgia v. 1054-1055 & 1070-1101 in the casebook and (2) §505 of the Clean Water Act. Very little procedural hierarchy: no global constitution or international body with authority over everyone d. Introduction to International Environmental Law a. 507(b). 1972: Stockholm Conference on the Human Environment 1.S. 898-899 of the Statutory and Case Supplement. XI. Read (1) pp. was only through multinational treaties and informal principles ii. 1011-1025 & 1037-1054 in the casebook and (2) Clean Water Act §§ 507(a). How is international law different from domestic? i. UN Environmental Conferences i. PROTECTION OF THE GLOBAL ENVIRONMENT I. 1365. Increased global collaboration of environmental NGOs and environmental officials iv. There was a treaty between US and GB (representing Canada) that said if there were disputes that couldn’t be resolved about boundary waters. and 309(c) on pp. Kyoto Protocol and Montreal Protocol countries had to change their own laws to comply) c. Globalization of environmental concerns iii. Read: (1) pp. Stockholm Declaration: states have a sovereign right to exploit their own resources and to ensure that the activities within their . Growth of international trade and multinational corporate enterprises ii. 33 U. Model for how the world responds to environmental problems has been changing i. 899 and 840-842 in the Statutory and Case Supplement. Forces driving the development of global environmental law i. Globalization of environmental law: as countries upgrade their environmental standards they borrow law from one another an a very high rate 2. Train Smelter Dispute between US and Canada i. on pp. Retailer/ purchaser initiatives: purchasers can influence environmental issues by using buying power to shift suppliers behavior b. Tennessee Copper (states have the authority to protect citizens from pollution occurring outside of the state) and required the smelter to reduce population e.C. Development and implementation of multilateral environmental agreements (ex.
Is this a good model for dealing with climate change? i.” [this is basically admitting that they have made little progress in the last 20 years] iv. What it said: i. US said it wouldn’t ratify unless it also required developing countries to control emissions as well 4. it became an election issue in Australia and they ratified it . entered into force in Feb. but on a slower track d. and turn ozone into oxygen. Global tragedy of the commons: climate change i. Montreal Protocol on Substances that deplete the ozone layer i. Kyoto Protocol: 1. thereby destroying the ozone layer ii. jurisdiction or control do not cause damage to the environment or control do not cause damage to the environment of other states or of areas beyond the limits of their jurisdiction [sic utere principle] ii. ii. There were easier substitutes for CFCs iii. For a long time Austraila and the US were the only industrialized countries that had not ratified it. Differences in public support f. 2005 3.II. Results: has actually been responsible for a larger reduction in GHG than the Kyoto Protocol e. Tax would then go to helping developing countries do the same. Principle 13: restatement of Stockholm Declaration except that it inserts “in an expeditious and more determined manner. 5% reduction from 1990 levels during 2008-2012 for developed countries 2. June 1992: UN Framework Convention on Climate Change sets up negotiating process. went into force in 1994. Developed countries would start phasing down first ii. Rio Declaration (p. We took precautionary measures (banning CFC) before we actually found the hole in the ozone layer one of the only times precautionary rule has been followed b. Development: agreed to set up process even before the hole was found c. 2012 UN in Rio Protection of the Global Atmosphere a.1123): reiterates sic utere 2. The US Senate ratified unanimously. 2002: World Summit on Sustainable Development (South Africa) v. 1982: Nairobi Conference iii. Historical background: Two scientists developed a theory that CFCs were so stable that they would stay in the atmosphere for a long time. 1992: UN Conference on the Environment and Development (Rio) 1. However. become chlorine. GHG is a much larger category of products than CFCs ii.
5. or a disguised restriction on international trade. Current status of global environmental law: more of a competition between countries for what they can establish than a collaborative. Article XX only talks about domestic natural resources. China announced voluntary goal to reduce carbon intensity of its economy by 40% below 2005 levels iv. Tuna/ Dolphin I Decision i. e. (b) necessary to protect human. US also had tuna laundering prohibition. Mexico was complaining about the US ban on the importation of tuna from countries whose fishing fleets had more than 1. iii.25x the average dolphin death of the US fishing fleets. Example of bottom-up implementation: 155 mayors have pledged to have their city comply with Kyoto Protocol Read pp.1 of FCCC: commits all parties to protect the climate system on the basis of equality and in accordance with their common but differentiated responsibilities and respective capabilities iii. which the Europeans were angry about. Even if the US had the right to protect dolphins in international waters. Nondiscrimination in commerce: one state cannot discriminate against out of state commerce because of where it originates d. Panel Holding: the US did not exhaust its options. Trade Liberalization and the Environment a. They claimed it was a violation of GATT because it was an unnecessary unilateral action to protect the global commons. top-down approach 1. they should have tried to negotiate a treaty in advance. (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption c. US pledged to reduce emissions of GHG by 4% below 1990 by 2020 (slightly below Kyoto) 2. Tuna/Dolphin II i. Permits environmental regulations that are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail. animal. if: 1. Post-Copenhagen Submissions by countries 1. or plant life or health. Aftermath: the US quickly got Mexico to agree to drop the complaint and impose new dolphin fishing practices. They argued the US should have negotiated a multilateral agreement instead. GATT Article XX i. III. . it does not allow one country to unilaterally protect the global commons. Environmentalists argue that trade liberalization will harm the environment b. 1117-1125. Article 3. ii. 1129-1150 & 1154-1158 in the casebook. or 2. It is too hard for Mexico to compy because they cannot know US rate of dolphin killing in advance.
Texaco. you must notify the country that it is coming and get their consent before you ship ii. ii. so long as they are labeled as solely for export d. and then traces of those substances come back in products produced in those countries i. environmentalists have not been successful in having a ban of a product mandate a ban on all uses (including manufacturing) because it really would just be exporting US jobs (because other countries will manufacture and those developing countries would keep on using it) e.S. For the first the WTO upheld an absolute ban on a product on the grounds that it was so dangerous ii. iii. ii. You cannot require that it be absolutely the same as in the United States if there are other ways of protecting the turtles. f. ship them to other countries. then exported it to Costa Rica where they used it on bananas. Principle 12 of Rio Declaration: 1. however. Presumption against unilateral actions 2. Jota v. Issue: whether requirements that turtle excluder devices be used in shrimping operations can be imposed on other countries. TSCA permits manufacture solely for export of chemicals banned in the U. Almost all asbestos used in the US is produced outside of the country b. Case brought under alien tort statute f.1179) i. If there are hazardous substances that are being shipped abroad. the panel recognizes that the US has a legitimate interest in protecting dolphins of the high seas. Pesticide was banned in the US. The Shrimp/Turtle WTO Decision i. Environmental issues addressing trans-boundary problems should be based on multilateral agreements iii.IV. Says that foreigners can bring suit against anyone who has violated the law of nations (acts that would be violations in any court of law) ii. ii. “Circle of Poison”: we produce hazardous materials that are banned in the US. Dow Chemical kept making it in the US. Alien Tort Statute i. Europeans succeeded in getting panel to say tuna laundering provision is violation of GATT. Filartiga v. Karin B: ship tried to unload toxic waste in Africa c. Works like RCRA (bans export of hazardous waste unless prior informed consent or pursuant to treaty) iii. Pena-Irala: Woman found that former military leader who had tortured and killed her brother was living in the United States iii. Dow Chemical v. Basel Convention i. causing major . Aguinda v. Appellate ruling: the problem is the way in which this is imposed. Texaco: plaintiffs livid in the Amazon. However. Alfaro (Texas 1990) i. We now have more specific requirements that deal with different situations International Trade in Hazardous Substances a. Asbestos Decision (p. Texaco just dumped the waste from oil exploration anywhere.
iv. torture) that would qualify] Flores v. 1167-1195 in the casebook and §§ 17(a) & (b) of FIFRA on p. Sosa v. Trafigura Toxic Waste Dumping in Ivory Coast (British case): several people died because waste was so toxic. Unless Chevron apologizes to people of Ecuador. vii. . v. It is up to Peru to determine if it violates its own laws. They settled and captain was criminally prosecuted. He was acquitted and sued the DEA agents who kidnapped him. but corporations cannot US Supreme Court has just granted cert 4. states can violate the law of nations. Doe v. US said it was not enough to constitute violation of international law of nations. Southern Peru Copper Corp. 180 of the Statutory and Case Supplement. environmental damage. Chevron was held liable to pay $8. 2nd Circuit would only dismiss the suit if they would accept continuing jurisdiction of Ecuador. Royal Dutch Petroleum: individuals can violate the law of nations. Freeport McMoran (p.1191): failed to bring a claim under the alien tort statute because environmental harm was not a violation of the law of nations. [Plaintiffs cited general notions in Rio Declaration. but we won’t export US domestic standards. Unocal: company got together with Burmese government to force locals to labor for them (under coercive program of rape and murder) 2. 3. Alvarez-Machain: US kidnapped doctor who they suspected of being involved with torture and murder of DEA agent.6 billion 2. Saro-wisa: environmentalist who was complaining about Shell pollution was executed by military at Shell’s behest. vi. During the course of discovery they found an email congratulating the boat captain. But the Court said it was not the type of shocking grievous harm (like murder. Beanal v. Chevron in Ecuador 1. the judgment will double Read (1) pp. For environmental claims: Alien tort statute is only available for egregious human rights allegations coupled with environmental degredation 1. viii.: Lead smelter has no pollution control. Kiobel v. 2nd Circuit says that it is not the harm that would rise to the violation of the rule of nations. Case was settled for $15 million.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.