1 I. Perspectives on env. degradation --WHY do we regulate? A. Economic Perspective 1. Conceptual framework a) Normative claim: env. law as resource allocation (1) goal = maximize social welfare (i.e., lower aggregate costs) (a) control good if net ↑ in social welfare (b) control bad if net ↓ in social welfare b) Descriptive claim: (1) pollution generates exteralities (a) Cost to others not accounted for by polluters) (b) Solution: internalize costs (align private costs and social costs) (2) Other justifications besides externalities (a) Informational disad (i) consumer might not appreicate the danger => improper valuation (ii) solution: provide info or ban product outright (b) Market failure (i) monopolistic conditions impair realization of correct value (ii) solution: anti-trust regulation (c) Distributional inequities (inability to pay) (i) poor folks can’t make a meaningful choice b/w products (ex: SoCal clean air market disses low income neighborhoods) (ii) solution: back-end tax/transfer redistribution c) Attitudinal claim: pollution is a rational response of self-interested decision-makers (1) No moral opprobrium on polluting per se (2) Blame is on regulators for not providing correct incentives 2. Regulatory solutions a) Public goods (e.g., clean air, defense, lighthouses) (1) Characteristics (a) Can’t be supplied to one w/o supplying to another (b) Can’t exclude individuals from benefit (2) Common ownership fails (Hardin: “tragedy of the commons”) (a) Can’t organize (i) no enforcement mechanism (ii) high transaction costs {a} organization costs {b} info-gathering costs (iii) strategic bargaining {a} hold-outs (extort for unreasonably high price) {b} bluffs (iv) free-riders (refuse to enter into agreement, yet suck up the benefits (b) Conditions for successful negotiation (i) smaller # of parties (ii) everyone has a huge stake in the outcome (iii) close-knit, socially homogenous community (institutional facilitation) (iv) immediacy of the harm (3) Prisoner’s dilemma (a) No matter what the other guy does, you’re better off NOT limiting your behavior (b) Problem is less significant after multiple iterations of the game (establish trust) 2 (4) Solutions (a) Taxes (i) Might get incentives wrong (ii) Additional transaction costs (b) Privatization (individual ownership) (i) Segementation may ↓ aggregate value (ii) Hard to set up due to distribution issues (c) Unitization (cooperative agreement) (i) Free-rider problems b) Coasian bargaining (1) Theoretical foundation (a) Reciprocity of harms/benefits (e.g., factory/laundry, trains/hay ricks) (b) Invariance claim: legal entitlement irrelevant to get best resource allocation (c) Efficiency claim: bragaining concludes with economically efficient result (i) Pareto: make at least one person better off w/o making anyone else worse off {a} makes it difficult to enact env. regs since someone is almost always hurt (ii) Kaldor-Hicks: total benefits exceed total costs {a} if one party benefits at the expense of another, the benefited party can theoretically compensate the injured party {b} one person can be hurt so long as total benefits exceed costs (d) Low transaction costs necessary for free bargaining (2) Impedients to bargaining (a) High transaction costs (b) Uncertainties in value (c) Large # of polluters (3) Role of government (a) clearly define entitlements (b) set up enforcement schemes (c) provide info (4) Distributional effects (a) entitlement has distributional consequences (WHO has to pay?) (i) Have the rich guy pay {a} PRO: Diminishing marginal utility to wealth means poor guy may value the entitlement more {b} CON: You don’t always know who the rich guy is (not always polluter) (ii) Give entitlement to the person who values it the most (willingness to pay --WTP) {a} PRO: reduces transaction costs of unnecessary bargaining {b} PRO: ↑ efficieny on front-end, ↑ distributive justice on back-end {c} CON: doesn’t factor in non-players in the market (inability to pay) {d} CON: disparity b/w WTP & WTA (willingness to accept is usually higher) means people value things they have over things they don’t (iii) Coming to the nuisance (1st in time) {a} PRO: clear common law rule {b} CON: arbitrary w/respect to efficiency {c} CON: encourages early pollution c) Pigouvian taxes (intended to internalize the externlaity) (1) = Most common approach to environmental problems (2) CON (a) Might get incentives wrong (b) Involves set-up & transactions costs (e.g., collection) (c) Danger of gov’t extortion 3 (d) If parties can bargain, taxes just serve as an additional cost which leads parties away from optimal result B. Non-economic Perspective 1. Human-centered (Sagoff) a) Need to balance economic perspective (what we want) w/social perspective (what we are) (1) Consumer role: personal interests are preferred (2) Citizen role: public interests are preferred b) Different conceptions of value (1) Use: personal enjoyment (2) Option: future use (3) Existence: knowing that a thing is there c) Is this a procedural or substantive std? 2. Nature-centered a) Examples (1) Biocentric outlook (Taylor) (a) Humans not inherently superior to other species (b) Handling competing claims of right (i) Self-defense (ii) Proportionality (basic/non-basic) (iii) Principle of minimum wrong (enlightened deliberators) (iv) Distributive justice (equal shares of goods) (v) Restitution (must pay for wrongs) (2) Deep ecology (a) vastly reduce world’s population (b) dismantle industrial society (3) Ecofeminism (a) Nature and women dominated by man (4) Animal liberation (a) Rights should be accorded by capacity to feel pain (Singer) (5) Inanimate objects (a) Do trees have standing? (Stone) b) Problems (1) Too difficult to articulate std for protection (easier to maximize social utility) (2) Doesn’t comport w/intuitive human-centered values shared by most people II. Policy issues --HOW do we regulate? A. Risk Assessment 1. Method for determining the harm --cancer studies (Rosenthal) a) Hazard identification (Q: is a certain substance harmful?) (1) Epidemology (human population studies) (a) not controlled environment (b) many confounding factors (e.g., smoking) (c) long latency periods = causality problems (d) ex post approach can’t identify risks prospectively (2) Toxicology (animal bioassays) (a) correlative relevance b/w MTD’s (max. tolerable doses) for rats & humans? (b) high doses over short lifetimes analagous to small doses over long lifetimes? 4 (c) animal response similar to human response (e.g., breathing thru mouth)? b) Dose-response relationship (Q: what is % of developing cancer?) (1) Response threshold (a) finite: b/w no observable adverse effect level (NOAEL) and lowest (LOAEL) (i) usually multiplied by safety factor for humans (e.g., 1/100 of NOAEL for rats) (b) no-threshold: any amt = ↑ risk of harm (e.g., cancer) (2) Setting the dose-response curve (a) linear model (x ↑ dosage = x ↑ risk of harm) (i) very conservative (overprotects at low levels, ∴ most agencies use) (b) convex slope (high ↑ harm at low levels, tails off at high levels) (c) concave slope (low ↑ harm at low levels, ramps up at high levels) c) Exposure assessment (Q: how much substance are people exposed to over a lifetime?) (1) Different routes of exposure (a) inhalation (b) dermal absorption (c) ingestion (2) Risk parameters (a) Maximum individual risk (MIR) (i) Hypthetical model gauged to Maximally Exposed Individual (MEI) (ii) Designed to be overly conservative (= safety buffer) (b) Incidence in population (i) Empirical assessment of # of cases attributable to a certain substance d) Risk characterization (numerical estimate of risk based on first 3 factors) (1) ↑ in lifetime probability of harm from a particular level of exposure 2. Perception of risk (who should choose “acceptable” level?) a) Politicians (1) PRO: Lots at stake in labelling a substance “harmful” (e.g., econ. development) (2) CON: Can hold off on political factors until risk mgmt stage (Ruckleshaus: pick generic model for RA) b) Scientists (1) PRO: experts probably more accurate than politicians or laypersons (2) CON: “facts” are always malleable (data interpretation & model choice => bias) (3) CON: too many factors to gauge true risk (=> false sense of security) c) Laypersons (note: policies generally follow lay perception) (1) PRO: people may respond to ↑ education re: risks (2) PRO (econ. perspective): inflated/deflated risks will be taken into account in pricing policies (3) CON: susceptibility to psych factors that have nothing to do w/actual risk => overestimation/underestimation (Breyer) (a) can’t evaluate mathematical diff. b/w various tiny risks (b) fear is a big motivator (c) people distrust experts (d) “NIMBY” (e) prominent events stick out in our minds 3. Is a risk assessment required before an agency can regulate? a) YES (Stevens plurality in “Benzene case”) (1) must determine that reg is reasonably necessary to remedy a significant risk of health impairment 5 (a) “safe” ≠ risk-free (b) burden => regulating agency (c) std = best available evidence b) NO (Marshall dissent in “Benzene case”) (1) too difficult to yield quantitative showing of “sig. risk” (certainty shouldn’t be required) (2) waiting until certain => actual health harms B. Risk Management 1. Stds sometimes embedded in statute (agency can’t override) 2. Types a) Market Regulation: individuals choose which risks they want to be exposed (1) PRO (a) yields most economically efficient forms of risk mgmt (b) cuts down on reg. bureaucracies (2) CON (a) assumes choices are informed (b) cognitive psych tells us that people can’t accurately assess probabilistic info (c) possible flow-on effects to 3rd parties b) No Risk (activities posing any risk are banned) (1) PRO: ↓ info costs & decision-making gets easier (2) CON (a) leads to inefficient resource allocation (b) can’t compare relative risks given limited cash (CBA-type prioritization may be unavoidable in real world) c) Tech-based Stds (e.g., best available, best practicable) (1) PRO (a) no need to estimate costs or benefits (b) better job protection for workers (2) CON (a) expensive new tech may not yield comparable social benefits (b) => econ. ruin for polluters unable to meet ↑ cost-constraints (c) could provide disincentive for industry to develop better tech themselves (i) solvency tech could come from outside regulated industry (d) punishes certain industries arbitrarily (i) more efficient industries (have more $ to spend on new tech) (ii) industries w/more foreign competition (tend to be less regulated) (iii) products w/unreg. substitutes (consumers will switch) d) Risk-Risk (direct): compare risk to consumer in world w/regs on product to consumer in world w/o regs on product (1) PRO: more flexibility than no-risk approach (2) CON (a) precludes consideration of nonhealth effects (b) may not account for instances where you have high levels of pollutant concentration (c) may not account for synergistic effects for exposure to multiple pollutats e) Risk-Risk (indirect): same as direct, only compare risk to all people (incl. workers) in world w/o regs on product (1) PRO: includes occupational risks associated w/add. regs (more man-hours required to produce safer products) 6 (2) CON: workers may already be getting a risk premium on salary (plus, they may know more about risk levels) f) Risk-Benefit (1) PRO: accounts for nonhealth factors (e.g., ecosystem, human freedom) (2) CON: extremely fuzzy to determine these values g) Cost-Effectiveness: achieve given goal at least cost (1) PRO: gets most bang for every buck spent (2) CON: not really risk mgmt --doesn’t tell you HOW to set goals h) Regulatory Budget: can’t exceed predetermined budget total (1) PRO: encourages clear priority-setting (2) CON: not really risk mgmt --doesn’t tell you HOW to set initial budget i) Cost-Benefit: compare cost of reg to value of human life saved (1) PRO (a) accounts for most every goal in $ terms that can be easily weighed (b) allows for empirical determination of value (e.g., WTP --look at how much of a risk premium the worker gets) (2) CON (a) cost-of-cost problem (Kelman: valuing things cheapens the thing valued) (b) WTA > WTP (people want more for giving up something they already have) (c) extrapolation problem (sparse data re: value combined w/big multiplier = vastly skewed $ figure) (d) lack of good info skews value (i) unclear causation (ii) consumers ignorant of true risk (iii) probabilities difficult to process (e) self-selection skews numbers (people who take jobs w/risk premium may be bigger risk-takers) (f) numbers derived from private context applied to public context (inappropriate per Sagoff) (g) voluntary risk valued higher than involuntary risk (3) “Least burdensome alternative” test (Corrosion Proof Fittings: must consider alternatives, incl. availability of & risks associated w/substitutes) (4) Problems of future benefits (Corrosion Proof Fittings: asbestos ban) (a) Must discount present value of future lives (i.e., future costs) (i) PRO {a} small amt of dollars invested today will accrue interest and yield future amt large enough to compensate for injury {b} lives might be cheaper to save in future (alt solvency) {c} people evaluate future harms lower in present than current harms (ii) CON {a} moral obligation to value all lives equally {b} fear of death may count as present harm (b) Must discount future benefits as well (i) PRO: dollars spent now are worth more than those spent later b/c we could be saving them & earning interest (ii) CON: in waiting for value to ↑, the person exposed may die (c) Unquantifiable benefits may not get factored in (CPF ct. ignores potential deaths beyond scope of asbestos study) C. Distributional Consequences 1. Problems a) Ex ante injustice: poor/minority hoods may be targeted for waste siting 7 (1) econ factor: facilities will be sited where land is cheapest (least desirable property) (2) political factor: facilities will be sited where residents have less political power (3) racism factor: housing discrim makes it harder for minority residents to move out once they’re in (4) compounded harm factors (a) poor neighborhoods tend to have fewer health amenities (= ↑ relative impact of pollution) (b) synergistic effects of multiple pollutants (normal risk assessment technique fails) (5) alt “dyamic markets” hypothesis (Been): siting decision affects land values, which causes current residents to move out & minority residents to move in (a) even a random initial distrib. can have racist consequences (b) empirical question: did the neighborhood have a poor/minority composition at the time of the siting, or did it happen afterwards? b) Ex post injustice: pattern of cleanup may be unfair to poor/minority groups 2. Solutions a) Communities bargain for sites w/polluter (1) PRO (a) both sides get what they want (site to pollute <=> $, jobs, health facilities) (b) K liability or trust fund keeps company honest (2) CON (a) Leaders may not pass along benefits to those undertaking the harm (solved if residents get veto power) (b) Informational assymetries (residents don’t understand risks) (c) No account for future generations (d) Poor folks don’t have meaningful choices (desperate for cash) (i) is this paternalistic? b) Give public amenities to affected neighborhood (“compensated” equality for people dissed by siting) (1) PRO: providing infrastructure keeps residents from moving out (prevents dynamic market disad) (2) CON: giving $$$ straight up may just give present residents an incentive to move out (what do we give the next residents?) c) Spread out disamenities to every neighborhood (1) PRO: ↓ incentive to move to diff. neighborhood (2) CON: lose economies of scale of big waste dumps d) Auction sites among communities (w/finite # of vetos for each community) (1) PRO: more power for communities (not held back by need for cash) (2) CON: still have info problems 3. SQ attempts a) Clinton’s EO 12,898: agencies must develop env. justice strategies (1) PRO: establishes priorities for enforcement, better info gathering, & public participation (2) CON: not much effect if agencies & Republican Congress don’t play along b) Gore’s Environmental Justice Act: identify 100 worst counties (by weight of toxic chemicals) & declare moratorium on further sitings (1) CON (a) county = shitty unit of selection (b) weight = shitty proxy for toxicity c) Env. Equal Rights Act: if minority community already has a site, further sitings provide private cause of action for anyone w/in that state (1) CON 8 (a) some states might have higher % of minorities than others (= dispropotionate future sitings) (b) random Πs might subvert intent of communities who have bargained for their sites d) Title VI of Civil Rigts Act: no disproportionate burdens on minorities (1) PRO: powerful tool (2) CON: may not be right tool (vague --not much case law) 4. In strict $ terms, most env. regs have disproportionately benefitted minorities (Peskin study) a) less relative costs to greater relative benefits b) may not counteract disproportionately huge impact of the pollution itself 5. Ambient stds may protect minorities (e.g., can’t get lower than NAAQS) D. Regulatory Tools 1. Command & control: prohibitions and permits a) Design std (e.g., must build your factory in X way) b) Performance std (e.g., must achieve X amt of emissions, must use “best available tech” (BAT)) (1) PRO (a) companies can develop cheaper tech to get camparative advantage (b) regs favor, since it encourages innovation (incl. 3rd party innovation) (2) CON (a) companies bear all the R&D costs = disincentive to innovate (b) EPA dosn’t frequently redefine its performance stds to reward those who have innovated (c) may not set prohibition levels at the socially optimal point (i) some good trades b/w polluters and those affected won’t happen due to reg contraints (ii) ignores variations among plants & industries (iii) ignores geographic variations in pollution effects 2. Marketable permits: regulator sets total level of tolerable pollution, then issues tradeable permits (Ackerman & Stewart) a) “Grandfathered” system of initial permit allocation (most U.S. schemes use this approach) (1) PRO (a) companies have incentive to innovate (can make $$$ by selling unneeded permits to less efficient companies) (b) allocates pollution rights in the least-cost way (thanks to Coasian bargaining) (c) gov’t can easily change total # of permits based on new sci data (d) permit holders will encourage strong monitoring of others in order to protect the value of their investment (e) ↓ info costs (don’t have to make determination of BAT) (f) ↓ transaction costs (don’t have to litigate over BAT or compliance) (g) ↓ enforcement costs (agency will be tipped-off by drops in price of permit) (i) funny, this is happening now in acid rain permit market (2) CON (a) promotes formation of hot spots of concentrated pollution (expensive polluters buy up all available permits if cheaper than limiting pollution) (i) raises environmental justice concerns (ii) greater concentration could lead to greater marginal harm (b) permutations on hot spot problem still suck (i) set max. level for each region {a} restraint on trade kills cost-reducing benefits of market system {b} might force firms into inefficient production schemes (spread out factories = ↓ economies of scale benefits) {c} ↑ reg costs 9 (ii) subdivide & only allow trades w/in regions {a} generates hot spots at local level (iii) redefine std to be met (e.g., permits for units of env. degradation, rather than emissions) {a} mobility of pollutants => may have to pay to pollute across several regions {b} ↑ causation problems (how determine who’s polluting?) (c) susceptible to most limits on effective Coasian bargaining (i) strategic bargaining (ii) high transaction costs (iii) info disparities (d) rewards SQ polluters (i) public choice arg: otherwise, polluters wouldn’t allow the legislation (e) uncertainty re: initial price of permit => ↓ ability to account for external factors (e.g., foreign competition) b) Auction system of initial permit allocation (1) PRO: same as above, but generates revenue from auction sales (2) CON same as above, but doesn’t reward SQ polluters c) Env. groups can buy permits just to take them out of commission (1) PRO (a) env. groups might value it the most (2) CON (a) messes w/social welfare calculus, assuming gov’t got the initial # of permits right (b) gov’t can circumvent by creating more permits (i) applies to SQ as well d) Is it morally appropriate to issue “licenses to pollute”? (1) PRO: utilitarian calculus: you can’t get something for nothing (2) CON: Kelman’s “cost of cost” arg. (clean env. becomes denegrated as realistic policy goal) 3. Effluent fees: Pigouvian taxes giving appropriate incentives a) PRO (1) fees are more certain for polluters than other reg mechanisms (= ↓ transaction/info costs) (2) generate public revenues that can be used to correct the problem (3) can account for external factors (e.g., foreign competition) in setting the tax b) CON (1) can set the incentives wrong (2) price inflation ensures that taxes will need to be raised periodically (a) public choice arg: unpopularity w/industry => backlash 4. Deposit-refund: pay increased amt on front-end that is refunded when you comply w/reg (Bohm) a) PRO (1) solves a lot of enforcement issues (a) buyer can enforce (= ↓ monitoring costs) (i) has clear incentive to return/dispose (ii) has no incentive to cheat on compliance w/disposal (b) 3rd parties can enforce (e.g., homeless guys collect cans they didn’t buy) (2) easier to specify acceptable means of disposal that enumerate unacceptable means (3) provides up-front info mechanism (buyer is told about possiblity of refund) (4) easier to budget (assuming refunds are generally equivalent to deposits) (5) may have progressive distributional consequences (poor have less opportunity costs for time => greater compliance) b) CON 10 (1) people can try to cheat system to get more refunds (a) buy stuff from no-deposit jurisdictions, return in refund jurisdictions (b) add “filler” to returned substances c) Appropriate for wastes for which there is no market (e.g., used batteries) (1) if market exists (e.g., cans), people will already recycle (why should gov’t incent something w/inh. value?) d) How do we set the deposit? (1) cover admin costs (2) high enough to overcome people’s laziness (3) not so high as to kill industries or waste people’s time 5. Liability rules (ex post): avoidance of expected lawsuit provides incentive a) PRO (1) transmits incentive for vast array of behaviors w/single reg tool (unit of selection = actual harm) (a) ↓ amt of waste (b) ↓ interstate externalities (c) send stuff to right place (d) ↓ transportation risks (e) locate industry in right places (f) ensure dump site monitoring (2) may have lower admin costs (costs incurred only if harm actually occurs) (3) private parties may have better knowledge than gov’t re: benefits & risks (Shavell) (a) PRO: privates get presumption of knowledge b/c they engage in activites on day-to-day basis (b) CON: privates may have less knowledge about some risks b/c info costs too high (4) can be combined w/ex ante systems to ↑ effectiveness (e.g., Superfund & RCRA) b) CON (1) bankrupt or insolvent companies kill incentive structure (a) companies have incentive to shed solvency (e.g., assigning dividends) (b) problem worsens over long periods of time (2) harms done may exceed company assets (= improper incentive) (3) causation problems (a) harms may have multiple sources (hard to establish one Π as cause-in-fact) (b) evidence gets stale over long periods of time (4) high transaction costs may keep people from bringing suit (lawyers cost $$$) (5) back-end admin costs of judicial system may exceed costs saved by not regulating (6) back-end cleanup costs generally exceed cost of preventing beforehand (= waste of social resources) 6. Info approaches: gov’t as educator (e.g., tell workers about job risks) a) PRO: allows for fully informed market transactions (max. social welfare) b) CON (1) doesn’t solve for flow-on effects or distributional inequities (2) cognitive psych problem re: evaluating risk (Breyer) E. Federalism 1. Reasons for state regs a) diff. regional preferences (1) states should set own priorities (2) env. regs may involve pyramids of sacrifice (lower classes have to pay for stuff they don't want) b) diff. benefits 11 (1) population density (2) weather patterns (3) topography c) diff. costs (1) climatic variation (2) availability of water, land, and other raw materials d) easier and cheaper for states to enforce specialized regional stds (1) Revesz: decentralized approach ought to get presumption as better regulatory scheme 2. Reasons for fed regs (Stewart) a) environmental “race to the bottom” (1) mobility of capital ensures that companies move to places with least env. regs (a) CON: threshold may be high due to huge transaction costs associated w/moving (2) sets off bidding war among states (a) Revesz: maybe fed regs states will just cause states to compete about something else (e.g., capital taxes, worker safety) b) interstate externalities (1) Types (a) pollution (b) existence values for out-of-staters (e.g., Grand Canyon) (c) national benefits (e.g., species preservation) (2) States can’t effectively bargain (a) unceratinty re: baseline of acceptability (b) scientific uncertainty (e.g., air flows) (c) few repeat players (d) values not localized (3) Note: fed stds haven’t solved externality problems (ex: CAA) (a) ambient stds don’t affect where pollution comes from (b) emmissions stds don’t limit where or how tall you build yor stacks c) public choice (1) unions and companies have more political power at state level (2) env. groups have more political power at fed level (a) more bang for the lobbying buck (i) CON: what about free rider problems? (incentive to bogart is higher at nat’l level) (ii) CON: organizing is easier when interests are homogenous (less likely at fed level) (iii) industry groups less likely to have free rider problems at either level (b) greater sympathy among legislators (maybe politicians sometimes do the right thing, e.g., ESA) d) uniformity (1) PRO: = ↑ certainty (2) CON: works for production stds (e.g., auto manufacturing) much better than process stds e) economies of scale (otherwise, states duplicate efforts) (1) collection/analysis of data (2) technically complex stds f) basic human rights to equal protection (1) PRO: “politics of sacrifice” easier to incorporate into fed tax/reg scheme (2) CON: why don’t we socialize medicine? III. Clean Air Act (CAA) 12 A. Listing criteria pollutants 1. EPA must first create list, which triggers all subsequent regs -§108 a) reasonably expected adverse effects on health/welfare -§108(a)(1)(A) b) numerous or mobile/stationary sources -§108(a)(1)(B) c) no existing stds plus intent to issue criteria -§108(a)(1)(C) (1) EPA tried to use this one to get out of lead stds (no intent) --ct. said bullshit 2. Notice/comment period 3. Current list a) SO2 (1) coal combustion b) particulates c) ozone d) CO e) HC f) NOx g) lead B. Ambient Stds (NAAQSs) -§109 1. Criteria for setting NAAQS a) NAAQS must reflect latest sci knowledge -§108(a)(2) b) Don’t consider economic/tech feasibility (Lead Industries Ass’n) (1) PRO (a) ensures higher level of safety (i) forces tech innovation (b) avoids cost/ben analysis (i) cost-of-cost arg (=> devaluation) (ii) costs always inflated by industry (2) CON (a) air pollutants have zero-threshold harm (CBA will happen anyway) (Krier) (i) explicit cost evals = less agency fudging (Eads) (ii) get efficient result, worry about dist. later c) ex: lead std (1) methodology (a) critical effect (99.5% response rate) (b) contribution from non-air sources (e.g., paint) (2) problems (a) over/underinclusive (i) some parts of country may have diff. concentrations (ii) some people may react diff. (b) always some unprotected group (.05%) (c) how can ct review w/o sci knowledge? (d) always go as strict as possible? (i) CON: set lax std, let states go further (ii) PRO: state apathy was the problem in the first place 2. Goal: Protect health/welfare a) Primary stds (protect health) -§109(b)(1) (1) allow margin of safety 13 b) Secondary stds (non-health) -§109(b)(2) C. State Implementation Plans (SIPs) --§110 1. Requirements (for each listed pollutant) a) Meet NAAQS w/in each air quality control region (AQCR) -(a)(1) (1) set emission limitations or other control strategies -(a)(2)(A) (a) allows econ incentives (e.g., market permits, fees) b) set up data collection/analysis systems -(a)(2)(B) c) limits on interstate pollution (see below) (1) can’t contribute sig. to non-attainment by another state -(a)(2)(D)(i)(I) (2) can’t interfere w/another state’s PSD/visibility measures-(a)(2)(D)(i)(II) 2. SIP can go beyond nat’l std (Union Electric Co.) a) “necessary” to meet = minimum condition b) econ/tech feasibility irrelevant c) might be limited by interstate provisions (see below) 3. Revise as NAAQS get revised -(a)(2)(H) D. Existing Source vs. New/Modified Source 1. Existing source a) Emissions std under SIP b) “Bubbling” issue (Chevron) (1) Company will claim that new emitting unit is just part of old plant (a) same owner (b) close physical proximity (2) So long as aggregate amount of emissions w/in “bubble” does not ↑, company denies that they are a new or modified source (3) ∴ avoids all new source requirements (a) PRO: can ↓ agg. emissions in most cost-effective manner by relaxing strict def. of “source” 2. New (§111(2)) & Modified (§111(4)) sources a) Emission Stds: New Source Performance Std (NSPS) -§111 (1) use best system “taking into account costs” = industry bankruptcy constraint (Portland Cement) -(a)(1) (a) PRO: avoid public choice problem: some firms might go under, but industry will survive (= less resistance) (b) CON: might get a lax std (i) many firms on brink of bankruptcy (ii) readily-available substitutes (iii) price-elastic demand (consumers switch) (iv) intense global competition (2) system must be “adequately demonstrated” (Portland Cement)-(a)(1) (a) if test on existing sources, must specify why other methods ruled out (b) EPA doesn’t have to do new tests (i) may extrapolate from old data (ii) may respo-nd on reasoned basis to comments (iii) may use expert testimony E. Prevention of Sig. Deterioration (PSD) 1. Ambient stds a) Baseline = ambient level at time of 1st permit application w/in area -§169(4) 14 b) Increments -§§162, 163 (1) Class I (nat’l parks -§162(a)): 2.5% ↑ over baseline (2) Class II (everywhere else -§162(b)): 25% ↑ over baseline (3) Class III (redesignated areas -§164): 50% ↑ over baseline (a) have never been used c) Still can’t exceed NAAQS d) Functionally, only applies to SO2 (Cong. hasn’t set any other stds) 2. Emission Stds -§165 a) Permit to allow building of new major emitters (1) if on statutory list (§169(1)), apply if emit 100+ tons reg pollutants per year (100% capacity, 24/7) (2) if NOT on list, apply if emit 250+ tons (3) includes major modifications leading to sig. ↑ emission b) Install Best Available Control Tech (BACT) -§169(3) (1) case-by-case determination of costs (2) cannot be less stringent than NSPS c) No bad effects in other areas 3. Policy issues a) Why do we care about PSD when NAAQS already met? (1) PRO (a) preserve visibility (b) prevents industries from moving to clean areas (easier to protect clean areas than clean up dirty ones) (2) CON (a) could handle visibility w/secondary NAAQS (“welfare”) (b) move to clean areas = less harm (so long as NAAQS still met) F. Non-attainment 1. Ambient std a) Baseline b) Reasonable Further Progress (RFP) -§171(1) (1) Must attain by deadline -§172(a)(2)(A) (a) Date of attainment set as quickly as practicable (b) 5 yr. max (more time given for dirtier areas => 10 yrs.) (2) Stds exist for ozone, CO, particulates 2. Emission std a) Permit to allow new major or modified emitters b) Lowest available emission reduction (LAER) -§171(3) (1) More stringent of following two: (a) most stringent SIP requirement for that source class in any state, OR (b) most stringent limitation achieved in practice by such class (2) Can’t be less stringent than NSPS c) Offsets (can’t ↑ emission unless you ↓ in other areas) (1) offset ratio higher than 1:1 (net ↓ = RFP) (2) can purchase righs to pollute off of existing sources (a) PRO: still gets net ↓ at cheaper costs 15 (b) CON: may encourage old plants to stay in use instead of shutting down, since their pollution rights have market value 3. States must revise SIPs -§179 a) can be sanctioned if refuse (Virginia v. Browner) (1) cut off fed highway funds (2) increase offest ratio (3) impose FIPs G. Interstate Provisions 1. In SIP, states can’t interfere w/other state’s NAAQS a) can’t contribute sig. to non-attainment by another state -(a)(2)(D)(i)(I) (1) what if downwind state is operating just above NAAQS? (would upwind contribution be sig?) (2) can’t be the but-for cause b) can’t interfere w/another state’s PSD/visibility measures-(a)(2)(D)(i)(II) c) only applies to nat’l std (1) PRO: Commerce Clause might rule out anyway (set state std tougher to prevent other states from developing industry) (2) CON: may disallow states from setting state stds tougher than NAAQS (Ky. v. Ind.) d) Non-attainment areas not covered (can you make a big impact?) 2. Other states may file complaint during public comment period a) May appeal to circuit courts 3. Limitations on stack height -§123 a) As high as allowed by good engineering practice b) Intended to dicourage externalities to downwind states 4. Sulfates problem (NY v. Ill.) a) => particulate pollution in atmosphere (1) EPA stds ignore (2) EPA models assume no harm past 50 km 5. Policy issues a) PRO (1) barriers to Coasian bargaining preclude states from reaching agreement (a) info modeling problems (b) diff. pollutants from diff. states (c) hadn’t happened empirically before CAA b) CON (1) Downwind state may be cheapest cost-avoider (no controls, little industry) (2) Giving entitlement to downwind state = subsidy for Eastern states (pollution => Atlantic Ocean) (a) then again, we don’t ask Midwest states to share their corn (3) Promotes “first-come, first-served” rush to pollute up to NAAQS by both states H. Acid Rain Provisions 1. Phase I: 110 big polluters grandfathered into permits, then allowed to trade freely a) PRO: see discussion above on marketable permits b) CON (1) permits have been priced lower than expected (a) cost estimates inflated by industry (b) dereg. of transportation industry = ↓ prices (can bring low-sulfur coal from West) 16 (c) ↑ mining regs on high-sulfur coal = ↓ prices (↑ demand for low-sulfur coal) (2) do we really want a nat’l market, given regional variations in costs? 2. Phase II: In yr. 2000, # of permits ↓ and at smaller ratio I. Hazardous air pollutants -§112 1. no ambient stds, just emission stds J. Mobile sources (cars) -§702 1. Tailpipe emmission levels 2. Fuel type requirements 3. Non-attainment a) SIP must include inspection/maintenance (I/M) programs K. Right of action 1. citizens can sue to enforce non-discretionary acts of EPA -§304(a)(2) 2. agency gets deference IV. Clean Water Act (CWA) A. Goals 1. Zero discharge by 1985 2. Fishable/swimmable by 1983 B. Tech-based effluent limitations 1. Existing point sources (“point source” defined in §502) a) Permits -§301 (1) Timetable (a) By 1977, Best Practicable Tech (BPT) -(b)(1)(A) (b) By 1989, Best Available Tech (BAT) -(b)(2)(A) (2) Uniform stds by industrial category (a) PRO (i) specific knowledge difficult to obtain (b) CON (i) ignores regional diff. in costs (ii) impacts of pollution & benefits of control varies among regions b) Guidelines -§304 (1) BPT -(b)(1)(B) (a) comparison factor: cost of control vs. benefit of effluent reduction (b) consideration factors (i) age of equipment (ii) process changes (iii) non-water impacts (iv) energy requirements (2) BAT -(b)(2)(B) (a) cost NOT dispositive (factors in along with other consideration factors) c) Establishment (1) States set stds -§303 (2) Feds approve stds & issue permits -§402 2. New Sources -§306 a) Best Demonstrated Tech (BDT) -(a) (1) consideration factors 17 (a) cost of reduction (b) non-water impacts (c) energy b) 10 yr. protection from more stringent stds -(d) C. Variances 1. Fundamentally Diff. Factor (FDF) -§301(n) a) Individually tailored (1) Looks at actual cost (e.g., weird equipment => ↑ costs than everyone else) (2) Can’t be based on econ. feasibility (e.g., firm bankruptcy) b) Can’t result in water quality std markedly more adverse c) Gets new std rather than exception to existing std 2. Diff. FDF criteria for diff. effluent stds a) BPT = > Required b) BAT (1) FDF Discretionary (2) Modifications to existing std (a) Economic capability -§301(c) => BAT (i) looks at ability to meet costs (max. allocation of tech w/in econ. cap. of operator) (ii) RFP towards elimination of effluents (b) Water quality -§301(g) (i) allows less stringent stds than effluent if quality is being met anyway (ii) only applies to certain pollutants (3) NO modifications for toxic pollutants -§301(l) c) BDT => Not available for FDF or modifications D. Water quality stds (safety net) -§303 1. Minimum state requirements a) Designated uses -40 CFR §131.10 (1) can’t designate as “waste transport” -(a) (2) must ensure maintenance of downstream water quality -(b) (3) may adopt subcategories -(c) (4) may adopt seasonal uses -(f) (5) may downgrade uses if not actually being used for that purpose -(g), because of: (a) naturally-occuring pollutants (b) flow conditions or water levels (c) human-caused reasons that can’t be remedied (d) hydraulic modifications (dams) (e) controls would result in substantial social/econ impact (6) can’t designate uses lower than what’s actually being attained -(i) b) when state adopts std lower than F/S, must do an attainability anaysis -(j) c) for nonpoint sources, state must meet cost-effective & reasonable best mgmt practices (1) planning process (sucky) -§208 (2) state assessment reports & mgmt programs -§319 (a) farms subject to FSA subsidy requirements (std = best mgmt practice) (b) Coastal Zone Mgmt Act 2. Criteria to protect designated use -§131.11 a) based on sound sci. rationale 18 b) establish numerical criteria (& narrative criteria when needed) 3. Antidegradation (similar to PSD) -40 CFR §131.12 a) Must maintain water quality of existing uses (1) Can allow to slip down to designated use b) Only applies to water quality levels better than F/S 4. Review a) Feds set criteria for stds b) States must review stds every 3 years -§131.20 c) Fed Admin may reject use if inconsistent w/CWA -§131.21 E. Water quality-based effluent limitations -§§301(b)(1)(C), 302 1. Generally more stringent than tech-based stds a) Feds can invoke higher std if state-set effluent std interferes w/fishable/swimmable -§302(a) b) Polluter can request reasonable relationship b/w costs & benefits -§302(b)(2)(A) F. Interstate Pollution 1. EPA may apply water quality stds of downstream state (Ark. v. Ok.) a) no statutory mandate (unlike CAA) b) std must be reasonable (e.g., detectability std in Ark.) c) hard to prove source of pollution d) Cts tend to strike down state stds more stringent than fed 2. Once downstream water already in violation, CWA doesn’t necessarily ban all further upstream discharges (Ark. v. Ok.) 3. Policy of downstream entitlement a) PRO (1) can’t get right anwer thru Coasian bargaining (a) private suits screw up bargained positions (b) EPA suits screw up b) CON (1) downstream state might be cheaper cost-avoider (2) first-come, first-served allocation 4. Nonpoint sources => interstate mgmt conf. -§319 G. Wetlands Protection -§404 1. Functional def. of “wetlands” a) adjacent to bodies of water (may not be necessary) b) supports wetlands vegetation (Riverside Bayview Homes) c) wetlands animal habitat (1) applies to artificial wetlands 2. Permit program for discharges (Army Corps of Engineers) a) dredge material: excavated from waters b) fill material: replacing water w/land 3. Guidelines -(b)(1) a) no practicable alternative w/less adverse impact on wetlands (1) include. cost analysis (2) deter land-based project that don’t need access to water b) no statutory violations 19 c) no sig. adverse impacts d) reasonable mitigation measures (1) allows offsets or mitigation banking (a) PRO: cost-effective (b) CON: artificial wetlands may not be as eco-effective as real ones 4. EPA may veto H. Policy 1. Why emissions stds, rather than ambient? a) CON (1) feds didn’t realize danger of non-point sources (2) feds thought emissions would be sufficient (quick fix) (3) didn’t realize inability of smaller bodies of water to handle higher effluent discharge levels 2. Why so much state discretion, rather than nat’l? a) PRO (1) all waters don’t mix with each other (2) pollutants filter out over time (3) water does not affect everyone, unlike air (e.g., citry dwellers not affected by groundwater quality) (4) diff. laws handle drinking water b) CON (1) allows for interstate externalities (2) feds have econ of scale on info gathering 3. Market permits won’t work a) water pollution has clear threshold for harm (= ↑ danger of hot spots) V. Resorce Conservation & Recovery Act (RCRA) A. Applies to hazardous solid wastes 1. “hazardous” a) ignitability b) corrosivity c) reactivity d) toxicity 2. “solid wastes” a) = discarded material b) ≠ raw materials c) ≠ ongoing recycled materials (American Mining Cong.) (1) good idea? (a) PRO: gets benefits of recycling at cheaper cost (b) CON: could ↑ risk of release (2) can’t just intend to reuse (no speculative accumulation) B. Licensing regime 1. TSD (treat, store, dispose) facilities 2. generators 3. transporters C. Recordkeeping system 1. Helps prove causality during litigation 20 VI. Comp. Envtl. Response, Compensation, & Liability Act (CERCLA) A. Potentially Responsible Parties -§107(a) 1. current owner/operator a) exemption for lenders -§101(20)(A) (1) assumes NO participation in mgmt of facility -(F) (a) includes (i) active participation in day-to-day mgmt or operational functions (ii) expenditure approval {a} YES: Fleet Factor {b} NO: other cts (iii) making decisions re: envtl compliance (b) does not include (i) foreclosures (ii) mere capacity to influence (iii) monitoring or re-negotiating terms of credit (iv) providing financial counsel (2) Should bank be liable for involvement to recoup on loan (pre-foreclosure)? (a) PRO (i) bank = low-cost providers (ii) bank has incentive to monitor (b) CON (i) bank doesn’t know shit about pollution (ii) may dry up credit market for small businesses (iii) don’t want to give banks incentive to keep hands-off when they know of a violation 2. prior owner/operator if disposal during period of ownership a) Cts split on “disposal” (1) narrow: actively placing hazardous stuff on land (some circuit cts) (a) CON: goves landowners incentives to ditch off property so as to become non-disposing past owners (2) broad: leaking stuff existing on land (Nurad) (a) CON (i) why didn’t Cong. just say “release” (ii) moots out “innocent landowner” exception (see below) 3. generators who arranged for disposal a) arrange implies intent to be disposed? (1) process vs. use? (a) Aceto: A (chem) => B (process); A retained ownership ∴ B off hook (b) Hines Lumber: V (product) sell=> H use & dispose ∴V off hook (2) positive price (sell it to someone as product) vs. negative price (pay to have someone take it away)? 4. transporters a) includes anyone who helped pick the facility 5. non-disclosing sellers of land (see defenses below) B. Scope of Liability -§107 1. Release or threatened release -§101(22) 2. Hazardous substance -§101(14) a) defined relative to other statutes b) EPA can label additional items 21 c) petroleum excluded 3. Causes incurrence of response costs 4. Strict Liability Std a) taken from CWA b) liability is retroactive (1) PRO (a) old companies got benefits from dumping, current taxpayers didn’t (b) sends msg to current polluters not governed by statute to watch out (2) CON (a) no notice for old polluters 5. Joint & Several Liability a) Statutory right to contribution among ‘s -§113(f)(1) (1) ct. may use equitable factors (2) may be brought during or following trial b) Stds (1) Harm must be indivisible (a) has burden re divisibility (b) If everything’s mixed together, relative # of barrels irrelevant (Monsanto) (c) Characterization of harm is key c) De minimis settlements get out of contribution -§122(g) d) Policy (1) Damages may be divided at contribution stage (2) Shifts cost of finding other liable parties from gov’t to (3) Shifts risk of insolvent parties onto (4) ↑ incentives for monitoring & early settlement 6. Damages a) all remedial/removal costs incurred by U.S. (1) removal actions: short-term, quick-fix (2) remedial actions: long-term b) necessary response costs by any other person (nat’l contingency plan) c) damages for loss of nat’l resources (1) cleanup often ruins the nat’l value of land (2) incl. assessment costs (3) use restoration costs as measure (State of Ohio) (a) “diminution of value” std doesn’t ensure restoration (b) incorporate existence values (4) offsets (a) PRO: may get more value out of different ecological resources (= ↑ cost-effectiveness) (b) CON (i) cheap, artificial ecosystems may have lesser value than natural ones (ii) disposable planet mentality d) cost of health assessments e) note: no remedy for personal injury (handled thru state-based tort law) 7. Timing on suit = ASAP a) indemnified parties => insolvent 22 b) costs ↑ over time C. Defenses -§107(b) 1. Release/damage caused solely by a) act of God b) act of war c) act/omission of 3rd party iff (1) used due care (idividualized std: may depend on who you are) (2) took precautions against forseeable actions by 3rd party (3) 3rd party not an employee/agent (4) act/omission NOT in connection w/K-relation (a) policy: prevents strategic behavior by generators (hire small/insolvent transporters) (b) “K-relation” => “innocent landowner” exemption for current owners -§101(35)(A) (i) acquired by after disposal/placement, AND {a} note: arg vs. Nurad std (ii) at time of acquisition, did not know or have reason to know about substance {a} “reason to know” = must have undertaken appropriate inquiry into previous ownership -(B) (i) specialized knowledge (ii) artificially low price (iii) commonly known or reasonably acertainable (iv) obvious contamination (iii) is gov’t agency who acquired land thru escheat, involuntary, eminent domain (iv) acquired thru inheritance (v) if had actual knowledge of release or threatened release & sold land w/o disclosing, liable w/o defenses (=5th PRP category) -§101(35)(c) (c) “in connection w/” => handling of hazardous wastes (Westwood) (i) is current owner paying for right to engage in future activities? (ii) perhaps wastes were reflected in K price? (iii) mistake doctrine in K? (iv) problem: current owners could always argue that K wasn’t in connection w/waste (regardless of knowledge or reason to know) d) “solely” = but-for cause? (1) in Westwood not liable even though they put tanks in ground (tanks would not have leaked but for Π construct) 2. Burden of proof on by preponderance of evidence D. Cleanup Process 1. Superfund grants a) Can be used on any removal sites b) Can be used on remedial sites making Nat’l Priorities List (NPL) c) Does not absolve private parties of liability 2. Process breakdown a) EPA aware b) Prelim Assess c) Hazard Ranking d) Nat’l Listing e) Remedy Investigation & Feas/Study f) Record of Decision (ROD) g) Remedial Design h) Remedial Action 23 i) Work Complete /Delisted 3. Stds for cleanup -§121 a) Most preferred: permanent reduction -(b)(1) b) Least preferred: Transport/disposal -(b)(1) c) Remedial action (1) must assure protection of health/env. as relevant or appropriate under circumstances -(d)(1) (2) must meet level required by any legally applicable or relevant std (ARARs) -(d)(2) (a) can be fed or state std (3) may do cost-effectiveness analysis -(d)(4)(F) E. Policy issues 1. CERCLA creates disincentives to buy polluted property a) PRO (1) EPA has de facto policy of not going after “Brownfield” owners (a) ≠ defense (owners can get screwed by later admins) (b) raises env justice concerns b) CON (1) We want to free up land so it can be used by person who values it most (2) Leaves inner city Superfund sites vacant (3) Encourages developers to build on clean land --shouldn’t we want to concentrate pollution so we can have more pristine areas? (a) possible synergistic effects 2. States can enact stricter statutes a) some have more extensive disclosure requirements (1) = ↓ chance of being an “innocent” landowner b) some states require cleanup at time of transfer (1) PRO: cleanup gets done (2) CON: could tie up property VII. National Environmental Policy Act (NEPA) A. Fed duty to protect environment -§101 1. Use all practicable means to coordinate plans a) human env. (broadly defined) b) national heritage c) wide sharing of life’s amenities (env. just.) d) recycling 2. Doesn’t mean dick in practical context B. Environmental Impact Statement (EIS) -§102(2)(C) 1. Threshold a) Applies to all fed agencies (1) must ensure that env factors were considered in decision-making process (Calvert Cliffs) (a) admin hassle not enough to justify not preparing EIS (b) duty is strictly procedural (Stryker’s Bay) (i) no substantive std {a} at least agency has to make these judgments on a case-by-case basis {b} creates paper trail on env. issues (= easier follow-up by env. groups) (ii) still has to meet APA arbitrary & capricious std 24 (2) enacting agency prepares and deliberates EIS (a) PRO (i) don’t want EPA stepping on everyone’s toes (ii) want to spawn culture-change w/in other agencies (b) CON (i) many agencies ideologically opposed to env. concerns (ii) centralized agency like EPA might have better knowledge b) Proposals (1) proposals for legislation (doesn’t come up much) (a) Congress ≠ fed agency (b) doesn’t apply to most int’l trade agreements (e.g., NAFTA) (Public Citizen) (i) judicial review only applies to final agency actions (per APA) (2) proposals for major fed action (a) includes fed policy, plans, programs, & specific projects (b) includes private projects that need fed approval (c) can be limited to segments of plans if appropriate (i) cumulative/connected env. impacts => single EIS (Kleppe, Thomas) (d) inaction ≠ “action” c) Sig.affects quality of environment (1) “sig” = context & intensity (2) “effect” = impact (a) may have to do an environmental assessment (EA) in order to determine whether EIS is needed (b) may have to study alternatives regardless of EIS -§102(2)(E) 2. Contents a) Summary to facilitate public review b) Explanation of purpose c) Assessment of alternatives (1) Including no action & mitigation measures (2) Don’t need to assess everything (Vermont Yankee: just material stuff) d) Description of affected environment e) Analysis of consequences (1) good faith std (Sierra Club v. Army: West Side Hwy) C. Oversight by Council on Env. Quality (CEQ) -§202 1. Promulgate regs binding on all fed agencies 2. No specific review of EIS D. Judicial review 1. Agency interp of statute (legal inquiry) a) deference => Chevron doctrine (1) against clear legislative intent (2) unreasonable 2. Substantive decisions (factual inquiry, e.g., sci) a) deference => APA “arbitrary & capricious” 3. Procedural decisions a) NO deference --ct. interprets law VIII. Endangered Species Act (ESA) 25 A. Duty to conserve by fed agencies -§2 1. Positive duty to conserve -(c) (Carson-Truckee: water sales ≠ “action,” but still triggers ESA protection) 2. “Conserve” = use all methods necessary to bring any species to point where ESA not needed -§3(3) a) only duty to save species threatened by humans 3. “Endangered species” = across subst. portion of rangs a) not include insect pests B. Listing procedures -§4 1. best sci/commercial data (1) cannot take econ into consideration (2) crit habitat: can take econ factors into consideration b) DOI stds (1) best available ev (2) peer review c) Bogus factors (1) “warranted but precluded” (2) politicized agency choices (e.g, ↓ # listings under Bush/Reagan; ↑ under Clinton) 2. acting agency has burden to prove stds met (Roosevelt Campobello) a) APA substantive std for “arbitrary & capricious” agency studies (Hodel: agency ignored its own expert) b) anyone can petition/challenge listing decision & get ct. review -(b)(3) (Hodel) 3. independent oversight from DOI a) ↓ political agency choices (unlike NEPA) C. Fed action -§7 1. Fed action not likely to jeopardize end/thr species or adverse mod of crit. hab. a) Broad def. (includes anything authorized, funded, carried out) 2. Consultation -(a)(2) a) procedural requirements NOT discretionary (Thomas) (1) see if listed (2) do biological assessment (NEPA std) (3) consult FWS => biological opinion (4) if jeopardy, no project b) Requires best sci/comm data (Roosevelt Campobello: can’t leave out study necessary for safety designation) c) Burden on agency to prove stds met 3. Exemptions (ESC) -(e) a) Procedural hurdles (1) initial finding by Secretary b) ESC decision as adjudication -§7(h) (1) Means (a) No reasonable/prudent alternatives (b) No irreversible commitment of resources (good faith?) (c) Mitigation measures (2) Ends (a) Benefits clearly outweigh alt courses consistent w/species preservation 26 (b) Public interest (i) may explain why ESC not apply §9 private actions (less likely to be in the public interest) (c) Regional/national significance (3) Outweighed when potential harm is either infinite or certain (a) Nat’l security -(j) (b) Flood control -(p) (c) Exception for Eskimos (4) requires supermajority (5 out of 7) D. Private Action -§9 1. Endangered animal species => take prohibition a) “take” = injury (1) physical damage (2) habitat modification (Palila) (3) and/or broad interpretation (Sweet Home) (4) applies to harm on ecosystem b) Incidental take permits -§10(a)(1)(B) (1) must submit Habitat Conservation Plan (HCP) -(a)(2)(A) (a) impact on species (b) mitagtion steps (c) alternative considered & explanation of why not (2) Take must not appreciably reduce likelihood of survival 2. Endangered plant species => can’t remove, maliciously destroy 3. DOI options a) HCP’s b) Safe Harbor c) No surprises d) Ecosystem approach E. Penalties 1. criminal for knowing violations 2. civil for some knowing violations (& even w/o scienter) (Sweet Home)