Environmental Law

Environmental Law, Fall 1999 Professor Percival Page 1 of 39 Table of Contents ENVIRONMENTAL VALUES AND POLICIES: AN INTRODUCTION .................................................................3 American Environmentalism: Sources and Values .....................................................................................................3 ENVIRONMENTAL LAW: A STRUCTURAL OVERVIEW ....................................................................................3 Common Law Roots ...................................................................................................................................................3 Trespass ...................................................................................................................................................................3 Private Nuisance ......................................................................................................................................................4 Public Nuisance .......................................................................................................................................................4 The Public Law of Environmental Protection .............................................................................................................5 Environmental Statutes: A Historical Perspective ...................................................................................................5 Environmental Federalism: Three Models of Federal-State Relations ....................................................................5 Approaches to Regulation: Assessing the Options ..................................................................................................7 WASTE MANAGEMENT AND POLLUTION PREVENTION .................................................................................7 Introduction ................................................................................................................................................................7 Resource Conservation and Recovery Act..................................................................................................................8 Introduction ..............................................................................................................................................................8 Structure of RCRA ...................................................................................................................................................8 Solid Waste ..............................................................................................................................................................9 Hazardous Waste .....................................................................................................................................................9 Recycled Material ....................................................................................................................................................9 Comprehensive Environmental Response, Compensation, and Liability Act ............................................................9 Structure of CERCLA ..............................................................................................................................................9 Overview................................................................................................................................................................ 10 Potentially Responsible Parties .............................................................................................................................. 10 Comparison of RCRA and CERCLA .................................................................................................................... 11 REGULATION OF TOXIC SUBSTANCES .............................................................................................................. 12 Defining and Identifying Risks ................................................................................................................................. 12 Regulating Toxic Substances .................................................................................................................................... 13 Federal Insecticide, Fungicide, and Rodenticide Act................................................................................................ 13 Overview................................................................................................................................................................ 13 Structure of FIFRA ................................................................................................................................................ 13 Toxic Substances Control Act .................................................................................................................................. 13 Overview................................................................................................................................................................ 13 Structure of TSCA ................................................................................................................................................. 14 Risk Assessment Techniques .................................................................................................................................... 14 Risk-benefit Balancing ............................................................................................................................................. 16 Alternatives to Conventional Regulatory Approaches .............................................................................................. 16 Emergency Planning and Community Right-to-Know Act ...................................................................................... 17 Overview................................................................................................................................................................ 17 Structure of EPCRA ............................................................................................................................................... 17 THE REGULATORY PROCESS ............................................................................................................................... 17 Judicial Review and the Regulatory Process ............................................................................................................ 17 Standing .................................................................................................................................................................... 18 Citizen Suit Provisions.............................................................................................................................................. 19 AIR POLLUTION CONTROL ................................................................................................................................... 20 The Clean Air Act: Origins and Principles ............................................................................................................... 20 Structure of the CAA ............................................................................................................................................. 20 National Ambient Air Quality Standards ............................................................................................................... 20 State Implementation Plans .................................................................................................................................... 21 The Non-attainment Problem.................................................................................................................................... 22 Interstate Air Pollution.............................................................................................................................................. 22 WATER POLLUTION CONTROL ............................................................................................................................ 23 The Clean Water Act ................................................................................................................................................ 23 Structure of CWA .................................................................................................................................................. 23 Effluent Limitations on Point Source Discharges .................................................................................................. 24 Water Quality Based Controls ............................................................................................................................... 24 Environmental Law, Fall 1999 Professor Percival Page 2 of 39 Wetlands Protection and the Section 404 Program ................................................................................................... 25 Enforcement of CWA ............................................................................................................................................... 26 Land Use Controls and the Takings Clause .............................................................................................................. 27 New Developments in Takings Cases ....................................................................................................................... 28 ENVIRONMENTAL ENFORCEMENT .................................................................................................................... 29 Monitoring and Detecting Violations ....................................................................................................................... 29 Enforcement Authorities and Policies ...................................................................................................................... 30 Citizen Suits to Enforce Environmental Regulations................................................................................................ 30 Criminal Enforcement............................................................................................................................................... 30 PROTECTION OF PUBLIC RESOURCES ............................................................................................................... 31 National Environmental Policy Act .......................................................................................................................... 31 Structure of NEPA ................................................................................................................................................. 31 Overview................................................................................................................................................................ 32 Under What Circumstances Must an Environmental Impact Statement Be Prepared? .......................................... 32 Is the EIS Adequate? .............................................................................................................................................. 33 Conservation of Endangered Species........................................................................................................................ 33 Structure of ESA .................................................................................................................................................... 33 The Endangered Species Act ................................................................................................................................. 33 Protection Against Private Action: Section Nine ................................................................................................... 34 Public Resource Management and the Environment ................................................................................................ 35 Public Land and Natural Resources Law ............................................................................................................... 35 Preservation of Biodiversity .................................................................................................................................. 36 PROTECTION OF THE GLOBAL ENVIRONMENT .............................................................................................. 36 International Environmental Law ............................................................................................................................. 36 Protection of the Global Atmosphere ....................................................................................................................... 37 International Trade and the Environment ................................................................................................................. 37 The Environmental Impact of Trade Liberalization ............................................................................................... 37 International Trade in Hazardous Substances ........................................................................................................ 38 CONCLUSION ........................................................................................................................................................... 39 Environmental Progress ............................................................................................................................................ 39 Environmental Prospects .......................................................................................................................................... 39 Environmental Law, Fall 1999 Professor Percival Page 3 of 39 ENVIRONMENTAL VALUES AND POLICIES: AN INTRODUCTION American Environmentalism: Sources and Values 1. What is an environmental problem? An environmental problem is anything that violates one of the reasons that we protect the environment. a. Human Health. Want to prevent humans from harm by environmental contaminants. b. Economic. Some would argue that the goal of environmental policy is to achieve the maximum level of sustainable development. i. It is difficult to say where this natural state is because even unfettered nature fluctuates wildly and fails to establish a steady state. ii. Carrying capacity is the idea that different habitats have varying capacities to sustain nature. Once this capacity is exceeded, the renewable ability to sustain that ecosystem is breached. c. Aesthetic. Want to protect the environment for its own sake and for aesthetic reasons. Some preservationists feel a religious duty to be the stewards of the environment. 2. What should our environmental policy be? a. Shallow View. This philosophy embraces the homocentric view of environmental policy. Homocentrists recognize nature‟s value as a source of natural resources to be exploited by man. b. Intermediate View. This approach most nearly approximates the prevailing US policy towards the environment. The US government has said that it is to maintain conditions under which man and nature can exist in productive harmony with respect to future generations. c. Deep View. This ideal places the value of nature over all anthropogenic projects. It recognizes the intrinsic value of nature; nature must exist for itself and for its creator. 3. How are environmental policies analyzed? The conflict between the following views is resolved in legislation by adopting idealistic ends to satisfy moral outrage while delegating authority to agencies that are likely to implement the cool analysis approach. a. Moral Outrage. This view often grounds environmental policy on moral or ethical considerations. This view is often used in seeking a transformed social structure where the exploitation of natural resources conflicts less with their preservation. The ESA adopts this approach by endeavoring to maintain biodiversity at all costs. b. Cool Analysis. This view is embraced by economists and is present anywhere there are cost-benefit analyses. This approach is decidedly amoral and approaches conflicts between the environment and other concerns equally. The NEPA adopts this approach by requiring an Environmental Impact Statement. 4. Example: Arctic National Wildlife Refuge a. Cool analysis argued if there was little damage to the environment, go ahead with the project. But, initial impact studies conducted before drilling commenced vastly underestimated the damage that actually occurred. b. The moral outrage approach would adhere to the precautionary principle which states that if an activity will have potentially irreversible impacts, you should bend over backwards to be fully informed of what the consequences of your actions may be. ENVIRONMENTAL LAW: A STRUCTURAL OVERVIEW Common Law Roots Trespass 1. The CL relied largely on nuisance law doctrines but conduct that resulted in a physical invasion of property could be considered trespass. a. Nuisance law protects against invasions of interests in the use and enjoyment of land, while trespass protects against invasions of interest in the exclusive possession of land. b. Strict liability was imposed in trespass cases so long as the violator was present on the land. Environmental Law, Fall 1999 Professor Percival Page 4 of 39 Private Nuisance 2. Requires a showing of substantial and unreasonable (forseeable) interference with the use and enjoyment of land unless the activity falls under a strict liability statute (abnormally dangerous activities, etc.). Designed to protect against private property, private nuisance involves the invasion of another‟s private use and enjoyment of land and does not have to be trespassory. a. It is easy to bring a nuisance action if you know who brings the harm but this issue is often quite difficult to resolve. b. What is a nuisance in one neighborhood is not a nuisance in another. This was especially prevalent during the Industrial Revolution where courts were reluctant to scare off industrial development. This gives the upper hand to more exclusive neighborhoods at the expense of the poorer ones. c. Aldred’s Case. A pig sty on D‟s land created a foul smell that interfered with P‟s use of his land, next door. The court finds D‟s behavior actionable, establishing air pollution as a nontrespassory invasion of property rights. d. Sic utere. Everyone must so use their own so as not to interfere with another. 3. Balance. Courts have struggled with balancing the hardship of pollution abatement against the damage to victims. The term “unreasonable” is satisfied if either the harm outweighs the benefit of the invasion or the burden of compensating for the harm would not make continuation of the conduct unfeasable. 4. Madison v. Ducktown Sulfur. Small farmers sought an injunction against two large copper smelters to prevent further degradation of surrounding environmental conditions due to the smelter‟s emissions. a. The court balanced the equities, weighing the value of P‟s land against the benefit Ducktown received as a result of the jobs and money D brought to the area. i. The court refused the injunction but awarded damages. They seemed to be acknowledging that the farmers were wronged but adequately redressing their injury would result in too much economic harm to the area. ii. There was no recovery for diminution in P‟s property value because P presented no absolute proof the damage was caused by the smelters. b. Balancing the equities promotes efficiency by addressing the concerns of both economic allocation as well as the allocation of resources. c. SLAPP Suit. When the smelters were initially sued, they counter-sued (SLAPP suit – Strategic Lawsuit Against Public Participation), causing some of the farmers to drop out of the suit. This is still a common strategy. Public Nuisance 5. Public nuisance is defined as an activity that causes an unreasonable interference with the enjoyment of a right available to the general public. a. Determining unreasonableness involves considering whether the activity effects: i. The public safety, heath, or comfort. ii. Activity that is illegal. iii. Activity with a long-term effect on the public that is significant. b. Courts are hesitant to enforce public nuisance against large enterprises because of the potential effect on the local economy. Therefore, public nuisance actions are usually levied against nonresident polluters. 6. Missouri v. Illinois. IL constructed a sewage conduit that connected to the Mississippi River which carried the sewage to MO. MO claimed that IL‟s actions constituted as a public nuisance because MO had a right to clean drinking water and IL infringed on this right by dumping sewage down the River. a. Causal Injury Difficult to Prove. The court ruled that MO could not clearly show causal injury because an increase in typhoid in MO could not be connected to IL‟s activity. Indeed, cities in MO also contributed to dumping into the River. b. Doctrine of Unclean Hands. Further, the court reasoned that due to MO cities‟ dumping activities, they could not meet the “clean hands” maxim of equity and were not entitled to an injunction. Environmental Law, Fall 1999 Professor Percival Page 5 of 39 Georgia v. Tennessee Copper. GA sued two copper smelters because airborne pollutants were drifting across the TN-GA border, impacting state lands. GA alleged that the public nuisance injury was embodied in the destruction of state roads, not the economic value of the land. In addition, a sovereign has a strong interest in providing clean air for their citizens. a. GA won, but the nuisance was allowed to continue, GA receiving damages. GA succeeded where MO failed because causation was much easier to prove. However, the court warned that the effect of the ruling cut both ways, as activities in GA could be enjoined as a result of suits from other States. b. Since the court did impose some restrictions (although, by the numbers, the reduction in emissions turned out to be about 20%), the company had economic incentive to remove some of the pollution from the air. This incentive came from both the avoidance of lawsuits and the ability to manufacture sulfuric acid from the pollution. 8. Jurisdiction. In Milwaukee I the Supreme Court confirmed that federal nuisance actions could be brought against polluting governmental entities, but eliminated the Supreme Court‟s original jurisdiction over these cases, referring them to the federal district courts. 9. Preemption. Federal regulations often establish minimum standards that a state‟s common law must adhere to, but are free to go above with EPA approval. 10. Problems. CL was only able to respond after the fact. If an activity were being planned that was likely to create a nuisance, P would be left with the burden of proving that the proposed activity will be a nuisance. This is much more difficult to prove than showing that an ongoing activity is creating a nuisance. 7. The Public Law of Environmental Protection Environmental Statutes: A Historical Perspective 1. The Common Law and Conservation Eras (Pre 1945). There was no federal regulation efforts with a few exceptions such as the Rivers and Harbors Act of 1899 and the Pure Food and Drug Act of 1906. At the time it was not thought that Congress had the power to ban such activities. 2. Federal Assistance for State Problems (1945 – 1962). The federal role during this period consisted of trying the convince states to implement their own environmental regulations. With expanding activity following WW2, the interstate character of pollution became more apparent. The Water Pollution Control Act of 1956 was a landmark because Eisenhower opposed it and Congress insisted that it pass anyway, signaling an emerging cognizance of the FG‟s role in environmental issues. 3. The Rise of the Modern Environmental Movement (1962 – 1970). a. Silent Spring, by Rachel Carson exposed the problems inherent in using DDT and created a national outcry focused on environmental issues. The public‟s increased attention to outdoor activities and the first ever viewing of the earth from space are also said to have contributed to the movement. b. Out of this era was born the (Environmental Defense Fund) EDF and any large national environmental programs, but focused on forcing governmental agencies to reduce their environmental impact. 4. Erecting the Federal Regulatory Infrastructure (1970 – 1980). a. The Clean Air Act followed, creating the first national environmental program. The EPA was created to enforce his act. A private citizen could sue the EPA they felt that the EPA was not fulfilling its mission. b. Other major acts of this period include NEPA (subjecting the FG to environmentally conscious decisionmaking), CWA, FIFRA, ESA, TSCA, EPCRA, and RCRA. c. CERCLA was also passed toward the end of the decade creating Superfund. Superfund imposed a system of strict, joint, and several liability on polluters. 5. Extending and Refining Regulatory Strategies (1980 – 1990). This period saw the amendment of many of the acts passed during the previous era. In addition, OPA90 was passed during this phase in response to the Exxon Valdez oil spill. 6. Regulatory Recoil and the Return to Private Law Principles (1990 – present). Since the turn of the decade, the web of environmental policies has gone largely neglected due to Republican leadership. Many acts have been allowed to fail or to exist without funding. Environmental Federalism: Three Models of Federal-State Relations 7. Federal Assistance to the States. The state sets their own environmental standards and then the federal government provides funds to help the states to reach these goals. Not common in today‟s regulatory structure. Environmental Law, Fall 1999 Professor Percival 8. Page 6 of 39 Cooperative Federalism. This dominates under the environmental laws today. Congress sets minimum national standards but gives the states the option to determine how to implement these standards. If a state does not comply with national standards, the federal government may step in and take control. Reluctance to Preempt State Legislation. This approach has been successfully challenged in New York v. US, where the Supreme Court stated it was a violation of the Tenth Amendment to require a state to adopt federal regulation. Federal Preemption. The laws promulgated by the FG preempt state law. Congress determines to take control of an area of regulation (ex. nuclear testing). This approach has taken control in the area of car emissions standards where every state, but CA, must have the same standard. This has only been used twice. a. Milwaukee II. This case shows how the recent expansion of federal government in the regulatory aspect of environmental policy interacted with the common law. The Court preempted federal common law actions with federal regulations. The Court held that the state‟s CL nuisance action was preempted by the Clean Water Act. b. International Paper v. Ouellette. The Court held that state law is not preempted by the CWA, and that the state law of the state emitting pollution applied. Federalism Concerns. There is a constant battle between state and federal governments when new legislation is imposed. Congress has attempted to respect federalism by imposing only minimum standards and not prohibiting states from enacting more stringent standards. a. NJ, for example, went further than the federal CERCLA liability in an effort to preserve the value of land when it is resold. b. MI created a vehicle whereby citizens could halt projects if they could prove that the environmental damage that would ensue as a result is severe. Race to the Bottom. Without federal standards, there is a fear that a race to the bottom would ensue. This proposition has been challenged lately, stating that even with stringent environmental standards, states would engage in a race to the bottom in other ways (taxes, permit enforcement, etc.) a. National standards address economies of scale; you do not want federal, state, and local officials all reinventing the wheel at every turn. b. Federal standards are also supported on the basis that US citizens have a basic right to be confronted with basic environmental quality everywhere that they may go and that the need for federal consistency addresses this issue. Unfunded Mandates. This is a procedural device making it difficult for Congress to pass legislation that would require a state to spend money, without also giving the states money. Unfunded mandates do not automatically raised but are easily enacted by any member of Congress raising a point of order during the debate. US v. Lopez. This case marked the first time in 50 years that the Supreme Court held that Congress had exceeded its authority under the commerce clause. a. Congress had banned the possession of a gun in the vicinity of a school zone. In this decision, the Supreme Court determined that the commerce clause could be use only to regulate the following categories of activity: i. Use of the channels of interstate commerce. ii. Intrastate activities that threaten the instrumentalities of interstate commerce. iii. Activities that have a substantial relation to interstate commerce. b. The court held that the test to determine if something fell into one of the above categories, is that the activity must have a substantial effect on interstate commerce. c. Based on the finding of the Lopez court, activities that adversely effect the environment do not necessarily have a substantial affect on interstate commerce (some guy deciding to fill in wetlands in his backyard, with no commercial incentive). However, since Wickard (the wheat grower case) is still good law, some environmentally damaging activity can be regulated under the cumulative affect logic. 9. 10. 11. 12. 13. Environmental Law, Fall 1999 Professor Percival Page 7 of 39 Approaches to Regulation: Assessing the Options 1. Market Forces. This regulatory approach provides consumers with information and allows them to choose which products to support based on the manufacturer‟s environmental practices. a. Pro. This works in a situation where the consumer has a choice, is well informed, and there is a market for the product. b. Con. This does not work where incentives to provide adequate information to consumers do not exist. c. Example. Starkist realized that it was more expensive to harvest tuna in a manner that did not harm dolphins, but decided to label their tuna as dolphin safe. The idea was to allow consumers to choose for themselves how important saving dolphins are by exercising the market mechanism. 2. CL Liability. This regulatory approach is used to hold individuals financially responsible for environmental damage. a. Pro. This provides compensation to victims of environmental crimes and provides an incentive for companies to utilize information not available to the public that is absent from government regulations. b. Con. The difficulties involved in proving a causal link between a particular action and damage to the environment make liability slightly flawed. In addition, damage must be done before liability can be imposed. c. Example. With OPA90, Congress selected a mix of standards and liabilities to effectuate environmental protection. Congress relaxed federal liability against carriers while leaving the states free to impose such liability. Further, Congress removed liability completely from the cargo owners. This legislation demonstrated to companies that financial security and longevity is tied to their care in transporting oil. i. In theory, making the cargo owners liable will result in their only using the safest shippers possible. But, the potential cost of liability would exceed the ability of many small cargo owners to compensate for environmental harm. ii. The big debate was over the regulatory requirement of forcing all oil tankers to be double hulled. The economists argued that requiring the shippers to pay more than the value of the potential reduction in environmental risk eliminated the use of double hulls as a viable solution. However, costs were less expensive than anticipated and Congress took this route. 3. Government Regulation. This regulatory approach is commonly used to prevent environmental damage. a. Pro. Government regulation effectively internalizes the external costs of potentially dangerous activities as well as equalizing the distribution of risks and benefits between industry and society. b. Con. Regulation fails to compensate individual parties for harm suffered due to environmental damage. Additionally, tailoring regulation to individual classes of regulatory targets is very difficult. c. Components. The regulatory approach often adheres to the following framework: i. Identify the problem. ii. Identify the regulatory target. iii. Find the basis for control (health-based, technology-based, risk-benefit). iv. Identify the type of regulation (design changes, end-of-pipe monitoring, information disclosure). WASTE MANAGEMENT AND POLLUTION PREVENTION Introduction 1. The Waste Problem. The problem of waste management is pervasive in environmental law. The Pollution Prevention Act of 1990 was designed in an attempt to reduce the amount of generated waste. a. Source Reduction. This changes production techniques to result in the lowest possible amount of waste. b. Recycled. Pollution that is produced should be recycled to the greatest extent possible. c. Treatment. What waste can be neither recycled nor eliminated needs to be treated in an effort to reduce the potential toxicity of the waste. d. Disposal. Finally, waste that is left over must be disposed of in the safest possible manner in an attempt to reduce the environmental impact of environmental waste. Environmental Law, Fall 1999 Professor Percival 2. Page 8 of 39 History. In the past, waste disposal was accomplished by dumping. Only when detrimental results began to surface from the hidden waste did waste disposal occupy a prominent position as an environmental issue. RCRA and CERCLA are complimentary statues designed to deal comprehensively with waste management and waste that has been disposed irresponsibly and poses a threat. RCRA and CERCLA only apply to hazardous waste. a. RCRA. The goal of RCRA is to make sure that waste is managed properly and does not create environmental problems; it is prospective. b. CERCLA. CERCLA establishes liability to provide for the clean up of hazardous wastes. Although it may seem that RCRA does more than CERCLA in preventing waste, the system of joint and several strict liability on polluting firms serves effectively as a deterrent. Resource Conservation and Recovery Act Introduction 3. RCRA utilizes a “cradle to grave” (CTG) system to track the progression of hazardous waste through the production process. The CTG system requires firms to notify EPA when they are in possession of hazardous waste so that the agency can insure that the waste is handled, treated, recycled, or disposed of properly. a. The CTG system utilizes a series of manifests that accompany waste as they are moved from firm to firm, over the entire life cycle of the waste. b. Following RCRA, the Love Canal incident created publicity that inspired Congress to enact CERCLA, a system for cleaning up dumpsites by imposing joint and several strict liability on those who contaminate the environment with hazardous waste. Structure of RCRA 4. Definition of Solid Waste. Waste subject to regulation must be listed by the EPA for regulation because it poses a threat to human health. Hazardous waste may not be mixed with anything to avoid being classified as hazardous. 5. Hazardous Waste Management (Subtitle C). This is the first of RCRA‟s two-tiered scheme and is administered by the federal government. a. Identification of Hazardous Waste (3001). Charges EPA with developing criteria for determining what is a hazardous waste and to list wastes determined to be hazardous. b. Generators and Transporters (3002-3003). Implements a manifest system for tracking the shipments of hazardous waste from the point of generation to the disposal site. Also imposes record keeping requirements on generators of hazardous waste. c. Facilities (3004). Defines TSDs as facilities that treat, store, or dispose of hazardous waste and establishes minimum standards for the handling of hazardous waste. d. Permits (3005). Requires TSDs to obtain a permit from the state or EPA that incorporates the minimum requirements discussed above. 6. Solid Waste Plans (Subtitle D). This is the second of RCRA‟s two-tiered scheme and is administered by the state or regional government. Requires EPA to establish guidelines for state waste management plans and to set minimum requirements on such plans. These requirements include a ban on new open dumps and a classification structure for classifying landfills as sanitary. 7. Enforcement. Establishes administrative penalties to assist EPA in enforcing RCRA and also authorizes citizen suits against parties in violation of RCRA or the EPA if the agency fails to conduct a non-discriminatory duty. 8. Underground Storage Tanks. Requires owners of underground storage tanks to notify state authorities and also issues regulations governing all aspects of detection, prevention, and correction of underground leaks as well as regulations pertinent to the manufacture of new underground storage tanks. Environmental Law, Fall 1999 Professor Percival Page 9 of 39 Solid Waste 9. Hazardous waste is covered by subtitle C, while waste that cannot be considered hazardous falls under the jurisdiction of subtitle D. Subtitle D, previously without any teeth, was amended in 1984 by the Hazardous and Solid Waste Amendments (HSWA), designed to strengthen EPA‟s control over HW. a. Solid Waste. Solid waste is the biggest jurisdictional term of the Act [p.641 West Supplement]. The term “solid” even applies to waste that is not generally considered solid (solid, liquid, semisolid, or contained gaseous material, e.g.). b. Non-traditional Solid Waste. RCRA established a means to regulate more types of solid waste, especially gaseous waste. This was required because some sources can treat liquid or solid waste that falls under RCRA by heating it into a gas and releasing it into the atmosphere. RCRA closes this loophole by regulating to those that “treat hazardous waste.” c. Hazardous Waste. Hazardous waste is a subset of solid waste that poses a threat to human health or the environment. This definition is cost-oblivious, it regulates waste because it needs to be, not because doing so is affordable. d. Exemptions. There are exemptions to RCRA including discharges to municipal sewers, household wastes, industrial waste discharges that require a NPDES permit, e.g. Hazardous Waste 10. We are not responsible for the rationale behind how EPA defines waste as hazardous. Hazardous wastes under RCRA are either: a. Listed Waste. Listed as hazardous in the statute (these are classified as hazardous waste throughout the life cycle of the waste, even when mixed with something else) or, i. Mixture Rule. Characteristic waste may be mixed with something else to make it less hazardous. Under RCRA however, this mixture is still considered hazardous. ii. Derived From Rule. b. Characteristic Waste. Exhibit a hazardous characteristic such as toxicity, reactivity, corrosivity, and ignitability. Recycled Material 11. American Mining Congress v. EPA. The AMC filed a petition for review of EPA‟s definition of solid waste. AMC argued that EPA‟s authority extended only to material that had been thrown away and that Congress had wished to encourage recycling and as an incentive to do so, excused some materials from the ambit of government regulation. a. The court determined that waste was defined as “discarded material” and that, since the material was not recycled, but rather intended for recycling, that is was probably not waste. b. The court also determined that material that is part of the production process, such as the material at issue, does not fall within the jurisdiction of the EPA. Comprehensive Environmental Response, Compensation, and Liability Act Structure of CERCLA 1. Definitions (101). The key jurisdictional terms are “hazardous substance” and “release.” a. Hazardous Substance. CERCLA‟s definition of hazardous substances is broader than RCRA‟s and includes any imminently hazardous chemical, substance, or mixture. The term of hazardous substance explicitly excludes petroleum and natural gas. b. Release. CERCLA‟s definition of release includes most instances where the environment is exposed to a hazardous substance, but excludes vehicle emissions, releases from a nuclear incident, and the application of fertilizer. 2. Response Authorities (104). Gives the government authority to respond to a release of a hazardous substance. A removal action allows the government to remove the material from the site instantly. 3. National Contingency Plan (105). Mandates the president to create a National Contingency Plan (NCP) outlining the response that the government takes in the event of a release. Also mandates the creation of the National Priorities List (NPL), a catalogue of facilities presenting the greatest danger to health. 4. Liability (107). Casts a liability net over four classes of parties (discussed below) responsible for the cost of both the cleanup of releases and the loss to natural resources. 5. Superfund (111). Superfund gives the government the resources to respond quickly to releases by financing response actions and to reimburse private parties for costs incurred in carrying out the NCP. Environmental Law, Fall 1999 Professor Percival Page 10 of 39 Overview 6. Love Canal. The Love Canal incident occurred after the enactment of RCRA. This led the government to realize that past waste problems were as much a problem as potential waste problems. CERCLA was designed to enhance the ability of the government to respond to environmental disasters, provide compensation to those injured by environmental disasters, and impose liability on those responsible for the environmental damage. a. RCRA §7003 allowed the government to enjoin those contributing to waste management practices that lead to health problems. This was only aimed at current activities. b. In 1978, CWA §311 imposed liability on those who dumped oil and other hazardous wastes into federal waters. It was this legislation that CERCLA modeled its liability provisions after. 7. Goals. CERCLA pursues dual goals: to prevent environmental contamination and to ensure that it is cleaned up wen it occurs. 8. CERCLA went beyond CL principles of joint and several liability. a. Causal Requirement. First, CERCLA relaxed causal requirement to the imposition of joint liability. For example, under the statute, if D sent tolulene to the site and tolulene is leaking, D is liable. b. Liability. Second, CERCLA extends liability beyond those responsible for the substance being there to four classes (owner/operator, owner/operator when disposal occurred, generators that generated the substance, and those that transported the substance). 9. Interstate Commerce. In US v. Olin Corporation, Olin was exposed to CERCLA liability as the past owner/operator at the time of disposal. The court found that waste disposal practices are in a category of activities that substantially effect interstate commerce (as required by Lopez) and that CERCLA was retroactive, despite the lack of statutory language to this effect, because the act holds prior owners liable. Potentially Responsible Parties Current Owners and Operators 10. New York v. Shore Realty Corporation. Shore acquired property containing hazardous waste for the purposes of land development. Shore was exposed to liability as current owner/operator of the site. The court rejected Shore‟s argument that there must be some causal requirement. a. 42 USC §103(b)(3) protects those that take all proper means to prevent the waste from leaking but nonetheless, outside forces lead to its release. b. The decision serves to hold new owners of land that are contaminated liable for releases on the property. Thus, a new landowner needs to take adequate precautions to be aware of environmental conditions on the site. This should have the effect of reducing the value of contaminated property and allow environmental considerations take affect on land‟s market value. 11. Statutory Defense. CERCLA provides that a landowner will not be held liable if the release is due to the act or omission of a third party other than an employee or agent of the defendant or one with whom the defendant had a direct or indirect contractual relationship. 12. Third Party Defense. Section 101(35) exempts land owners that took control of the property after the disposal of waste if, the purchaser had no reason to know of the contamination present, the land was involuntarily acquired by the landowner, or the landowner inherited the land. a. Proof that a prospective purchaser has no reason to know of contamination requires the purchaser to take all appropriate measures to insure that the property is not contaminated. b. The innocent purchaser defense is difficult to satisfy because “all appropriate measures” generally do not have difficulty in discovering contamination. 13. Brownfields Program. To encourage the development of abandoned industrial sites, the government may issue “comfort letters” to prospective developers to let them know the amount of liability they were buying into, spurring development of potentially contaminated land. 14. Transfer Statutes. Because of CERCLA‟s liability provisions, environmental assessments are routinely conducted in connection with real estate transfers. 15. Federal Lands. Congress is required to notify prospective purchasers of possible contamination incurred on former federal lands, including the type and quantity of contamination. Additionally, the government is required to enter into covenants promising further remedial action if necessary after transferral. Environmental Law, Fall 1999 Professor Percival Page 11 of 39 Owners and Operators at the Time of Disposal 16. Majority View. Most jurisdictions have rejected the Nurad approach and it is a minority view. One court required affirmative action in the disposal of hazardous materials based on statutory interpretation. Other circuits reject the Nurad approach because to hold the owner of property liable for “passive oozing” would frustrate the purpose of the innocent purchaser doctrine. 17. Nurad v. William E. Hooper & Sons. This case deals with CERCLA Section 107(a)(2), imposing liability on the owner of land at the time of the waste‟s disposal but not in possession of the property when the contamination was discovered. Nurad sued all previous owners of the property for contribution. a. No Affirmative Action Required. The court held that requiring affirmative action in the disposal of hazardous materials frustrated the purpose of CERCLA by providing a disincentive for owners of property to actively remediate hazardous conditions. Thus a previous owner of underground storage tanks (USTs) that leaked could be liable under CERCLA, even though the leakage was not intentional. b. Disposal. The court agreed that installing and using the USTs did not satisfy the definition of disposal but held that the installer could be liable if they did not remove the tanks when the property was sold. The court reasoned that a failure to remove the USTs constituted disposal of the hazardous materials. If a subsequent owner continued to use the tanks the same way, and at the time of the sale nothing had leaked from the tanks, the installer could escape liability. 18. U.S. v. Cordova Chemical Company. A subsidiary owned property that became a CERCLA site. When the time came to pay for cleanup, the subsidiary was insolvent and the US went after the parent, whose members had controlled the subsidiary. The 6th Circuit held that the parent company could not be held liable unless the corporate veil could first be pierced. This decision creates a loophole for companies to pollute because they can structure the corporation so that the subsidiary has no assets with which to repay cleanup costs and then the parent can pollute through the subsidiary. This decision was overrules in Bestfoods. 19. US v. Bestfoods. The court looked to the dictionary definition of “operator” and determined that to be so defined requires active participation in the operation of the subsidiary. However, merely overseeing the finances of a subsidiary is not sufficient to expose the parent to liability. Generators 20. If a generator‟s hazardous materials are sent to a site where release occurs or is threatened, the generator can be held strictly, jointly, and severally liable for response costs and natural resource damages. Transporters 21. Transporter liability is premised on the notion that transporters have a role in determining the selection of sites where hazardous materials will be taken. Others 22. Lenders. Banks holding mortgages of CERCLA properties are not liable under CERCLA. Some courts have held that secured creditors may incur liability without being classified as an operator if they have the ability to influence the operator‟s treatment of hazardous substances while others do not impose liability. 23. State and Local Governments. States are immune from private suits for contribution but local governments, without the protection of the 10thA, may be sued for contribution. 24. Homeowners. Hazardous substances discarded in household trash may expose the disposer to CERCLA liability but EPA has a policy to not go after homeowners for CERCLA response costs. Further, the court has held that to sue individuals, it must be proved what specific hazardous wastes were present and then where those wastes were disposed. 25. Sales. Courts have generally held that if the transfer of a substance is genuinely a sale, then no liability attaches to the seller. If the purpose of the sale is to dispose of waste however, this approach is not valid. Comparison of RCRA and CERCLA 26. RCRA is a federal regulatory program while CERCLA is a broad-based liability statute. 27. RCRA regulated hazardous wastes from cradle to grave while CERCLA imposes strict liability on the release of hazardous substances. 28. RCRA has detailed regulatory standards while CERCLA relies on the imposition of liability. 29. RCRA focuses on prevention while CERCLA focuses on remediation. Environmental Law, Fall 1999 Professor Percival Page 12 of 39 REGULATION OF TOXIC SUBSTANCES Defining and Identifying Risks 1. The theory behind environmental laws is that they exist to stop harm before it occurs. This requires that threats be identified, in advance, as harmful. The government can mandate testing of a chemical but they have to have a reason. 2. The Precautionary Principle. The precautionary principle has become well known in the last few years, even internationally. The basic premise of this principle is better safe than sorry; if there is reason to expect that a chemical is harmful, especially if the harm will be great, we should take pains to prevent the release of that chemical into the environment. 3. Two of the fundamental features of environmental regulation are risk and uncertainty. The effects of exposure to a certain substance are rarely known. In the face of such uncertainty, regulators have relied on a two-step process for making environmental policy decisions: a. Risk Assessment. The process used to characterize the environmental effects of exposure to hazardous materials or exposure. b. Risk Management. The process of weighing policy alternatives to select the most appropriate regulatory action, if any, for responding to these risks. 4. Reserve Mining Company v. EPA. Studies showed that some forms of asbestos were dangerous to human health when the fibers were released into the air and inhaled. This case raises the question of how to respond to risk and uncertainty when the risk is not known, but if risk exists, it will be great. a. Risk Assessment. Risk assessment asks three questions: Is the substance capable of causing harm? How potent is it? How much of the substance are people exposed to? The answers to all of these questions considered together shows the relative risk of harm due to a potential toxin. How could EPA prove that the tailings were harmful in the District court? i. An animal study confirmed that the fibers could get into the living tissues from ingestion. Other evidence existed to show that workers in the area that were inhaling the fibers suffered an increased rate of disease, but there was no evidence that ingestion of these same chemicals would have the same affect. b. The Court upheld an injunction allowing the plant to remain open so long as production techniques were changed to mitigate potential risk. The ruling was based on a finding that the evidence did no show imminent harm, merely potential harm. 5. Burden of Proof in Face of Risk. This ruling resulted in Congressional action placing the burden of proof to polluters to prove the safety of their discharges once it was shown to present a reasonable risk of being a threat to public health. 6. Burden of Proof in Face of Uncertainty. Ethyl Corporation v. EPA stated the court‟s view that, “where a statute is causational in nature, the courts will not demand rigorous proof of cause and effect, because such evidence may be impossible to obtain.” The court held that a risk assessment may, “if rational, form the basis for health-related regulations under the “will endanger” language of [the CAA].” a. When the Reagan Administration attempted to allow lead back into gasoline, studies showed that the reduction of lead in gas in the previous decade correlated directly with the level of lead in the blood of children and the poor. b. The idea that danger is composed of both probability that risk will occur and the severity of risk implies that two exposures might both satisfy the same threshold finding allowing regulation. This will only be true when the harm has a low probability of occurrence but poses a high risk or vice versa. Environmental Law, Fall 1999 Professor Percival Page 13 of 39 Regulating Toxic Substances 7. Toxic Substances Defined. Toxic substances are materials that, at typical exposures that might be encountered naturally, have adverse effects on life. a. Many substances are difficult to characterize in this respect. Some toxins are harmful to some individuals, but not others (carcinogens). Some toxins have long term effects that arise over time effects (asbestos). b. There is no toxicity data for approximately 43 percent of the widely produced chemicals and many of these are therapeutic drugs and pesticides (the only classes of chemicals that are required to be tested before they are marketed). 8. Regulatory Statutes. There are roughly two types of statutes: a. Licensing Statutes. Require approval before a product may be placed on the market. i. One such statute is FIFRA, requiring the EPA be satisfied that the chemical will not cause adverse effects on human health of the environment. ii. TSCA requires the government be notified 90 days before a new chemical is used or an old chemical is used in a new way. It is only after the identification of a problem that the government takes steps to regulate a chemical and even then, the burden is on the government to prove the chemical is harmful. b. Standard Setting Statutes. Imposes a level of exposure to a particular chemical to minimize the effects of the chemical on the public. Federal Insecticide, Fungicide, and Rodenticide Act Overview 9. FIFRA allows EPA to regulate pesticides under three conditions: it presents an unreasonable risk to the environment, it presents an imminent hazard to the environment, in an emergency. However, EPA must consider the full range of costs and benefits. 10. The Alar Controversy. A chemical used to preserve apples was found to degrade into a potential carcinogen. Risk assessments conducted by NRDC, EPA, and Alar‟s manufacturers yielded different numbers for the risk posed by the chemical. The assumptions underlying the risk assessments had led to different results that pointed to different levels of risk posed by Alar. a. The different results lead the EPA to accept the risks posed by Alar as a carcinogen while NRDC‟s results lead them to believe that the risk was much higher than that supposed by the EPA. One of the major differences in the assessments was the exposure data. Who was legally right? b. Animal Studies. A criticism of animal studies focuses on the doses required to cause cancer. These arguments state that such large doses will never be encountered by humans and also that physiological differences between animals and humans compromise the usefulness of data obtained in animal tests. Structure of FIFRA 11. Regulation of Pesticides (3). All pesticides must register with EPA before they can be marketed and will only be accepted if they will perform the intended functions without causing unreasonable adverse effects on the environment. 12. Reregistration of Registered Pesticides (4). Requires EPA to reregister pesticides containing active ingredients first registered before 1984. 13. Suspension and Cancellation of Registration (6). Imposes a five year life span on a pesticide‟s registration and authorizes EPA to cancel or suspend a pesticide‟s registration if found to result in adverse effects on the environment or to present an imminent hazard to human health. Toxic Substances Control Act Overview 14. Balancing Statute. TSCA is a classic example of a risk-benefit balancing statute. The statute gives EPA authority to regulate any chemical substance on a finding that there is a reasonable basis to conclude that such an activity presents or will present an unreasonable risk of injury to health or the environment. Thus, EPA must use risk-benefit analysis to determine what types of risks are unreasonable. 15. Reverse Incentive. Unlike the FDCA, TSCA does not require any specific tests to be performed prior to submitting notice to EPA, the manufacturer may merely submit the data available. This provides a reverse incentive to manufacturers, inhibiting them from conducting thorough testing that could discover adverse effects. Environmental Law, Fall 1999 Professor Percival Page 14 of 39 16. Analysis of Agency Regulations. Corrosion Proof Fittings v. EPA was a successful challenge to the EPA regulation phasing out the use or production of asbestos. The court interpreted the language of TSCA to require EPA to select the least burdensome requirement that would sufficiently achieve its regulatory goals. The court held that choosing to ban asbestos completely, without examining the potential result of less burdensome regulation, was contrary to the statute. The court effectively required that EPA conduct a cost-benefit analysis of any intermediate regulation between a complete ban and no regulation at all. Structure of TSCA 17. Testing. Authorizes the EPA to require testing of any chemical if there are insufficient data from which the chemical‟s effects can be predicted and the chemical may present an unreasonable risk of injury to health or the environment. 18. New Chemicals or Uses. Prohibits the manufacture of a new chemical or the new use of an old chemical without notifying EPA 90 days in advance and presenting data showing the new chemical or use poses no risk. EPA may prohibit or limit the new chemical or use if there is not enough information to permit a reasoned evaluation and it presents a risk. 19. Regulation. Allows EPA, to the extent necessary to protect adequately against such risk using the least burdensome requirements, to prohibit the manufacture, processing, or distribution of a chemical or otherwise regulate its use and disposal if the chemical presents an unreasonable risk to health or the environment. 20. Seizure. Allows EPA to sue to seize or obtain other relief to protect against imminently hazardous chemical substances. 21. Recordkeeping. Allows EPA to require recordkeeping or the submission of reports concerning the manufacture of chemical substances. 22. Citizen Suits. Authorizes citizen suits against any person alleged to be in violation of TSCA or against EPA for failure to perform non-discretionary duties. Risk Assessment Techniques 23. Statutes. Statutes are the first place to look to determine how much information is needed to regulate a substance. a. A significant risk is necessary to permit the government to regulate chemicals and such regulations should appreciably reduce the risk of exposure. b. Court will give the agencies some discretion, but a risk assessment is necessary to show that the agency had discovered some risk prior to regulation. As a result, agencies now conduct a risk assessment before regulating a chemical. Environmental Law, Fall 1999 Professor Percival Page 15 of 39 24. Risk Assessment. The environmental community initially feared the risk assessment approach because the length of time required to achieve results from these studies was great. There are four principle steps in the risk assessment process: a. Hazard Identification. Is the item under study (e.g. a chemical) causally linked to particular health (or public welfare) effects? This is often a difficult question to answer as many hazards (such as cancer) are not well understood. b. Dose-response Assessment. What is the relationship between the magnitude of exposure and the probability that the heath (or public welfare) effects will occur? This question is often found by extrapolating data from experiments or epidemiology since the exact levels of exposure are never available. The extrapolation procedure introduces a level of uncertainty to the risk assessment. i. Experiments. Experiments often rely on animal test data that exposes the test subject to large levels of the substance and focus on any correlation between exposure to a specific chemical and disease. From these tests it is difficult to determine whether a threshold level exists at which a substance does not cause effects. ii. Epidemiology. Epidemiological data study trends throughout time as adverse health effects surface. The studies then determine whether an environmental factor is causing adverse health effects. Epidemiology is a crude tool, used only in retrospect. Further, it is often difficult to isolate a substance or whether exposure to low levels of the substance can cause harm. c. Exposure Assessment. What is the level of exposure of humans (or the environment) to the hazard? Often the weakest data link in the risk assessment, exposure assessments are accomplished using models that often rely on crude assumptions concerning the complex processes of transport and conversion of pollutants. d. Risk Characterization. What is the overall magnitude of the risk? Risk can be characterized in either quantitative or qualitative terms. i. Quantitative. These assessments specify either the total numbers of people likely to experience the adverse effect or the likelihood that any individual exposed to the hazard would suffer the adverse effect. ii. Qualitative. These assessments characterize risks as rough rank orderings of the seriousness of different risks, a practice referred to as comparative risk assessments. Environmental Law, Fall 1999 Professor Percival Page 16 of 39 Risk-benefit Balancing 25. Risk management involves going to the statute to determine what an appropriate regulatory response should be. The process of risk management relies heavily on risk assessment. There are three general ways the statutes address how safe is safe although each, at some root level, involves balancing two or more issues against one another. a. Balancing Approach. In decision what to do about risk, balance costs (or risks) against benefits (costbenefit or risk-benefit analysis). This approach involves placing a value on human life, a touchy subject for some. EPA risk-benefit analyses do not however, consider the cost of human pain and suffering from diseases associated with toxic substances. b. Technology-based. Requires regulatory agencies to do the best they can to control the risk whether or not it is economically worth it. c. Health-based. This approach takes the view that no risk should result in so many deaths per member of the population, no matter what the costs are. 26. Example: Asbestos. In 1984, under the authority of TSCA, EPA decided to phase out asbestos. Foreign asbestos manufacturers filed suit against the legislation, claiming it to be a protectionist measure against them. EPA assumed that, even at low levels, exposure to asbestos involved an unacceptably high risk of getting cancer. The varied nature of asbestos products and the complex life cycle of asbestos led the EPA to determine that only a complete, multi-media ban on the production and use of asbestos would effectively yield health benefits. 27. Health-based Regulation. In Public Citizen v. Young, two dyes were found to cause cancer. Under the Delaney Clause such dyes were to be banned from use, but the FDA allowed them to be marketed. Manufacturers argued that such an exception was reasonable since risk analyses showed that the risk posed by the dyes was minuscule and that the de minimus doctrine provided an exception to the Delaney Clause. The court refused to accept the de minimus doctrine thus applied and overruled the FDA‟s exception. 28. Technology-based Regulation. With technology-based regulation (i.e. OSHA), a problem that often arises concerns the definition of feasibility. If feasibility is what it is technologically possible to do, costs to comply with ambitious definitions would rise and industry would be forced to pay too much money, throwing the costbenefit analysis off balance. a. A response avoiding placing smaller members of an industry out of business would be to only require the technology that the industry would be able to afford. Under this regime however, the lowest common denominator would prevail. The middle ground is to pass regulation that would entail the failure of the marginal members of the industry - this is economic feasibility. b. A technology-based standard fails to provide any incentive to determine better technology, since the industry would oppose it. Alternatives to Conventional Regulatory Approaches 29. Proposition 65. This was an innovative approach to environmental law that proposed that no person operating in CA should expose anybody else to materials that were known by the state of CA to cause cancer or to be harmful. There is no duty to warn of a discharge if there is no chance of significant harm and a company cannot be held liable if the risk presented is insubstantial. However, if sued by a private citizen (P65 authorizes citizen suits), the burden is on the company (not the government) to show that the harm is not significant. a. The ingenuity of this legislation was that the government did not have to regulate anything. The burden was on the industry to merely provide a warning that its emissions were known carcinogens; it was entirely up to the company to respond. b. Under P65, a company could change the product to eliminate the emission of toxins, maintain the status quo and notify people that the company was emitting toxins, or maintain the status quo, doing nothing, and risk getting sued. In a lawsuit, the burden was on the company to show that the emitted chemicals were not carcinogenic. Environmental Law, Fall 1999 Professor Percival Page 17 of 39 Emergency Planning and Community Right-to-Know Act Overview 30. Disclosure. One alternative to command-and-control statutes is to require the disclosure of risk information to workers and consumers. Under EPCRA, companies are required to report about the toxic emissions that come from their plants. Companies are also required to report on their toxic emissions of a list of over 600 toxins (TRI). This information must be available to the public over the Internet. a. When this Act was put into place, many in the industry were shocked to see how much they were polluting. Other recognized the potential to save money by recycling many of the chemicals that were being released. b. This Act is generally regarded as successful because it did not require any special monitoring and has proven an effective way for citizens to monitor and force emitting companies into compliance. Structure of EPCRA 31. Committees. Requires the establishment of state emergency response committees and local planning committees. 32. Hazardous Substance List. Requires EPA to publish a list of extremely hazardous substances and threshold planning quantities for these substances. Facilities where these substances are present in excess of the threshold are required to report to emergency response committees. 33. Emergency Response Plans. Requires local planning committees to prepare an emergency response plan and specifies minimum requirements for such plans. 34. Notification. Requires facilities to notify response committees of released of extremely hazardous substances. 35. Toxic Resource Inventory. Requires facilities to report to EPA on the releases of more than 600 substances in excess of the threshold in the preceding year. EPA is required to maintain in a computer database a TRI based on the data submitted in these forms. 36. Penalties. Provides for civil, administrative, and criminal penalties for certain violations of the Act and authorizes enforcement actions by EPA. 37. Citizen Suits. Authorizes citizen suits against facilities that fail to comply with the Act and against EPA and state officials for failure to perform certain duties required by the Act. THE REGULATORY PROCESS Judicial Review and the Regulatory Process 1. Laws are not automatically translated into regulation. The rule making process is subject to definite requirements however, because it is subject to the Administrative Procedure Act. Agencies are required to report what they are considering as regulation into the Federal Register, wait for public comments on it, and then report to the Federal Register what action was taken on the proposal. There are many models of agency decision-making: a. Agency Expertise. Most environmental statutes delegate the task of determining effective levels of risk to the agencies under the premise that they have more expertise than Congress does. Regulatory agencies often become captives of the industry they regulate however. To combat this agency capture, many statutes provide for citizen suits and judicial review. b. Interest Representation Model. Some argue that modern administrative processes have become the product of input from competing private interest groups. Citizen suits and judicial review allow private groups to be heard but do not insure that their interests will be taken into account. 2. Agency Forcing Mechanisms. Congress generally uses three kinds of provisions to ensure that agency‟s promulgate regulations: a. Coercive Model. Congress may remove the agency‟s discretion as to whether to regulate. These provisions include statutory deadlines but do not always insure that the agency‟s decision is high quality. b. Prescriptive Model. The agency retains its regulatory discretion, but if it does regulate, it must do so according to detailed prescriptive criteria. Congress rarely uses this method because it deters regulation. c. Ministerial Model. Congress couples deadlines with detailed substantive criteria defining the appropriate manner of regulation. This is the favored mode for Congress because it limits agency discretion. To enact such a mechanism, statutes incorporate hammer provisions that specify an outcome should the agency fail to act. Environmental Law, Fall 1999 Professor Percival 3. Page 18 of 39 Access to Courts. Successfully gaining access to the courts requires the following: a. Standing. This essentially involves the ability of a favorable decision to provide a remedy to the party bringing the suit. If a party has not suffered an injury, a court is powerless to provide redress and will not hear the claim. b. Private Right of Action. Most environmental statutes contain a provision creating a private right of action if certain portions of the statute are violated. This is satisfied sing citizen suit provisions. c. Jurisdiction. Formerly a hassle in environmental cases because of the amount in controversy requirement (environmental cases usually didn‟t deal with money). Today, the amount in controversy requirement has been abolished and these cases are easier to bring. Types of Citizen Suits. There are three types of suits that citizens can bring: a. Citizen Enforcement Actions. These cases are brought against parties violating an environmental law. Most environmental laws allow citizens to sue violators of federal regulations. b. Judicial Review. Such a challenge would contest the validity of a regulation promulgated by an agency as against the law (arbitrary, capricious, or otherwise contrary to law). c. Non-Discretionary Duty. Agency‟s failure to perform a non-discretionary duty (actions that an agency is required to do and fails to). Chevron Doctrine. Although judicial review is well accepted, scrutiny of agency decisions is highly deferential to the agency‟ decisions so long as they comport with the Administrative Procedure Act. In addition, an agency‟s interpretation of a statute will also be accepted by the courts unless clearly contradicted within the same statute. 4. 5. Standing 6. Requirements of Standing. The first three of the four requirements are constitutionally based and the last is procedural (court created). As a result, the final requirement can be statutorily eliminated by Congress. These are the four elements needed for standing: a. The challenged action will cause the plaintiff some actual or threatened injury-in-fact; b. That the injury is fairly traceable to the challenged action; c. That the injury is redressable by judicial action; and d. That the injury is to an interest arguably within the zone of interests protected by the statute alleged to have been violated. (Were you the type of plaintiff Congress had in mind when it created the statute?) 7. Organizational Standing. For an organization to have standing, there must be at least one member of the organization that would have standing in their own right and the issue being challenged must be germane to the organization‟s purpose. Organizational standing was addressed in Lujan v. Defenders of Wildlife. 8. Industry Standing. Business will be granted standing if the regulation in question directly regulates or restricts business. Business standing is not granted under citizen suit provisions. 9. Sierra Club v. Morton. Disney wanted to build a ski resort in a remote and beautiful area of the Sierra Nevada Range known as Mineral King. Sierra Club opposed the development because it created a larger impact than plans for a resort that Sierra Club had previously endorsed. a. Aesthetic Harm. The court recognized that the beneficiaries of environmental regulation are entitled to have standing on the basis of aesthetic harm eliminating economic standing as a prerequisite to get an issue into court. The Club lost because they failed to show that they actually used the park and simply asserting an interest in a problem was not enough to confer standing. b. At the time, one had to suffer some injury in order to be granted standing; the diffuse public (all abstractly injured by actions destroying the environment) had no standing. This attitude had begun to fall out of favor. 10. Lujan v. Defenders of Wildlife. If the government is funding programs that impact endangered species, the Administrator must be notified. This case arose concerning programs the government was funding overseas. The Administrator ruled that this regulation did not apply overseas and DW challenged this rule. a. Continuous Relationship. To have standing, the party must have an ongoing, continuous relationship and plan to return to the affected area; the desire or intent to return to the effected are is insufficient. This opinion suggested that all that stood between DW and standing was a few airline tickets indicating a present intent to return to the area that would lead them to incur harm. b. DW got affidavits from its members who had been abroad to observe endangered species stating that they intended to return to observe them. If the government is no longer required to observe the ESA, then those people would have been injured. Environmental Law, Fall 1999 Professor Percival Page 19 of 39 Citizen Suit Provisions. 11. The first citizen suit provision (CSP) originated in the CAA which provides that any individual may commence a civil action on their behalf against any person in violation, or alleged to be in violation, of the CAA. These provisions are intended to “jump-start” the government to enforce the environmental laws. a. Notice. All CSP have a notice provision; actions cannot be brought until 60 days after the EPA and the alleged violator has been noticed. Such a provision is intended to give the EPA a chance to enforce the Act or to give the violator a chance to rectify the problem. b. Criminal Enforcement. No CSP may be commenced if the EPA or state government has already begun a criminal enforcement action. This expresses a clear preference that the government enforce these actions. However, if the suit is brought in federal court, a citizen may intervene. 12. Statutes. The following statutes have citizen suit provisions: RCRA, CAA, CWA, ESA, TSCA, CERCLA. 13. Public Interest Research Group of New Jersey. PIRG found X was violating CWA reporting requirements and succeeded in getting the federal district court to impose a large fine on X for constantly violating its permit. On appeal, the court noted that some testimony had indicated that the discharge did not harm the river and questioned PIRG‟s standing in the absence of an injury. The court of appeals ruled that PIRG had no standing and that X no longer had to pay the fine. a. Redressability / Compliance. According to the court, X‟s reporting violations did not give PIRG standing because the injury of not having information was not a redressable injury. b. To establish standing, PIRG argued that some of their members had reduced their use of the river for activities such as recreation and fishing. The court reasoned that PIRG, even though they reduced their use of the river, had no evidence to show that the river had been harmed and thus had no reason to stop using it. 14. Steel Company. This case involved a citizen suit under EPCRA filed by CBO who noticed that Steel had not filed the required emissions reports. In response to the notice of the suit, Steel filed all the missing reports. The injury CBO alleged was that it did not have timely information pertaining to hazardous emissions in its neighborhood and prevailed on their challenge. a. Redressability / Fines. In the Supreme Court, Steel argued that CBO had no standing since the reports had all been filed and all fines would go to the US Treasury, not to CBO and therefore there was no injury. The Supreme Court agreed stating that once the injury had been cured, rederessability ceased to exist and standing evaporated. b. The result of this case indicated that standing would be restored in citizen suits if those bringing the suit would be permitted to keep a portion of the fines. When such rules were written into citizen suit provisions, industry began reacting to citizen suits by notifying the local enforcement agency and goading them to initiate an enforcement action because industry would rather deal with the agency, with whom they often have a working history, than with environmental groups. 15. Actual Injury. In Gaston Copper, a smelter‟s reports indicated that they were discharging pollutants in violation of the CWA. Friends of the Earth (FOE) sued and was called upon to prove standing. The group had members that used the polluted river and the mission of cleaning the river was germane to the organization‟s mission, yet the court still failed to find standing. Because the group did not show that the water quality of the river itself had been affected, only that pollutants had the potential to harm the river, there was no actual injury. 16. Laidlaw. This case is similar to Steel except that when the suit was filed, the company continued to violate the law. Once the decision was to be handed down, the company began to comply and argued that there was no standing. Why did the court take this case? The Supreme Court usually takes these cases because of a clear conflict among the lower courts. Environmental Law, Fall 1999 Professor Percival Page 20 of 39 AIR POLLUTION CONTROL The Clean Air Act: Origins and Principles 1. An air pollution incident in Donora, PA killed several people, spurring interest in clean air legislation. Initially, pollution control was thought to be a local priority but WW2 saw the government entering the arena with financial support. The initial model was for the federal government to do the initial research to determine safe, healthy levels of air quality and then allow the states to formulate their own standards. 2. The CAA is a health-based statute, guaranteeing an adequate margin of safety to protect health from pollutants. This is incorporated in the adoption and revision of the NAAQSs. Structure of the CAA 3. Identify Air Pollutants. Requires EPA to identify air pollutants anticipated to endanger public health of welfare and to publish air quality criteria. 4. National Ambient Air Quality Standards. Requires EPA to adopt nationally uniform ambient air quality standards (NAAQSs) for criteria air pollutants that may reasonably be anticipated to endanger the public health or welfare. 5. SIPs. Requires states to develop and submit to EPA state implementation plans (SIPs) that specify measures to assure that air quality within each state meets NAAQSs. 6. Technology-based Standards. Mandates technology-bases standards to reduce listed hazardous air emissions from major sources in designated industrial categories, with additional regulation possible if necessary to protect public health with an adequate margin of safety. 7. Degradation Prevention. Specifies requirements to prevent significant deterioration of air quality for areas with air quality that exceeds the NAAQSs. 8. Non-attainment Areas. Specifies requirements for areas that fail to meet the NAAQSs (non-attainment areas). 9. Automobile Emissions. Requires EPA to establish nationally uniform emissions standards for automobiles and light trucks that manufacturers must meet by strict deadlines. 10. Citizen Suits. Authorizes citizen suits against violators of emissions standards and against EPA for failure to perform a non-discretionary duty. 11. Sulfur Dioxide Allowances. Creates a system of marketable allowances for sulfur dioxide emissions from power plants and major industrial sources to reduce acid precipitation. 12. Permit System. Requires permits for all industrial sources with state administration and federal oversight. 13. Ozone Depletion. Establishes a program for controlling substances that contribute to the depletion of stratospheric ozone. National Ambient Air Quality Standards 14. The 1970 Clean Air Act directed the EPA to establish health-based air quality control measures, providing an “adequate margin of safety.” a. National Ambient Air Quality Standards (NAAQS). NAAQSs allowed the states to implement their own plans (State Implementation Plans or SIPs) for determining what to control in order to satisfy the national standards. Non-compliance by the states would lead the federal government to implement Federal Implementation Plans (FIPS). NAAQSs are embodied in §108 (criteria) and §109 (standards) b. National Emissions Standards for Hazardous Air Pollutants (NESHAP). The first federal regulation to emerge from this structure was a decision to eliminate auto emissions by 90%. Addressed by §112, this legislation helped control mobile sources by implementing an “ample margin of safety” standard. NESHAPs is part of Title II of the CAA. 15. CAA‟70 was difficult to implement and did not address what would happen when localities did not come into compliance within the three-year implementation period. For example, the City of Los Angeles turned its compliance program over to EPA who quickly learned that some goals of CAA‟70 were unrealistic to implement in a short period of time. a. 1977 Amendments. Congress rewrote the Clean Air Act in 1977 to deal with some of these problems. For example, Congress addressed non-attainment problems with §§171-178. Areas of the country not in compliance were restricted from building new polluters unless it could be proven that the facility would not impede the location‟s compliance efforts. b. 1990 Amendments. The Act was again amended in 1990. This version of the Act addressed acid rains problems by creating sulfur emissions credits, whereby a limited number of tons of sulfur could be released and credits to release sulfur could be bought and traded. Title V created a permit program. Environmental Law, Fall 1999 Professor Percival Page 21 of 39 16. CAA Section 109. The CAA attempts to set a system insuring clean air throughout the US by the implementation of NAAQS. Economists debate the benefit of making the standards nationwide because the costs of pollution reduction are different in different areas. In addition, that the standards are entirely healthbased is not reasonable because cost is not considered in the calculation of NAAQS. There are two types of air quality standards: a. Primary Standards. To protect the public health with an ample margin of safety. b. Secondary Standards. To protect the public welfare from any known or anticipated health effects. 17. Lead Industries. NAAQS had been promulgated for lead emissions. The lead industry argued the standards were invalid because EPA had to consider cost and technological feasibility in making the standard. The industry suggested that the word “adequate” suggested that the acceptable risk could be above zero and thus cost and technology must be considered. a. Health-based Statute. The court denied industry‟s argument, looking toward the legislative history to make the determination that cost and technology were not to be considered in the promulgation of regulations. The Court reasoned that Congress wanted to ensure the health of the public and the language created an incentive for the creation of technology that would protect health. b. Deference to Agencies. The industry had also argued that airborne lead was not the only source of lead in children‟s blood. The court deferred to the agency‟s determination of standards. 18. American Trucking v. EPA. This case was in response to EPA‟s revision of NAAQS and was remanded, the court holding that the CAA violated the non-delegation doctrine. a. Legislative Authority. The opinion stated that Congress had not detailed the authority of EPA under the CAA clearly enough and that EPA was operating under a false assumption of legislative authority. Technically, the CAA was unconstitutional but the court, rather than invalidating the entire CAA, allowed EPA to return to the drawing board and create a justification to support the new standard. b. Zone of Discretion. Historically, agencies had a “zone of discretion” that courts were reluctant to contravene. What the non-delegation portion of this opinion held was not that the standard was unreasonable, but that EPA failed to advance a justification for the standard that it set. State Implementation Plans 19. CAA Section 110. Establishes the procedures for SIPs. EPA promulgates national standards and the states have nine months to determine a strategy that will meet those standards. The state must demonstrate that the SIP will bring the state into compliance with the NAAQS within three years. EPA then has a year to approve the plan. a. Congress was trying to force technology by requiring that the NAAQS be met in three years. Congress did not address sanctions in the event that the NAAQS were not met b. Train v. NRDC. This opinion held states could build into permits variances from the national plan but that these variances would be treated as part of the SIP and thus required EPA approval. Inclusion of a variance is contingent on the SIPs ability to attain NAAQSs. c. The promulgation of SIPs is an extraordinary regulatory burden because for each revision of NAAQS, EPA must revise all 50 SIPs, in part explaining why there are only NAAQS for six air pollutants. 20. Procedures. States generally adopt a three step process in the promulgation of SIPs: a. Defining the Problem. The state inventories the current and projected growth of emissions to establish the extent of the problem. b. Emissions Limitation. The state next chooses control strategies for reducing emission with the understanding that state regulations may be more stringent that their federal counterparts. c. Modelling. The state next demonstrates that the proposed measures will be adequate to achieve NAAQSs. This step introduces the most uncertainty in the creation of air quality standards. 21. Federal Implementation Plan. Congress eventually decided that the sanction for a state not achieving compliance within the specified time or in not submitting a SIP in the first place was that EPA would administer that state‟s compliance with a FIP. In addition, a state that fails to provide an adequate SIP may lose federal highway funds. 22. SIPs to be Health-based. In Union Electric Company v. EPA, some large sources maintained that they could not comply with SIPs and thus, the EPA could not approve them. Politically realistic, EPA sketched a scenario whereby a violator would be subject to sanctions and court imposed injunctions. The court held that economic and technological infeasibility are not to be considered in the promulgation of SIPs unless such consideration will not effect advancement toward attainment. Environmental Law, Fall 1999 Professor Percival Page 22 of 39 23. National Permit Program. With the National Permit Program, EPA thought that it was doing industry a favor by elucidating all the applicable requirements in a single permit but industry fought it, enjoying the liberties attendant with regulation that was difficult to enforce. a. States were also allowed to collect emissions fees as a way to fund their permitting program. This approach places financial considerations on companies that were discharging pollutants and offered the states a source of revenue to fund their programs. b. The 1990 Amendments to the CAA also included a citizen suit provision. 24. Monitoring Incentive. Under the CAA, utilities are provided incentive to ensure monitoring equipment is operating properly by adopting a rule that assumes emissions are at a higher level the longer the monitoring equipment is off-line. The Non-attainment Problem 25. Sierra Club v. Ruckelshaus. Using a single phrase from the goals section of the CAA, the Sierra Club argued that allowing the degradation of air quality in areas already in compliance with the NAAQS was contrary to the goals of the CAA. The Supreme Court affirmed the decision in an equally divided court (a 4-4 decision). Congress ratified this decision in the 1977 Amendments by creating the PSD (prevent significant deterioration) program. 26. Use of Offsets and Bubbles to Promote Attainment. Compliance was difficult to come by and the only available sanction was the complete ban of new construction, an unworkable and economically inefficient incentive. This gave rise to emissions trading because so long as two sources were in the same area, if it was cheaper to shut down an old source to make room for the new source, that route would be pursued. a. Bubbles. The bubble policy permits a firm to place all sources at a single facility under an imaginary regulatory bubble. This policy is premised on the notion that plant managers will know better how to achieve stipulated emissions reductions and that such flexibility will result in some cost savings. b. Offsets. Offsets require that new emissions sources obtain reductions in emissions elsewhere. Offsets may occur within the same company, on a contractual basis between companies, or between a company and another entity, such as a governmental unit. 27. 1977 Amendments. Congress extended the compliance deadline and required that areas in non-attainment demonstrate “reasonable further progress.” In addition, Congress allowed EPA to conditionally approve SIPs instead of flatly denying them if something was wrong. Conditional approval required the state correct the flaw in the SIP within a year. 28. 1990 Amendments. These amendments recognized that end-of-pipe controls were inadequate to solve the nonattainment problem and established six categories of localities based on advancement towards attainment.Using Los Angeles‟ difficulty in meeting compliance as a focal point, Congress adopted the 1977 amendments that designated LA as an extreme non-attainment area. The tradeoff in receiving such an extension to meeting NAAQS was that rather severe regulations are adopted to cut back on emissions. 29. Virginia v. Browner. The CAA survived VA‟s challenge that the withholding of highway funds in response to non-attainment was in violation of the 10thA. The Supreme Court decided that federal funds could be conditioned on compliance with the CAA and, because of the Supremacy Clause, EPA could intervene and write FIPs for a state that failed to comply with the federal statute. Interstate Air Pollution 30. Trans-boundary Pollution. The primary justification with national air standards is that air pollution crosses states lines. This notwithstanding, EPA has done a poor job of eliminating trans-boundary pollution. a. Congress initially dealt with this problem by requiring that SIPs include provisions that would not permit a state to interfere with another state‟s compliance measures. b. States are also permitted to report to EPA when another state interferes with its compliance efforts, but this is difficult because identifying responsible sources is very difficult. 31. Title IV Emissions Trading. Embodied in the 1990 amendments, Title IV created tradable emissions allowances for SO2 emissions and created a national cap on SO2 emissions. The Title also required substantial reductions in an effort to combat acid rain. This was the first example of market based regulatory efforts. a. One problem with the free market trading of SO2 allowances is the development of hot spots where localized companies purchase and emit large amounts of SO 2. To combat the formation of hot spots, EPA attempts to review allowance trading. b. Another problem is the relocation of SO2 emission from areas with low impact (New England, where SO 2 wafts out into the Atlantic) to areas with a higher impact (Midwest, where emissions are trapped over land). Environmental Law, Fall 1999 Professor Percival Page 23 of 39 WATER POLLUTION CONTROL The Clean Water Act 1. History. The CAA was enacted in 1970 and the CWA followed two years later. Spurring the creation of the CWA in 1972 was the renewal of the Clean Rivers and Harbors Act of 1899. Prior to this revival, public nuisance actions were the primary vehicle to control water pollution. a. In 1956, Congress enacted a forerunner of the CWA by appropriating funds for the creation of municipal water treatment facilities. This action was taken over Eisenhower‟s veto and resulted in the creation of many water treatment facilities. b. In the „70s Senator Royce noticed the Rivers and Harbors Act and encouraged citizens to bring citizen‟s suits against companies discharging waste into navigable waters. This flood of litigation led dischargers to clamor for permits allowing them to discharge. 2. Pollution Regulations of CWA. The principle types of pollution control regulations mandated by CWA are: a. General prohibition on point source discharges except as authorized by permits requiring: i. Compliance with technology-based effluent limitations or ii. More stringent effluent limitations when necessary to protect the quality of receiving waters. b. Pretreatment requirements for dischargers to POTWs. c. Permit requirements for dredge and fill operations. 3. Purposes. The CWA serves three innovative purposes: a. Regulation “moves backwards,” from the water bodies to the sources polluting them. b. Creates a nationwide permit system for point sources. c. Expands the municipal role in sewage treatments. Structure of CWA 4. Goals. Declares the goal of the CWA to be fishable/swimmable waters by 1983 and the elimination of discharges into navigable waters by 1985. 5. Effluent Limitations. Prohibits the discharge of any pollutant except those made in compliance with the terms of the Act, including the requirements of the NPDES permit program. These requirements include the nationally uniform, technology-based limits on discharges imposed by NPDES. Imposes different limitations on existing sources based on whether the discharge is directed to a water body or publicly owner treatment works (POTWs). 6. Water Quality Related Effluent Limitations. Authorizes the imposition of more stringent effluent limitations when necessary to prevent interference with the attainment or maintenance of desired water quality. 7. Water Quality Standards. Requires states to adopt and periodically review water quality criteria and standards subject to EPA approval and to identify areas where effluent limits are insufficient to achieve such standards. 8. Federal Water Quality Criteria and Guidelines. Requires EPA to adopt water quality criteria and guidelines for effluent limitations, pretreatment programs, and administration of the NPDES program. 9. New Source Performance Standards. Requires EPA to promulgate new source performance standards reflecting best demonstrated control technology. 10. Toxic and Pretreatment Effluent Standards. Requires dischargers of toxic pollutants to meet effluent limits reflecting the best available technology economically achievable. Requires EPA to establish pretreatment standards to prevent discharges from interfering with POTWs. 11. Enforcement Authorities. Authorizes compliance orders and administrative, civil, and criminal penalties for violations of the Act. To enforce criminal sanctions, courts have required the action be willingly and knowingly, there must be a general intent to take specific action. 12. Nonpoint Source Management Programs. States must identify waters that cannot meet water quality standards due to nonpoint sources, identify the activities responsible for the problem, and prepare management plans identifying controls and programs for specific sources. 13. NPDES Permit Program. Establishes a national permit program, the pollution discharge elimination system (NPDES), that may be administered by EPA or by the states under delegated authority from EPA. 14. Dredge and Fill Operations. Requires a permit from the Army Corps of Engineers for the disposal of dredged or fill material into navigable waters with the concurrence of EPA unless associated with normal farming. 15. Citizen Suits. Authorizes citizen suits against any person who violates an effluent standard or order, or against EPA for failure to perform a non-discretionary duty. 16. Judicial Review. Authorizes judicial review of certain EPA rule-making actions in the US Court of Appeals. Environmental Law, Fall 1999 Professor Percival Page 24 of 39 Effluent Limitations on Point Source Discharges 17. National Pollutant Discharge Elimination Program. NPDES was the primary new feature of the act, establishing a national permit program. a. Goals. The goals of the CWA included the elimination of discharge of pollutants in 1985, fishable/swimmable water by 1977, and the elimination of toxic discharges. Goal number seven was added recently, mandating the creation of programs to handle nonpoint source pollution. With such ambitious goals, Congress was clearly trying to spur the creation of technology that would make the goals feasible. b. Permits. First, CWA bans the discharge of all pollutants in Section 301 without a permit. Section 402 created the NPDES program to administer the permits required to discharge. i. Effluent limitations were designed to be effluent standards promulgated on an industry-wide basis. To implement the technology-based system, the limits were to be incorporated into the permits. ii. Water quality standards were to serve as a backdrop and could be used to back up the technologybased permits if the receiving water body would be injured by the release of discharge acceptable under 301. c. Point Sources. This section defines a discharge as the addition of a pollutant from any point source. NPDES and the prohibition on pollution only apply to discharges from point sources. This result is necessary because of the nature of nonpoint source elimination involving individual property rights: landuse restrictions and zoning including the addition of buffer zones, etc. 18. Non-volitional Point Sources. EPA is charged with regulating non-volitional discharge the same as it does volitional. Industrialists argue that the definition of point source should be restricted to only volitional discharges, those intentionally directed through a pipe, or whatever, into water, effectively exempting storm water runoff from regulation. This viewpoint is based on the argument that the discharge of runoff is dependent on too many factors (amount of rain, saturation of land, etc.) and is difficult to control and quantify. 19. NRDC v. Costle. To reduce its workload and make more manageable the initial permitting process, EPA exempted several classes of point sources from permit requirements. This case helped put the pressure on EPA to administer the permitting program. a. EPA attempted to justify their actions by arguing that financial savings would result from focusing on major polluters. It claimed the authority to do so under the theory that the power to control the permit program included the power to exempt some sources from permit requirements. b. EPA Authority. The court disagreed but still found flexibility in EPA‟s enforcement of the CWA. Using a narrow interpretation of the statute, the court stated that there is no authority to bypass the requirements of the CWA and that no point sources are exempted. EPA does have the power, however, to require merely a general permit (requires mere notification to the government of discharging activities, reviewable every five years) or a site-specific permit in lieu of a permit that applies to only one facility. 20. Blood in the Water Case. V was disposing of excess blood samples in the Hudson River. These samples washed up on shore and were traced back to his lab. V was then prosecuted for the intentional discharge of pollutants into navigable water. a. Humans as Point Sources. The court noted that since people were not included in the definition of point source the language did not make sense. In addition, the potential ramifications could subject a “urinating swimmer” to criminal liability under the CWA. b. The dissent argued that a human is more like a point source than a nonpoint source and thus should be held responsible under CWA. Dealing with the “urinating swimmer” problem, the dissent admits the ambiguity in the statue but nonetheless concludes that it is acceptable for the swimmer to pee. Water Quality Based Controls 21. Summary. Congress took an across the board approach to water quality management and implemented technology-based controls. a. Section 402. NPDES are required to contain the technology-based effluent limitations. If these are not successful, the permit writers may write more stringent terms into the permits. b. Section 303. States must identify surface waters that are not meeting water quality standards and are then required to establish TMDLs for that water body. TMDLs identify the total amount of effluent that can enter the water to allow it to meet water quality standards. The state must then determine how to allocate discharges among sources. Environmental Law, Fall 1999 Professor Percival Page 25 of 39 22. Water Quality Standards. Water quality standards are the combination of designated uses and water quality criteria to create limits on ambient concentrations of pollutants in particular classes of waters. a. Designated Uses. Designated uses represent the purposes for which each water segment is to be protected (i.e. drinking water, recreation, fishing). b. Water Quality Criteria. Water quality criteria reflect judgments about the degree of protection from individual pollutants that is necessary to attain designated uses. i. EPA created guidelines for developing water quality criteria designed to protect aquatic life and human health, summarizing them in the “Gold Book.” ii. EPA regulations give state permit writers three options in determining a numeric water quality criteria: use a calculated, numeric limit designed by the state, use EPA‟s recommended numeric criteria, or rely on limits on indicator chemicals within the effluent that, in effect, limit the discharge of a related effluent. 23. Total Maximum Daily Loads. The CWA requires states to identify waters for which effluent limits for pollutants are not strong enough to achieve water quality in the receiving waters. For these water bodies, states must create TMDLs at a level necessary to meet applicable water quality standards. EPA must promulgate TMDLs in the event of a state‟s failure to do so. Wetlands Protection and the Section 404 Program 24. Section 404. In addition to serving as breeding grounds for many species of fish, wetlands also filter pollutants out of water and serve as buffers against flooding. Section 404 was added to protect wetlands, giving the US Army COE jurisdiction. In issuing regulations and permits, the COA must use the best available technology but may also take cost into account. a. Section 404 refers only to discharges of dredge and fill material, leaving considerable uncertainty over whether activities that destroy wetlands through ditching, channelization, or excavation are covered under the permit program. b. Permits are only to be issued if there is no alternative with a lesser impact, no statutory violations will occur, there will be no significant adverse impacts, and all reasonable mitigation measures are employed. Only 0.07% of permit applications are denied, however. 25. Jurisdiction Under CWA. In US v. Riverside Bayview Homes, R wished to fill in wetlands in order to build upon them. The Supreme Court looked to Congress‟s intent to protect waters and determined that since wetlands form part of the hydrologic cycle, only protection of adjacent wetlands will achieve this goal. Thus, wetlands are covered by the definition of waters of the US bringing them under the jurisdiction of the CWA. a. The interpretation of RCRA‟s definition of solid waste to include liquid waste and semi-solid waste is analogous to this court‟s decision to include wetlands in the definition of waters of the US. b. Lopez. The Lopez decision restricted the extent of the Commerce Clause to only those things that have a substantial effect on interstate commerce. i. Aggregate Effects. Recall that Lopez approved Wickard, which stood for the proposition that activity that was minute could substantially effect interstate commerce if multiplied. See also Hoffman Homes, which held that an isolated one-acre wetland that was home to migratory birds could be regulated using the Commerce Clause but that the burden was on the government to show that the wetland was used by the birds. ii. Congressional Findings. In Lopes, the court said that in the legislation to keep guns away from school, Congress made no findings on the impact of guns in school zones on interstate commerce, nor was there any jurisdictional boundaries in the statute. The CWA resolves some of these problems by stating jurisdiction, supported with congressional findings. Environmental Law, Fall 1999 Professor Percival Page 26 of 39 26. Fourth Circuit. In US v. Wilson developers were filling wetlands without a permit. When caught, the developers were criminally prosecuted and the company was heavily fined. On appeal, the developer challenged the mens rea requirement, the jurisdictional reach of the COE‟s regulation, and the definition of sidecasting as the addition of a pollutant to a wetland. The mens rea issue will be discussed in the enforcement section of this class. a. Jurisdiction. The COE regulation included within its jurisdiction those waters that could effect interstate commerce. The Court ruled that this impermissibly expanded the scope the Commerce Clause because regulated activity must have a substantial effect on interstate commerce. b. EPA Reaction. EPA has issued guidance for government agencies on how to handle this decision. The guidance states that EPA and other agencies will only adhere to the decision in the 4th Circuit where it is law. In the 4th Circuit, EPA will not assert jurisdiction only when the only manner for gaining jurisdiction is the potential of that water body to effect interstate commerce. The guidance instruct EPA and the court to determine whether the area is used by travelers in interstate commerce, contains fish that are caught and sold in interstate commerce, contain migratory waterfowl, etc. 27. Tulloch Rule. This rule stated that for purposes of Section 404, efforts to drain a wetland are considered the functional equivalent of trying to fill them. It did so by including fallback from dredging and channeling activities under the definition of addition of a pollutant. 28. Dredging. In National Mining v. US Army Corps of Engineers, dredging companies challenged the Tulloch Rule, arguing that dredging activity could not reasonably be construed to be the addition of anything. EPA countered by stating that the definition required the addition to be a pollutant; while sitting on the bottom, the sediment is not a pollutant but once it is dredged, it becomes one. The court sided with the dredging companies. a. The concurrence realized that the holding could be construed as a loophole allowing sidecasting and other similar activities. However, the concurrence emphasizes that there is a temporal and geographical component of the ruling, that material that is carried away or held for a time is not considered under this rule. b. This case ushered in a wave of wetlands draining activity. Environmental activists have taken action, with varying success. EPA has suggested Congress change the law to reinstate the Tulloch Rule. Enforcement of CWA 29. Criminal Penalties. Proof of intent is required to impose criminal sanctions based on the CWA. Intent is shown if the violator acted willingly and knowingly. The intent required does not have to be the intent to cause harm, but just the general intent to commit the act. 30. Civil Penalties. The CWA provides for substantial monetary penalties and may also result in being blacklisted from the receipt of federal loans and grants. 31. Administrative Penalties. Administrative penalties are less severe and involve simpler proceedings than civil penalties. Violations are assessed by EPA and may be appealed to an administrative law judge whose decision is subject to judicial review. 32. Citizen Suits. Citizen suits are based on discharge monitoring reports (DMRs). The citizen bringing the suit must have been adversely effected by the violation to procure standing. In addition, the citizen must give EPA a notice of intent before bringing suit. After receiving notice, EPA may instigate an enforcement action against the violator at which time the citizen suit becomes moot. Finally, a citizen suit may not be brought on violations occurring entirely in the past; the violation must be occurring the moment the suit is filed or else assumed to be occurring in the future. 33. Self Monitoring. Companies are required to conduct self-audits to show compliance with the CWA. 34. Problems with Enforcement. There are many problems with the enforcement of the CWA. The regulated community is very large and unwieldy and the nature of manufacturing results in varying levels of pollution from day to day. This adds to the difficulties of monitoring regulation, as does the essential practice of notifying sources before the government conducts inspections. Notification allows sources to change production practices on that day, leading inspectors to observe a lower level of pollution than is actually occurring. Environmental Law, Fall 1999 Professor Percival Page 27 of 39 Land Use Controls and the Takings Clause 35. The Takings Clause. Takings disputes arise under the 5thA. In recent years, the property rights movement has attacked regulatory takings by bringing every such opportunity to court, seeking compensation under the 5thA. The conservative judges on the Supreme Court have precipitated a revolution in takings cases, demonstrated by Lucas. a. Framers. The framers intended takings to reflect only complete physical invasions of property. Later courts have defined taking as government action where any invasion occurs. b. History. The courts were reluctant to define how much regulation would amount to a taking in the early cases. Factors that were considered were the economic impact of the regulation on investment expectations and the extent to which the land-owner was unable to enjoy the land. i. Pennsylvania Coal. In this landmark decision, the court held regulations restricting the mineral rights of a land-owner qualified as a taking even if the regulation was intended to benefit public safety. ii. Keystone. A PA law restricting a company from exercising mineral rights was upheld because it protected surface rights. iii. Santa Barbara. A restriction on coastal house building unless an easement was given to the state was ruled as a taking because it demanded a physical invasion. iv. First English Lutheran Church. A restriction prohibiting rebuilding on a flood plain was ruled a taking, the Supreme Court further stating that a state was required to have a damages remedy to successful challenges to land use regulations, even in situations where the taking is temporary. c. Currently. Takings jurisprudence today is an effort to make largely ad hoc assessments of the fairness of government regulation based on its impact on individual property owners. But courts are generally reluctant to find regulatory takings 36. Determining if a Taking Has Occurred. The Federal Circuit has developed the following criteria for examining whether a regulatory taking has occurred, balancing the devaluation/interference with property with the public interest value: a. Denial of Valuable Use. There was a denial of economically viable use of the property as a result of the regulatory imposition. b. Expectations. The property owner had distinct investment-backed expectations. This expectation has been interpreted to require the purchase of land in reliance of the nonexistence of the challenged regulation. c. Vested Interest. It was an interest vested in the owner, as a matter of state property law, and not within the power of the state to regulate under CL nuisance doctrine. 37. Lucas v. South Carolina Coastal Council. The Supreme Court ruled that when a regulation prevents a landowner from using his land, compensation must be provided if the regulation removes all the value from the property. The land-owner must demonstrate that the regulation effectuates either a physical invasion or that it destroys all economically viable use of the land. a. Transitions. Takings problems always seem to deal with transitions. When the law is changed, it is then that those who bought the land for the purposes of development will be prevented from building on it. i. Horizontal Equity: the law is unfair because everybody has already built houses there. ii. Vertical Equity: the law is fair because everybody built a house before the regulation. b. The Supreme Court defended the statutes, arguing that the state‟s police power allowed it to regulate to prevent public harm. The court rejected this approach as a general measure finding that if this was permitted, a protective measure could be incorporated into any law. In the instance at hand, the regulation must be justified by CL property rights. Environmental Law, Fall 1999 Professor Percival Page 28 of 39 38. Dolan v. City of Tigard. This case involved an OR city's effort to condition the granting of a permit to double the size of a hardware store on the owner's agreeing to dedicate a portion of the property to the city for construction of a pedestrian/bicycle path and improvement of a storm drainage system. The city‟s rationale was that these conditions were appropriate means of mitigating the environmental effects of the development that would increase traffic congestion and nonpoint pollution in a flood plain. a. Essential Nexus. In Nollan, the court ruled that there was no essential nexus between the legitimate state interest and the permit condition exacted by the city. The Supreme Court stated that this exaction met the Nollan test because of the connection between the easement and environmental destruction accompanying development. b. Rough Proportionality. The court inquired into the proportionality between the exaction and the landowner‟s impact. i. Paving the lot would cause increased runoff and require state management of the flood plain. In addition, building a larger store would increase traffic that could be eased by the construction of the path. ii. The Supreme Court had no test to weigh the impact of the development against the impact if the dedication. To establish one, the court settled on the elusive standard of “rough proportionality.” The Court settled on this standard under the premise that it is different from the “reasonable relationship” standard of the Equal Protection Clause. The opinion however, seemingly equates the two. 39. Suitum v. Tahoe Regional Planning Agency. CA and NV formed a commission that regulated the development of lands in the Lake Tahoe basin. The commission restricted development by rating property based on its environmental sensitivity. Transferable development rights (TDRs) had to be acquired from the commission to develop this property. Despite winning TDRs in a lottery, S was told that she could not develop her land. If owners that may not develop their property are given TDRs, have they been denied all economically viable use of the property? a. The 9th Circuit determined that the issue was not ripe for review because S had not attempted to sell her TDRs. The selling of this property could provide an economic use for the land. b. The Supreme Court simply says that the 9th Circuit was wrong in dismissing the case on ripeness grounds because the state action is finished. Essentially, the Supreme Court states that court‟s make assessments of the worth of things (in this case TDRs) all the time without complete certainty. c. Scalia, in concurrence, argues that if the property is worthless for development purposes, the question goes to whether TDRs are sufficient compensation for the taking. d. This case was settled before hearing on remand because the commission feared the results of a finding that their regulation constituted a taking. New Developments in Takings Cases 40. Republican’s Contract With America. The Contract With America prominently features legislation to provide property owners whose land value is diminished by government regulation. The bill also provided that if the reduction was 50% or more, the goverment would be required to purchase the property if its owners so chose. 41. Delmonte Dunes. A property on a beach in CA was acquired by a developer who was denied a permit to build a condominium on it because the project was too big. The developer continued to resubmit applications with smaller and smaller plans that were all denied. The developer eventually sued under the 5thA and a jury found for the developer. a. Right to Jury in Takings Cases. The court ruled that a jury trial was acceptable, but not a right. Commentators have suggested that jury trials with takings claims would result in more findings that regulations constitute takings. b. When Dolan Applies. The court found that the Dolan test did not apply here; it applied only when a permit is conditioned on regulatory exaction. When the Dolan (rough proportionality) test does not apply, the court will revert to the Lucas (physical invasion or loss of all economically value) test. 42. Eastern Enterprise. Requiring a company to contribute to a pension fund an amount in excess of its impact is a taking. a. Taking of Personal Property. Even though real property is not at issue, the disproportionate and retroactive condition imposed on the company is a taking. This case suggests that five justices are willing to expand the takings doctrine. b. This could impact CERCLA because a small company that is strictly, joint and severally liable for cleanup could argue that its contribution was not proportional to the company‟s impact on the problem. Environmental Law, Fall 1999 Professor Percival Page 29 of 39 43. Benefits Conferred by Takings. In Hendler, the government installed groundwater monitoring wells on a Superfund site and the site‟s owner sued, arguing that it was a taking for the government to install the wells on personal property. This is a case of physical invasion [REMEMBER PHYSICAL INVASION!] The court found that the government action actually increased the value of the land by allowing remediation, thus the land owner was entitled to nothing. a. States. States do not allow the regulatory taking of the government to be offset by the benefit conferred by the government. The normal rule in states is that an injured party receives the value of the land that was taken in addition to severance, the amount the landowner‟s adjacent land depreciated as a result of the government taking. b. Federal. The federal rule espoused in Hendler is different in that it allows the taking to be offset by the benefit conferred on the landowner, so long as the benefit is a special benefit, defined as a benefit only enjoyed by the landowner. 44. Partial Taking. If a permit is denied to develop part of a property but not the rest of the land, the development project will be viewed as a whole. As a result, even though development on part of the property is denied, the overall increase in the value of the land, even though not as great as the value of development rights extended to the entire property, does not constitute a loss of all economically viable use. ENVIRONMENTAL ENFORCEMENT Monitoring and Detecting Violations 1. Two thirds of corporate counsel admit that their companies have recently violated environmental laws. This behavior reflects an awareness that environmental laws are difficult to enforce. a. One reason for this problem is the difficulty in giving the defendant procedural protections in a way that violations are deterred while protecting individual rights. b. Another reason is the inherent difficulty in monitoring compliance. i. Self-Monitoring. Environmental relies heavily on self-monitoring and self-reporting of violations. Self-monitoring assists regulatory agencies cover the breadth of the regulated community, a very large community. ii. Whistle Blower Provisions. Another aspect of self-monitoring are the whistle blower provisions, protecting employees that report their employer‟s violations. 2. State Self-Audit Policies. Some state policies prohibit the prosecution of companies that report violations. These rules allow companies to use the statute as a shield from liability if they simply report a violation, intentional or not, before enforcement commences. 3. EPA’s Self-Audit Policy. To provide incentives to facilities to accurately self-monitor, this policy reduces fines to companies that engage in self-reporting violations. In addition, information obtained in self-audits may be voluntarily excluded from evidence should enforcement require adjudication. Basically, the policy provides greater benefits to companies that discover a violation through a self-audit or similar procedure while imposing harsher penalties on companies that do not. a. Exceptions. The policy provides exceptions for violations resulting in serious, actual harm, that present an imminent and substantial endangerment to human health or the environment, or that violates the terms of any judicial or administrative order or consent agreement. b. Sanction Mitigation. EPA also restricts the mitigation of penalties to at least the level of economic benefit the company enjoyed as a result of not implementing environmental controls. Environmental Law, Fall 1999 Professor Percival Page 30 of 39 Enforcement Authorities and Policies 4. Enforcement Policies. Numerous enforcement vehicles are available to the EPA as evidenced in the CWA (reproduced on CB1050). Some enforcement options are civil, criminal, or administrative. a. Litigation. Environmental authorities usually only go to court to prosecute the most egregious violations because the cost of litigation is very expensive. Most cases against violators are settled before they can reach court. b. Penalties. The EPA‟s policy is to ensure that penalties recoup the economic benefit resulting from the violation of environmental laws. This procedure considers the economic benefit, gravity, and willfulness of the offense as well as the violator‟s past compliance. 5. Determining Penalties. In Sierra Club v. Cedar Point Oil, the court describes a method for determining what penalties are applicable. a. First, the maximum fine is calculated, using the statutory formula of $25,000 a day for the 800 days of the violation ($20,225,000). Next, the court addresses mitigating factors. Cedar Point was ultimately fined the amount of the economic benefit enjoyed by the violation ($185,070). b. The court affirmed the lower court‟s decision, recognizing that the court has a wide range of discretion in determining penalties. 6. Lack of Knowledge. In General Electric v. EPA, the court set aside a penalty for environmental violations because the company was not aware of the illegality of their activity. The court held that EPA did not provide GE with a fair warning that its interpretation of the regulations that were unclear. 7. Harmon v. Browner. Over 14 years, a company had been dumping hazardous waste behind its plant. The company claimed they were not aware of the activity and stopped when the state EPA began an investigation. For the company‟s cooperation, the state EPA removed all penalties from the company, but the federal EPA continued to press for penalties. The lower court held that since US EPA delegated their authority to the state, the state EPA assumed the US EPA‟s authority and that it could not pursue penalties. It is unclear whether this case will be appealed. Citizen Suits to Enforce Environmental Regulations 8. Citizen suits were created in the CWA and have been copied in most environmental legislation since. Citizen suit provisions generally authorize “any person” to commence an action against “any person” alleged to be in violation of the laws. While the government can be sued for violating environmental laws, it may also be sued for failure to enforce environmental laws. 9. Requirements to Bringing a Citizen Suit. Courts have established the following concerning citizen suits: a. Determinations concerning whether or not a violation is ongoing are to be made as of the time the complaint is filed. b. A violation is not ongoing if remedial measures ensure that there is no reasonable prospect for recurrence. c. Plaintiffs need only make a good-faith allegation of an ongoing violation in order to file suit. d. Courts are divided on whether a parameter-by-parameter assessment of violations must be made before determining a violation is ongoing but ongoing violations can be established either by showing that violations continued on or after the filing of a complaint or by producing evidence from which a reasonable trier of fact could find a continuing likelihood intermittent or sporadic violations would occur. Criminal Enforcement 10. Criminal penalties succeed where monetary penalties fail because they get the attention of corporate authorities. Corporations cannot be thrown in jail so holding officers responsible is more effective. a. In US v. Dee, authorities of a federal discharger were held criminally liable for environmental violations. b. Generally, strict liability is not a component of environmental law; some form of mens rea is required. Deliberate and conscious avoidance of knowledge of the regulations pertaining to an action can satisfy the requisite mens rea. 11. Environmental v. Criminal Laws. Reconciliation of environmental and criminal law is difficult for many reasons. Professor Lazarus attributes this to the fact that environmental laws deal with reducing the risk of harm and not redressing actual harm, causation is more difficult to prove with environmental crimes, that pollution is inevitable and pervasive, and the complexity of environmental laws. Environmental Law, Fall 1999 Professor Percival Page 31 of 39 12. US v. Weitzenhoff. In this case, the managers of a sewage treatment plant were personally prosecuted for CWA violations of the facility‟s NPDES permit. (Industrial dischargers to a municipal sewer are exempt from obtaining a NPDES permit for that outfall. This is one of the difficulties of managing a POTW because the facility must accept anything that is dumped in the sewer.) a. Knowingly Violates. Criminal charges were being pursued under the “knowingly violates” intent requirement of §309(c) of the CWA. The manager‟s defense was that the prosecution failed to establish that they were aware that the discharge violated the terms of the permit. Absent a confession, circumstantial evidence is required to prove knowledge of violation. b. Intent. The government argued that the intent requirement was met if proof existed showing the managers were aware that they were discharging, and the discharge violated the CWA. Knowledge of the illegality of the act is not required. c. Knowledge. The court agreed with the government‟s argument holding that knowledge of the illegality of the act is not required. The court held that one handling material that may endanger the public health or welfare has an affirmative duty to be aware of the regulations pertinent to that activity. d. After the decision, the court denied a petition for rehearing en banc. Dissenting from the denial, some justices question the wisdom of the original ruling, noting that such a holding discourages people from working at sewage treatment plants. 13. Knowledge of Facts. In US v. Ahmad, man was criminally prosecuted under the CWA for discharging gasoline into a water body. The man contended that he was not aware that he was discharging gasoline, but thought he was discharging water. The court held that a discharger must be shown to have knowledge of the facts that create the violation. The discharger needs not know that the act is illegal, just the facts that actually make it so. 14. US v. Wilson. This is the same Wilson discussed earlier; the developer that built on wetlands despite his consultant‟s advice that a 404 permit was required. Wilson argued that the government was required to prove (a) that the violator knew that the activity was illegal, and (b) that the violator knowingly committed each element of the crime. The first argument is essentially the same argument made in Weitzenhoff. a. The court adhered to the old maxim that ignorance of the law is no defense and rejected Wilson‟s first argument. Wilson argued that Weitzenhoff did not apply because filling wetlands does not fall into the category of activities under the public welfare doctrine. The court rejected this assertion because, by passing the CWA, Congress has declared that filling wetlands is dangerous enough to prohibit in the CWA. b. The court agreed with Wilson‟s second argument. Under this ruling, the court held that Wilson must be aware of each element of their action that created the violation. In other circuits, all the prosecution must prove is that the violator knows that he is filling a wetland. PROTECTION OF PUBLIC RESOURCES National Environmental Policy Act Structure of NEPA 1. Federal Environmental Policy. Establishes the policy of the federal government as the use of all practicable means to create and maintain conditions under which man and nature can exist in productive harmony. 2. Environmental Impact Statements. Requires federal agencies to prepare an Environmental Impact Statement on major federal actions significantly affecting the quality of the environment. The EIA must include a statement of environmental impacts, alternatives to the proposed action, and any irretrievable commitments of resources involved. 3. Federal Agencies’ Policies. Requires federal agencies to propose measures to bring their policies into conformity with NEPA. 4. Council on Environmental Quality. Establishes a Council on Environmental Quality in the executive branch. 5. Duties of CEQ. Outlines duties of the CEQ including annual reports on the condition of the environment, appraisal of changes in the natural environment, and appraisal of federal programs and activities. Environmental Law, Fall 1999 Professor Percival Page 32 of 39 Overview 6. NEPA. Not a pollution control statute but primarily informational, NEPA requires governmental agencies to gather evidence to assess the likely impact of federal actions on the environment. a. Section 102. Requires the production of an Environmental Impact Statement (EIS) prior to every federal action affecting the quality of the environment. b. NEPA does not require any particular decision based on the EIS, nor does it provide guidance on how an agency should choose between alternatives. 7. Council on Environmental Quality. The CEQ is responsible for reporting on the condition of the environment and helping agencies comply with NEPA. The CEQ‟s regulations are listed in Appendix B of the West Supplement. a. Part 1502.1. The purpose of an EIS is to serve as an action-forcing devise to enable the goals of NEPA. b. Section 101. The goal of NEPA is the use of all practical means to create and maintain conditions under which man and nature can exist in productive harmony. 8. Calvert Cliffs v. US Atomic Energy Comission. The AEC had responded to NEPA by requiring the applicant to prepare a report that the AEC would consider in formulating its own EIC. The report and the EIC would accompany the application throughout the decision-making process, but did not need to be considered by the permitting authority. a. Consideration of Environment. NEPA is interpreted to require that environmental issues be considered at every important stage in the decision-making process concerning a particular action; where an overall balancing of environmental and nonenvironmental factors is appropriate and where environmental costs may be minimized. b. Flexibility. The substantive policy of the act is flexible and does not require particular results in certain circumstances. The opinion states that courts probably cannot reverse a substantive decision on the merits unless the decision is arbitrary or gives insufficient weight to environmental issues. 9. Procedural Requirements Only. In Strycker’s Bay v. Karlen, low-income housing project had been struck down twice in the courts under NEPA, claiming that the project did not consider enough alternatives in the EIS. HUD had argued that more considerations were not considered because they wanted to provide reasonable housing in a reasonable period of time. The Supreme Court, citing Vermont Yankee, ruled that NEPA imposes only procedural considerations. Once environmental concerns have been addressed, the agency may do anything that it wants – the court may not substitute its opinion for that of the agency. Under What Circumstances Must an Environmental Impact Statement Be Prepared? 10. Major Federal Action. This includes projects that the government is doing and any projects that require federal approval or will be paid for by federal funds. 11. Hanly v. Kleindienst. Is an EIS required to build a jail annexed to a courthouse in Manhattan? The environmental effect was considered to be increases in noise and traffic and decreases in surrounding property values. The trial court held that a prison required an EIS because it was unclear how a prison would impact the human environment of Manhattan. The response was a small report stating in broad terms that the environmental effect would be too small merit further study. a. Adverse Effects / Cumulative Harm. The court formulates a two part approach that first looks at the adverse effects in excess of background levels (caused by existing use of the area), then looks at cumulative harm (the contribution to existing adverse conditions). b. Environmental Assessment. This opinion ushered in the Environmental Assessment, a quick look to determine whether an EIS is necessary. If the EA shows that an EIS is not necessary, the agency issues a FONSI. If another group disagrees, they can challenge the Finding of No Significant Impact (FONSI) in court. 12. Finding of No Significant Impact. If the EA determines no significant impact, a FONSI is attached and both are submitted - a FONSI could not be submitted without the supporting EA documentation however. If the EA concluded there would be significant impact, an EIS must be submitted. The is that it all comes down to a judgment call by the agency that wants to build. The result is a bunch of conclusory statements saying there is no environmental effect, but no data to back it up. Environmental Law, Fall 1999 Professor Percival Page 33 of 39 Is the EIS Adequate? 13. Requirements of EIS. Each EIS must include an explanation of the purpose of and need for the proposed action, a description and comparative assessment of alternatives, and an analysis of the environmental consequences of the action. 14. Psychological Impacts. Vermont Yankee v. NRDC involved the petition to reopen the Three Mile Island Nuclear Facility. NRDC argued that the reopening of this plant would scare the nearby residents. The court held psychological impacts on the surrounding environment are not enough to require an EIS. 15. Environmental Justice. In the Matter of Louisiana Energy Services addressed the interrelationship between NEPA and environmental justice concerns. A Uranium enrichment facility was cited between two poor, predominantly black communities. a. The NEPA claim was that the EIS was insufficient in that it did not consider the negative impacts of citing the facility between the two communities. i. The EIS assumed the road would be relocated even though that decision was left to the discretion of the local police, who had not made a decision on relocation. Even if the road was relocated, the increased distance would impact those that walked between the two communities. The EIS did not discuss how lengthening the road would impact pedestrians between the two communities. ii. The EIS said that there would be some economic impact on property values but that some property values would rise. In addition, the EIS said it was impossible to discern what the economic effect would be in any particular geographic area. b. The result was LES would be required to resubmit an EIS, precluding NRC from licensing the facility. However, after resubmission of an adequate EIS, licensing would still occur. NEPA claims are difficult to win unless a determination has been made that the EIS is insufficient. Conservation of Endangered Species Structure of ESA 16. Section 3: Definitions. The ESA affords essentially the same protection to threatened or endangered species. These species are either in danger of extinction throughout a significant portion of its range or are likely to become an endangered species. 17. Section 4: Listing Endangered and Threatened Species. EPA must determine the critical habitat of T/E species. The listing of T/E species and determination of critical habitat is required to be based on the best available scientific data however the determination of critical habitat must also consider the economic impact of such listing. Further, EPA must develop and implement recovery plans for T/E species. 18. Section 7: Review of Federal Actions. Requires all federal agencies conserve T/E species and their critical habitat and delegates authority for reviewing denial of government actions under the ESA by a cabinet-level Endangered Species Committee. 19. Section 9: Prohibitions. Bans the sale, import, export, or transport of any T/E species. Further, the section prohibits the taking of T/E animals on all lands and the taking of T/E plants on federal lands. 20. Section 10: Enforcement and Citizen Suits. This section provides civil and criminal penalties for violations of the ESA. Further authorizes citizen suits against persons in violation of the Act and the EPA for failure to perform a nondiscretionary duty. The Endangered Species Act 21. Importance of Endangered Species. Endangered species are preserved for numerous reasons. Among these are potential medical uses that some animals might provide, even if science is not aware of them yet. Another argument is that humans do not have a right to eradicate another species. a. Biodiversity. Yet another reason is that to the extent that we are able to preserve biodiversity, ecosystems remain more resilient and productive. The reasons for this are preservation of the gene pool from which evolution can progress. b. Human Impact. Why worry about human action when scientific evidence suggests that natural forces lead to extinction as well? Since humans have become such a dominant species, we have increased our ability to eradicate species. Environmental Law, Fall 1999 Professor Percival Page 34 of 39 22. Endangered / Threatened Species Lists. A decision to list a species on the T/E lists must be based on the best available data on that species. Other sections limit the potential for impact on T/E species arising from government actions. In addition, the sale or import of T/E species is limited. Under the ESA, animals are accorded more protection that plants. a. God Squad. There is also a provision for exemptions, provided by a panel of high-level officials called the “God Squad,” for its ability to decide the fate of species b. Moral Outrage. The ESA has been viewed as exemplifying the moral outrage school of thought in environmentalism, especially in contrast with NEPA, more of a cool analysis approach. 23. TVA v. Hill. A lawsuit was brought against a congressionally sanctioned dam under NEPA and ESA. NEPA was successful in gaining an injunction until the ESI was completed, two years later. The ESA claim was based upon the discovery of a new species of fish, the snail darter, in the headwaters of the dam. a. The lower court held that construction of the dam did violate the ESA, but refused to stop it. The Sixth Circuit however, considered it an abuse of discretion to not issue an injunction and so ordered. TVA appealed to the Supreme Court. b. The Supreme Court issued an injunction. The Supreme Court does not have the ability to rewrite the ESA because Congress has spoken in favor of granting endangered species the highest of priorities. c. The Supreme Court addressed whether the fact that Congress continued to fund the project after the discovery of the snail darter implicitly sanctioned the dam‟s construction by noting that §7 applied only to federal actions and thus federal funding would always be present. d. Before an action could be brought on the snail darter, the species had to be listed. Congress did not want to list the species, but ESA provided that listing could be guided only by the best available science, not political motives. To counter, TVA attempted to find another suitable habitat for the fish so that they could transplant it. Protection Against Private Action: Section Nine 24. Taking. Section Seven of the ESA applies only to federal actions. Section Nine offers T/E species protection from private actions by prohibiting taking T/E animals from all lands and T/E plants from federal lands. Taking is defined in the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 25. Incidental Taking. Section Ten allows for an incidental take, so long as the actor developed a Habitat Conservation Plan (HCP), designed to minimize the impact of development on protected species. 26. Palila v. Hawaii. Feral sheep were foraging on a type of tree relied on by the Palila, an endangered bird. The action was brought under §9 because the action was undertaken by the state. a. Harm. The Secretary defined “harm” as an act that actually killed or injured natural wildlife, including habitat degradation that actually killed or endangered species by seriously impairing the behavioral patterns of protected species, including breeding, feeding, or sheltering. b. Proof of Harm. The court held that this definition of harm did not require a showing of death to individual species members. In addition, a showing of harm does not require proof of a decline in the numbers of the species‟ population. The court ruled that if habitat modification prevents a species from recovering, than the animal has suffered an injury providing a cause of action under §9. 27. Babbitt v. Sweet Home. A development was expected to modify the habitat of a protected species of butterfly. An environmental group sued to prevent this habitat from being destroyed. a. Destruction of Habitat as Harm. The SC held that the destruction of habitat when it will knowingly harm a protected species will be treated the same as directly injuring the species. This includes the destruction of the habitat of a protected species even when the species was not present at the time. b. Scienter. Does anything a person does that injures a species violate section 9 of the ESA? No because the injury must be accomplished knowingly. If you intend the natural and forseeable consequences of your actions, then scienter is satisfied under section nine. If, considering the actions taken, the taking of a species is not forseeable, criminal enforcement of the crime is impossible. Environmental Law, Fall 1999 Professor Percival Page 35 of 39 28. Safe Harbors and No Surprises Program. In return for a private landowner agreeing to preserve a portion of the land that might attract an endangered species, the government will outline in advance what the regulatory consequences will be should the ESA be violated. a. This program is approached on a species by species basis; critics suggest a better approach would be habitat by habitat. b. In CA, the state took a proactive approach in developing a long-term plan. The state gathered all appropriate agencies and set aside land that could serve as habitat as well as lands where incidental takings permits would be granted. All parties involved know where development will be permitted in the future. 29. Endangered Plants vs. Endangered Animals. A local farmer plowed under virgin prairie that was one of the few remaining locations of rare species. With respect to plants, section 9(a)(2) states that is illegal to possess, maliciously damage, or destroy endangered species of plants, in violation of state laws. a. If these had been endangered animals, section 9 would have been violated. Since the plants were not on federal land and they were not taken in violation of state law, there is no violation of ESA. If protesters had come out and trampled on the endangered plants, they would have been violating because they would be guilty of violating trespass laws. b. Why the distinction between plants and animals? Plants are attached to the land and not mobile. Therefore, the government‟s sensitivity to private land-owners requires somewhat less stringent standards. 30. National Association of Home Builders v. Babbitt. The county wanted to build a new hospital on land that served as a habitat for the Delhi Sands Flower-Loving Fly. Nobody challenged whether the ESA applied to protect the Fly but instead that under Lopez, Congress did not have the constitutional authority to protect a completely intrastate endangered species. In Lopez, the SC said that, under the Commerce Clause, Congress could regulate only three categories of activities: the channels of interstate commerce, things that are themselves in interstate commerce (interstate commerce), and things that substantially effect interstate commerce. a. Majority Opinion. The ESA is constitutional in these circumstances. States that the ESA is a legal manifestation of Congress‟s Commerce Clause powers. Under the “channels of interstate commerce” category, the opinion states that the prohibition of takings of endangered species is necessary to prevent the interstate trade in endangered species and to prevent the use of the channels of interstate commerce for immoral and injurious uses. In addition, the opinion argues that materials required for the construction of the hospital traveled in interstate commerce. b. Concurring Opinion. The concurrence disagrees with the opinion‟s assertion that the unknown commercial value of a species confers to Congress the ability to regulate endangered species. Instead, the concurrence simply states that the importance of maintaining biodiversity justifies the ESA because the loss in biodiversity has an effect on the ecosystem and interstate commerce. c. Dissenting Opinion. The dissent fails to see any ready market in trade for the Fly, thus the “channels of interstate commerce” justification in the opinion is flawed. In addition, the argument that materials used in the construction of the hospital traveled in interstate commerce incorrectly focuses on the movement of materials in interstate commerce and not on movement of the Fly in interstate commerce. Public Resource Management and the Environment Public Land and Natural Resources Law 31. Multiple Use. Congress has mandated the management of public lands for multiple use. Unfortunately, such management often emphasizes economic uses over wildlife and wilderness values. 32. Preservation. National Parks and National Wilderness Areas enjoy almost complete environmental protection. NPs are managed to conserve the scenery, nature, wildlife, and historic objects of land in a manner that leaves them unimpaired for the enjoyment of future generations. NWAs are managed to preserve the primeval character and natural character of the lands, with motorized equipment and permanent roads generally prohibited. 33. Public Resources. The Mining Law of 1872 guarantees citizens a right to discover, develop, and patent hardrock mineral deposits on any public lands unless the lands have been expressly withdrawn from the mineral entry. Environmental Law, Fall 1999 Professor Percival Page 36 of 39 Preservation of Biodiversity 34. Spotted Owl. The environmentalists didn‟t really care about the owl but were motivated by the preservation of the old growth forests. The owl was the vehicle by which the trees could be saved. Once the environmentalists got the owl listed as an ES, political pressure to exempt the forest from the ESA intensified. 35. Delmarva Fox Squirrel. A developer wants to build luxury homes on land that is the habitat of the squirrel around Queen Anne‟s and Dorchester Counties. Should the FWS grant an incidental take permit under section 10 of the ESA based on a Habitat Conservation Plan (HCP) created by the developer? Some environmentalists argue that HCPs are removing the once absolute nature of the ESA while others argue that HCPs are more realistic, allowing developers to more responsibly develop land and preventing the gutting of the ESA. 36. Key Tam Suits (SP?). A private party is able to sue in the shoes of a government to enforce federal law. The party gets to keep a portion of the recovery. Key tam provisions are a part of the fabric of the American legal framework – many of the provisions were passed by the First Congress. PROTECTION OF THE GLOBAL ENVIRONMENT International Environmental Law 1. Considering there is no overriding adjudicatory system or constitution, where does international environmental law come from? a. There are some basis for actions to protect the global environment, but these actions face the same procedural difficulties involving causation as domestic actions and are rarely used. b. It is primarily the product of negotiation and diplomacy. Diplomatic pressure is very influential in getting countries to comply with international environmental law. i. 1972 Stockholm Conference. Recognized the urgency of global action to protect the environment and the duty of all countries to prevent transboundary environmental damage. This led to the formation of the UN Environment Programme. ii. 1982 Nairobi Conference. Resulted in the formation of a commission which recognized the common stake the nations of the world had in protecting the environment. 2. 1992 Rio Earth Summit. Produced an agreement on a declaration of environmental principles and important treaties governing climate change and the protection of biodiversity. a. Humans beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. b. States have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies. c. The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. d. To protect the environment, the precautionary approach shall be widely applied to states according totheir capabilities. Full scientific certainty shall not be used as a reason for measures to prevent environmental degradation. 3. International Whaling Comission. The IWC used to set limits on whale harvests based on scientific information regarding sustainable yields. Today, bans on the harvesting of endangered species are based on moral grounds. a. Countries steeped in whaling history (Japan, Iceland, Norway) have threatened to leave the IWC, endangering its future. b. Greenland, Iceland, and Norway have formed a commission to regulate the management of marine mammals in North Atlantic waters. Environmental Law, Fall 1999 Professor Percival Page 37 of 39 Protection of the Global Atmosphere 4. The Montreal Protocol. The Montreal Protocol was signed to address international concerns about the hole in the ozone layer. a. In 1974, two scientists discovered the impact of CFCs on the ozone layer. Despite concrete evidence supporting the theory, there was an immediate reaction – people stopped using products with CFC‟s. This was the first time people realized that the effect was not localized and could not be reversed. b. After enacting domestic bans, the US began pushing for international ban on CFCs. However the lack of data confirming the ozone led many European countries to resist banning CFCs for fear it was an overreaction to an unproved theory. c. When more accurate data surfaced indicating that the hole was definite, there was a push to phase CFCs out at a quicker rate. Eventually the countries agreed on the Montreal Protocol, putting a freeze on production and consumption of CFCs. 5. Global Climate Change. Current issues focus on global warming and climate change. a. Many scientists believe that the buildup of CO2 and other gasses in the atmosphere is contributing to global warming. The combustion of fossil fuels releases CO2 (coal is the least efficient, natural gas is the most efficient, and oil is between the two) and the depletion of trees eliminates CO2 sinks (because trees store CO2). b. The magnitude and pace of global warning are difficult to predict due to the dynamic nature of the global climate. In addition, the effects of global warming are not uniform – some locales will benefit while others will suffer. For this reason it is difficult to achieve international consensus on how to address global warming. c. Although uncertainty surrounds the effects of global warming, the UN has called for global action to combat the problem. At the 1992 Rio Earth Summit, the convention called for the stabilization of greenhouse gasses in the atmosphere at a level that would rapidly prevent interference with the climate system. 6. The Kyoto Protocol. An offshoot of concerns that surfaced at the Rio Summit, the Kyoto Protocol was an international effort to limit the emissions of greenhouse gasses. a. The major industrialized nations agreed to accept obligations to reduce greenhouse gas emissions by 5% from 1990 levels. Developing nations refused to accept any new commitments. b. The US strongly favored emissions trading similar to those used for SO 2 under the CAA. Trading in principle was agreed to after a lengthy negotiating process, but terms surrounding trading were left unresolved until the next meeting. c. Use of forestry and agriculture to offset emissions by functioning as a sink was left unaddressed. Environmentalists are concerned that allowing such offsets will be unsuccessful because of the ease with which countries could fraudulently report forestry in their countries. International Trade and the Environment The Environmental Impact of Trade Liberalization 7. In recent years, there has been a reduction in barriers to trade, both on the global and regional arenas. Why is trade liberalization an environmental issue? a. Trade liberalization makes it easier for developing countries to industrialize, often with the benefit of relaxed or nonexistent environmental regulation. b. Some domestic environmental regulations designed to strengthen environmental regulation will be attacked as illegal barriers to trade. 8. Might trade liberalization be good for the environment? a. One argument is that free trade is good for the environment in developing countries because rapid development leads to advances in pollution-reducing technology. Additionally, one study has found that as a nation‟s per capita income increases beyond what is necessary to survive, the society begins demanding environmental controls. b. NAFTA created a mechanism for raising environmental issues between countries. The Clinton administration conditioned approval of NAFTA on an agreement between the participating countries to a regulatory framework of environmental protectionism (see below). Environmental Law, Fall 1999 Professor Percival Page 38 of 39 GATT. GATT purported to recognize the ability of countries to ensure the safety and health of its citizens without imposing de facto barriers to trade. a. MMPA. The US required tuna shipped to the US to be dolphin safe. The MMPA banned countries with a higher incidental death rate higher than that of the US fishing fleet from importing tuna to the US. i. Mexico and other countries disputed the Act and the WTO agreed, finding that environmental regulations could not force international fleets to adhere to the same regulatory structure as the US fleet. ii. A follow-up case dealt with a provision barring countries that purchased tuna from non-dolphinsafe countries from shipping to the US to prevent “dolphin laundering.” This provision was rejected as well, as impermissibly dictating policy to other countries with respect to their feelings about fishing in the high seas. b. CAA. 1990 amendments to the CAA addressed the inclusion of lead additives in gasoline. i. Provisions in this amendment affected other countries that produced gasoline by refusing to allow producers to present evidence showing that their gasoline was cleaner than standard presumptions of the US. ii. Gas-guzzler taxes applied to inefficient, imported cars from Germany was upheld because the same standards were applied to domestic manufacturers. 10. The “final chapter” of the effects of environmental regulation on international trade. a. NAFTA. When the environmental regulations attached to NAFTA were enacted, conventional wisdom held that most of the claims would be brought against Mexico. However, the US was the first country against which a complaint was brought, for failing to enforce its own environmental regulations. b. WTO. US regulations requiring all shrimp importers to the US implement TEDs was rejected by the WTO because it found that the US could not dictate what types of controls other countries placed on their shrimping fleets. 9. International Trade in Hazardous Substances 11. Regulation. a. RCRA. The principle traditionally applied was informed consent, requiring the receiving country be notified of the nature of the hazardous waste. b. Basel Convention. This convention followed RCRA to a degree, but differs in allowing greater enforcement. For example, Basel requires all countries through which hazardous material will pass be informed of the nature of the material in addition to the receiving country. 12. Liability of Multinational Corporations. a. A TX court agreed to bring a lawsuit arising from the sterilization of Costa Rican workers due to pesticides manufactured in the US and banned in the US, rejecting the traditional doctrine of forum non conveniens to a degree. b. Alien Tort Statute. Allows foreign tort claims in US courts when it is a “shockingly egregious violation” of international legal principles. Environmental Law, Fall 1999 Professor Percival Page 39 of 39 CONCLUSION Environmental Progress 1. Most Success. The environmental program has been the most successful in air regulation. Although cars are burning cleaner and more efficiently, air quality problems remain, largely because there are more cars. a. Elimination of lead in gasoline has resulted in drastic reductions in the incidents of lead based injuries. There are still problems with lead based paint, illustrating that once a risk is widespread, it is difficult o eliminate. b. RCRA regulations have resulted in a reduction in hazardous waste produces, leading to an elimination of early fears that there wouldn‟t be enough storage capacity for these wastes. 2. Least Successful. Water pollution controls and habitat protection measures have been the least successful environmental programs. Environmental Prospects 3. Ecorealism. Easterbrook suggests that throughout history, humans have always solved their environmental problems through economic development. He argues that environmental groups have an institutional bias to make people think environmental conditions are bad. However, Easterbrook does not take into account many factors, such as the exponential rate of change as compared to past times as well as the rapid technological advancement of developing companies without environmental controls. 4. Policy’s Failure. Environmental laws do not address the root of environmental problems: production processes and technology. a. The author suggests approaching environmental regulation in a socialist fashion, managing technology and production for the greater good. b. Another suggestion is voluntary partnerships between the government and the regulated industries. 5. Business Policies. The corporate culture has changed in response to environmental concerns from companies that do not change their policies but use an environmental image (truthfully or not) to enhance their image to companies that genuinely view sensitivity to environmental concerns presents a genuine business opportunity. a. CERES Principles. The companies agreeing to the principles would submit to environmental self-audits. Is this a change in philosophy or merely good public relations? b. Some argue that environmental protection is not a company‟s responsibility because the company‟s responsibility is to make money for the shareholders. c. ISO1400. The International Standards Organization has been working to establish management practices to certify that companies are not damaging the environment. 6. EPA. The agency has been working to make regulations more flexible and less complicated. The Common Sense Initiative was an effort between EPA and industry to develop the best methods to regulate that failed.