Environmental – Trisolini Fall 2011

  1. Types of Regulations
  2. Market Based
  3. Allow the free market to decide the appropriate limit of regulation
  4. Cap and Trade
  5. Process:
  6. Figure out a cap for a given industry
  7. Allow emissions that add up to this amount
  8. Then, allocate between the polluting parties the right to emit
  9. Over time, the overall cap gets reduced
  10. Companies have to show that they have enough allowances to satisfy their emissions
  11. If they do not have enough they can buy credits to satisfy emissions
  12. If they have a surplus of credits they sell them on the market
  13. Advantages:
  14. Promotes innovation
  15. Less government interference
  16. Market for new technologies bc the further below the cap they go the more credits they have to sell
  17. Best method for actual reductions
  18. Stepped reduction
  19. No hot spot problem
  20. Large plants are actually the ones that would be able to reduce emissions the best
  21. Get entities looking wherever they can to reduce emissions
  22. Disadvantages:
  23. Cost of energy will go up
  24. Money spent to try and get under the cap will be passed on to consumers
  25. Could force companies out of business
  26. Getting Wall Street involved
  27. If credits are selling for too little, companies will not innovate or reduce
  28. Larger companies have the advantage so more potential for consolidation of the industry
  29. Hot Spot Problem
  30. If a company can buy allowances, they might determine it is cheaper to buy than reduce
  31. Command and Control
  32. Abide by the regulations or get penalized
  33. Health-Based / Tech-Based Standards
  34. What CAA and CWA use
  35. Information Based
  36. NEPA
  37. Provides information to the public
  38. State v. Federal
  39. Federal
  40. More uniform regulations
  41. More money
  42. Can use national agencies to monitor regulation
  43. State
  44. Important because local conditions matter
  45. Closer to the problem
  1. Administrative Law
  2. Types of Challenges to Agency Action
  3. Constitutional
  4. Congress does not have the power thus the agency doesn’t have the power
  5. Commerce Clause
  6. Dormant Commerce Clause states cant make regulations that burden interstate commerce
  7. Non-Delegation Doctrine
  8. Per the Constitution Congress was the only one who can regulate
  9. Procedural Challenge
  10. If agency does not follow through with procedure you can sue
  11. Procedural Standing
  12. Two Approaches:
  13. Procedural injury must be tied to an injury in fact
  14. For procedural injury, the injury in fact requirement could be lessened
  15. APA 10(e)  IV-33
  16. Substantive
  17. Does what they do go against all of the evidence?
  18. APA 10(e)  if substantively the decision they came to is wrong, the court will set aside the decision
  19. Spotted Owl Case
  20. Steps a Court Takes in Reviewing Agency ActionVolpe
  21. Statutory Grant of Authority
  22. Is this within the agencies purview?
  23. Legislative history
  24. Agencies Application of the Statute
  25. Chevron Test
  26. Type of Agency Rulemaking
  27. Informal Rulemaking  an agency proposes some type of rule (how agencies make regulations)

1.Must first provide notice in the Federal Register

a.Public then has the chance to comment

2.Notice and Comment Period à putting material/comments in the record in theory then affects agency decisions

a.Someone suing an agency wants to include notes/comments in the record so court can later review

3.After Notice/Comment Period, agency will address comments before making final rule

4.This is subject to the arbitrary and capricious standard (Volpe)

  1. Chevron Test
  2. Look For: an agency interpreting a statute / must ask if it is in the scope of the statute
  3. How to Apply?
  4. Case-by-Case Basis
  5. Look at the language of the statute and the agency’s interpretation
  6. Ex:
  7. Volpe what “feasible and prudent”
  8. Consider not just the language of the statute but the purpose as well
  9. NRDC v. Train “shall”
  10. Says that under § 108(a)(1)(C) he has discretion because he only has to list for those pollutants which the Administrator “plans to issue air quality criteria.”
  11. Court rejects this and says that the shall at the beginning of the statute negates this
  12. Test:
  13. Determine whether Congress’s intent as to the specific matter at issue is clear
  14. Does the plain language of that statute address this problem?
  15. Ex: vague term in the statute  look to see if Congress spoke on it
  16. Doctrines:
  17. Administrative Necessity
  18. Authorizes agencies to apply statutory requirements in a way that avoids impossible administrative burdens
  19. One-Step-at-a-Time
  20. Authorizes agencies to implement statutory requirements a step at a time
  21. Absurd Results
  22. Cases when literal application of a statute will produce a result demonstrably at odds with the intentions of the drafters
  23. In this case, authorizes agencies to apply the intention of the drafters, not the strict language of the statute
  24. Is the agency’s construction of the statute admissible
  25. Was it a reasonable interpretation of the statute?
  1. National Environmental Policy Act
  2. General:
  3. What kind of impacts NEPA seeks to govern: NEPA § 101
  4. Preserving historical, cultural, and natural aspects of our national heritage
  5. Achieve balance between population and resource use to permit high standards of living
  6. Fulfill responsibilities of each generation as trustee of the environment
  7. Longer term language
  8. Emphasizes information rather than regulation
  9. NEPA is a procedural act
  10. Purposes:
  11. Gives agencies the authority and obligation to consider environmental impacts of government actions
  12. Provide informed decision making
  13. CEQ 1502.5 not used to rationalize decisions already made
  14. Provide the public with information through disclosure
  15. Council on Environmental Quality  NEPA established the CEQ to issue guidelines to interpret NEPA’s requirements
  16. Regulatory Trigger  when does NEPA apply? NEPA § 102(C)
  17. Major federal actions;
  18. Defined by the Council on Environmental Quality  § 1508.18
  19. Includes actions with effects that may be major and which are potentially subject to Federal control and responsibility
  20. Includes omissions (failures to act)
  21. Kleppe v. Sierra Club
  22. An EIS only needs to be prepared when an agency has actually made a proposal, not when it is merely contemplating action
  23. Significantly affecting the environment
  24. DOES SIGNIFICANTLY AFFECT
  25. Air quality, water, animal species
  26. Socioeconomic impacts allowed Hanly I case about a federal prison being built in Manhattan
  27. Ecological, aesthetic, historic, cultural, economic, social, or health effects
  28. Human health impacts are cognizable if:
  29. Reasonably close relationship between physical impact and effect
  30. “Risk” is not an impact on the physical environment
  31. Metropolitan Edison v. PANE
  32. NOT SIGNIFICANTLY AFFECT
  33. Psychological impacts because the causal chain is too attenuated Metropolitan Edison v. PANE
  34. Risk of physical harm
  35. If agency cannot change the outcome, they do not have to consider the impacts DOT v. Public Citizen
  36. Only require an agency to analyze affects that it can actually stop
  37. LOOK FOR:
  38. Anything that the Federal Government authorizes or funds
  39. Process: (NOT FLEXIBLE AS TO PROCEDURE)
  40. Proposed Action then:
  41. Categorical Exclusion; OR
  42. Dispute as to whether environmental impacts
  43. Environmental Assessment (EA)
  44. Categorical Inclusion
  45. Straight to EIS
  46. Categorical Exclusion
  47. Fits category and has no unusual circumstances
  48. Thus, categorically excluded
  49. Issue decision memo
  50. Environmental Assessment then either:
  51. FONSI; OR
  52. EIS
  53. Finding of No Significant Impacts (FONSI)
  54. Then leads to implementation
  55. Environmental Impact Statement (EIS)
  56. Must make a Draft EIS  then take comments
  57. Then make a Final EIS  get it approved
  58. Then implement the project
  59. Timing
  60. EIS CEQ 1502.5
  61. Preparation of an EIS should be timed so that the final statement may be completed in time for the proposal
  62. Should be prepared early enough that that it is practically important in the decision-making process
  63. CEQ 1501.2
  64. Apply the NEPA process at the earliest possible time to insure that planning and decisions reflect environmental values
  65. Categorical Exclusion
  66. Actions that agencies have determined not to have a significant effect on the human environment either individually or cumulatively
  67. These types of projects do not need an EIS
  68. Typically do this when they are going to be issuing many permits of the same type
  69. If subject to a categorical exclusion  DO NOT HAVE TO LOOK ANY FURTHER
  70. Agencies create their own categorical exclusions
  71. Categorical Inclusion
  72. Some actions (i.e. building a large power plant) will definitely need an EIS
  73. In these cases, can skip the EA and go straight into the EIS
  74. Environmental Assessment (EA)
  75. This starts the process if there is no categorical exclusion
  76. A short, concise statement to give preliminary analysis of impacts
  77. Hanly v. Mitchell: the EA considered problems that are associated with any building in drafting an EA for a prison; should have considered:
  78. Noise
  79. Traffic
  80. Overburdened Mass Transportation Systems
  81. Crime
  82. Congestion
  83. Must analyze:
  84. Alternatives; AND
  85. NOTE: Vermont Yankee v. NRDC: the agency does not have to ferret out every possible alternative
  86. Cumulative Impacts: look at past, present, and reasonably foreseeable future impacts CEQ 1508.7
  87. If finding of NO significant impact
  88. FONSI
  89. If potential for significant effects, then
  90. EIS
  91. Look at:
  92. Controversy: are there a lot of people commenting saying that it is a problem
  93. Environmental Impact Statement
  94. Purpose:
  95. The purpose of the EIS is to help the agency to decide whether or not to go through with the action
  96. So it must be prepared early enough in the decision-making process so that it is not there to merely rationalize a decision already made
  97. Scoping a process before the EIS is made to provide for public (and other agency) input on effects to be covered in the EIS (CEQ 1501.7)
  98. In this, the agency determines the scope and the significant issues to be analyzed in depth in the EIS
  99. After scoping:
  100. Agency prepares a draft EIS
  101. Then the public comments on the draft
  102. Agency responds to comments in final EIS
  103. Timing of the EIS
  104. Preparation of an EIS should be timed so that the final statement may be completed in time for the proposal
  105. Should be prepared early enough that that it is practically important in the decision-making process
  106. Tiering the coverage of general matters in a broader EIS (CEQ 1508.28)
  107. Subsequent EIS’s can focus in detail on more specific issues
  108. Programmatic EIS an EIS for an entire nationwide project
  109. Site-Specific EIS
  110. Under Tiering, an agency can be required to make both Programmatic and Site-Specific EIS’s
  111. Connected ActionsCEC 1508.25(a)(1)
  112. Actions are closely related and therefore should be discussed in the same EIS
  113. Ex: Save the Yaak constructed road in five segments to assist in logging the area; court found:
  114. Clear nexus between the timber contracts and the improvement of the road
  115. Road construction, timber harvest, and feeder roads all connected action
  116. Actions are connected if:
  117. Automatically trigger other actions which may require EIS’s
  118. Cannot or will not proceed unless other actions taken previously or simultaneously
  119. Are interdependent parts of a larger action and depend on the larger actions for their justification
  120. Content of EIS
  121. Purpose and NeedCEQ 1502.13
  122. How you frame this impacts how you decide the alternatives
  123. Briefly states the underlying purpose and need to which the agency is responding in proposing the alternatives
  124. AlternativesCEQ 1502.14
  125. Shaped by purpose and need
  126. The heart of the EIS
  127. In this section, MUST:
  128. Rigorously explore and objectively evaluate all reasonable alternatives
  129. Include alternative of NO ACTON
  130. Include appropriate mitigation measures not already included in proposed action or alternatives
  131. NOTE: mitigations must just be studied, normally do not have to implement
  132. Exception:
  133. In CA, agencies MUST implement feasible mitigation measures
  134. NOTE: Vermont Yankee v. NRDC: the agency does not have to ferret out every alternative
  135. Environmental Consequences of Various Alternatives with Determination Whether Impacts are Significant
  136. Environmental Consequences shall include: (CEQ 1502.17)
  137. Direct effects and significance
  138. Indirect effects and significance
  139. Possible conflicts between proposed action and Federal, State, and local objectives
  140. Environmental effects of alternatives including proposed action
  141. Energy requirements
  142. Natural resources requirements
  143. Urban quality, historic and cultural resources
  144. Means to mitigate environmental impacts
  145. Significant Impacts look to: (CEQ 1508.27)
  146. Context: look at several different contexts; society as a whole, affected region, affected interests, locality
  147. Intensity: severity of the impact
  148. Affected Environment
  149. E.g. Air qualify, water supply and quality, species, traffic, land use, cultural resources, human health
  150. Must Include Cumulative Impacts: look at past, present, and reasonably foreseeable future impacts CEQ 1508.7
  151. How do EIS help the environment?
  152. Gives environmentalists ability to stop these damaging projects before they get too far along
  153. Since there must be a public record of the science, hard to be misleading with science
  154. Forces companies to look at alternatives
  155. Cannot go forward with the project until the EIS is done, thus:
  156. Can stop the development
  157. Hold it up in court
  158. Remedies
  159. Injunction
  160. For irreparable injury and inadequacy of legal remedies
  1. Endangered Species Act
  2. General:
  3. Why have the ESA? Why protect biological diversity?
  4. Human dependence on the species
  5. Medicines made from wild plants
  6. Crops we consume
  7. Aesthetic value of nature
  8. Important for science
  9. Moral argument
  10. Critiques of ESA
  11. Too little, too late
  12. Too focused on a single species instead of entire ecosystem
  13. Resources spread too thinly
  14. Not enough focus on a local level
  15. Listing CriteriaESA § 4(a)(1)(A)-(E)
  16. Present or threatened destruction, modification, or curtailment of its habitat or range
  17. Overutilization for commercial, recreational, scientific, or educational purpose
  18. Disease or predation
  19. Inadequacy of existing regulatory mechanisms; OR
  20. Agency must show that they did something
  21. Other natural or manmade factors affecting its continued existence
  22. Cost NOT considered
  23. Listing ProcessESA § 4
  24. Use best available scientific and commercial information
  25. Use peer-review to ensure sound science and sound decision-making
  26. Publish Federal Register notice of a proposal to list species as endangered or threatened
  27. Respond to public comment, and complete a final rule within one year
  28. Delisting Process:
  29. Must have establish the delisting/down-listing criteria, recovery strategy, timetable and cost estimate
  30. Recovered species monitored for five years
  31. Spotted Owl
  32. If agency does not want to list, must provide their own evidence that backs up this decision
  33. Refusal to list here was arbitrary
  34. Endangered v. Threatened Species
  35. Endangered: any species which is in danger of extinction throughout all or a significant portion of its range other than bug pests
  36. ESA § 3(6)
  37. Threatened: any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range
  38. ESA § 3(20)
  39. Critical Habitat
  40. Definition: (ESA § 3(5)(A) critical habitat means:
  41. The specific areas within the geographical area occupied by the species at the time it is listed, in which are found those physical or biological features:
  42. Essential to the conservation of the species; AND
  43. May require special management considerations or protection
  44. Specific areas outside the geographical area occupied by the species at the time it is listed, upon determination by Secretary that such areas are essential for the conservation of the species
  45. Process:
  46. Do an economic impact analysis areas may be excluded from protection based on the analysis
  47. Timing:
  48. The critical habitat shall be published concurrently with the listing of a species as endangered or threatened
  49. NOTE:
  50. If not determinable, Secretary given up to 12 months to decide
  51. Prohibited ActsESA § 9(a)
  52. Wildlife:
  53. Import any species into, or export any species from the US
  54. Take any species within the US or on the seas
  55. To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct
  56. Harm includes habit destruction that kills or injures listed species
  57. Scalia argued in Babbitt v. Sweet Home Chapter that “harm” should only apply to direct and intentional harm
  58. However, the majority in that case pointed to the incidental take permits and said that if this were the case, these permits would be pointless
  59. Applies to any person subject to the jurisdiction of the United States
  60. Person an individual, corporation, partnership, trust, association, or any other private entity
  61. NOTE: includes any officer, employee, agent, department, or instrumentality of the Federal or State government
  62. Plants:
  63. Commercial trade, collection or malicious destruction on Federal lands
  64. Similar actions that violate state law
  65. Federal Agency ProhibitionESA § 7
  66. Requires federal agencies to insure that any action authorized, funded, or carried out by them do not:
  67. Jeopardize the continued existence of any endangered species or threatened species; OR
  68. Result in the destruction or adverse modification of their critical habitat
  69. NOTE: private individuals are affected by this section when their action needs a Federal permit or funding
  70. SEE PROCEDURAL STEPS BELOW
  71. PermitsESA § 10
  72. General PermitsESA § 10(a)(1)(A)
  73. The FWS issues permits for scientific purposes or to enhance the propagation or survival of a species
  74. Experimental PopulationsESA § 10(j)
  75. These populations are treated as threatened
  76. Under this, the Secretary may authorize the release of any population of an endangered or threatened species outside their current range if the Secretary determines that the release will further the conservation of the species
  77. Incidental Take StatementsApplies ONLY to Agencies
  78. Specifies the impact of any incidental taking of endangered or threatened species
  79. Includes:
  80. Reasonable and prudent measures that are necessary to minimize impacts
  81. Incidental Take Permit Applies ONLY to Private Parties Under § 9
  82. These permits allow a person to take if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity
  83. They are ONLY allowed if an approved Habitat Conservation Plan is developed:
  84. These are tools for conserving listed, proposed, and candidate species while providing for development that will not “appreciably reduce the likelihood of the survival and recovery of the species in the wild”
  85. Must specify:
  86. Impact which will likely result from such taking
  87. Steps the applicant will take to minimize and mitigate such impacts
  88. Alternative actions that were considered and why they are not being utilized
  89. NOTE: agencies cannot do this
  90. Three Step Consultation Processfor Agencies
  91. Agency inquires to the Fish and Wildlife Services whether any threatened or endangered species may be present in the area
  92. IF YES
  93. Must prepare a biological assessment to determine whether such species is likely to be affected
  94. IF YES then Consultation
  95. Agency must formally consult with the FWS and come up with a biological opinion
  96. Biological Opinion: two possible outcomes
  97. Proposed action not likely to jeopardize species or adversely modify critical habitat
  98. If so, biological opinion includes:
  99. Incidental take statement estimating amount of take that may occur incidental to the action
  100. Reasonable and prudent measures to minimize take
  101. Proposed actions likely to jeopardize species or adversely modify critical habitat
  102. Action may not go forward unless FWS can come up with alternative that is:
  103. Consistent with intended purpose of action
  104. Technologically and economically feasible
  105. Thus, compliance with reasonable and prudent alternatives allow the project to continue
  106. Climate Change and the ESA
  107. How might climate change affect the Habitat Conservation Plan process?
  108. Habitats may be changing with sea level rise, areas could be getting warmer
  109. The range of species thus might change
  110. Could you use the ESA to regulate global climate change?
  111. Against:
  112. Floodgates problem
  113. Would be using the ESA for something that it was not intended for
  114. For:
  115. In the case of the Polar Bear  burning fossil fuels contributes to green house gases, which contributes to climate change and the demise of the polar bear
  116. However, the causal like here might be too attenuated to survive a challenge
  117. Polar Bears were listed on the basis of Climate Change  claiming that you cannot list bc Climate Change is too speculative is not sufficient
  118. Tools and Incentives
  119. These permits are used to encourage species conservation on non-federal lands
  120. Safe Harbor Agreement
  121. Landowner agrees to take actions to benefit listed species on their land
  122. FWS assures no additional restrictions will be imposed as species populations improve
  123. Candidate Conservation Agreements with Assurances
  124. Landowner agrees to take actions to benefit candidate or other non-listed species on their land
  125. FWS assures no addition restrictions will be imposed if species is later listed
  126. State Conservation Agreements
  127. State-led initiate to conserve declining species before they need protection under the ESA
  128. Supported by the FWS and other federal agencies
  129. Could get grants from the Federal government
  130. Penalties and EnforcementESA § 11
  131. Criminal or civil penalties allowed for ESA violations
  132. Civil Penalties up to $25,000 per violation
  133. Criminal Penalties up to $50,000 and/or a year in prison per violation
  1. Clean Air Act
  2. What are the NSPS and how do they apply?
  3. Broken down categorically
  4. New Source Review
  5. Applies to Major sources
  6. General
  7. Why do we need federal regulation?
  8. Tragedy of the Commons
  9. Widespread pollution crosses state borders
  10. Federal financial assistance
  11. Federal leadership
  12. Reasons for the CAA
  13. Predominant part of Nation’s population located in rapidly expanding or other urban areas
  14. Significant grow in amount and complexity of air pollution brought about by urbanization, industrial development, and increased use of motor vehicles
  15. Important Distinctions:
  16. Stationary v.