Environmental Law Skinny
Case 2011
Thompson
Regulatory Legislation:
Problems with CL: (1) law was reactive; (2) conducted by non-experts; (3) initiated largely by private enforces
Impact of Regulation on CL Actions: Int’l Paper Co v. Ouellette (1987) – IPC dumping paper waste into Lake (NY/VT); VT lakeside residents bring private nuisance action. Court makes a distinction between source state affected state. CWA preempts CL of affected state, but not of source state. “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.”
Private Right of Action: Congressional intent to provide Ps a remedy to challenge admin agency actions: (A) Statute expressly grants P a private right of action or (B) APA establishes a “cause of action” for any person suffering legal wrong or adverse effect because of agency action if there’s no specific piece in the statute for standing
a. Establishing Standing: Even when Congress has conferred a private right of action, Ps must still independently satisfy Article III (1) Court must have SMJ; (2) P must have a private right of action; and (3) P must have standing.
4 Basic Requirements: party invoking jurisdiction bears the burden of establishing the standing elements (Lujan)
1. Injury in fact - invasion of a legally protected interest which is - (a) concrete and particularized (b) actual or imminent, not conjectural or hypothetical. **Minimal hurdle - “when I go there, it’s pretty and stuff” good enough
a. Lujan v. Defenders of Wildlife (1992) – Enviro aesthetic desires are undeniably a cognizable interest, but an injury-in-fact requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured. “Respondents had to show not only that listed species were in fact being threatened by funded activities abroad, but also that one of more of respondents’ members would thereby be `directly’ affected apart from their `special interest’ in the subject.” ---Past Injury Not Enough.
b. Sierra Club v. Morton (1972) – injury to “environmental, aesthetic, or recreational interests” actually suffered by persons can qualify as injury in fact
- Associational/Representational Standing: An association can sue in its own name on behalf of its members if: (i) a member would have standing to bring the action; (ii) the suit relates to the purposes of the org, (iii) neither the claim asserted not the relief requested requires the participation of individual members (declaratory or injunctive relief is the goal, not individualized damages; for monetary damages they need to sue on their own)
-- The Sierra Club alleged they had standing without their members being affected; the Sierra Club could have hit a single on any one of those points, but they tried to hit a home run and struck out.
-- J. Douglas’ dissent: argues trees have standing!?! “Standing” would be simplified if we fashioned a federal rule that allowed environmental issue to be litigated . . . in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.”
2. Fairly traceable to the challenged action - causal connection bw injury and conduct complained of (Lujan)
3. Redressable - Must be likely, as opposed to merely speculative, that the injury will be redressed (Lujan)
4. Injury must be within zone of interests protected by the statute alleged to have been violated
b. Standing Doctrine after Sierra Club – Massachusetts v. EPA (2007) - Refusal of the EPA to regulate greenhouse gas emissions of cars under the Clean Air Act. To the majority, injury is established by rising sea levels that, according to affidavits from Ps’ experts already are swallowing up coastal lands. J. Stevens stressed redressability does not require the problem of climate change be solved “in one fell regulatory swoop.” Incremental progress to slow or reduce the injury is all that is required.
Regulatory Process
1. Agency Decision Making –administrative procedure act and environmental laws outline the ground rules for agency action.
2. Rulemaking Procedures: Three Steps: (1) notice; (2) comment; (3) publication – in federal register
3. Reforming Rulemaking – regulatory agencies are attempting to make it easier for the public to participate in rulemaking proceedings. Technology improvements make it easier, but if access isn’t accompanied with reforms in the process, the slow pace and contentious nature of rulemaking may be exacerbated.
Negotiated Rulemaking – major groups interested attempt to resolve their differences through negotiations prior to issuance of a proposed rule; Congress explicitly endorsed it in 1990 with the Negotiated Rulemaking Act.
Generic Approaches: Formal Rulemaking requires an agency hearing (a public trial); Congress only does this if they think it’s important; Hybrid Rulemaking - Congress can, and often does, impose specific rulemaking procedures within specific statutory schemes. These may be more detailed than the informal rulemaking process but less detaile than the formal rulemaking procedures.
Concerns: administrative rulemaking process can be unduly burdensome to small business by imposing costs that might be disproportionately heavy to small businesses. The Small Business Regulatory Enforcement Fairness Act was passed requiring agencies to consider the impact of proposed rules on small business when such rules may adversely affect them. EPA must give small business reps the opportunity to review and comment on such rules before the rulemaking process begins.
Reinventing Regulation - Every President from Nixon on has had great oversight of the EPA and tried to influence the decisions of the administrator as well as the rules that come out of the administrative process.
4. Presidential Oversight of Rulemaking
Sierra Club v. Costle (1981) - A full-record review does not require that courts know the details of every White House contact in this informal rulemaking setting. An intra-executive branch meeting during the post-comment period that was not docketed did not violate due process or CAA procedures.
5. Judicial Review and the Regulatory Process
Scope: Courts shall: (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, conclusions found to be (a) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege or immunity; (c) in excess of statutory jurisdiction, authority or limitations; (d) without observance of legal procedure; (e) unsupported by substantial evidence; or (f) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
a. Chevron – test for agency’s statutory interpretations - is it reasonable? If it is, then courts defer to administrations’ interpretations. (1) is the statute silent or ambiguous on the precise interpretive question at issue? If No, the court must apply (and the agency must follow) the unambiguously expressed intent of Congress and the inquiry ends. If Yes, then move to (2) Is the agency’s interpretation based on a permissible (reasonable) construction of the statute? If No, the court proceeds to provide a reasonable interpretation. if YES, the court defers to the agency’s interpretation.
Justification for Agency Deference:
1. Gap Filling: Congress made a legislative delegation of authority to the agency to fill gaps in the statute.
2. Agency Expertise: Agencies have the expertise, time and resources to consider technical and complex regulatory policy questions in a detailed and reasoned fashion.
3. Legal Realism: Federal judiciary is not as accountable of a political branch as the executive, which the agency is a part
Chapter 8
I. National Environmental Policy Act (NEPA; 42 USC §§ 4321-4370)
- First major environmental statute, signed into law in 1970 by President Nixon; inaugurating “the environmental decade”
Purpose: inform the public as well as decision makers about the proposed action and available alternatives
Goals: Assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings & attain the widest range of beneficial uses of the environment without degradation, risk, or other undesirable consequences
NEPA is unusual because (1) it focuses on regulating the decision-making processes; (2) requires federal agencies to weigh the impact of their actions before activities are performed. **A lot of states have started setting forth state versions
§ 101 use of all practicable means to create and maintain conditions where man nature exist in productive harmony.
§ 102(2)(c) requires all federal agencies to prepare an environmental impact statement (EIS) on major federal actions significantly affecting the quality of the environment (**the beating heart of NEPA)
§ All agencies are required to (c) include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on
§ The environmental impact statement (EIS) is a detailed statement including: (i) impact of proposed action; (ii) any adverse environmental effects; (iii) any alternatives (**IMPT); (iv) relationship between local short-term uses of man’s environment and the maintenance and enhancement of long term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
§ 102 (2)(e) requires all federal agencies to study alternatives to actions involving unresolved resource conflicts
§ The Congress authorizes and directs that, to the fullest extent possible…all agencies of the Federal Government shall –(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources
§ 201 requires the president to submit to congress an annual environmental quality report
§ 202 establishes a three-member council on environmental quality (CEQ) in the executive office of the president
§ 204 outlines duties and functions of CEQ including annual reporting on the condition of the environment, information gathering, and review and appraisal of federal programs and activities
(1) Proposal:
1. Adoption of official policy such as rules, regulations, and interpretations adopted pursuant to the APA
2. Adoption of formal plans such as official docs by agencies that guide/prescribe alternative uses of federal resources
3. Adoption of programs such as a group of concerted actions to implement a specific policy or plan.
4. Approval of specific projects such as construction or management activities located in a defined geographic area.
(2) Triggers NEPA
NEPA § 102(2)(E) - to the fullest extent possible all agencies of the Federal Government shall (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.
(3) Procedure for Determining Whether or Not to Prepare an EIS
category of actions that are expected to not have individual or cumulatively significant environmental impacts; still allows parties to petition the agency to prepare an EA/EIS
When CE is not appropriate, agency must perform the Environmental Assessment (EA):
(a) Means a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for the decision (EIS or No Significant Impact). (2) Aid an agency’s compliance with the Act when no EIS is necessary. (3) Facilitate preparation of a statement when one is necessary.
**In most cases the EA is the last word since findings of significant environmental impact are less than 1%
Hanley I required federal agencies to affirmatively develop a reviewable environmental record to support the determinations - “environmental assessment” (EA)
EA is used to determine if EIS is required:
- Directs agencies to determine (1) whether proposal normally requires an EIS; (2) whether action “significantly affects” environmental quality; and (3) whether effects are possible to remedy
1. Controversial or uncertain: EIS required for highly controversial actions (doesn’t mean opposed, but rather dispute as to the size, nature or effect of the action)
2. Significantly affecting quality of the environment - requires (1) consideration of effects in terms of context (current state of environment) & (2) intensity of impact (harm the project will cause)
- Consider: (1) impact that may be both beneficial and adverse (note. agencies cannot ignore significant impacts on the belief that they will be offset by benefits; (2) degree to which the proposed action affects public health or safety; (3) unique characteristics such as proximity to history or cultural resources, parklands, wetlands, or ecologically critical areas
3. Effects include: (a) Direct effects - caused by action and occur concurrently; & (b) Indirect effects - caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable
a. Metro Edison Co v. People Against Nuclear Energy (1984) – psychological effects about restarting a nuclear reactor were not effects that NEPA contemplated because too far removed from the environment
b. NEPA is generally not considered to be applicable to federal actions abroad or those that have significant extraterritorial effects. Dept. of Transp. v. Public Citizen (2004) – BC FMCSA lacks discretion/authority to prevent cross-border operations, neither NEPA nor CAA requires FMCSA to evaluate environmental effects of operations. No causal connections between decisions about regulation-making and environmental effects (even if it is assumed that there are environmental effects).
c. Hanley v. Kleindienst (1972) - Where conduct conforms to existing uses, its adverse consequences will usually be less significant than when it represents a radical change. Ex: one more highway in an area honeycombed with roads usually has less of an adverse impact than if it were constructed through a roadless public park, BUT the absolute, as well as comparative, effects of a major federal action must be considered because in some circumstances an action can be the final straw that breaks the back of the environmental camel.
/ If, there’s no FONSI, then EIS is required.
- The most intensive level of analysis and NEPA concludes when a Record of Decision (ROD) is issued
Sierra Club v. Peterson (1983) - Prior to granting the leases (separated sensitive lands with stipulated lease that required approval before drilling), the Forest Service conducted an EA and determined that w categories and stipulations, there wouldn’t be significant adverse impact, thus no EIS was required. Agency took a “hard look” but their conclusions were unsupported.