Environmental Law Outline__with_notes_

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					                                          ** Environmental Law Spring 2004 **

I. Control of Toxic Substances
    A. RCRA: Resource Conservation and Recovery Act (p174)
             a. Purpose
                       i. Passed in 1976; provides a comprehensive regulatory structure for managing both hazardous
                          and non-hazardous solid wastes
                      ii. Regulates both active and inactive waste disposal sites
                     iii. Contains regulatory standards but also has a health-oriented focus to achieve its goals of
                          conservation, reducing waste disposal, and minimizing present and future threats to human
                          health and the environment
                     iv. RCRA has become locus of Congress’s prevention concerns, while CERCLA tackles the
                          problems of cleaning up past mistakes
                      v. Basic statutory structure:
                               1. system for identifying and listing haz wastes
                               2. cradle-to-grave tracking system
                               3. standards for generators and transporters of haz wastes and for operators of treatment,
                                    storage, and disposal (TSD) facilities
                               4. permit system to enforce these standards
                               5. procedure for delegating to states the administration of the permitting program
                     vi. 1984 Amendments: sought to speed EPA’s development of regulatory standards and to close
                          certain loopholes in EPA’s existing regulations; also to fundamentally change waste disposal
                          practices by phasing out land disposal and by forcing the development and use of improved
                          technology to detoxify haz wastes
                               1. One significant requirement of Amendments is that RCRA permits require TSD
                                    facilities that wish to continue operation must clean up any prior contamination at
                                    their facility regardless of when or where it occurred
                               2. TSDs must also conduct regular groundwater monitoring and take corrective action if
                                    contamination is detected
             b. Structure
                       i. Act creates 4 separate programs:
                               1. Hazardous wastes
                                         a. Subtitle C
                               2. Non-hazardous wastes
                                         a. Subtitle D
                               3. Underground storage tanks
                                         a. Subtitle I; owners and operators under the program are required to register
                                               their tanks, upgrade their tanks to achieve technological minimums, and
                                               ensure that thanks are properly closed when not in use
                               4. Used oil
                                         a. RCRA regulates used oil even if that oil is not a hazardous waste.
                                               Regulations apply to generators, transporters, sellers, and recyclers of used
                                               oil
             c. Subtitle C
                       i. ―Cradle-to-grave‖ system designed to track hazardous wastes from the point they are generated
                          to the point they are disposed
                               1. Generators: must determine if its wastes are hazardous by looking at EPA’s listed haz
                                    wastes or determining if it is a characteristic haz waste. Haz waste sent off site must
                                    be accompanied by a manifest that identifies the type of waste being disposed and its
                                    destination
                               2. Transporters: may only transport haz wastes if the wastes are accompanied by a
                                    manifest from generator, and they may only deliver haz wastes to a permitted
                                    treatment, storage, and disposal facility
                               3. TSDFs: stringent requirements imposed by RCRA; all TSDFs must have a permit
                                    before they can receive any haz waste
                      ii. Hazardous wastes may only be disposed of at a ―treatment, storage, and disposal facility‖
                          (TSDF)
                     iii. TSDFs are required to get a federal RCRA permit before they are allowed to receive and
                          dispose of shipments of hazardous wastes
                     iv. To be subject to RCRA, haz materials must fall under definition of solid waste:
                                                                                                             2

                  1.   ―Any garbage, refuse, sludge from a waste treatment plant, water supply treatment
                       plant, or air pollution control facility and other discarded material, including solid,
                       liquid and semisolid, or contained gaseous material resulting from industrial,
                       commercial, mining, and agricultural operations, and from community activities . . .‖
                  2. RCRA doesn’t apply to domestic sewage, even where it contains haz waste, industrial
                       and waste water discharges subject to Clean Water Act permits, irrigation return flows,
                       otherwise regulated nuclear material, and certain mining wastes
          v. RCRA jurisdiction is only over wastes that are ―discarded‖:
                  1. abandoned: if it is disposed of, burned or incinerated, or accumulated, stored, or
                       treated (but not recycled) before disposal, burning, or incineration
                  2. recycled
                            a. Note: RCRA’s restrictions on waste materials do not apply to those
                                 materials that are recycled, reclaimed, or are still useful. However,
                                 regulations have left many gray areas
                            b. American Mining Congress v. EPA: EPA could not treat secondary
                                 materials that were being recycled and reused in an ongoing manufacturing
                                 or industrial productions process as RCRA solid wastes
                                        i. Ct said the materials had ―not yet become part of the disposal
                                           problem‖ b/c they were ―destined for beneficial reuse or recycling
                                           in a continuous process by the generating industry itself‖
                  3. considered inherently wastelike
         vi. Two ways RCRA requires EPA to develop criteria for identifying haz wastes:
                  1. By ―listing‖ a waste as hazardous, OR
                            a. Waste may exhibit one of the four haz waste characteristics:
                                        i. Ignitability
                                       ii. Corrosivity
                                      iii. Reactivity
                                      iv. Toxicity
                            b. Waste may be considered ―acutely toxic‖ based on studies . . .
                            c. Waste contains certain toxic constituents and, after considering a variety of
                                 enumerated factors, the agency determines the waste is capable of posing
                                 substantial harm if managed improperly
                  2. By determining a waste to be hazardous b/c of certain ―characteristics‖
                            a. EPA regulations lay out the criteria used to identify characteristics of haz
                                 wastes
        vii. Definition of hazardous wastes:
                  1. A solid waste, or combination of solid wastes, which b/c of its quantity, concentration,
                       or physical, chemical, or infectious characteristics may—
                            a. Cause, or significantly contribute to an increase in mortality or an increase in
                                 serious irreversible, or incapacitating reversible illness; or
                            b. Pose a substantial present or potential hazard to human health or the
                                 environment when improperly treated, stored, transported, disposed of, or
                                 otherwise managed
d.   Subtitle D (p220-222)
           i. Governs solid wastes NOT considered hazardous
          ii. Subtitle D: bans dumping of a solid waste, including nonhazardous wastes, anywhere other
              than at a sanitary landfill
        iii. Responsibility for controlling the management of these wastes has remained largely the
              province of state and local govts
         iv. Subtitle D, rather than being a fed reg program, is a modest program of financial assistance to
              encourage states to engage in area-wide waste management planning (with the exception of its
              ―open dumping‖ ban and EPA’s min standards for municipal landfills)
          v. Nonhaz waste landfills can pose threats to human health and the environment:
                  1. Landfills receiving nonhazardous waste still posed a substantial threat to groundwater
                  2. Prior to RCRA, haz wastes from industrial operations were often sent to municipal
                       landfills; even after RCRA, considerable amount of haz waste continued to be sent to
                       municipal landfills
                  3. Midnight dumping: wastes dumped surreptitiously
                                                                                                                     3

                  vi. 1984 Amendments  changed fed role regarding solid waste management under sub D
                            1. Revised criteria required municipal dumps at least to perform groundwater monitoring
                                 and undertake corrective action as appropriate
                            2. Congress also required states to adopt ―permit program‖ to assure compliance w/
                                 EPA’s revised subtitle D criteria
                            3. Landfills are required within 5 yrs to conduct regular groundwater monitoring and to
                                 take corrective action to clean up contamination
         e.   Government Enforcement
                    i. §7003 provides govt with a means of responding to existing contamination problems
                   ii. EPA is authorized to assess civil penalties for past or current violations, issue compliance
                       orders, revoke permits, or seek temporary or permanent injunctive relief
                  iii. RCRA also contains criminal provisions for knowing violations of the Act
         f.   Citizen Suits
                    i. §7002 permits individuals to commence an action in fed district ct to enforce RCRA’s waste
                       disposal requirement or remedy contamination

B. CERCLA: Comprehensive Environmental Response, Compensation, and Liability Act
      a. Purpose: Superfund program which governs liability for the cleanup of hazardous substances. It is
         essentially a remedial statute designed to clean up haz waste sites and respond to haz spills and releases
         of toxic waste into the environment
                i. Provides mechanisms for reaching a range of liable parties to pay cleanup costs
               ii. Focuses on remediation of past activities, which includes liability for both past and future
                   cleanup costs of sites
      b. Superfund: CERCLA creates the ―Superfund‖ which the govt may use to finance governmental
         response activities, to pay claims arising from response activities of private parties who are not
         themselves liable parties under CERCLA, and to compensate fed and state govts for damage to natural
         resources. Superfund is largely funded by excise taxes on industries such as petroleum industry and
         chemical industry
      c. Liability: Section 107(a) Fed govt, state govts and private parties may sue those responsible for the
         generation, transportation, or disposal of hazardous substances to recover the costs of cleanup
                i. Strict liability
                        1. courts, in reading the provisions that impose liability and finding no prongs for having
                             to show negligence, illegal conduct, etc. and looking at the underlying purpose
                             (making polluters pay), concluded that since almost all of the contaminations were not
                             illegal or negligent, they interpreted CERCLA as strict liability statute or its
                             fundamental purpose would fail
               ii. Joint and several liability
                        1. more than one actor in the causal change; ―all for one, and one for all‖—everyone
                             who is liable is liable up to the full amount of the clean up
                        2. Find someone who has the money to be able to be responsible for the clean up
              iii. Retroactive liability
                        1. Nothing in statute says you’re liable for the sins of the past, but how else can you
                             interpret the law? If the point is the make polluters pay for the things in the past, how
                             can this be anything but retroactive?
                                   a. US v. Northeastern Pharmaceutical Chem Corp.: court determined that
                                       Congress intended CERCLA to be applied retroactively to acts committed
                                       before the effective date (Dec 1980) of the statute and that such retroactivity
                                       did not violate due process
                        2. Are we going to hold liable someone for doing a normal, legal activity 50 years ago
                             that turned out to be illegal now? Tough to swallow, but the judges determined they
                             were going to interpret everything in a practical way to reach public purpose of
                             cleaning up
              iv. Perpetual liability
                        1. prospective liability
               v. Subject to very limited defenses that the haz release was caused solely by an act of God, act of
                   war, or an act or omission of a third party unrelated to D
                                                                                                             4

d.   Section 107(a)
          i. 4 key elements of cost recovery:
                  1. ―release or threat of release‖
                  2. of a ―hazardous substance‖ (not petroleum): specifically excludes petroleum, though
                      petroleum and its constituents would count as hazardous; why this exclusion?
                      Petroleum industry protected themselves by having this exclusion; however, this
                      protection came at a price—they had to pay the fee; so Superfund was going to be
                      funded by the chemical and petroleum industry
                  3. from a ―vessel or facility‖: CERCLA defines ―facility‖ as ―any site or area where a
                      hazardous substance has been deposited, stored, disposed of, or placed, or otherwise
                      come to be located.‖ Definition covers every single thing you’ve seen or touched or
                      heard of
                  4. that caused ―response costs‖: liability is triggered when someone responds to it;
                      liability isn’t triggered when you release or threaten to release it; it’s when someone
                      else incurs costs responding to your release
                            a. Response means two types of actions:
                                       i. Short-term cleanup measures called ―removal‖ actions
                                      ii. Comprehensive long-term ―remedial‖ measures involving
                                           permanent containment or disposal
                            b. not included in this is ―compensation‖: no victim compensation provision;
                                 response cost is investigating and cleaning up the compensation; different
                                 from the compensation that was thought to happen when law was enacted
                                 (victim compensation)
e.   Who is liable?
          i. If person falls into one of the categories listed in §107(a) that is related to a Superfund site,
             they become known as ―potentially responsible parties‖ (PRPs) until a legal determination is
             made regarding liability:
         ii. 4 classes of persons liable: (see lecture notes for details)
                  1. Current owners or operators of a facility or vessel
                            a. Doesn’t matter if the release happened before your ownership
                            b. NY v. Shore (2nd Cir 1985): someone tried to argue they were excluded b/c
                                 the contamination happened a long time ago and they had nothing to do w/ it;
                                 court ruled no exception for mere innocence—merely not having done
                                 anything is irrelevant
                            c. US v. Best Foods (Sup Ct. 1998): parent corps  if parent corp had some
                                 role in operation of its subsidiary and daily operations of sub, then maybe
                                 we’re not piercing the veil, maybe they are directly owners and operators for
                                 the purpose of this statute Town (Supreme Court made this harder recently,
                                 saying must go through traditional common law veil piercing; however, if
                                 the parent corp. actually operated/actively directed the site (includes
                                 shareholder liability); thus, determining that the shareholders were directly
                                 responsible
                  2. Former owners or operators at the time of ―release‖
                            a. Concept of owner or operator is a challenge b/c some people that own a
                                 company doesn’t control the operation so they had no ability to oversee
                                 anything, basically everybody who owned it was liable according to the
                                 courts, this tied in with strict liability Ms. Dump
                            b. Nurad v. Hooper (4th Cir 1992): prior owners liable if owned land while
                                 hazardous material was leaking; BUT other cases reject liability for purely
                                 passive conduct
                                       i. ―purely passive conduct‖: if you release something into the land,
                                           then you have a little area of contamination, over time it continues
                                           to move around, the argument was made that this migration (passive
                                           migration) should not constitute a release under the Superfund
                                           statute
                  3. Generators or those who arranged for disposal of hazardous substance
                            a. US v. Aceto (8th Cir 1989): company sent ingredients to make pesticides to
                                 another company; thought was that they weren’t intended to dispose of
                                                                                                              5

                              anything; however, liable if send pesticide ingredients to another facility to
                              be turned into pesticide product; key was that they didn’t sell the
                              ingredient—they still owned it; so by not having sold it, they still had
                              liability
                          b. Other courts reject liability if selling ―useful product‖
                          c. but if you transfer harmful substance to another company to make useful
                              product, you may still be liable
                  4.   Transporters who select destination
                          a. If you are a trucking company and you are hired to take waste and the person
                              who generated the waste told you to go to a certain place to get rid of it, you
                              are not liable
                          b. But if a company just calls the truckers up and told them to get rid of the
                              waste and the trucker decides where to take the waste, then the trucker is
                              liable – Who selected destination?

f.   Who can sue?
         i. ―Any person‖ may sue; standing to sue is very broad
                1. Note: One requirement for private cost recovery under CERCLA §107(a) is the
                     presence of a hazardous substance at the site. However, RCRA covers hazardous and
                     non-hazardous ―solid wastes,‖ a much broader range of substances than CERCLA
        ii. May recover costs to investigate, plan and conduct clean-ups
       iii. Costs must comply w/ National Contingency Plan (NCP): EPA planning document as to
            how to identify contaminated sites, figuring out which ones need cleaning up first and giving a
            standard of care as to how to clean up. Basically, NCP is designed to establish procedures and
            standards for preparing for and responding to releases of hazardous substances
                1. Govt costs: ―not inconsistent with‖ NCP
                2. Private costs: ―consistent with‖ NCP
                          a. difference between these two terms . . . ―not inconsistent with‖ means the
                              person being sued has to prove that the costs are inconsistent—burden is on
                              them; govt is presumptively consistent w/ the NCP; anybody resisting that
                              has to prove that they were not, this is something that is pretty much
                              impossible
                          b. for a private party, they have to prove their costs were actually consistent w/
                              the NCP

g.   Six defenses to liability:
           i. Act of God
          ii. Act of war
         iii. Act solely caused by unrelated third party and if D exercised due care
         iv. “Innocent landowner” if D didn’t know and made appropriate inquiry
                  1. release or threat of release and damages were caused solely by the third party
                  2. third party’s act or omission didn’t occur in connection w/ a contractual relationship
                       with the defendant
                  3. defendant exercised due care w/ respect to the hazardous substance
                  4. defendant ―took precautions against foreseeable acts or omissions of any such third
                       party and the consequences that could foreseeably result from such actions
          v. Lenders, if they didn’t participate in management of facility and hold indicia of ownership
              primarily to protect security interest in property
                  1. banks protected under this defense
                  2. this exclusion doesn’t apply if the lender ―participated in management‖ rather than
                       simply held the property on paper
         vi. As of 2002, “bona fide purchasers” who are only liable as owner/operator who bought after
              1/11/02 and can prove al of 8 listed elements

h.   Liability Allocation
          i. Statute is silent on how much people have to pay. How do you split up the costs? Factors
              considered in allocating costs:
                  1. Equitable factors
                                                                                                                         6

                               2.   Gore factors
                               3.   Distinguishable: if your waste is unique in some way that you can show how much
                                    you contributed to the total waste
                               4.   Amount of hazardous waste involved
                               5.   Toxicity: degree of toxicity
                               6.   Degree of involvement: if you ran a site and you did a crappy job, you’re liable
                               7.   Level of care: degree of care you spent to prevent environmental damage
                               8.   Cooperation w/ govt: degree of cooperation by the parties w/ govt officials to
                                    prevent any harm to the public health or the environment
                               9.   Benefits received from the contaminating activities

             i.   Clean-Up Principles
                       i. EPA may conduct clean up, using the ―superfund‖ then recover costs in a §107 recovery action
                          (suing PRPs), OR
                      ii. EPA can compel PRPs to clean up w/ §106 orders (EPA usually does this because why do
                          something when you can tell someone else to do it)
                               1. For §106 orders:
                                       a. EPA issues administration order
                                       b. no hearing needed
                                       c. no right to challenge unless EPA sues D first after PRP refuses
                                                  i. cannot challenge a 106 order unless the EPA decides to sue you
                               2. if D refuses to comply w/ §106 order:
                                       a. $25 K/day penalty
                                       b. punitive damages of 3 times the response costs
                                       c. unless, D can prove
                                                  i. not a PRP
                                                 ii. defense
                                                iii. can’t comply (e.g. EPA tells you to do something that is
                                                     technologically impossible; however, EPA usually never does this)
                                                iv. ―de minimis‖: means a really really really small fraction
                                                 v. order not consistent w/ NCP
                               3. basically, make sure clients do NOT violate §106 orders—the risks are HUGE!
                               4. If EPA wanted to be mean, it could tell someone they are going to be sued by the EPA,
                                  in 10 years

    C. FIFRA: Federal Insecticide, Fungicide, and Rodenticide Act


II. Proposition 65: Safe Drinking Water Act
    A. Purpose
             a. Prop 65 supports the notion that no one should knowingly expose another without warning to chemicals
                 known to cause cancer or reproductive toxicity unless the discharger can demonstrate that the risk is not
                 significant
             b. Prop 65 has had a huge effect on manufacturers to use alternatives that are less toxic if the alternatives
                 are available
                       i. Fear of adverse consumer reactions to warning labels has encouraged them to reformulate their
                          produces to remove carcinogens and reproductive toxins

    B. Two primary provisions
          a. (1) Prohibition on discharge to sources of drinking water – discharge prohibition
                      - No person “in the course of doing business” shall knowingly discharge or release a
                          chemical “known to the state to cause cancer or reproductive toxicity” into water or
                          land where it can pass into a “source of drinking water”
                              o Provision doesn’t apply to:
                                        Private parties
                                        Govt (remember, this was a proposition, not legislation. Needed to get
                                           political support in the campaign. Going after businesses, not govt)
                              o Exceptions to requirement:
                                                                                                                  7

                                          Will not cause any significant amount of the chemical to enter source of
                                           drinking water, AND
                                          Release in compliance w/ all other laws (very difficult to show)

        b. (2) Warning provision
                  - No person “in the course of doing business” shall knowingly and intentionally expose
                       any individual to a chemical “known to the state to cause cancer or reproductive
                       toxicity” without first giving a “clear and reasonable warning” to such individual
                            o Can’t qualify the warning—can’t undercut the scariness of the warning
                            o Exceptions to requirement:
                                      No significant risk of cancer assuming lifetime exposure at the level in
                                         question (10 in 1 million – significance threshold)
                                      No observable effect of reproductive toxicity assuming 1000 x level
                                         (assuming exposure 1000 times the level of the product). E.g. birth
                                         defects
                            o Exemption: Naturally occurring carcinogens
                                      Food products containing naturally occurring carcinogens and
                                         reproductive toxins are exempted from the requirements of the
                                         legislation
                                      However, producers and distributors of food are required to use quality
                                         control measures that reduce natural chemical contaminants to the
                                         ―lowest level currently feasible‖
                                      Prop 65 was directed only at controlling exposure to toxics added to the
                                         environment by human activity
C. Penalties
      a. Up to $2,500/day for each day of violation
      b. Injunctive relief
      c. Attorneys’ fees

D. Key Concepts
      a. Burden shifting
               i. Defendant has to prove that the exemption applies
      b. Private enforcement (after notice)
               i. Prop 65 allows public and private enforcement
              ii. To get standing, must give notice to alleged violator of what the violation is, and must give
                  same notice to Attorney General, district attorney of county area, and city attorney; usually 60
                  days notice before bringing lawsuit
             iii. During this time, if no prosecutor takes the case or is diligently looking into it, then you have
                  the right to sue
      c. ―Known to state‖
               i. AFL-CIO v. Deukmejian: CA case that held chemicals found to be carcinogens or reproductive
                  toxins as a result of animal testing had to be included in the minimum list of chemicals ―known
                  to the state to cause cancer or reproductive toxicity‖
              ii. Good number of chemicals on the list that the fed govt doesn’t find carcinogenic:
                       1. Calcium supplements
                       2. Car batteries
                       3. Lead tape for golf equipment
                       4. Lead machine molds
                       5. Smokeless tobacco products
      d. ―Significant risk‖
               i. for carcinogens, risk greater than 1 in 100,000
              ii. for reproductive toxins, exposure at a level of one-thousandth the no-observed-effects level or
                  above constitutes a ―significant risk‖
      e. ―Clear and reasonable‖ warning
               i. What do you say?
                       1. ―Safe harbor‖ language
                       2. Context?
              ii. How do you say it?
                                                                                                                          8

                             1. Write it on product
                             2. Ads, mailings
                             3. Internet/website
                             4. Signs
    E. Policy Considerations
           a. Possible to overwarn?
                     i. If you can’t put a warning into context, what are the good things and bad things of putting a
                        warning on the product?
                    ii. Who has the right to decide that the risk from the lead is outweighed by the risk of not taking
                        calcium?
                   iii. Overwarning can dilute the effectiveness of any warning
           b. Is warning meaningful to help people assess risks?
           c. What about explaining benefits?

    F. Many unresolved questions
         a. Interplay between statute of limitations and ―passive migration‖ theory
                  i. Prop 65 has no S of L; so you go to general law of statute of limitations (1 yr); for
                     injunctive relief, you can go back 3 yrs
                 ii. Release from a tank: can think of it as a release that occurred 10 years ago, or it’s a
                     release that is occurring presently, since the release occurs over and over again
         b. ―one new molecule‖ theory
                  i. you have an old release (e.g. gas tank that leaked a lot but you have a new one now; it
                     starts leaking a little); by leaking a little tiny bit in a place where you used to leak a lot
                     before  does this trigger the injunction to clean up the whole thing?
         c. abstention/primary jurisdiction
         d. ―knowingly‖: implied?
         e. ―Course of doing business‖—include clean-ups for old releases?
         f. ―Source of drinking water‖?
                  i. State takes the position that all water is potential drinking water, even if it’s heavily
                     contaminated and not being used as drinking water
         g. Scope of any injunction
                  i. Ban is absolute

    G. 2002 Reforms
          a. 60 day notice to include ―certificate of merit‖ – some technical scientific person to certify it, saying
              there is some merit
          b. all settlements to be submitted to AG’s office for opportunity to comment

III. Air Quality Protection
     A. Clean Air Act
            a. Purpose: fundamental goal of the Act (passed in 1970) is the nationwide attainment and maintenance
                 of National Ambient Air Quality Standards (NAAQS)
                      a. HAPS, NESHAPS, under § 112; NAAQS under § 109 (main thrust of the Clean Air Act)
            b. Regulates two different types of pollutants:
                     a. Conventional or criteria pollutants (main focus)
                              1. Definition: criteria pollutant is one which the EPA has determined endangers the
                                 public health or welfare and which is produced by numerous and diverse sources
                                      a. Carbon monoxide - cars
                                      b. Sulfur dioxide – emitted by burning coal; pollutant that causes acid rain
                                      c. Nitrogen oxide – auto emission and fuel combustion
                                      d. Volatile organic compounds (VOCs) – auto emissions, paint shops
                                      e. Particulate matter
                                      f. Lead – air emissions of lead
                     b. HAPs = hazardous air pollutants
                              1. toxic substances that get into the air
                              2. regulated by National Emissions Standard for Haz Air Pollutants (NESHAPs)
                              3. regulations designed to regulate factories
                                                                                                                    9

                          4.   not the major type of air pollution
                                    a. Technology-based caps; ask industry to do what it can given tech at the time
B. NAAQS
      a. NAAQS = acceptable concentration of a pollutant in the ambient air, measured over a designated
         averaging time, that will protect the public health w/ an ―adequate margin of safety‖
      b. Two parts:
              a. Concentration (cubic meter of air; micrograms/m3)
              b. Time element: how long in the average is someone going to be exposed to it
      c. Ambient air, not some odd exposure at the work place or residence in a unique area
      d. Health-based standards = based on what is healthful to breathe; NOT based on cost or what is
         technologically feasible
              a. Lead Industries Ass’n v. EPA: first case in which court articulated that the NAAQS are
                 health-based and not based in any way on cost or technological feasibility
      e. Must be based on scientific knowledge
      f. NAAQS are seldom adjusted; EPA has ―discretion‖ to maintain them, or change them
      g. EPA is not permitted to do cost-benefit analysis in setting NAAQS

C. Implementation
      a. Air Quality Control Regions (AQCRs) = entire nation is divided into air quality control regions. Each
          state is required to designate every area in the state as attainment, nonattainment, or unclassifiable as to
          each criteria pollutant w/in 1 yr of EPA’s promulgation or revision of a NAAQS
                a. CA = divided up into different regions within the state (unlike other states)
      b. State Implementation Plans (SIPs) = each state must come up with a plan to get the emissions within
          their state and their control regions to meet the NAAQS
                a. 5 things SIPS must do:
                         1. Must determine existing and projected levels of criteria pollutants in each of the
                              air quality regions
                         2. Need to determine what emissions deductions are necessary to meet the NAAQS
                         3. Need to inventory where the emissions are coming from and where they are
                              likely to come from in the future
                         4. Must decide on control strategies and allocations of reductions of emissions from
                              these sources
                         5. SIP must demonstrate to EPA that in fact doing all of this, you will indeed come
                              to have a state or a region that meets the NAAQS
               b. Tend to deal exclusively with stationary sources of pollution (transportation is handled
                     federally)
                c. General SIP requirements (examples):
                         1. Enforceable emissions limitations and other measures necessary to attain and maintain
                              the NAAQS
                         2. Methods for compiling air quality data for the state
                         3. Boundaries of the SIP
                         4. An enforcement program
                         5. Provisions to control interstate and international pollution
                         6. Measures to ensure adequate personnel, funding, and authority
                         7. Requirements for sources in the state to monitor and report their emissions
                d. After a NAAQS is promulgated or revised, a state has 3 years to prepare or revise its SIP
                e. State develops plans and then presents it to EPA
                f. EPA then decides whether or not the SIP will meet the requirement
                         1. EPA has 6 month to determine whether SIP is complete
                         2. EPA has 1 year from its completeness determination to decide if SIP meets the
                              requirements of the CAA
                         3. EPA may approve, disapprove, partially approve, or conditionally approve an SIP
                g. Variances: States may adopt variance provisions which allow individual sources to seek relief
                     from stringent SIP provisions if they feel the SIP requirements are economically or
                     technologically infeasible
                h. Courts have authority to issue injunctions requiring sources to comply w/ the SIP
                i. If SIP doesn’t meet the NAAQS, then fed govt can impose its own plan (FIP)
                                                                                                                   10

                         1.  Federal implementation plans (FIPs) = EPA has 2 yrs to promulgate an FIP for a
                             state that has failed to meet SIP requirements unless the state corrects the deficiency
                             and has its plan approved within that time period
                        2. Deficiencies that trigger FIP sanction:
                                  a. Failure to submit or revise an SIP
                                  b. Failure to submit a complete SIP
                                  c. Partial approval or disapproval of an SIP
                                  d. Disapproval after not meeting the conditions of a conditional approval
                 j. Train v. NRDC  variance provision in SIP; NRDC sued, said variance was poor regulating;
                    court said that state can do whatever it wants, so long as NAAQS is me
                 k. Union Electric v. EPA  MO SIP was aggressive, substantially reducing emissions, etc.
                        1. UE said it was impossible to meet standard; Supreme Court said that was not a good
                             argument; EPA cannot reject SIP on technology or expense

D. New Source Review (NSR)
      a. You have this system set up where you’re trying to meet the NAAQS, which is health based; states
          are given this costful job; EPA comes in and says, if someone is going to build a new power plant,
          we’re going to help out this process by making sure the plant meets the minimum of installing the
          best technology
               a. Best available demonstrated technology (BADT): the emission standards for new
                   sources in listed categories are set at a level ―which reflects the degree of emissions
                   limitation achievable through the application of the best system of emission reduction
                   which . . . has been adequately demonstrated‖
      b. When someone modifies an existing power plant, is that considered a new source? (e.g. replacing
          the inside of the factory, but having the same building)
      c. What is new?
                i. A ―new‖ source is one that is constructed or modified after the publication of the standard
                   of performance
               ii. ―Modification‖ is ―any physical change in, or change in the method of operation of, a
                   stationary source.‖ A modification must result in an increase in emissions of a particular
                   pollutant or in the emission of a new pollutant
              iii. ―Stationary source‖ is any ―building, structure, facility, or installation which emits or
                   may emit any air pollution‖
E. Title V
        c. 1990 Amendments in Title V require all ―major sources‖ and other sources regulated under the CAA to
           have a permit
                i. ―Major source‖: source is ―major‖ if it emits or may potentially emit 100 tons per year of
                    criteria pollutant
        d. Federally mandated permitting program
        e. States must submit permit programs to EPA for approval, which the EPA may reject if they fail to
           meet the standards of the CAA
                 i. Elements of a state permit program: (see EM 67)
                         1. public access
                         2. public participation
                         3. minimal conditions
                         4. modification provisions
                         5. standardized permit application
                         6. fees
        f. Public participation. Public has opportunities to participate in the permitting process = under
           state permit programs, any person has the opportunity to comment on permits, to seek review of
           permits in state courts, and to compel the state to take final action on a permit application. Any
           person also may petition EPA regarding state permits and seek judicial review of EPA’s action
        g. How does it work?
                 i. If you’re a major stationary source, you can go to fed govt, tell them about your factory,
                    and they will issue you a permit
                ii. Permit says what you’re allowed to emit
                                                                                                                     11

                 iii. Like the SIPs, Title V permit process is given to the states, w/ EPA watching over the
                      function; EPA can step in and object
         h.   Benefits of permits:
                   i. Enforcement benefits: permits simplify monitoring and review b/c all requirements tha a
                       source must meet are in one document. Permits also allow for increased monitoring by state
                       agencies and reporting by sources
                  ii. Environmental group benefits: environmental organizations like the permit system b/c the
                       public may participate in the permitting process at several levels
                 iii. Source benefits: sources like the permit system b/c compliance w/ a permit is generally
                       deemed to be in compliance with the CAA

F. Nonattainment Areas
      i. Areas of the country that are not able to attain the NAAQS
      j. Various ways EPA or state can ―kick it up a notch‖ to get this non-attainment area into an attainment
           area
      k. Special SIP provisions are required for nonattainment areas  most significant requirement is the
           preconstruction review process for new and modified sources in a nonattainment area
      l. Certain sources must have permits to operate in nonattainment areas

G. Prevention of Significant Deterioration Program (PSDP)
       m. Prevention of significant deterioration (PSD) areas = areas that have better air quality than that
           required by NAAQS
       n. All SIPs must contain measures necessary to protect these areas
                i. Sierra Club v. Ruckelhaus: Sierra Club brought suit in 1972 to compel EPA to prevent
                    serious deterioration in areas that had superior air quality b/c Sierra was afraid the air quality
                    would be allowed to degrade to the NAAQS level. Sierra argued that purpose of CAA was to
                    protect and enhance the nation’s air resources, and that the EPA was required to create a
                    program to protect these areas
                         1. Holding: EPA did have a non-discretionary duty to prevent significant
                             deterioration of air quality in these areas
       o. PSD program was designed by Congress to prevent deterioration of areas that have already met the
           NAAQS; preventing new sources from coming in and polluting an area that is ―good‖

H. Title II
        p. Mobile source review under Title II
               i. Mobile sources are the other sources that are directly regulated by the fed govt
              ii. ―Mobile sources‖ of emissions are the primary source of hydrocarbons, carbon monoxide, and
                   nitrogen oxides
         q. Four ways to control mobile emissions:
                 i. Control the combustion process of the automobile, such as a catalytic converter or make
                    car that burns fuel more efficiently
                ii. Burn cleaner fuel; change the fuel somehow, make it so it doesn’t emit as much air
                    pollution
               iii. drive cars which are cleaner cars, brand new technology (e.g. electric cars)
               iv. drive less

I.   Enforcement
         r. CAA is enforce by the EPA, through citizen suits, and through petitions for judicial review of EPA’s
              actions
                    i. EPA enforcement: primary method is to bring a civil suit for injunctive relief or penalties.
                       Can also impose administrative penalties and criminal sanctions
                   ii. Citizen suits (see below)
                  iii. Petitions for judicial review: certain actions by EPA are subject to judicial review under CAA
                            1. a person or group may petition for review of the actions of EPA in promulgating or
                                acting upon any national, local, or regional standard or regulation, including primary
                                and secondary NAAQS and state implementation plans
J.   Citizen Suits
                                                                                                                       12

             s.   Citizen Suit Provision in the Clean Air Act that allows citizens to sue for violations of any
                  provision of the Act
             t. Any person may bring a citizen suit against a source to enforce any emission standard or permit
                limitation, or may sue EPA if the Administrator fails to perform a non-discretionary duty
    H. Why is CO2 unregulated?
           a. It is not an air pollution agent; act is not designed to address a ―global‖ pollution issue; CO2 ambient air
                quality is the same across the globe; NAAQs could not do anything about it; Congress must decide how
                to deal with it
    I. County law says 15 ppm; state law says no county power; state says 15 ppm, 30 ppm for power plants  what
       law rules?
           a. State, perhaps, because EPA cannot pick and choose portions of SIP

    K. Acid Deposition Control Program (*Trading) p.537
          b. Title IV – concept of trading as an attempt to control emissions from certain types of sources
          c. Title IV program for acid rain reduction is an example of a ―cap and trade‖ program:
                   i. Title IV caps acid rain emissions nationwide, assigns each of the sources included in the
                      program an allowance o permissible emissions, such that the total allowances equal the
                      cap, and then permits emissions trading among the sources

IV. Assessing and Balancing Environmental Risks
    A. Risk Assessment and Management
            a. By mid-1970s, policymakers were forced to develop new process for studying and regulating hazards
            b. Policy-making for these hazards involves two steps:
                      i. Risk assessment: use of scientific research to define the probability and severity of some
                         harm coming to an individual or a population as a result of exposure to a substance or situation
                     ii. Risk management: public process of deciding what to do where risk has been determined to
                         exist, including integrating risk assessment w/ considerations of engineering feasibility and
                         figuring out how to exercise our societal imperative to reduce risk in the light of social,
                         economic, and political factors
            c. Dose-response assessment: risk assessment is usually an inexact science  to determine risk of
                particular substance, lab animals are exposed to high-level doses of the substance until some reaction
                (usually cancerous tumors) develops. Then scientists take this data and extrapolate backwards to
                determine the probability of injury from some percentage of that dosage
    B. See lecture notes 2/19/04


IV. Water Quality Protection
    A. Clean Water Act
           a. Act imposes national, technology-based standards on individual sources to make the nation’s waters
               fishable, swimmable, and to eliminate the discharge of pollutants into navigable waters

    B. Regulatory Framework
          a. Three major programs addressing the individual pollutant sources:
                    i. Point source: ―any discernible, confined and discrete conveyance discharges pollutants from a
                       specific conveyance.‖ Direct discharges into water systems are permit-controlled
                            1. Point sources do not include human beings
                            2. NPDES: National Pollutant Discharge Elimination System grants permits that control
                                 the amount and concentration of pollutants that are discharged directly into streams,
                                 lakes, or the ocean by industrial and municipal facilities
                   ii. Non-point source: pollution from runoff or from a nondiscrete source, also called areawide
                       pollution, requires different methods of control. Includes pollution from nonspecific areas, but
                       regulation of these areas has produced little actual control
                  iii. Oil spills: directly addressed through the oil spill program
          b. Pollutants we’re concerned with in the Clean Water Act:
                    i. Conventional pollutants: group of things that are organic waste and chemicals that
                       decompose in the water  problematic because ecosystems need oxygen in water, etc.;
                       breakdown of organic wastes consumes oxygen (can result in anaerobic situation, where things
                                                                                                                   13

                      like methane, etc., are being created); can block sunlight from reaching bottom of body of
                      water, etc.
                           1. Bacteria, suspended solids, total dissolved solids
                           2. Nitrogen, phosphates, other nutrients and fertilizers
                  ii. Toxic pollutants: arsenic, chromium, solvents, stuff manufactured and disposed of by a
                      modern industrial society
        c.   §301
                   i. Prohibits the discharge of pollutions into navigable waters unless the discharge are in
                      compliance w/ the terms of the Act (which includes getting a permit under §404 and §402)
                  ii. ―Discharge of pollutant‖: any addition of pollutant to the navigable waters from any point
                      source
                 iii. ―Point source‖: ―any discernible, confined and discrete conveyance.‖ If it is a point source,
                      you can’t discharge from it unless you have a permit
        d.   §502
                   i. Definitions for terms in the Act
        e.   §402
                   i. establishes a national permit program NPDES to cover the entire nation for any point-source
                      discharging pollutant in navigable waters of US
                  ii. Permit: permit has a fluid limitations put on it; it tells you how much and at what rate and
                      what concentration you can discharge certain kinds of pollutants from point-sources
        f.   §404
                   i. Gives power to Army Corp of Engineers to regulate the disposal of dredged or filled materials
                      into the waters of the US
        g.   NOTE: Emphasis of Clean Water Act is not the water quality but on the effluent standards
        h.   NOTE: Unlike the Clean Air Act, CWA’s focus is on what the achievable limitations are, allowing
             only what is technologically feasible

C. Commerce Clause
      a. What can Congress do, what can EPA do, to regulate discharges into bodies of water? What does the
         Commerce Clause allow?
      b. Riverside Bay View Homes: adjacent to navigable waters was wetlands. Question was, are wetlands a
         body of water that can be regulated by Congress?
              i. Holding: Yes, Congress can regulate. Purpose of the CWA is to protect water quality; it was
                 appropriate for the Army Corp of Engineers to look at the entire body of water. They have to
                 make sure wetlands are okay so the entire body of water is protected
      c. Cook County: former landfill that wasn’t being used for anything anymore; it was miles away from
             any navigable waters; there were little ponds in the landfill (formed b/c the landfills had little areas
             where water could gather when it rained); Cook County wanted to get rid of the water bodies;
             Army Corp of Engineers said they had to get a permit to get rid of those ponds; question was
             whether they needed to get permits
                  i. Argument: Cook County said that these weren’t navigable waters. Core said there is a
                     migratory bird rule. One of the things they can regulate under the Clean Water Act are
                     bodies of water that birds which migrate need to stop at on the way to where they were
                     going. They found that there were birds that stopped at these landfill ponds. Commerce
                     Clause rationale. There are many Americans that follow migratory birds so therefore this
                     is an interstate issue
                 ii. Holding: (5-4) said this particular application of migratory birds was an unreasonable
                     interpretation of statute by Army Corp of Engineers; they dodged the constitutional issue
                     under the statutory construction; majority distinguishes this case from Bay View Homes
                iii. Dissent: Stevens said majority is not following the rationale of Bay View Homes

D. Permits
      a. CWA permit system is the National Pollutant Discharge Elimination System (NPDES)
      b. Permits may be issued by the state or by EPA
              i. State-issued permits: state may issue permits if it has an EPA-approved permit program
             ii. EPA-issued permits: EPA has permitting authority in states without an approved program
      c. Permits last for 5 years
                                                                                                                         14

        d.   Purpose of a permit is to identify and limit the most harmful pollutants while leaving a vast number of
             other pollutants to disclosure requirements

E. Effluent Limitations
       a. Technology based
        b. Must ask what is it that you want to achieve, a limitation that makes the water drinkable or regulate
           on the principle that you are merely concerned about the fish and wildlife; or do you ask the
           question of what’s economically and technologically feasible, ignoring the other issues
        c.   Different standards:
                   i. Best available technology to limit the effluents coming out of point source (up to EPA to
                      determine what is the best available technology for a given industry)
                  ii. Best practicable technology, which is a little bit less stringent than best available technology
                 iii. Best conventional technology that applies to conventional pollutants
        d.   Problem: puts burden on regulator on what the correct limits should be
        e. Problem: p.623 graph/chart; regulator has to do all this work and the industry already knows all
           the info already; so it’s like a game, where the regulator tries to get info from industry and industry
           will choose what to reveal to them
        f. Note: the quality of the receiving water doesn’t matter when coming up w/ effluent standard; goes
           both ways  if the stream is fine, even as we speak, we still have to apply best available
           technology for the point-source
        g. Note: these are industry wide effluent standards; there’s a variance procedure in the program
           available, but not going to require EPA to justify the standard for every single different point-
           source
        h. There was an attempt to control toxic effluents in the exact same way the Clean Air Act does;
           develop health based standards of water quality of receiving bodies; it turned out EPA couldn’t
           figure out how to do it—it is TOO COMPLICATED in a way that could be justified

F. Water Quality as ―Safety Net‖
      a. In addition to fed effluent standards, each state retains the authority to promulgate its own standards
          regulating water quality
      b. States go through several steps in promulgating and revising water quality standards:
                 i. Designate uses: a state must designate the use of each body of water within the state
                ii. Determine criteria: state then determines criteria, or the maximum concentration of a
                    pollutant that can be allowed without jeopardizing the designated use
               iii. Determine total maximum daily load: state next determines the total maximum daily load,
                    or the total amount of a pollutant from point sources and nonpoint sources that will not cause
                    the water to exceed the criteria
               iv. Translate into permit limitation: Finally, the state translates an individual plant’s share of
                    the TMDL into a numerical limitation in the source’s permit
      c. Under EPA’s antidegredation policy, states may not lower existing uses and the water quality necessary
          for them. However, a state may lower the use of certain high quality water to fishable and swimmable
          level if necessary to accommodate important social or economic development.
                 i. State may not lower the use of outstanding national resources such as waters in national and
                    state parks or of other exceptional importance
      d. Toxic Hot Spots
                 i. These are areas that consistently fail to meet water quality standards due to toxic pollution
                ii. CWA requires states to identify those areas and the facilities involved in those areas, and to
                    develop ―individual control strategies‖ to ensure that these areas come into compliance (figure
                    out a way to deal with the problem)

G. Non-point Sources
        a.   Non-point source pollution is usually runoff, or pollution not channeled through a discrete
             conveyance
                  i. Farms, construction sites, mining operations, discharges from storm sewers; animal waste
                 ii. Section 208, 319: state was to go out and assess the problem and may be given money;
                     states were to develop management programs to deal with the issues. However, these
                                                                                                                        15

                          provisions have failed to control the significant amount of nonpoint source pollution that
                          is produced

    H. Wetlands
          a. Definition: ―those areas that are inundated or saturated by surface or ground water at a frequency and
              duration sufficient to support . . . a prevalence of vegetation typically adapted for life in saturated soil
              conditions‖
          b. No specific provision in the CWA addressing wetlands protection, but EPA and the Army Corps of
              Engineers have utilized the §404 permit process to provide some protection for wetlands
                    i. §404 governs discharges of dredge and fill material. It requires a permit if you’re going to
                       discharge dredge or fill material into navigable water
          c. Permit requirement  If you want a permit you have to show 4 things:
                    i. There is no practical alternative that will have a less impact on the ecosystem
                   ii. There is no statutory violation that will occur
                 iii. There will be no significant adverse impacts such that if you dredge or fill the wetlands it
                       will cause a million problems, either individually or cumulative
                  iv. You’ve taken all reasonable mitigation measure
             d. Exemptions from permit requirement: certain activities are exempt from the permit requirement
                for discharges of dredged or fill material
                      i. Normal farming activities
                     ii. Maintenance or reconstruction of dams
                    iii. Construction or maintenance of farm ponds or irrigation and drainage ditches
                    iv. Construction of temporary sedimentation basins
                     v. Construction of farm roads forest roads, or roads for mining operations
                    vi. Activities covered by nonpoint source pollution programs
             e. 404 doesn’t protect other activities other than filling or dredging that can threaten the wetlands.
                The statute says you can’t discharge dredge or fill into the wetlands. That means you can’t throw
                stuff into it. It doesn’t say anything about making a channel through the wetlands.



    I.   Enforcement
             a. EPA enforcement: EPA may issue a compliance order, may institute a civil action, or may pursue
                criminal sanctions against an alleged violator
             b. Citizens suits: any person w/ standing may sue any alleged violator of an effluent limitation or an
                order issued by a state or EPA

V. Environmental Impacts Analyses in Public Decision Making
   A. NEPA
           a. Introduction
                    i. National Environmental Policy Act is an environmental statute that emphasizes information
                       rather than regulation. It requires the publication of information about the environmental
                       effects of and alternatives to potential govt actions
                   ii. NEPA doesn’t dictate environmental standards or controls
                  iii. One of the most important things about NEPA is that it set a goal for environmental protection,
                       and it set up a methodology
                             1. Instead of imposing substantive mandates, it says our policy is for fed decision-
                                 makers to consider when making environmental decisions
                  iv. Method: consider impacts
                   v. Real procedural mandates: doesn’t impose mandates on private actors, only govt actors
                             1. Only fed actions are affected by EIS requirements. State and local governmental
                                 actions, as well as private actions, are not subject to NEPA
                             2. if there is a sufficient amount of fed involvement in a private action, the EIS
                                 requirement may be triggered
           b. Purpose
                    i. NEPA establishes policy, sets goals, and provides the means for carrying out the policy
                   ii. It’s emphasis is on information: both the documentation of environmental statistics and the
                       dissemination of the documentation
                                                                                                          16

        iii. NEPA requires fed agencies to consider the effects of their actions on the environment by
              preparing a detailed Environmental Impact Statement (EIS)
                  1. Agency only needs to consider the environmental consequences of its actions
                  2. Once the agency has made a decision, the ct may only interject to ensure that
                       environmental consequences were indeed considered, and not to change the decision
                       made by the agency
                  3. Where environmental consequences have been considered, no more is required by
                       NEPA
                  4. Included in the EIS must be a discussion of the alternative proposals to the govt action
                       and the environmental impact of each
                  5. Main purpose of the EIS is to inform the public as well as the decision-makers about
                       the proposed action and the alternatives to such action
c.   Council of Environmental Quality
           i. NEPA established CEQ to assist the President w/ environmental concerns
          ii. Main responsibility of the CEQ is to issue guidelines to interpret NEPA’s requirements
d.   NEPA Cases
           i. Calvert Cliffs:
          ii. Strycker’s Bay:
e.   EIS: Environmental Impact Statement
           i. Exemptions from EIS obligation: certain situations exist in which the obligations under
              NEPA cannot or need not be met by an agency
          ii. Environmental Assessment: EA is a short document which outlines the proposal and its
              possible environmental impact. It aids the agency in determining whether a full EIS is
              necessary
        iii. Finding of No Significant Impact: With the aid of the EA, the agency decides whether to do
              an EIS. If it decides not to, it issues a ―Finding of No Significant Impact‖ or FONSI
                  1. Issuance of a FONSI is usually the last NEPA action on a project
                  2. FONSI may not be issued for activities which have a potential
         iv. When must an EIS be prepared?
                  1. EISs are only required for ―proposals for legislation and other major Federal actions
                       significantly affecting the quality of the human environment.‖
                             a. Human environment means the natural and physical environment and its
                                 relationship w/ the people of that environment
                             b. Economic and social effects are not enough in and of themselves to require
                                 an EIS
                             c. Significant impact on the physical environment must be demonstrated
                  2. Kleppe: SC has ruled that an EIS need only be prepared when an agency has actually
                       made a proposal, not when it is merely contemplating some action
          v. “Significantly affecting the quality of the human environment”
                  1. what does ―significant‖ mean?
                  2. Hanly: balancing test  it is up to the agency to decide (2-part test):
                             a. The extent to which the action will cause adverse environmental effects in
                                 excess of those created by existing uses in the area, and
                             b. The absolute quantitative adverse environmental effects of the action itself
         vi. Adequacy of the Environmental Impact Statement
                  1. Generally, the EIS must include the environmental effects of the proposed action and
                       alternatives to the proposed actions, and the alternatives’ own effects
                  2. Consideration of Alternative: Agency must consider alternatives to the proposal and
                       the environmental impact of those alternatives, even if no EIS is required
                  3. Mitigation: mitigation of the environmental impact must be considered in the EIS
        vii. Quality of EIS
                  1. Almost every NEPA case focuses on the quality of the EIS
                  2. Sierra Club v. Army Corp of Engineers: EIS must set forth sufficient info for the
                       general public to make an informed evaluation and for the decisionmaker to make a
                       good decision
                             a. Ct struck down the EIS for relying on too little data; didn’t satisfy the
                                 arbitrary and capricious standard
f.   Recap:
                                                                                                                        17

                       i. NEPA regulations set many less-than-EIS rules:
                             1. EA: environmental assessment
                             2. FONSI: finding of no significant impact
                             3. Public review and comment: must be circulated for public review so people can
                                 lobby if they want to
                             4. Alternatives: alternatives could be reduced intensity of the proposal; EIS must
                                 include alternatives

    B. CEQA
    1. California Environmental Quality Act
           a. Amazing statutory scheme from fairly modest roots
           b. CEQA gave people a tool to influence policy that was hugely powerful
           c. State analog to NEPA
    2. much broader (than NEPA)
           a. applies to more projects
                      i. CEQA applies to all state, local, and regional agencies
                     ii. It says that before undertaking any discretionary action that might impact the environment you
                         have to prepare an EIR
           b. Case law: must do EIR if there is a ―fair argument‖ that there ―might‖ be ―significant impact‖
                      i. Environmental impact report (EIR)
                     ii. If you do an EIR then the EIR is to be upheld if there is any substantial evidence supporting its
                         conclusions
                    iii. So very undeferential standard if you don’t do EIR, but very deferential if you do the EIR
    3. Substantive mandates
           a. Must adopt feasible alternatives or mitigation procedure that will decrease or avoid significant impacts;
                not optional
           b. Different from NEPA, where you are only required to consider it
    4. Strict procedural rules
           a. CEQA has more than NEPA
           b. Prepare and circulate DEIR – draft of environmental impact report
                      i. People can comment on them
           c. Agency must respond in writing in FEIR (Final EIR) to every comment
                      i. Different from NEPA
    5. Broad standing to sue under CEQA
           a. (1) Beneficial interest OR
           b. (2) Citizen exception
                      i. Anyone who has beneficial interest can sue or if you’re a citizen and you allege that you care
                         that is enough to sue, you have standing
                     ii. Organizations can take advantage of the citizen suit as well as long as they show they have
                         members that care
                    iii. Agency can’t question members caring, the ct will just believe the organization. So basically,
                         almost EVERYONE can sue
                    iv. exception: operator of one facility sued the competitor facility. Operator #1 said that they had
                         to deal w/ so much shit and the other facility doesn’t have to. So they filed a suit saying that
                         Op #2 doesn’t have a sufficient EIR. Ct said that the statute is not designed to protect
                         competition. Operator #1 can’t support the citizen exception.
           c. CA ―private attorney general‖ statute allows for atty’s fees if you win: if someone bring litigation to
                enforce important public right, they are entitled to recover reasonable attorney’s fees
                      i. The whole point is to help the groups that don’t have an economic interest that would be
                         sufficient to justify the bringing of the lawsuit (not for corporations that would have sued
                         anyway, regardless of whether this AG provision exists)

Practical Effects
    1. Forces focus on environment
    2. Empowers communities and others
    3. Leverage (maybe for other issues, like competition, labor K, NIMBY)
    4. Delays
                                                                                                                       18

VI. Land Use Controls and Regulatory Takings
    A. Introduction
           a. 5th Amendment provides that the fed govt shall not take private property for public use ―without just
               compensation.‖
                     i. It’s fine for govt to invoke its power of eminent domain to come in and take your property
                    ii. MUST be done for public purpose
                   iii. MUST be compensated
           b. No statutes involved, just cases
           c. Regulatory takings: What the govt does to regulate the use of the land; claim is that the regulation is
               prohibiting the uses in such a way that it’s making the property not as valuable
    B. Applicability
           a. Takings clause of 5th Amend applies to all levels of govt: fed, state, and local
           b. Not limited to physical seizures of property
                     i. Physical invasion of property is a per se taking
                    ii. Pennsylvania Coal: Holmes said when a regulation ―goes too far‖ it is a takings. Question
                        this raises is, to what extent is ―too far‖?
    C. Legitimate State Interest
           a. In imposing environmental regulations which affect land use, the state acting pursuant to its police
               powers must have a ―legitimate state interest‖
           b. Penn Central: regulation of a private owner’s use of his property to protect the environment is
               regarded as a public interest (finding that a NY landmark preservation law didn’t constitute a taking of
               P’s prop)
                     i. SC determined it wasn’t a takings, but came up w/ a balancing test:
                              1. RIBE: reasonable investment back expectation
                              2. Character of govt action: is govt action in good faith? Are there alternatives? Is it
                                   reasonable? Etc.
                    ii. In this case, govt was granting them other air rights over other buildings—so govt was doing
                        things to substitute what they were taking



    D. Cases
       1. Lucas
             a.       Facts: Lucas had beachfront property; two yrs after, SC legislature enacted the Beachfront
                      Management Act, which prohibited the building of residence at a certain distance from the beach;
                      SC hade huge erosion problems and their beaches were getting wiped out, so the govt prevented
                      people from building things on beaches to alleviate the problem; people had already built houses on
                      their lots before the Act; Lucas and a few other people were prevented from building on their own
                      lots
                             i. Lucas argued the regulation constituted a taking because now he had no economic use of
                                his land anymore, and that was the reason why he bought the land in the first place, to be
                                able to build a house on it
                            ii. Trial ct made a couple of findings: it was a takings, and the land had NO value at all
                                anymore; defense of state was it was a normal exercise of its police powers, and there is
                                no 5th Amend analysis that could take place at all
                           iii. SC Supreme Ct: ruled there was NO taking
                 b.   Holding: (Scalia) SC agreed w/ trial ct b/c since there’s no economic value of the land anymore, it
                      was a takings. He said the state’s exercise of its police powers doesn’t give them immunity—
                      brushes aside this issue. He goes on to formulate the new rule
                             i. RULE: it is a takings under 5th Amend when a regulation deprives the owner of land
                                of all economic uses of the land regardless of whether the state articulates some
                                police power basis for what it did

                 c.   So after Lucas, we have: (things to look at when looking at a takings situation)
                           i. Physical possession, no matter how small
                          ii. No beneficial economic use which is inconsistent w/ state’s decisional law
                                   1. Categorical: if you show this, it’s a takings, period
                                                                                                                19

                           2. Problem with categorical analysis: what is it that you are saying is rendered
                              value-less? Go back to the bundle of rights = property. Think of the property as
                              being split up into A, B and C, and only B gets harmed, and A’s prop gets
                              rendered half-valueless
                  iii. Penn Central showing  balancing test
                          1. Not categorical: it all depends
2.   Palazzolo
         a. Facts: Rhode Island, corporation that owned some property somewhere close to sea in wetlands
             area; property purchased in 1959; in 60s, corporation tried to develop property, but abandoned idea;
             in 1971, the state of RI created special council to regulate uses of land near seashore, and they
             passed rules to protect coastal property and wetlands, and designed specifically for people like
             Palazzolo to develop on the wetlands property; in 1978, corporation dissolves, and the land was
             devolved to Tony as the sole shareholder; Tony gets property for the first time after the 1971 Rule
             which prohibited development; in 1980s, he wanted to develop a beach club, but he didn’t satisfy
             the various rules; part of his property wasn’t wetland and was valued at $200K
                   i. RH SC ruled his takings claim wasn’t right
                  ii. Issue is, has he pushed this proceeding far enough along before the RI Coastal Council
                      that they made a final decision that he can’t use the land in a certain way so that SC has a
                      record to go on to figure out if there was a taking
         b. Holding: (Kennedy) said that the record was pretty clear that they weren’t going to allow any
             development on this property. Therefore, this should not be counted as a taking. SC held that a
             regulatory takings claim is not necessarily defeated simply b/c the regulation existed before
             petitioner acquired the land.
                   i. Ct pointed out that one of the main purposes of Takings Clause was to enable citizens to
                      obtain compensation for manifestly unreasonable and onerous state actions, and that such
                      actions do not become more reasonable merely through passage of time or transfer of
                      ownership
                  ii. Tony can’t challenge the 1971 rule saying it’s a taking b/c Tony got his property after the
                      rule has been placed
                 iii. Tony filed suit under Categorical and Penn Central (see above). Under categorical
                      (economically valueless) he took the property with the law embedded in it already that one
                      can’t develop on wetlands. It fits in this categorical element b/c its not inconsistent w/
                      state law. Under Penn Central, they said there’s a balance going on. But RI SC said that
                      Tony had no reasonable expectations that he could have built a private beach club b/c
                      when he took it he couldn’t do that and he should’ve known
                 iv. RI SC also rejected that you couldn’t apply categorical concept here because the whole
                      property hadn’t been deprived of all economic use (assuming the 1971 rule was valid)

         c.   HYPO: say there is someone in 1959 purchases a property for 1 million. In 1971, a law is passed
              that says: can’t develop on this property at all. 1972, could A assert a claim? Yes, he can say the
              rule screwed him. But, say he doesn’t challenge the rule. In 1978, another person (B) purchases
              the property. In 1979, can B challenge the rule? No b/c he knew about the rule when he purchased
              the land. According to Lucas and RI SC, B can’t file suit b/c he knew what he was getting into.
              (Kennedy) said that they’re not going to tell them what a background principle, but RI SC said that
              any pre-transfer rule is such a background principle. Therefore, if there are any laws prior to your
              purchase you have no right to assert a takings suit
                    i. Kennedy was saying, in 1971, the rule was unconstitutional, so how could it be any
                        different in 1979?
                   ii. A, who paid a $1 million, could’ve brought suit. But B got what he paid for: he knew
                        about the rule and he only paid $200,000. that’s why he doesn’t have the same right to
                        challenge the rule as A did
         d.   O’Connor: agrees with Kennedy, but also said it’s important to know how much B paid for—if B
              had paid $1 like A, B would have a strong claim, too

3.   Tahoe
        a. Facts: Tahoe known to be a pristine lake that is blue b/c there are no erosion/sediment. But as
           development increased in the past 40 yrs, the clarity of the lake has become less and less. CA and
           NV decided to pass rules to restrict land use around the lake; council imposed a moratorium around
                                                                                                                          20

                       the lake. The purpose was to figure out what to do w/ the problem. The moratorium lasted 3-6 yrs.
                       People who owned vacation home property around the lake couldn’t develop for several years.
                       These people argued this was a taking based on a categorical concept of Lucas. They said they
                       were deprived of all uses of their land for that period. They did sue under Penn Central.
                  b.   Holding: (Stevens) situation didn’t fit the categorical Lucas rule b/c the property was NOT
                       completely valueless and deprived of all economic use. SC concluded that a temporary
                       moratorium on development—even one that denies all economically viable use—is not a per
                       se or categorical taking
                              i. There were portions of their property that still had value
                             ii. You can’t aggregate a piece of property and point to one portion of what you aggregated
                                 out and say you don’t have any property value
                            iii. Also, a temporary moratorium by its very nature restores the value of the property once
                                 the restriction is lifted
                            iv. Stevens also said the kind of rule the Lake Council imposed was a good idea
                                 (moratorium)—moratorium good b/c by having a temporary freeze, it allows people to get
                                 together and figure out what they should do instead of rushing and doing a sloppy job at
                                 trying to fix the problem
        4.   Dolan
                 a.    Rule: takings situation but comes up in different context. It is the case that govt doesn’t have to
                       e.g. provide welfare, doesn’t have to provide for people to get public assistance, but if it does, it
                       can’t condition the acceptance of the public assistance on, for instance, asking for loyalty from
                       them—violation of 1st Amend; can’t place unconstitutional condition on govt granting of
                       discretionary benefit
                  b.   Facts: Context of people wanting to use their land and they want to get discretionary entitlements
                       granted by local govts for building permits. There are rules about local govt to say you could get
                       this permit but you need to dedicate a certain land for our use
                              i. Bike path: hopefully will mitigate the effects of the bigger store
                  c.   Holding: govt can do this, but there needs to be a nexus or connection between the granting of
                       the permit and the dedication
                              i. SC held that conditions placed on development permits must be ―roughly proportional‖ to
                                 the effects the applicant’s proposed land use will have on the community
                             ii. How closely do those two fit together? And how has to prove that there is a close fit?
                            iii. Majority said it has to be a close fit, not necessarily a tight fit, and we’re going to
                                 require the govt prove the fit is close enough, not the person trying to get the permit
                            iv. Burden here is extremely important in this case; here Dolan was successful b/c govt failed
                                 to meet the burden SC expected them to meet
                  d.   Dissent: doesn’t take issue too much w/ how closeness the fit should be; where they differ is that
                       the burden was on Dolan to show the connection didn’t exist instead of the govt to show there was
                       a connection

VII. Criminal Enforcement
    A. Background
           a. Criminal Enforcement as a concept is important for every lawyer to know  have some basic
               understanding of some criminal enforcement concept

             b.   1899: Refuse Act
                       i. There was a criminal enforcement provision. Remember, Refuse Act was the law that banned
                          the blocking of waterways in rivers and lakes. Idea at the time was primarily a logging
                          problem and abandoning old steamships. It would be a CRIME if you blocked the waterways
             c.   1970s: all major environmental statutes including criminal penalties
                       i. Virtually every single one of them included criminal enforcement provision, often
                          misdemeanor provisions or felony provisions for worst possible provisions
                      ii. Also had civil penalties
             d.   As major laws re-authorized and expanded, criminal penalties increased
                       i. Most laws had ―expirations‖ – something new
                      ii. Congress put in deadlines by which the statute would go away, or part of it would go away
                     iii. Statutes would then come up for reauthorization, and as they were reauthorized, they were
                          always revised
                                                                                                                 21

                 iv. As reauthorization occurred for every one of the statutes passed in 1970s, in every case
                     criminal provisions were added, expanded, increased, etc. Greater emphasis on criminal
                     enforcement to assure that the laws would be followed
                         1. Ex: Clean Air Act made almost all ―knowing violations‖ a potential felony
                         2. You create paper violations when you make a felony (b/c environmental stuff is all on
                              paper, e.g. RCRA  one piece of paper that follows the waste everywhere)

B. ―Knowing‖ or ―Willful‖ Violations
      a. Criminal vs. civil?
               i. Criminal penalties for ―knowing‖ or ―willful‖ violations  just knowing you are doing the act
                  that is ultimately causing the violation
              ii. Malum prohibitum: example, going 65 when the law says to drive 55; things that are bad b/c
                  they are prohibited; makes sense even though its prohibited
             iii. All of these laws have criminal and civil provisions
             iv. Something very odd about these statutes is that, by increasing the range of activities that can
                  create criminal penalties, you create an almost perfect overlap—in environmental law, there’s
                  practically perfect overlap on what you could bring as a criminal matter vs. a civil matter
                       1. you can have a huge range of possible enforcement tools
                       2. having both criminal and civil penalties not totally unique to environmental law; what
                             is unique is the extent to how much they overlap
      b. Prosecutorial discretion
               i. In environmental law, it is the same individual wearing two different hats (civil and criminal)
                  who make decisions on what kind of lawsuit to bring
              ii. Concept is, prosecutors don’t prosecute every case that comes before them. We trust them to
                  use their discretion to decide when something doesn’t need the full weight of maximum
                  criminal penalties
             iii. NOTE: It is against the law for a prosecutor to trade off civil and criminal penalties,
                  enforcement, etc. You can negotiate over both types of enforcement—if there is prosecution
                  for civil matter, you negotiate and try to work something out, within the context of it being a
                  civil matter. But let’s say there’s both criminal and civil prosecution going on at the same
                  time—client’s willingness to make concessions on the civil side will be closely tied to what’s
                  going to happen on the criminal side
             iv. When you have an almost total overlap, when you’ve effectively criminalized all violations,
                  and the decision-makers are the same people, you end up with this very difficult ethical
                  balance (for example, knowing that you’re being prosecuted criminally, asking for civil
                  charges to be dropped)
              v. Ends up relying HUGELY on pros discretion

C. Lighter Standard for Health and Safety Crimes
       a. Mens rea
                  i. Some sense of badness, a guilty mind
                 ii. Need to have this in order to be guilty of a crime – fundamental element of what we consider
                     to be a part of our criminal jurisprudence
               iii. Mens rea mostly came up in food safety rules, e.g. milk laws for pure milk products (bigger
                     dairy operations, it became very clear that if milk isn’t handled well, it could hurt people);
                     public health worry that made people want stronger protection for health and safety crimes
                iv. They had misdemeanor provisions for public health and safety violations
                 v. Problem was, people were sloppy but didn’t intentionally poison the milk, didn’t even know it
                     was bad milk when they sold it. Lack of mens rea.
                vi. So courts started lessening what MR meant in public health and safety context.
               vii. Debate whether that was constitutional or not. Resolved in the affirmative in the case
                     Dotterweich
       b. US v. Dotterweich (US 1943): SC confirmed that for health and safety, public health statutes, a
           lighter MR requirement is acceptable. It didn’t say we only mean this for misdemeanors, but it did
           say, ―this is only a misdemeanor.‖ Wasn’t considered an important case at the time, but now it is b/c
           now there are a lot more public safety laws that cover a much broader scope of human conduct and
           almost give broad discretion for felony prosecution
                                                                                                                        22

D. Penalties/Enforcement aimed at responsible corporate officers
      a. Primarily, responsible corp officers get most of the risk; they get tagged b/c they are people who are in
           the position to prevent the violation. So over time most corporate structures have designated people
           whose job is to oversee the enforcement regiment.
      b. Increase if harm caused
                  i. One big factor is if you have caused harm and to what extent
                 ii. Vast majority of criminal matters involved no harm at all, no actual harm. Violations of laws
                      caught before harm happened (e.g. sent waste off using unpermitted waste hauler)
                iii. You need compliance, even if nothing bad happens. That’s why these are important things to
                      enforce
                iv. If harm does occur, then you’re usually talking about substantially greater penalties
      c. US v. Weitzenhoff (9th Cir 1994): Hawaii case where under Clean Water Act, it was necessary for
           facility to have a certain permit; facility does treatment of waste, waste water is discharged into the
           ocean; it allows the waste stream to bypass the treatment. Almost all water system treatments will have
           that allowance – not desirable, and you’re not supposed to do this a lot, but the permit allows for it.
           Permit created a total amount of solid matter in waste water that you’re allowed to discharge in this
           given facility. Facility did several bypasses in a month and as a result, exceeded its permitted level. It
           got prosecuted as a crime.
                  i. Holding: majority said the statute was fne, it’s okay to enforce this as a criminal matter. It
                      explained that the two managers prosecuted under statute told their employees to keep quiet
                      about it; lied to lifeguards. Held they had the mens rea.
                 ii. Dissent: very unhappy, criticized majority for even discussing those facts—if you think these
                      people have MR then why are they creating a law that doesn’t require MR.

E. Practical Tips and Thoughts
       a. Almost every violation can be enforced civilly with penalties that can be massive; when there’s a
           violation, something has to be done about it. The best thing client can do is have a good enforcement
           program, good training program—to minimize chances of environmental violations, and also to learn
           when environmental violations occur, and to response quickly
                 i. If you have a good internal process, it’s very unlikely that criminal prosecutions will follow, or
                    even be threatened

         b.   Search warrants
                    i. The way you minimize risk of violence occurring during search, make it clear that you’re
                        showing you can’t win—overwhelming force by having agents with machine guns busting in is
                        very intimidating, but that’s the point
                   ii. Never interfere with what they’re doing—they are going to trample on your client’s rights, but
                        don’t try to interfere b/c they’re going to do it anyways, and they will most likely get away w/
                        it
                  iii. Often circumstances are so intimidating that people don’t ask to have their lawyer present.
                  iv. As a company lawyer, you can tell your client not to talk—however, you cannot tell its
                        employees not to talk to investigators without ―obstructing justice‖; you will be prosecuted b/c
                        the employees aren’t your clients, only the company is
         c.   A little case study
                    i. Popular recreational lake; client owned big piece of land around the lake; rent boats to people
                        who come; dumpy shed near lake that contained a barrel for waste oil; when barrel gets filled
                        up, he calls licensed facility to pick it up and recycle; sometimes it takes a long time for barrel
                        to fill up; client waits until its full—sometimes it takes more than 90 days; RCRA says, if you
                        store haz waste for 90 days, then that is a waste storage facility—you can have this kind of
                        facility, but you need a special permit. So this was an unlicensed haz waste storage facility.
                        Huge roster of regulatory mandates once you are this kind of facility—so client committed
                        many violations
                   ii. DA was very active in this area and wanted to do something to get his name in the paper in the
                        good way. Natural canyon near client’s land—DA though canyon would make a great public
                        amphitheatre. So DA started talking criminal enforcement.
                  iii. DA faxed draft indictment to set the context. DA said if client gives up the little canyon with
                        some money, then that will resolve the civil matter. Client could’ve gotten arrested easily.
                                                                                                                        23

VIII. Environmental Justice
    A. Problem of Definitions & Type of Problem (race? Income?)
            a. Environmental justice: the secondary effects of environmental regulation, especially those that
               disproportionately affect the poor or minorities by redirecting the cost of protection or the placement of
               facilities
            b. Environmental Justice is hard to address b/c people have such different definitions
                      i. There is no universal concept of environmental justice
                     ii. Other terms that are used include environmental equity, environmental racism
            c. In the last decade, environ justice has been used for quite awhile
            d. Definition: Disproportioned threats to health based on the disparity of race, ethnicity, or income. Some
               people strongly believe to take income out of the provision. Others think you should take race out.
               There is a good deal of debate on that.
            e. Problem: there have been various studies that have tried to put into objective data to determine whether
               bad things are more likely to happen to a certain race or poor people
                      i. LULUs: Locally undesirable land uses include public benefits such as highways, waste
                          disposal landfills, and nuclear storage facilities
                               1. There is a concern that sites for such uses are placed most often in low income and
                                    minority neighborhoods
                               2. these sites are problematic in part b/c benefits are received by a large population but
                                    the costs are imposed on a small group
            f. There’s a fundamental problem with determining what is bad b/c there are communities that will fight
               hard to keep a factory. So as a result there are studies that have very contradictory conclusions
            g. There is fundamental truth that locally unwanted land uses are disproportionately located near the local
               community with low income and minorities. Of those 2 factors, race became the bigger factor  this
               study kicked off the modern environ justice issue
                      i. Disproportionate latino areas did attract polluters, but not the same w/ black communities.
                          Having a high percentage of low income people have a lower percentage of polluters.
                          Working class has higher percentage of polluters.
                     ii. Conclusion: it may well be one factor in where you decide to build, might be where your labor
                          source is going to be. To the extent it shows community empowerment. The black
                          communities have been organized longer. If you assume some part of this is what community
                          can repel polluters, then you will realize that there are black communities w/ people w/ power.
                          But, latino communities still have a lot of people that do not have powers . . . aren’t active in
                          govt . . so they don’t have the power to repel pollution
                    iii. environmental justice litigation doesn’t happen very much b/c chances of P winning are slim

    B. Litigation
            a. Equal Protection Clause
                     i. Wide applicability: fed and state actions (private requests)
                             1. applies to any governmental action, good for plaintiffs
                             2. private action
                    ii. P must show ―discriminatory intent‖
                             1. it’s not enough to show that something is going to have a disprop impact—must
                                   show there’s the discrim intent
                             2. these days, you simply cannot show that—unheard of to get the level of evidence you
                                   need to show that a particular action was intended to show that it was race-based
                   iii. Ps rarely win and cases rarely brought
                             1. that’s why EP actions never really brought
            b. Title VI of 1964 Civil Rights Act
                     i. Narrower applicability – fed funded actions
                             1. greatly narrows the scope b/c relatively rarely do land use controversies require
                                   significant fed action
                    ii. Seemed like Ps must show ―disparate impact‖ then shift burden
                             1. if you can show disparate impact based on race, then burden shifts to D that disparate
                                   impact wasn’t based on race
                   iii. But, Alexander v. Sandoval (US 2001): it concluded that it is not the case that if you just show
                        a statistical variance that effects race, that that is enough to shift the burden
                             1. not really clear what you need to show
                                                                                                                  24

                iv. Ps used to win rarely and now even less chance
                           1. Thus, environ justice litigation hardly exists
        c.   Executive Order 12898 (1994)
                  i. Part of all fed agencies’ mission
                           1. every fed agency is charged as their mission with considering concept of
                               environmental justice (similar to NEPA and CEQA’s mission statement  just
                               straight out laying out that IT’S YOUR JOB)
                                    a. make sure there’s enforcement of existing laws
                                    b. improve research and data collection relating to the health of minorities and
                                         poor communities
                                    c. get the public involved
                                    d. identify differential patterns of consumption of natural resources among
                                         minority and poor communities
                           2. idea was, it’s not part of your job to think about this; at a minimum, we want to make
                               sure you don’t discriminate based on race or income
                 ii. EPA’s EJ ―Action Document‖ (1994)
                           1. ―our EJ mission is to achieve environmental protection for all . . .‖
                           2. Feb 1994  this along w/ many other presidential initiatives got put on the
                               backburner
                iii. In Re: Louisiana Energy Services (1997): only EJ decision that prof really knows about that
                     came out w/ doing something about environmental injustice; company wanted 30 yr license to
                     have nuclear enrichment facility; facility was very much wanted in the county in which it was
                     located; within the county, they had to determine where to put it—they went through process
                     of identifying certain areas and narrowing the locations based on different factors; ended up in
                     location where 97% of community was black. Every single step of determining where to place
                     it, the population of the remaining sites became more highly African-American dominated.
                     Factors were things like, we don’t want to harm economic activity by putting this within 5
                     miles of a lake—but people living near lakes are whites. This bothered the ALJ (admin law
                     judge), which thought process seemed very unfair.
                           1. ALJ overturned the decision and sent it back
                           2. only real decision that overturned based on EJ grounds

        d.   Environmental Justice Tests (totally non-official, BTW)
                 i. 3 general tests that if you want to comply with majority idea of what EJ considerations are:
                         1. Disproportionate impact on minority or poor populations
                                  a. Ex: hiring experts to go and get census data
                         2. Shared Economic Benefits
                                  a. Idea that conduct of some is going to affect others, but we accept that
                                       because there will be benefits
                                  b. Is there a great disparity between who’s getting the burden and who’s getting
                                       the benefits
                         3. Effective Community Participation
                                  a. All of the writings talk about empowering communities—if something is
                                       locally unwanted, why does it end up there? Means decisionmakers imposed
                                       it on them anyways
                                  b. Do some communities end up with more polluters because their not that
                                       powerful, not as organized?
                                  c. Create community participation that is effective
                                              i. Prof’s example of hiring Latino activists to create a community
                                                 organization—they ended up suing his client (but shows it was a
                                                 very effective community participation)
                                  d. to the decisionmaker, it shows that you are being fair if you deal with a
                                       strong community participating organization
        e.   Mini-case study from landfill

C. Compensation proposals
      a. One solution to such disparate effects and the resulting opposition to LULU siting is to compensate the
         community in which the proposed site will be located
                                                                                                                        25

                       i. Different types of proposals: compensation may serve as either a remedy for damages
                          suffered by the community, as a mitigating factor to prevent possible community harm, or as a
                          reward and incentive for the community’s acceptance
                      ii. Justifications for proposals: proponents argue for the positive effects of compensation, in
                          that it reduces community opposition, promotes efficiency by forcing developers to internalize
                          community costs, and results in equity by reducing the impact of a community bearing the
                          disproportionate burden of the site
                     iii. Equitable concerns: positive compensation effects must be weighed against questions of
                          fairness including whether it is moral to pay a community to assume health and safety risks,
                          how ―voluntary‖ a poor community’s acceptance of compensation is when no other funds exist,
                          and the lack of representation for future generations

IX. Endangered Species Protection
    A. Endangered Species Act (1992)
           a. To conserve both endangered and threatened species and also to protect the ecosystems upon which
               those species depend
           b. ESA requires Secretary of the Interior to take action to avoid jeopardizing the continued existence of a
               species
           c. Secretary is also to conserve threatened and endangered species until they are no longer threatened or
               endangered

    B. List of Some Endangered Species
            a. Snail Darter
            b. Cutthroat Trout
            c. Rocky Mountain Grey Wolf
            d. Humpback Whales
            e. Northern Spotted Owl
            f. Dehli Sands Loving Fly
            g. Red Wolf



    Overview
    C. Section 3
           a. Endangered Species  any species in danger of being extinct across all or most of its range
           b. Threatened Species (basically the same thing)  likely to become endangered in the foreseeable future
    D. Section 4 – Listings
           a. §4 gives Secretary of the Interior with authority to determine whether any species is endangered or
               threatened
                     i. Secretary of Commerce deals with marine mammals or any other marine sea water creatures
           b. List should be based on the best scientific and commercial data
           c. Following factors Secretary considers in determining if a species is endangered:
                            1. degree of habitat destruction
                            2. overutilization for commercial or other purposes
                            3. disease or predation
                            4. failure of existing regulatory mechanisms to protect; and
                            5. any other factors affecting its continued existence
                                     a. Snail Darter Case  Construction of a substantially completed dam on the
                                          Tenn River had to be halted due to the threat posed by the endangered snail
                                          darter found in the river
                                                i. SC held that once a violation had been established, an injunction
                                                   had to be issued
                                               ii. SC thought that if they flooded the TN Valley the Snail Darter
                                                   would be extinct b/c it was the only known place in which they exist,
                                                   it turned out later that there were other habitats, but this doesn’t take
                                                   it out of threatened species, it might take it out of endangered
                                                   species
           d. Requirement to designate a critical habitat for an endangered species.
                                                                                                                         26

                    i. The Sec. of Interior has to figure out where the critical habitat is. The Sec. of Interior has to
                       use best scientific or commercial data. He is also to consider the economic impact of such a
                       designation.
                   ii.  Whenever the Sec decides to list a species as endangered and publishes this listing in the
                       Federal Register, he is required to specify the range over which the species is endangered and
                       designate areas of critical habitat
                 iii. Red Wolf Example  you know red wolves are endangered, you have to figure out where they
                       live so you know the area that you have to protect or preserve, but in doing so you have to take
                       in account for instance there is a city near the preserve area where development has already
                       begun, they won’t make the city go away, but they will make them slow traffic down or
                       something
                  iv. A city that is listed can become meaningless w/o a critical habitat preserve. If you don’t have a
                       critical habitat you’re not doing anything to protect them. What’s the point of listing them if
                       you’re not going to save them?
                   v. Congress passed the Endangered Species Act, but court can’t make sure that they fund it. b/c
                       there might not be sufficient funds for many species, not having enough funding is a good
                       excuse for not taking certain steps in protecting and endangered species, there are a lot of
                       politics involved in funding
                  vi. Northern Spotted Owl Example  if you designated a critical habitat for it then there would
                       be SO much land in WA just to protect them, that means a lot of construction and development
                       won’t happen, many people in WA don’t want that, the Sec. of Interior is scared to do it, so
                       they just said that they don’t have the funding, they either don’t ask for it or the Sec. of Interior
                       just conveniently doesn’t allocate enough funding
                 vii. Designating critical areas is a hard thing to do. It takes a lot of money and a lot of politics.
                       That means the person wanting it has to be strong and many Sec. of Interiors aren’t willing to
                       do that.
                viii. Citizens can sue.
                  ix. Only those species which are listed has the statute applies to it.
                   x. The statute applies in 2 ways: Section 7 and Section 9.

E. Section 7 – Federal Action
       a. This section works a lot like NEPA. §7 prohibits a federal agency from engaging in any action that is
           likely to jeopardize the continued existence of endangered or threatened species or that destroys or
           adversely affects the critical habitat of such species
       b. 7(a)(1)  duty to conserve
                  i. All fed agencies must conserve all endangered and threatened species.
                 ii. This is an affirmative duty to take actions to make sure endangered species thrive as opposed
                     to a negative duty to take no action that is going to jeopardize the existence.
                iii. There is a question of whether or not this imposes a duty that can enforce the fed agency to
                     take certain actions.
                iv. Cutthroat Trout Case  Sec. of Interior owns a dam and the water behind it, he decided he
                     can either sell the water behind the dam or not, he decided not to sell the water b/c he wanted
                     under 7(a)(1) to conserve the cutthroat trout that lived in the water behind the dam, the people
                     that needed the water sued the Sec. of Interior trying to force him to sell it to them, they said
                     that Sec. of Interior is not authorized to take affirmative actions to conserve cutthroat trout, the
                     Sec. of Interior had the authority to do this
                          1. But, say Sec. of Interior did sell the water, and outside people brought suit, they sue
                               the Sec. of Interior b/c he did not conserve the cutthroat trout, it was Sec. of Interior’s
                               duty to conserve
       c. 7(a)(2)  not jeopardize
                  i. All fed agencies must make sure their actions aren’t likely to jeopardize the continued
                     existence of any endangered species or adversely modify any critical habitat.
                 ii. Fed agencies have to consider whether that action is going to jeopardize the continued
                     existence of an endangered species. If it will it has to modify its actions so it doesn’t.
                iii. Rocky Mountain Grey Wolf Case  3 Step Process
                          1. If you’re an agency of a fed gov (ex) build road, you have to think about whether or
                               not you’re gong to endanger the existence of a certain species, you call Fish and
                               Wildlife Service will tell you whether or not there is an endangered species where you
                                                                                                                      27

                                 want to build the road, if the answer is yes, the agency must prepare a biological
                                 assessment to determine if the species is likely to be effected by the agencies action
                            2. If the biological assessment shows there will be an effect on the endangered species,
                                 then the agency must get a biological opinion from the Fish and Wildlife Service
                                 about what will be the effect of the action
                            3. If the Fish and Wildlife biological opinion is the action will jeopardize the existence
                                 of the species or adversely impact its habitat then the agency cannot move forward its
                                 planned action unless it takes steps to eliminate that jeopardization
                            4. If an action will jeopardize a species and there’s no way you can get around it you can
                                 appeal to a cabinet and ask them to still let your actions go forward despite harming
                                 the species
                                      a. This has only been invoked less than 12 times.
                 iv.    This is what happens more often.
                  v.    Most of the time agencies call and there are not endangered species there or if there is it won’t
                        be impaired by the action.
                  vi.   Or they tell you to change your action just a little bit and then you won’t harm the species.
                 vii.   There is only a rare instance with a biological opinion that says you can’t move forward.

F. Section 9 – Limits on Private Development
       a. §9 has the greatest impact on private land development activities
       b. State gov is under Section 9 regime.
       c. It prohibits the sale, important, export or transport of an endangered species.
       d. Takings prohibited: It is illegal to take any endangered or threatened animal species.
                  i. ―Takings‖ defined: A ―taking‖ means ―to harass, harm, pursue, hunt, shoot, wound, kill, trap,
                     capture, or collect, or attempt to engage in any such conduct‖
                          1. What does harass mean?
                                    a. An intentional or negligent act or omission which creates the likelihood of
                                        injury to wildlife by annoying it to such an extent as to significantly disrupt
                                        normal behavioral patterns which include, but are not limited to, breeding,
                                        feeding or sheltering
                 ii. Fed gov can do all the takings it wants as long as it doesn’t jeopardize the endangered species.
                iii. It only deals with animal species.
       e. As for plants there is a different provision; it is illegal to remove or damage endangered plants either on
           fed land or in knowing violation of state law.
                  i. For instance if you went out and trespassed on someone’s property and stole their endangered
                     plant you are in violation of this provision.
                 ii. If you went to your own backyard and you smashed an endangered plant is not in violation of
                     this provision. If plant is on your own property then you can do it.
       f. The big question under Section 9 is what constitutes a taking and how far does this concept extend?
                  i. Northern Spotted Owls Case  What does taking mean? It boils down to what harm means.
                     Shooting, harassing, killing are all ways to harm an animal species
                          1. What does harm mean?
                                    a. Shooting, harassing, killing, etc.
                                    b. ―An act which actually kills or endangers wildlife. Such an act may include
                                        significant habitat modification or degradation where it actually kills or
                                        injures wildlife by significantly impairing essential behavioral patterns,
                                        including breeding, feeding, or sheltering.‖ Very broad definition
                          2. Ex) You own a lake, you drain the lake, the endangered fish in the lake dies, have you
                               harmed/taken the fish under Section 9?
                          3. Ex) If you own a lake and you go out fishing on your lake and you fish up an
                               endangered fish, have you taken a fish? Yes.
                          4. Ex) If you’re building next to a lake. Your building has made increased run off into
                               the lake. The fish die. Have you taken the fish?
                          5. How direct must the harm be between the action and the harmful act for it to
                               constitute a taking? How foreseeable must it be? Is it a proximate cause?
                          6. Court says harm w/in Section 9 could mean indirect harm caused by people’s
                               actions. So therefore, draining a lake IS a taking.
                          7. Dissent says that you have to be careful. b/c not all indirect harm is foreseeable.
                                                                                                                        28


    G. Section 10 – Habitat Conservation Plans (HCP)
           a. This was created in 1982. It didn’t make sense that section 7 will allow fed gov to harm all the fish as
               long as it doesn’t jeopardize where Section 9 says no taking at all.
           b.  This allows an actor who is thinking of taking an action that might have the incidental effect of
               taking an endangered species to Fish and Wildlife and work with them to make a Habitat Conservative
               Plan. They will allow you to take actions that might harm some fish in lake as long as you take other
               actions that will help minimize the actions of your first.
                     i. Ex) You’re going to build houses, you will harm fish in lake, you talk to the Fish and Wildlife
                         Service to figure out what you can do to lessen the effect of your house building, you can build
                         another lake nearby and transport the fist there, if a few fish die in the process you won’t be in
                         trouble for it
           Emmanuel:
           c. Section 10(a) provides for the issuance of permits in 2 situations: scientific studies and incidental
               takings
                     i. Scientific purpose: if the prohibited activity is to be carried out for scientific purposes or to
                         enhance the survival of the species, a permit may be issued
                    ii. Incidental taking: Secretary may permit any taking otherwise prohibited by §9 ―if such taking
                         is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.‖
                              1. No incidental taking permit may be issued unless the permit applicant submit a habitat
                                  conservation plan.
                              2. Upon review of habitat conservation plans, cts consider issues such as whether the
                                  taking will appreciably reduce survival likelihood and any measures taken to
                                  ―minimize and mitigate possible adverse effects‖

    H. Commerce Clause
             a. Commerce Clause comes in the application of the Endangered Species Act b/c you are dealing
                with local land use issues for the most part.
             b. Question is: What power/business does the fed gov have in regulating a local issue? What is the
                extent of the Commerce Clause in the constitution? b/c the extent will tell you what business the
                fed gov has.
             c. The Endangered Species Act evokes the Commerce Clause for its authority.
             d. This has become an issue b/c the SC has been trying to give some teeth to the Commerce Clause in
                the US v. Morrison Case where SC said that the Violation Against Women Act was intended to
                regulate and criminalize violence against women and give fed prosecutors the power to
                prosecute gender crimes, the court said fed didn’t have power to do something like this b/c
                typically a state issue
             e. Dehli Sand Loving Fly Case & Red Wolf Case  under US v. Lopez and US v. Morrison,
                Congress does have the power to protect endangered species even when those species are local b/c
                the courts look to the aggregate affect of losing endangered species, either from the outlook of
                losing the species will effect ecosystem and it’s affect on commerce, of it will take a look at
                tourism b/c people travel through state lines to go see these species, b/c of that Congress has the
                right to regulate
                      i. Ironicially, Red Wolf gets more protection than women do.

    I.   Enforcement

X. International Environmental Law and Concerns
    A. What is it? – ―Soft law‖
            a. Easier to talk about what it is by talking about what it isn’t
            b. International Environmental Laws (IEL): common consensus based on common idea of human
                morality
            c. Quintessential IL (international law) is a treaty
                      i. A treaty is a contract; only binding if the parties consent to it
                     ii. Must harder to get a consensus on enforcement; very rarely will a country agree that for its
                         national interest to allow foreigners to impose whatever they agree to
                    iii. Thus, enforcement mechanism are usually not put into treaties
                                                                                                                   29

                 iv. Hence the name, ―Soft law‖

B. Sources of International Law
      a. Treaties
      b. Customary practices
                 i. Very akin to common law
                ii. The idea that over time, people, groups, nations, behave a certain way, and they behave this
                    way for so long that others will have this expectation that you will keep behaving that way

C. Chronology of Treaties and Protocols
      a. Early efforts
               i. 1909: Teddy Roosevelt tries world conference on conservation
                       1. tried to improve conservation within the US, and tried to use the rising prestige of the
                            country and hence his office in the country to encourage others to come together
                       2. he failed; it wasn’t on other people’s agenda (other countries)
                       3. it was an early effort to pull together on environmental issues
              ii. 1909: US and Canada
                            ―Boundary Waters Treaty‖: not a very important treaty; talks about protecting waters
                            by preventing unnecessary damage to waters
                       1. so that one nation doesn’t use water to the exclusion of another country
                       2. one of the first international env law
              ii. 1916: US and Canada
                       1. ―Migratory Bird Treaty‖: effort to deal with migratory birds decreasing
      b. 30+ yrs of more serious efforts
               i. mostly for:
                       1. ozone depletion
                       2. greenhouse effect/global warming
      1970s proved to be the start of international environmental decade

        c.   1972: Stockholm Conference
                  i. UN: convened first conference gathering; huge enthusiasm (remember, the environmental
                     movement is exploding during this time – 1970s)
                 ii. 133 countries: sole purpose of meeting was to discuss the global environment
                iii. ―rights‖
                          1. usually these meetings people get together to just say they are going to meet again;
                               during these meetings you want to come up with a piece of paper
                          2. Concept of a ―right‖ implies that even over majority objection you can insist on
                               something
                          3. primary right listed: ―man has the fundamental right to freedom, equality, and
                               adequate conditions of life in an environment of quality that permits life of dignity
                               and well-being. . .‖
                                    a. statement of high principle
                                    b. went on to say govt has responsibility to provide this
                iv. creates UN Environment Programme
        d.   1982: Nairobi Conference
                  i. very little happened during the next decade
                 ii. one of the challenges that have always been faced: issues on the agenda during 1970s didn’t
                     lend themselves easily to international approaches
                iii. creates World Commission on Environment and Development
                          1. there was a consensus by this time that the UN Env Programme was too modest in its
                               approach, so this commission was created
        e.   1987: World Commission on Environmental and Development issues report
                  i. ―Our Common Future‖ (the report they issued)
                          1. proposed first that UN develop int’l convention listing new environmental rights, all
                               with the overriding principle called ―sustainable development‖
                          2. also proposed some mechanism for dispute resolution
                 ii. ―sustainable development‖
                                                                                                            30

                  1.   balancing of concepts we’re talking about: nations having a right to exploit their
                       resources but not to damage the environment
                  2. so if you’re devloopment process consumes non-reusable resources, it is not
                       sustainable b/c you can’t keep doing this long into the future
f.   1987: Montreal Conference
          i. came up with Montreal Protocol
         ii. aimed at protecting ozone layer
                  1. first major step we see towards picking manageable topic that people think can only
                       be addressed by int’l cooperation
                  2. when talking about upper atmosphere, it happens that there is a gaseous layer of
                       ozone surrounding the earth, and it helps block UV radiation from coming into our
                       atmosphere. UV is bad b/c it causes skin cancer in humans
                            a. as it happens, people of western Europe and North America were most at risk
                                 of skin cancer (white people). There were immed demands from developing
                                 nations to be exempted, and the demands had a lot of force behind it (esp
                                 since it was North America/Europe causing most of the harm in the first plac)
                  3. CFCs and certain halons were reacting w/ the ozone and turning ozone into something
                       else; so you have ozone depletions in certain spots—holes in the ozone
                  4. CFCs were mostly used as repellants, and heavily used during 1950s. By 1985, a
                       study showed a hole over ozone layer over Antarctica that was as big as North
                       America
        iii. effort at ―technology forcing‖
                  1. Technology forcing means you set the goal and people need to figure out a way to get
                       there. You don’t give anyone a choice.
                  2. creates massive incentive system b/c whoever figures out a way to meet it gets rich
        iv. Goal: 50% decrease in CFCs in 10yrs
g.   1988: DuPont agrees to stop making CFCs and halons by 2000
          i. DuPont made most of the CFCs; why else might this be important?
                  1. They know what there are going to use and they are going to make it
         ii. This puts the movement very forward b/c when the main maker decides to stop making it, it
             has a big influence on others
h.   1990: revise Montreal Protocol to speed up CFC phase out
          i. required elimination of CFCs by 2000
         ii. 10 yr grace period for developing countries
        iii. $240 million fund for developing countries
                  1. to help them deal with otherwise adverse consequences
                  2. in order to get international consensus, it has to be in the best interest of the countries
                       involved
i.   1990: US CAA bans CFCs in non-essential products
          i. difficulty: mostly economic
         ii. alternatives to CFCs are more expensive

j.   1992: Rio Conference (―Earth Summit‖)
          i. 40,000 people, 178 countries
         ii. ―Rio Deal‖
        iii. 2 treaties
                  1. biodiversity: deals w/ species extinction
                         a. US refused to sign this treaty
                  2. Global warming
                         a. US did agree to this treaty; focus became global warming
                         b. Greenhouse effect: light goes through a thing, reacts inside the greenhouse,
                              creates energy but the heat can’t escape through the thing again; net increase
                              in energy in the greenhouse b/c the heat gets trapped
                         c. Human activity is accelerating or exaggerating the effect
                         d. Burning of fossil fuels releases CO2, which adds to the greenhouse effect
                         e. Deforestation is also thought to add to g.h. effect; trees have a lot of CO2
                              inside of them; taking away carbon sink that could otherwise store carbon
                              dioxide; if you burn the trees, you release CO2 into the atmosphere
                                                                                                          31

                          f. A lot of uncertainty, and must debate over the causes of g.h. effect
       iv. 48 CEOs attended
                 1. ―Business Council on Sustainable Development‖
                 2. more business people become more aware of environmental issues
                 3. issued a bunch of documents
        v. Shifts international emphasis from ozone depletion to global warming
       vi. Rio Conference: Reinvigorated the international environmental movement
      vii. Rio Conference: Shifted emphasis to global warming
k. 1993: US ―Climate Change Action Plan‖
         i. Clinton administration reaffirmed the Rio declaration by passing this Plan
        ii. To reduce g.h. gas emissions (not mandatory steps; environmental groups frustrated)
l. 1996: US announces support for mandatory g.h. gas controls; begins treaty negotiations
         i. now it’s mandatory
        ii. started negotiations w/ other countries that would reduce CO2 emissions globally
m. 6/97: US Senate resolution: ―NO‖ to climate treaty exempting developing countries
         i. US Senate voted on a resolution that they would not except any climate treaty if developing
            countries are exempted
        ii. No possibility of a treaty exempting developing countries
n. 10/97: US announces support for new treaty w/ 25% decrease of g.h. gas emissions by 2012
o. 12/97: Kyoto Conference
         i. Kyoto Protocol
                 1. this was supposed to be turned into a treaty by having other countries sign it
                 2. called for rapid decrease of g.h. gases in developed countries
                 3. exempts 130 developing countries
                          a. China, South Korea, Mexico, Brazil – all rapidly developing countries and
                               new consumers of energy sources
                 4. applied primarily to US, Canada, Western Europe
                          a. US commitment: 30% reduction of emissions from 1990 levels
                 5. went easy on Germany by not imposing new obligations on it
p. 1998: President Clinton signs Kyoto Protocol
         i. he does NOT send to Senate; why?
                 1. they wouldn’t have ratified it and he would’ve looked stupid

q.   11/2000: Conference of Parties #6
           i. interim conventions that won’t be coming out with big resolutions
          ii. negotiations to implement Kyoto break down
                   1. how Kyoto protocol would be ratified; get specifics of how to implement the goals
                   2. ended up having a division of interests between European Union and US, Russia,
                        Canada, Australia (Umbrella Group)
         iii. E.U. v. ―Umbrella Group‖ over ―flexibility‖
                   1. Umbrella Group: wanted market-based flexibility
                            a. Concern that some countries wanted flexibility to make it more difficult for
                                 others to see it was cheating
                   2. EU wanted strict top-down commanded control
r.   3/2001: President Bush criticizes Kyoto – won’t send to Senate
           i. it was one of his first steps as president, saying the Protocol was a mistake because it was
              damaging to US economy without doing anything w/ the rapidly increasing gas emissions in
              China (and developing countries)
          ii. part of the early definition of the Bush Administration: idea that in contrast to the more
              international diplomatic Clinton administration, it was more overtly focused on US economic
              national interests
         iii. unilateral declaration that he wasn’t going to send it to the Senate
         iv. wasn’t a huge gap between substantive goals of Clinton and Bush administration; however,
              Bush decided Kyoto was so flawed he wasn’t going to pursue its goals
          v. yet he was committed to saying he was going to exploit g.h. gases and preserve g.h. gases in
              the US (?)
s.   7/2001: Conference of Parties #6.5
           i. 6.5: emergency conference (#7 was already scheduled) of the parties in Bonn, Germany
                                                                                                        32

          ii. w/o active US involvement
         iii. broad agreement to most of what US wanted
                  1. Umbrella Group and EU reached a broad consensus – there are still going to be
                       exemptions for developing countries, however
                  2. effort to appease the US to get US back to its position and everything back on track
         iv. $410 MM fund
t.   1/2002: Conference of Parties #7
           i. Umbrella Group gets most of what it sought
                  1. easier compliance
          ii. 3 market-based emissions-reduction mechanisms:
                  1. emissions trading
                  2. joint implementation: country could get offsets and credits
                  3. ―clean development‖ credits
                           a. idea of allowing developed countries to get credits for financing emissions
                                reductions in developing countries
         iii. ―compliance‖ left unresolved
                  1. what do you do to people who don’t comply? One of the hardest things to implement
         iv. Exempt all developing countries
                  1. concept was that eventually, developing countries would live by these principles, too

				
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