1

Environmental Law – David Case

Fall 2011

Ben McMurtray

Table of Contents

Contents

Table of Contents 1

Part 1: POLICIES, PROBLEMS AND VALUES 3

_Toc311524104

ECONOMICS AND ECOLOGY 5

The Rise of Federal Statutory Environmental Regulation 7

STANDING TO SUE TO ENFORCE THE ENVIRONMENTAL LAWS 9

Part 2: THE REGULATORY PROCESS 12

APA Rulemaking 12

Chevron Test for Statutory Interpretation by Agency 14

The Regulatory Process 16

PART 3: INTRODUCTION TO NEPA, THE EIS REQUIREMENT 17

Introduction to NEPA 17

NEPA CUMULATIVE IMPACTS, THE SIGNIFICANCE REQUIREMENT AND ENVIRONMENTAL ASSESSMENT 19

Effects covered by NEPA 24

Challenging EIS on Failure to Consider Alternatives 26

Supplementation of EIS: 27

Substantive v. Procedural Requirements of NEPA 28

Timing and Scope of EIS 30

PART 4: THE CLEAN WATER ACT 31

THE SCOPE OF FEDERAL AUTHORITY TO REGULATE WATER POLLUTION 31

Rapanos Wetlands 35

ADDITIONAL RAPANOS INFORMATION 37

REGULATION OF DISCHARGES FROM POINT SOURCES 39

TECHNOLOGY-BASED EFFLUENT LIMITATIONS, POTWs, WATER QUALITY STANDARDS, INTERSTATE POLLUTION 42

INDIVIDUAL CONTROL STRATEGIES, SECTION 401 CERTIFICATION & TMDLs 45

PART 5: THE CLEAN AIR ACT 49

GREENHOUSE GAS EMISSIONS AND THE CAA 49

NATIONAL AMBIENT AIR QUALITY STANDARDS 54

ATTAINING AND MAINTAINING THE NAAQSs, OFFSETS 58

Reviewing SIP’s 61

PART SIX: RCRA 63

STATUTORY AUTHORITIES AFFECTING WASTE MANAGEMENT, INTRODUCTION TO RCRA 63

IDENTIFYING HAZARDOUS WASTE, HOUSEHOLD WASTE EXCLUSION 67

PART SEVEN: CERCLA 70

INTRODUCTION TO CERCLA, CERCLA LIABILITY, RESPONSIBLE PARTIES 70

CERLCA LIABILITY: OPERATORS AND ARRANGERS 74

CERCLA: STRICT, JOINT AND SEVERAL LIABILITY AND ALLOCATION OF LIABILITY 77

PART EIGHT: THE ENDANGEDED SPECIES ACT 81

RATIONALE FOR PRESERVING BIODIVERSITY, INTRODUCTION TO THE ENDANGERED SPECIES ACT 81

ESA: LISTING PROCESS, REVIEW OF FEDERAL ACTIONS 85

PROTECTING ENDANGERED SPECIES AGAINST PRIVATE ACTIONS 88

PART NINE: GULF COAST OIL SPILL 90

OVERVIEW OF DEEPWATER HORIZON OIL SPILL STATUTORY LIABILITY 90

PART TEN: VIOLATIONS AND ENFORCEMENT 95

DETECTING VIOLATIONS, ENFORCEMENT AUTHORITIES AND POLICIES 95

PART ELEVEN: CLASS ASSIGNMENTS 101

Chapter 8: Environmental Impact Assessment 101

Chapter 6: Water Pollution Control 101

Chapter 5: Air Pollution Control 102

Chapter 4: Waste Management and Pollution Prevention 102

Chapter 10: Environmental Enforcement 103

Part 1: POLICIES, PROBLEMS AND VALUES

Introductory Concepts

I.  Sound environmental policy is formed at the intersections of politics, law, science, economics, and ethics

II.  VALUES

  1. Should environmental protection measures be premised on nature’s instrumental or intrinsic value to humans or on preserving nature for it’s own sake?
  2. Said another way, should policy goals be decided based on risks to humans, economic considerations (e.g., cost benefit analysis) or according to moral or ethical imperatives?

III.  POLITICS

  1. Environmental policy is created in the most combative regulatory arena in American politics.
  2. Divisive political conflict and confrontation between adverse and competing interests play a very large part in environmental regulation and policymaking.

IV.  MEANS AND METHODS

  1. What regulatory tools or policy instruments should be used to implement environmental policy, once those policies have been determined?
  2. Traditional tool of environmental protection has been “command-and-control”
  3. The concept of “reform” of environmental regulation is a pervasive theme

V.  “Command-and-Control

  1. A top-down, hierarchical regulatory form where government commands compliance with detailed, source-specific performance standards (enforced through permitting systems), or requires uniform technology based controls for certain types of polluting activity.

VI.  UNCERTAINTY

  1. Refers primarily to scientific uncertainty, although many other types of uncertainty affect environmental law and regulation
  2. Uncertainty creates an intellectual problem in policymaking – we may and usually do not have certainty about issues that we believe must nonetheless be dealt with here and now
  3. Critical question becomes “What should we do in the face of our uncertainty?”

VII.  RISK

  1. Establishing environmental policy and establishing regulatory objectives relates to the attempt to reduce risk
  2. Concept of risk itself is a poorly understood concept in general
  3. Public perceptions of risk often differ greatly – sometimes enormously – with expert assessments of risk
  4. Risk can be defined generally as the probability of suffering harm or loss
  5. Perception gap in understanding risk begins when experts use the term “risk” to refer to the combination of the probability that an event will happen and the consequences if it does
  6. However, public perception is often driven by the possibility (not the probability) of particularly dire consequences. The more severe the possible consequences, the more upset the public may be regardless of probability of those consequences occurring.

VIII.  ECONOMIC INEFFICIENCY

  1. Primary criticism of current environmental regulatory system – goals and policy are established without full consideration given to economic costs involved
  2. Private industry in U.S. spends in excess of $200 billion annually on pollution controls

IX.  VOLUMINOUS

  1. Sheer enormity in numbers of environmental statutes, regulations and rules is staggering
  2. Over 100 federal environmental statutes, including nine major statutory schemes
  3. Statutes are accompanied by an exponentially greater number of regulations implementing and executing the statutory mandates
  4. Statutes and regulations are interpreted by court decisions, agency
  5. rules, and often difficult to access agency documents and interpretations State statutes and rules may impose different and possibly stricter requirements

X.  COMPLEXITY

a.  environmental regulation is highly technical and dependent upon science, engineering and economics

b.  language of environmental regulation is often highly indeterminate and ambiguous

c.  meaning of statutes or regulations often contained in a vast range of “underground environmental law”’

  1. Institutional Differentiation
  2. many different entities regulate the environment and often are in active conflict with each other

ECONOMICS AND ECOLOGY

I.  Collective Action Problem

  1. Economists view all individuals as rational utility maximizing economic actors.
  2. In theory, individual actors are motivated to maximize individual gain – to take
  3. action that results in a net gain to themselves – this is rational economic behavior
  4. This dynamic drives the “tragedy of the commons” – each individual is motivated to use common resources (air – water – land) to the point of over-congestion and overuse and such actions ultimately begin to yield negative returns.
  5. The “tragedy of the commons” dynamic creates a collective action problem – society needs to find ways to either force rational actors to internalize external costs, or to otherwise intervene to protect common pool resources.

II.  Environmental Economics

  1. The environment is not a separate entity from the economy. Change in one affects change in the other.
  2. No economic decision can be made that does not affect our natural and built environments.
  3. No environmental change can occur that does not have an economic impact.
  4. Environmental economics views the real economy in which we live and work as an open system. In order to function (i.e., provide goods and services or wealth for human operators), this system has three basic processes:
  5. These basic processes generate waste streams that find their way back into the environment (air, water, land) causing biological or other environmental changes (contamination) and/or harm or damage to animals/plants and their ecosystems (pollution).
  6. Economics views the generation of waste streams as an external cost or an externality and a primary example of a market failure.
  7. Extraction è waste stream
  8. Processing/Fabrication è waste stream
  9. Consumption è waste stream
  10. Internalize the Externality
  11. The primary question that environmental economics attempts to answer:
  12. What public policies will induce the generator of the externality to take the external costs into account? In the lexicon of economics, to internalize the externality?
  13. When such a market failure (externality) occurs, economics believes government intervention in the form of implementation of some policy to correct the failure is justified.
  14. If such a policy forces the generator to internalize external costs, it either must pay the costs or change its behavior in order to avoid generating the costs.
  15. Economics seeks to determine which policies will efficiently change the behavior of economic actors.
  16. Policy Options
  17. Available policy options to induce generators of externalities to internalize the costs they generate:
  18. Use the court system (unchain the lawyers) – common law compensation system for redress of injuries to person or property, especially through nuisance law and tort law
  19. Direct regulation – command-and control policies
  20. Performance standards – establish emission standards and limits
  21. Technical controls – require installation of pollution control equipment
  22. Market-based approaches (price instruments) – attempt to give polluters economic incentives to control emissions
  23. Pollution taxes on emissions or polluting input
  24. Subsidies on reductions of emissions (payment as a “reward” for reducing a unit of pollution from an initial level)
  25. Marketable permit systems – create markets in certain permits to pollute
  26. Information disclosure (TRI)
  27. Robert Paehlke, Environmentalism and the Future of Progressive Politics
  28. “The balance reasonable environmentalists seek involves reminding society that unanticipated costs of negative impacts can be severe, even irreversible. This has happened so often that environmentalists seek to reverse the burden of proof regarding safety of new technologies. Proponents of new technologies and substances should be required to demonstrate their safety. In our court system, people are innocent until proven guilty. But new technologies should be seen as guilty until proven innocent.” (p. 41)
  29. Rule of Unintended Consequences
  30. “Because ecosystem interconnections can be complex and multifarious, an ecological rule of thumb is that seemingly simple actions typically will have non-obvious and unintended consequences that may culminate in a threat to ecosystem stability.” (p. 39)
  31. “Environmental science assumes that every new technology introduces undesirable and commonly unanticipated impacts….” (p. 41)
  32. Who Speaks for the Trees?
  33. “Someone must speak for other species and for future generations, and we all must be willing to accept less economically desirable options when necessary.” (p. 41)

The Rise of Federal Statutory Environmental Regulation

a.  Common Law Roots: Public and Private Nuisance

i.  Madison v. Ducktown Sulphur, Copper & Iron Co.,

1.  Facts: TN company near the GA-TN border, runs a copper-smelting operation; burning open-air piles of ore which produces harmful sulphur smoke.

2.  Issue: What can the law do to address this situation?

3.  Potential Solutions:

a.  Close the Factory

b.  Injunction

c.  Tort Lawsuit

i.  Arguably this is a straightforward nuisance action – farmers can sue the factory in tort for damages

4.  Held → no injunction because they had considerable economic value to the community. “The proper decree is to allow the complainants a reference for the ascertainment of damages, and that the injunction must be denied to them.” (Try to recover damages but no injunction).

ii.  Missouri v. Illinois

1.  Facts: MO sued to restrain the discharge of sewage of Chicago through an artificial channel into the Desplains River, in IL. The river empties into the IL River and then empties into the Mississippi @ a point 40 miles above STL. MO argues that typhoid fever increased as a result and the bacillus of typhoid reaches the Mississippi.

2.  Held Cannot determine the effects of the pollution and quantity. The experiment made by the Пs of sending sacks of bacilli down the river to see if they could survive was unfounded. Пs infect the waster as well and STL should take their own preventative measures.

iii.  Georgia v. Tennessee Copper Co.

1.  Facts: GA wants to enjoin Copper Companies from discharging noxious gas from the works in TN over the plaintiff’s territory. GA says that is hurts forests, orchards, and crops in 5 counties. This is a suit be a State for an injury to its in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens.

2.  Held → is a preponderance of the evidence that the sumptuous fumes caused and threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff state to make out a case within the requirements of Missouri v. Illinois. Injunction is issued.

b.  The Rise of Federal Regulation and the Impact on Common Law

i.  Four Key Problems with the Common Law System:

1.  Substance: law was reactive rather than preventative, and the standards of proof and of causation were quite high.

2.  Rule-making: Conducted by non-expert courts and judges.

3.  Enforcement: Initiated largely by private enforcers.

4.  Policy: Most relevant law was state law, not federal.

ii.  Tracing the History of Federal Environmental Law [CB: 85 et. seq.]

1.  The Common Law and the Conservation Era (pre-1945)

2.  Federal Assistance for State Problems (1945-1962)

3.  The Rise of the Modern Environmental Movement (1962-1970)

4.  Erecting the Federal Regulatory Infrastructure (1970-1980)

5.  Extending and Refining Regulatory Strategies (1980-1990)

6.  Regulatory Recoil and Reinvention (1991-present)

iii.  International Paper Co. v. Ouellette

1.  Facts:

a.  IPC dumping paper waste into Lack Champlain (NY/VT); VT lakeside residents bring a private nuisance action.

b.  IPC removes to Federal court and moves to dismiss on the grounds of preemption, citing Milwaukee II.

2.  Held: USSC holds that VT state law nuisance action is preempted but the NY nuisance law is not preempted. Source State Common Law vs. Affected State Common law. Affected state law is preempted.

a.  “Ouellette preserves the ability of plaintiffs to bring state common law actions against polluters so long as the law of the source state, rather than the receiving state, is applied.”

STANDING TO SUE TO ENFORCE THE ENVIRONMENTAL LAWS

I.  Access to Federal Court

  1. There are three necessary prerequisites for a plaintiff to have access to the federal courts:
  2. (1) The court must have subject matter jurisdiction,
  3. (2) The plaintiff must have a private right of action, and
  4. (3) The plaintiff must have standing to sue
  5. Private Right of Action
  6. Two primary sources to demonstrate that Congress intended to provide plaintiffs a federal remedy to challenge administrative agency action:
  7. A statute expressly grants the plaintiff a private right of action (i.e., the statute contains language along the lines of “any person may commence a civil action on his own behalf”), or
  8. Administrative Procedure Act establishes a “cause of action” for any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” (see 5 U.S.C. § 702)
  9. Standing to Sue
  10. Even where Congress has conferred a private right of action, plaintiffs still must independently satisfy standing requirements
  11. The standing doctrine is a constitutional limitation on the ability of Congress to grant private rights of judicial review stemming from Article III which limits the power of the federal judiciary to resolution of “cases” and “controversies”
  12. Four basic requirements for standing:
  13. The challenged action must cause plaintiff some actual or threatened injury-in-fact;
  14. The injury must be fairly traceable to the challenged action (causation);
  15. The injury must be redressable by judicial action; and
  16. The injury must be to an interest arguably within the zone of interests to be protected by the statute alleged to have been violated
  17. Injury-in-Fact
  18. Lujan v. Defenders of Wildlife (U.S. 1992) -- “injury in fact” is defined as an invasion of a legally protected interest which is –
  19. (a) concrete and particularized (i.e., must affect the plaintiff in a personal and individual way) and
  20. (b) actual or imminent, not conjectural or hypothetical.
  21. Causation
  22. Lujan v. Defenders of Wildlife (U.S. 1992) “…there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not … the result of the independent action of some third party not before the court.”
  23. Redressability
  24. Lujan v. Defenders of Wildlife (U.S. 1992) – “…it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
  25. “Associational” or “Representational” Standing
  26. An association can sue in its own name on behalf of its members if:
  27. One of its members would have standing to bring the action,
  28. The lawsuit relates to the purposes of the organization, and
  29. Neither the claim asserted nor the relief requested requires the participation of individual members (that is, declaratory or injunctive relief is the goal, not individualized damages)

i.  This isn’t a class action mechanism, it just gives the organization standing to sue for declarative or injunctive relief.