Introduction to Environmental Law – Glicksman – Fall 2010

I. General Principals and Policieso Typical Characteristics of Environmental Law:

Clashing Interests Typically Irreconcilable (Coase)

Scientific Uncertainty as to the effects that something may have EG: Chemical X is beneficial, but will it turn out to be a carcinogen? EG: Leopold Forrest

Landowners want no mine, while the mining company wants a mine Uncertainty as to the effects the mine will have on the daisies, hawks, water color and scenic

beauty of the areao Goals of Environmental Law

Cost Internalization Around 1970, NEPA was created: Goal was to make decision makers (Agencies) be more cognizant,

assessing the costs and benefits of decisions affecting the environment “Stop and Think” about what they were doing Prior to this, never had to think of the costs… Now, with CAA and CWA this cost internalization also applies to private entities

Sustainable Development Conserve/Preserve Environmental Integrity through sustainable development But:

While we want sustainable development, we do not want to impose too much on Economic Progress or Social beliefs

Don’t want to hinder growth, or social, but don’t want unsustainable progress either

o Environmental Law then, is Made up of 2 Parts 1) Pollution Control

Protects health from toxins Applies to private and governmental entities

2) Natural Resource Management Protects Biodiversity/Ecological integrity Promotes sustainable development

o Why is Environmental Law Controversial? Focuses on long term, rather than short term Correlation and Causality

Science is uncertain as to if cause and effect are actual Therefore, maybe spending money to prevent alleged harms is worthless

Leaves idea that Technology is the answer Infringes on property rights

1

Restricting what one can and cannot do with your own property Environmental Restrictions Benefit- Tradeoffs- Who do we want to benefit?

Benefit Animals, Slugs, Bugs or Benefit People with Technology

Costs Seen as Outweighing Environmental Benefits Disproportionate Costs of Environmental Regulation

Some have called it “Radical and redistribution” Look at 1980-Present Period

II. The Foundation and History of Environmental Lawo Prior to 1960s

Environment was typically ignoredEconomic progress favored Thought that Economics/Industry was always beneficial

Why was Environment Ignored? 1) Short term outlook rather than long term view of the effects 2) Idea that nature had no intrinsic value 3) Unknown benefits of environment

EG: Wetlands actually decrease severity of hurricanes Nuisance, Common Law suit was typically used to remedy environmental harms Case-Law: Toward End of ‘60s

Scenic Hudson v. FPC Citizen group successfully combated the building of a power plant on Hudson Provided a template for future litigation

1) Initiated by Ad-Hoc group, citizens: common tactic used today 2) Standing- was liberally construed 3) There was no precedent 4) The π’s had to create procedural theory to convince court to reverse 5) Court did reverse administrative decision, showing potential for more scrutinizing

review o Roots: 1968-1973 - The Formative Period

Birth NEPA, CAA, CWA, Pesticide Regulation, Endangered Species Act EPA

Why the Birth all of a Sudden? 1) Post WWII growth in affluence, relocating to suburbs where they witnessed first hand degradation of

what they had come to enjoy 2) Synthetic Chemical Usage

Silent Spring made it clear that these did have negative affects First hand witnessing the Santa Barbara oil spill killing animals

3) Energy of Vietnam era protests into the environmental movement 4) Industries recognition of this, and seeking out federal preemption which preempted more strict state

standards Some or combination of all birthed Environmentalism Becomes a National Political Agenda with Bi-partisan support

Environmentalism : View that unrestrained modification of natural systems and unchecked application of technology through resource exploitation and development has substantial effects on human

3 Basic Objectives: 1) Reduce use of Air, Soil, Water for waste disposal 2) Protect public from long term health and ecosystem degradation associated to exposure from

harmful substances 3) Conserve biodiversity

Premised on Conservation and Preservation Movement Preservation:

Preserve large areas of land to remain wilderness EG: National Parks

2

Conservation: Deeper than merely preserving, but working with science to make compatible with

democracy, bettering the environment with science Moderate rate of usage, to ensure plentiful supplies in future

Goal of Environmental Law: Sustainabilityo Continuing, Refining: 1973-1980- the Environmental Decade

Legislation continued to protect potential public health risks Emphasized limiting Toxicity Toxic Substances Control Act Resource Usage Safe Drinking Water Act Transporting, Treating, Storing Resource Conservation Recovery Act Clean Up Waste Dumps Comprehensive Environ. Response, Compensation Liability Act Coal Sites reclaimed, land prevented from being used Surface Mining Reclamation Act

o Bipartisan Consensus Crumbles: 1980-88 Global issues become apparent…the environment is being affected *But* Reagan issues executive order to not simply spend to fix environment, but do Cost benefit Analysis More Contested

o Little Progress: 1980-Present 1970s legislation still essential legislation…little change Change of House and Executive marks back and forth on environmental policy Judiciary tightens Standing Jurisprudence, Federalism States begin to take leading roles

III. Economic Analysis and Environmental Lawo 3 Principles of Economics Can Help Analyze aspects of Environmental Law

1) Can explain why the Environmental Harms occur 2) Consider when the government should step in, intervene with regulation

Rather than simply leaving to Free Market 3) Identify what to regulate and the Optimal Methods of Preventing Harms Principle 1:

Economics can explain why Environmental Harms occur Tragedy of Commons:

In a free market, with everyone acting rationally…The incentive is to use all the resources before anyone else can

No incentive not to use them all Problem is that what they take is finite, scarce So all eventually lose The reason why environmental harms occur

Therefore in Free Market, we need regulation to coerce Make it cheaper, more incentive to control environmental spill-over than to ignore the

spill over Through Tort liability, fines, etc…

Principle 2: Economics can consider when the government should step in, and regulate In a perfect world, Free Market would rule

Promotes the most efficient transfer of goods Realistically, there are many flaws and inefficiencies however

Each Flaw Justifies the Government stepping in to regulate the Market 1) Perfect Information

If the consumer knew everything, they’d choose the best product for environment Harm exacerbated w/o information, which is the case- PI is lacking Regulation can coax this information out

2) Transaction Costs Prevents free market collaboration Things are costly…negotiations, solutions, etc… EG: If factory harms 3 people, at $500 each, and to control harm $1200 cost, than the 3

should pay $400 each.

3

But: Imperfect market, people disagree, think they were harmed less so should pay less, etc… hire mediator, negotiate solution costs $ too

o Eventually the paying $400 to avoid $500 in damage becomes, adding all transaction costs, >$500…making Cost>Environmental Benefit

Free-Rider: May think others will put effort in, and he will benefit 3) Externalities

Costs on people external to the transaction Negative

o Human made, unbargained for, negative element of environmento EG: Pollution; and uncompensated harm

Positiveo Good enjoyed by many, but creator unpaid

EG Prob 1-2 p.4: Climate is changing for the world based on pumping out Fossil Fuel Waste

(Negative Externality) Company is making $ however, and has no incentive to stop (Problem of

Commons). Economic Analysis justifies the regulation of Market to prevent environmental harms Components of Regulation:

1) Agencies- Apply the responsibilities they assigned 2) Citizen Groups- Pick up any slack agencies dropped

EG: Sierra Club, etc… 3) Courts- Oversee compliance, administer the laws 4) Substance is just as important as Procedure

EG: NEPA is solely rules that need to be followed but literally has no substantive law Coase:

Idea that Regulating to make Polluter Pay is flawed Harmful effects arise when 2 people, whose resources are incompatible want the right

to use the same one It isn’t A harming B, because if we stop A, he is then harmed All solutions have costs, but just because there are costs does not mean the government should

regulate, although sometimes it should Should be consensual bargaining at some points, regulation at others

Principle 3 Identify what to regulate and the Optimal Methods of Preventing Harms Cost Benefit Analysis (CBA)

Assists in determining appropriate regulation, and what to regulate The Formal analysis of comparing costs and benefits of Public Action (Regulation) and if it

would result in net gain, or represent unjustified subsidy Economists advocate CBA

Idea that regulate only those things where C<B If done well, provides same action as an efficient market would have

2 Goals C<B C as low as possible

Process Agency must Figure out costs (Regulation requiring equipment, maintenance, etc), the

benefits lost of the law (costs) transaction costs of regulation v. Benefits of regulating that thing (Cancer, Mutagen, disease, environmental degradation)

Congress has not required it Criticisms of CBA

1) Accuracy Cannot accurately determine all the costs and benefits in practical way When Identified, cannot accurately quantify in $ amount

4

o Industry info is inaccurate, inflated to make regulation look worse?o Benefit Valuation

How do you put $ amount on benefit of human? Some of said $7.2 M Are older valued less, younger more, sick less? Value of a species continued existence in $? Dehumanizes

2) Discount Rate/Time Value of Benefit In Environmental law, the benefit of lives saved, environment assisted is many

times very far into future Skewed if not brought to compare “apples with apples” But what rate is appropriate discount rate? Concerns of Equity

3) Distribution “Environmental Justice” is not evenly distributed…Why? Benefits are valued 2 ways:

o Willingness to pay: value the “benefit” by what someone would pay…but in certain areas, poor, cannot pay same as a rich person would be willing to pay

Evidenced by Power Plants, Coal mines in poor areas?o Willingness to Sell : How much would you sell your clean

environment for? Probably more even measure

So, sometimes, the benefits in CBA are valued unjustly based on area of regulation and what people would pay

4) Transparency opponents argue it is not transparent If it were, people might understand the decision, protest it People are more likely to acquiesce if they understand how it was made More legitimate Needed to show what is considered, who (industries hiring big time

economists) is involved, and what things mean (to lay person) Along with Principle 3 identifying what to regulate through CBA, optimal method of regulation can be

identified as well Complying with tenet of CBA Analysis

Lowest Cost Possible Economists say: Performance Standards

EPA sets out a maximum acceptable level EG: Pollution at 10lbs/S02 per year

Then, up to the industry to find a way to get to that level Free market will be efficient EG: if using less bad fuel is more cost-efficient than “scrubbers,” the industry

will identify it, and make the change to complyo May use R+D team to create new way, find cheapest

Whatever it is, let market do it Not Design Standards, regulating everything they do

o Just the performance we want…let them design Tradable Emissions

Not all industries should be regulated identically, as some have much cheaper costs to comply then others

Process: Make an Aggregate acceptable emission level

o EG: 10 lbs of So2/day Then let the industry decide, and be able to buy/sell the difference in emissions

5

o 1 company may do 8 lbso can then sell the 2lbs it has credit for

Lets those with lower costs continue to lower, while allowing higher to manage costs of compliance with trading credits

Overall, aggregate pollution, capped at a limit stays the same Information:

$144B industry in 2009, predominately in EU Some US regions have CAP/TRADE

IV. Environmental Law, Science, Ethicso Ethics:

“Mode of Guidance” Historical Understanding of Environment:

Man is the conqueror of the environment and land, which is here to serve Man and humans only” Can do whatever we want to it, take from it

Some Eastern Religions based on a Leopoldian view, but still have degradation Aldo Leopold:

Argued the Opposite Land Ethic: We are part of an enlarged community, including soil, plants, species, etc… and we are

stewards of this land, with a duty that implies respect Challenged fundamental understanding

Philosophy and Ethics: Philosophers have used Leopolidian, and other views to ague:

1) Ecosystem’s Rights We have a responsibility to respect this land Takes from Leopold Land Ethic View Moral duty to be part of it, the opposite of the current view

Opponents argue that rights are entitlements for sentient (conscious beings) only

So animals maybe, not environment/ecosystem 2) We have duty to future Generations

Economic Justice View We should preserve our resources so that future generation has similar

Opponents disagree, that future generation has no rights and we owe no duty to the unborn

Land Ethic’s Use: To Help Environmental Law:

Public Trust doctrine is premised on the philosophy and idea that we are part of this land, and we need to protect it for future generations

To Hurt Environmental Law: May actually create stumbling block to environmental stewardship Land ethic may call for regulation of land, and more limited use to promote conservation and that

were part of it but this can trigger 5th/ 14th amendment takings claims too

Initially, in 70s this did not happen, but has gradually occurredo Science:

Original Ideas Ecological View : Study of structure and function of nature, in grand perspective Initially, thought that the environment had an equilibrium and that we had to halt our interruptions to stop

changing this equilibrium However, this proved untrue:

The Environment will change naturally and with our help Science is Fundamental to Environmental Law:

1) It can identify resource degradation Silent Spring: Rachel Carsons showed the degradation caused by synthetic chemicals, and called

for action

6

Helped spur pesticide laws 2) Provide practical scientific based solutions, to solve the problem

Science can help find threshold level, for example, to pollution which prior to is acceptable, but after which is toxic

Manage the harms How do Science and Environmental Law Coincide?

Environmental Law can be seen as a way to reduce the risk of harm to people and the environment, it is an effort to address risk

What is Risk? Probability of Activity causing Harm x Severity of the Harm which will occur

The smaller one, and the bigger the otherstill can be equal Comparative Risk Analysis :

Rationale for Risk Assessment: Early on, in 70s, the more regulation was seen as better However, slowly it was seen that although there was more, it was not effective Misallocation of Resources

Overregulated Some Underregulated Others Wasted Resources

Justice Breyer’s View: Prior to him being Supreme Court Justice, he wrote Book explaining the problems with

Federal Regulation: 1) Lacked Rational Selection Mechanism

o Need method of assigning regulation 2) Differing Agencies use Different Methods

Breyer Advocated having 1 central agency with expert decisions of Risk Assessment

What Is Risk Assessment? A method of assessing risks and managing them through science Attempts to Clear Uncertainty of:

1) Has harm even occurred? 2) If So, what is causing the harm

Principle 1- Science can Identify Resource Degradation Step 1: Risk Assessment

Choose what is worth addressing now, and what can we leave alone Identify what is the most Dangerous and probability Identify, of the most dangerous, which are most likely to occur sooner Determine at what exposure, levels are bad Characterize the risk- Serious, Not Serious

Use Toxicology, biology, economics… We can’t address them all, so we need to apply our limited resources to the most serious ones

first Assessment Serves 2 Functions:

1) A Screening Function by determining what is serious 2) A Prioritization Function by ranking

9 Characteristics of Environmental Risk: In Assessing Risk, we must ask if “Risk is serious enough to warrant action” 1) Ignorance of Mechanism

Because we don’t fully understand many things we deal with, we cannot adequately manage its risk

2) Potential for Catastrophic Results Because we are ignorant of the risks, we cant specify how catastrophic the

costs of it will be 3) Relatively modest benefit

Most environmental risks are assymetrical to benefito EG: Red Dye 40 looks nice, but causes cancer

7

4) Low Subjective Probability Take into account the probability of catastrophic results to balance the

decision outo Yes its potential of catastrophe, but low potentialo “Zero Infinity Dilemma”

5) Internal Transfer Benefits When benefits of product are internally transferred to its price

6) External Transfer of benefits Adverse effects usually transferred to environment

o Market doesn’t internalize externalities Go’s back to need of regulation in economics

7) Collective Risk Borne by many people; society is risk-averse, more so to collective than

individual risk 8) Latency

Environmental risks have extended delay between start and effects 9) Irreversibility

Risk may be effectively impossible to reverseo Plutonium’s half life is 24,000 yearso Mutagens effecting generations of people

Criticisms To Risk Assessment: 1) Lack of Information

Unreliable data, and difficult to quantify risk Too much assuming in data, and makes #’s meaningless Science is Uncertain, and can’t assess risk correctly Getting Reliable data, from industry would delay action because they have every incentive to

delay to paralyze regulation 2) Evidence does not support idea that resources are misallocated 3) Environmental Justice Problems

Like that in Cost Benefit Analysis, distribution of the risks assessed may be difficult if they are concentrated harms

4) Depending on Who is assessing makes big difference: Everyone has different perceptions Experts Look at expected annual mortality

Deaths/10,000 Public looks at more subjective things

Outrage Factors Public looks at voluntarily assuming risk versus involuntary risk Common/Difuse among population is seen as less serious than an exotic/concentrated

one Dread of ailment

Everyone hates cancer Public Versus Expert

Because both disagree on what to assess, they will disagree as to what is dangerous This was evident in an 1987 EPA Study of what perceptions were

Experts Said Radon Gas was Horrible, Public Had never heard of it Public Hated hazardous waste disposal site, but EPA experts said it was not

bad Should We Listen to Public?

They don’t have expert knowledge to evaluate and technical nature of CRA discourages it

No Process/Procedure to hear everyone’s idea Perhaps, in more local harm, get more democratic view? Perhaps democracy is represented by voting for who you want, who then

chooses EPA people who will make decision

8

Policy of Scientific Risk Assessment and Management Scientific Uncertainty is occurring, so in assessing and managing, do we want to err on side of caution, or

on side of conserving finances False Positive :

Precautionary Principle Spending resources on benign things, thinking they’re bad, when they turn out not to be Better safe then sorry

EG: BPA’s seem to have horrible consequences, so we take precaution, and if we’re wrong, all we’ve lost is money

False Negative : Not spending resources on something that looks innocuous, but turns out deadly Argument: that, we don’t know enough, so we are spending unnecessarily, when we

could have spent on something beneficial Burden should be on those who want regulation

Neutral Argument/Risk-Risk Approach: We should make sure that in our risk assessment, we don’t do more harm then good

Regulate the risks that regulation causes/versus risks of no regulation EG: regulation can decrease disposable income, reducing the ability to spend on

healthcare, good food, etc…The Regulation’s negative effects counter the positive ones Very debated Very controversial

Overall: Should we be rather safe then sorry, regulating and leaving open to these criticisms (of using

CBA, Risk Assessment, and regulating accordingly) or Conserve our resources, and hope failure to regulate is not wrong or Do we stay in the middle, understanding some of both may occur through Risk/Risk approach,

forcing those who want regulation to have the burden of proof Principle 2- Science can provide practical science based solutions Step 2- Risk Management

Once the Risk has been assessed, as dangerous and in need of regulation What do we do about the risk

The Policy Response if the Risk Assessed is Dangerous

The Common Law Baseline of Environmental Law

Above, we have seen that environmental harms need to be discouraged, through an economic perspective and a scientific perspectiveo The Common Law causes of action pre-date most federal environmental laws, but can still accomplish discouragement of

environmental harms I. Historically:

o Before the 1960s Common Law was main use of environmental protectiono As time progressed, statutes became more common through the environmental movement and CL quieted down

While Statutes are more common, and more complicated We Can’t Ignore the Common Law

Supplement Statutes Largest Role of Common Law is Supplementary

Statutes sate “utilize common law” “Savings Provisions”

Preserve the remedies afforded in Common Law, because most federal statutes don’t have compensation remedy for environmental degradation

In fact, compliance with federal statute (CAA, CWA) is permit to pollute So, Common Law provides ability to compensate harms Authors of the federal statutes use “savings” provisions to specifically advocate the use

of CL in certain scenarios Allows Citizen Groups to pick up the slack of Agencies Statutes are founded on the common law, so its good to understand them

9

Many Statutes, if not most, have no remedy Using CL allows remedy to injured II. Basics:

o Largely based on tort law To Compensate and to Detero Common Features:

1) Injury 2) Causation difficult to show

Scientific Uncertainty Cannot explain exactly how injury derived Can only say “maybe” this chemical caused it but could be other things too

Latency Period Usually, time lapse between exposure to chemical, and injury is long Difficult to prove it was X, who caused it 40 years ago Could have been a lot of other things, memories fade, etc…

3) Liability A reason, or policy we want to impose on the ∆ for causing injury Show by:

Negligence Breach of duty Foreseeability Strict Liability No need to prove anything, as conduct is the type that is bad enough to need

compensation for III. Types of Common Law Causes of Action in Environmental Law:

o Negligence Duty, Breach, Causation, Damages Not the first choice, typically Difficult to prove “Breach of Duty”

Most industry has state of the art technology, and equipment, and practices, so it is difficult to say they breached standard of care

They are at least on par with industry Will be used if:

Harm arises out of a clear accident Remedies sought are type that negligence usually compensates for

Insurance compensates for Negligence so $ will be available Insurance does not compensate for intentional torts

SOL has run on other torts, so negligence is last choiceo Public Nuisance

Restatement 821: An unreasonable interference with the right common to the general public Unreasonable = Interference with public health, safety, peace, comfort, or convenience

Typically chosen if an aggregated injury, suffered by many π and society as a whole will benefit Government typically brings suit Issues of Standing with individuals bringing suit :

May need to show Special injury, unique from that of public Special Injury = damage to property, or health different than public’s

Injunction may be construed more liberally (Restatement 821’s view) Georgia v. Tennessee Copper Co

F- Georgia brought suit, on behalf of people, to enjoin ∆ from copper production, as Sulfer Dioxide was being discharged into their state, killing forests, orchards, and crops

R-Public Nuisance recognized and granted injunctiono Private Nuisance

A Non-trespassory substantial and unreasonable interference with the use and enjoyment of one’s property Non-Trespassory:

No physical invasion While air is physical, or micro-partials in smell, these are not considered trespass If physical invasion, not a nuisance claim

Two Ways to Prove: 1) Intentional

10

Intend to do the conduct (not the harm), and you knew harm would occur or it was foreseeable that the harm would occur

Must show Unreasonable Interference: Not that the conduct is unreasonable, but that the conduct unreasonably interfered

From Petsey v. Cushman 3 Approaches

1) Restatement Approach 1: Weigh the gravity of the harm v. the utility of the conduct Ultimately question of reasonableness depends on whether the interference is

beyond that which the π should bear, under the circumstances without being compensated

o Weighnature of harm, extent, duration, suitability for locality, use enjoyed, whether ∆ took precautions to avoid

2) Restatement Approach 2: After #1, restatement realized that there are scenarios where the utility of the

harm, if stopped would cause the stoppage of a highly socially useful thing, so due to upset sense of justice, adopted new test

1) Either the Gravity of the harm outweighs the utility of the actors conduct (weighing) or

2) Harm resulting from the invasion is more severe and greater then the other should be required to bear without compensation (justice), but only if the financial burden on compensating party for this harm and similar harms would not make continuing business impossible (Can ∆ pay without going broke)

o Note: Nuisance typically allows damages or injunction as remedy Under Restatement approach 2, damages are sole remedy

available for part 2, no injunction This is due to the utility being so beneficial to society, we

want it to continue…but we need to compensate π Damages is the way

o Some Courts Inherently do this Deciding that once harm outweighs, is damages or

injunction best to remedy society as whole and π 3) Threshold Test Approach

Most courts do not use the above 2 approaches ∆ will be liable if the harm suffered crosses some threshold level of

significanceo At that point Considered a nuisance

No weighing of gravity or utility, in deciding whether to shift cost to ∆

However, the gravity of harm and utility are still utilized in the remedy phase, to determine if damages or injunction is most appropriate

If High social utility damages will be awarded o Judged by employment from activity, taxes for town

Walsh v. Stonington F- Town sewage treatment plant was sued by neighbors for odor. Jury awarded

damages, but town appealed unreasonableness of conduct R-

∆ argued that they applied for permit, and got one so cannot be unreasonableo Court declines argument even with permit, in full compliance, if

harm caused can still entertain private nuisance suit ∆ argued that the plant has so much utility, it cannot be nuisance

11

o Court declines argument if that was the case, socially important activities would never be nuisance, and injured parties would never have any recourse

Applied weighing test, but was unclear in if it was looking at unreasonable conduct, or interference

Petsey v. Cushman Court attempted to clarify the Connecticut case law that was unclear as to private

nuisance law found in Walsh v. Town of Stonington Recognized that interference is the attribute focused on, not conduct

Conduct can be very reasonable, and still cause unreasonable interferenceo Plant on land is reasonable use of land

Unreasonable conduct is focused on in negligent private nuisance action…if negligent, the conduct is unreasonable

Look at Is the interference the conduct caused unreasonable? 2) Unintentional

Show Negligent or show Reckless If negligence or Reckless claim is made out, unreasonableness will be proven by

definition…the conduct being negligent or reckless is unreasonable Proven by proving the elements

Anticipatory Nuisance Anticipating an unreasonable interference with use and enjoyment pror to it occurring

Π is saying that the ∆ is planning something that will eventually be a nuisance Traditionally:

Court would not grant Too speculative We don’t know if it will be nuisance Harm might not outweigh utility If your right, sue then

Modernly: Has been allowed intermitantley Requires heightened burden of proof “Harm that is practically certain to occur”

o Trespass A physical invasion on ones property.

Different than Nuisance, but the line has been blurred Court’s typically did not allow trespass with air pollution or water flow beneath land

But, “physical presence” has been recognized in these cases in a few courts Treated as Strict Liability or Intentional Tort

Reasons to Choose Trespass or Nusiance Statute of Limitations has run Precedent may be stronger in one, than another

o Strict Liability Originated in England- Fletcher v. Ryland

Activity had to be “Abnormally Dangerous Activity” In America

Must show activity causing harm is unusually dangerous, abnormally dangerous, inherently dangerous in the location its occurring, or materials used

The closer the offending activity is to a highly valued social use (EG Home water), the more likely it will be strict liability

Branch v. Western Petroleum F- ∆ purchased land, and began dumping formation water (petroleum by product) into the land.

Eventually, that water leached under, into π’s property destroying the residential and agricultural drinking water. Water became smelly and oily.

I- Does strict liability in this situation create liability? R- Yes

Fletcher v. Ryland:

12

One who uses land in an unnatural, and abnormal way, creating a dangerous condition may be strictly liable for resulting injuries

Is activity/condition abnormally dangerous in that place? Here

Yes…formation water dumped near agricultural use is abnormally dangerous for the location

Fits precedent of activities that are abnormally dangerous Strict Liability should conform with legislature’s policy and policy of

environmental law Industrial polluter should assume/internalize the costs of pollution, rather than

externalizing them on consumers More appropriate to put costs on ∆ rather than innocent

Jurisdictionally Dependent: Some J’s have broad idea of what strict liability is

Mine blasting, oil leaching, gas leaking, toxic chemical spill, industrial waste when injuring residence well water, or streams rivers…

Some more restrictive on what they and their precedent have recognized o Public Trust Doctrine

The idea that certain resources are preserved, by the state, for the publics use History:

Emerged in the 1960s revivial, but founded in Roman and English common law The water and land held beneath it was held in trust for the public Recognized in Illinois C. R.R. v. Illinois (1892):

Court rejected Illinois’ attempt to sell land beneath river to rail road “State cannot abdicate its trust over property for the public” Did not cite precedent, or reasons

Just decided on inherent limits that states, in gaining sovereignty, had Light v. US

Made clear that the land was reserved for the people, reiterating the Public Trust Doctrine, but limited the judiciaries’ role Up to congress to determine the land use

Post-Light: Very little litigation ensued to gain Public Trust doctrine claim, because the court limited its power Inherent Limitations

1) The Doctrine only applies to governmental entities Useless against private degraders of environment

2) Doctrine only applies to navigable water Has been argued, by progressives to extend to land, but has not been

Interpretations of the Public Trust Doctrine: Joseph Sax:

Trust is Procedural allows court to decide if political decision to reallocate resources was made after considering all the facts and remand if not

Substantive View: The Public Trust Doctrine is made up of substantive role of environment, with ecosystem at the

top of the hierarchy Ecosystem conservation requires preferential treatment of public natural resources, whenever

there is conflicting interests then Revitalized Movement:

In the 1960s, with environmentalism progressing, the Public Trust Doctrine was used more often California was one of the states that Public Trust was revitalized in Nat’l Audubon Soc. V. Superior Ct. of Alpine County (MonoLake Case)

F- City was appropriating water, and taking it from tributaries all over the place. One lake’s water level decreased 44 feet, threatening the birds by making them more vulnerable to predators, and killing the shrimp the birds feed on

I- What is the use and application of the Public Trust Doctrine R-

1) Court stated that the state is supervisor of controllable navigable water

13

2) The State has the right, as a matter of need, to use water which may harm the water supply, harming the public trust

3) State has affirmative duty to take public trust into account in the planning and allocating, however

Must consider the public trust, and preserve it, as trusteee Note:

The court extends PT’s reach a bit by mentioning “all water resources” and not just navigable water

Seems to Take the Sax theory of Public Trust Procedural

Court states State must consider the environmental ramifications Could Argue that this is 2nd approach as well

Substantive Describing the water resources Describing “Duty” to protect

How Does the Court determine usage of Public Trust Does the state need to consider pre-human intervention, in preserving the public trust? By Taking the Sax, substantive approach, avoid need to focus on defining

substancejust follow the procedure of considering the environmento Constitutionally Rooted Environmental Claims

In general, there have been claims of federal constitutional protectionShot Down While Constitution protects minority, environmental protection proponents are not really an isolated

minority Post Griswald v. CT:

After Griswald recognized that the 9th amendment implies certain rights Environmentalists tried to get “implied right to environmental quality”

5th/14th Amendment Due Process Court has not found “right to environmental quality”

14th Equal Protection Court has not found “right to environmental quality”

Overall While there is no “Right” recognized in the constitution

Constitutional law is very relevant to Environmental Law 1) Creates Authority for Federal Government to regulate 2) Limits states authority

Federalism, Dormant Commerce Clause, Supremacy Clause 3) Constitution defines scope of Federal Court’s jurisdiction

Diversity cases/FQ cases 4) Constitution defines rights which environmental law cannot infringe

5th/14th amendment takings There is Opportunity in Constitution that Emerges From

1) Equal Protection Clause Environmental Justice Movement: Environment may be providing different

levels of protection to different people If those differences are based on race, sex EP claim

2) Executive Orders While not binding, or judicially enforceable and only establish internal rules of

the administration, may be source of power Any president can undo it EO 12,898 (1994)

o Bill Clinton signed Executive order which said “each federal agency shall make achieving environmental justice part of its mission”

3) Takings Clause While typically hurts environmental protection, could help EG:

14

o If state says that burning trash is legal, and won’t let you bring nuisance claim

o Argue that legislature is taking your right to use and enjoy property, by permitting this nuisance

o Property Rights infringed upon due to government authorization of environmentally damaging activity

o Environmental Justice Theory : The distributional consequences of environmental protection

Disparaging effects on minorities, poor, at-risk groups which insufficient pollution standards are insufficiently stringent near them cause- “Hot Spot”

A.K.A Environmental Equity or Environmental Racism

o Usage of Common Law in Statutory Era: Because so much of environmental law, modernly, is statutory, people argue that statute-full law does not leave

any room for common law Argument that CL doesn’t supplement

How does it fit in/Why is this argument rejected? 1) “Savings Clause” statutory mandate that the Common Law Remedy be used, and be available 2) Remedy Just because an activity is allowed under statute does not mean that we should leave victims

remediless 3) Internalize Harms Common law creates incentive to be less harmful, and to reduce externalities

(Fear of litigation) International Paper Co. v. Ouilette:

F- π is paper mill, who complied with the CWA and got permit from New York. However, they discharged waste into Lake Champlain, which went down stream into state of Vermont. Π brought suit in Vermont state court under Vermont nuisance law.

I- Does the Clean Water Act preempt state nuisance law, when source-state is different then applied law? R-

Statement of intention was not clear, so Court looked to text to determine intent CWA specifically empowered Source-State. Affected state had little if any power in

interstate pollution Allowing Affected state to sue in nuisance would negate the intention congress had

then. Contradict the minimal role of Affected State Permit under CWA is intended to allow pollution, in certain amounts

Allowing state CL suit would negate this purpose then CWA, then, preempts affected state common law suit against out of state polluter

Note:o Under Coase, allowing one to get their desires, while dissalowing

another is economically wrong. But, Court finds that this is the intent of Congress. That NY get their way, not VT.

o Also, the clear “Savings Clause” language seems to be unambiguous. But, it may contradict the intention, as analyzed by the Court…so

o 2 Values within this Case: Predictability polluter shielded from liability if complies

with permit…if not, ∆ would be liable to any affected state’s tort law…Could be countless states downstream

Efficiency Procedural, in that all rights and issued are contained in what permit allows

However: While affected state cannot apply its law, injured parties within affected state may

utilize source-states nuisance law to sue ∆ Source-State had power to restrict permit even more, so allowing suit within

their law is coherent with Congress’s intent Avoids Issues of predictability:

15

o Decreases the number of states’ law the ∆ would need to deal with, while still allowing them to be accountable

o within what congress intended Overall:

Court has recognized that Common Law is preserved in Savings Clauses, which may be read narrowly, but do allow Common Law to supplement Statutory Law

There is still a place for common law, then, within largely statutory law Still Viable Why So Infrequently Used?

1) Very Expensive 2) Statute works before harm, whereas tort is waiting for a harm to occur to utilize

Policy of Statute: Paradigm Shift Anticipates harm and tries to prevent it, while Tort law reacts to a harm

3) Tort law is limited Exhibited by element “Ignorance of Mechanism” in that burden to prove cause

or negligence is difficult when dealing with different chemicals or scientific uncertainty

High Transaction Costs of Trial, etc…

The Regulatory Design of Environmental Law

Most of the Statute we will deal with are not uniform, and each have different goals and strategies and are complicatedo This section creates a framework, to break down into commonalities

This is not Mutual Exclusive List These Goals, Triggers, Strategies can be combined in different ways to come up with a statute that does

what you want it to Policy of Statutory/Regulatory Design:

o 1) To Protect the Environment o 2) Does not Rely on Common Lawo 3) Allows delegation of authority to administrative agencyo 4) Designed to Avoid harm or prevent it, rather than reacting to it

I. Common Goals: o 1) Public Health:

Focuses on cleaning pollution, preventing or minimizing the risks to human health Pesticide, CWA, CAA, Food Laws

o 2) Clean Environment/Protect Natural Resources: to clean the mess created, or to preserve the natural attributes Allows varying degrees of environmental degradation

Endangered Species Act, CERCLA May overlap with Public Health

o 3) Compensation Very Few statutes’ goal is to compensate Essentially, this is the duty of Common Law, which we covered, supra The Most Common Goal of Common Law Statute focuses on reducing, preventing or avoiding risk

Savings Clause preserves Compensation o 4) Force Consideration of Adverse Environmental Effects

Many statutes have the broad goal of forcing consideration of adverse effects This may be through savings clause, criminal punishment, economic incentives…

II. Common Triggers: o What’s a Trigger?

A Trigger is a fact needed to trigger authority to act Justifies Action, authorizing action

What causes the statute/regulation to activateo Standard is not a Trigger:

16

A standard is a means that the authority will use to move toward goal Tool an agency has

o Types of Triggers: No Risk Threshold:

The agency does not have to find proof of a risk of harm The Legislature has already decided that there are sufficient grounds to justify agencies act

Legislature either orders agency to regulate or impose responsibility on regulated entity Nothing Triggers action Trigger is the object in question

EG: Food and Drug Act: bans carcinogens from food. Even though no agency has finding,

legislature has determined they are risky enough to ban them all. Risk-Based Threshold:

Trigger is based on determination that risk has exceeded a statutory threshold Requires finding of harm Types:

Any Risk Broad discretion in agency EG: “EPA may regulate any substance it finds risky”

Significant Risk Agency only allowed to regulate “If it can find/show that without regulation there

would be significant health risk” Unreasonable Risk

Similar to Cost Benefit Analysis If the significant risk of something exceeds its benefits it becomes unreasonable

o Use of Triggers Depends on Policy Approach of Legislature If the Legislature takes False Positive approach

May utilize a No Risk or Any Risk approach If the Legislature takes False Negative Approach

May utilize significant or unreasonable risk approach o The Burden of Proof may vary to be on government or producer to show risk or no risk

III. Common Design Strategies and Standards utilized within Regulations/Statutes o So, we know the goal of statute, and what triggers it…but what is its effect/application?o 1) Risk, Health, or Ambient Quality Based Regulation [CAA]:

Agency determines a level of protection it wants to achieve (safe or clean environment) A Goal Once Goal given, in reverse order, they adopt emission controls and other means to reach that goal

Goal First Then create law to reach ito 2) Technology Based Approach [CWA]:

Determine what level of performance (pollution reduction, energy saving, etc…) is the best that technology, currently, can achieve/capable of

By regulating to this standard hope is that result we reach will be a desired level Note:

Opposite of Ambient Quality Based Regulation Here, we start at “What are we/ is technology Capable of” If we push people towards this, we will

wind up with an appropriate level Do the best you can, that technology will allow If this doesn’t work, backup is typically Ambient Quality Method

o 3) Constrained Balancing Standard: Idea is that Agencies, in regulating, should not act counter-productively

If Statute does end pollution, does it create it elsewhere? Thinks of adverse consequences of legislation

Consider the Costs, Repercussions, etc…of regulating EG:

We require scrubbers for manufacturing plant, reducing pollution in air. But that may require disposal of scrubbers, which may in and of itself cause anther pollution

Like Risk-Risk

17

But: Here, adverse consequences considered are pollution created by regulationo 4) Cost- Benefit Balancing:

Desire is for the agency to consider the costs and benefits of legislation Rarely every used

Most Statutes do use costs, but does not require balancing Just required to consider the costs Agency has discretion on balancing or not

Here Would require that if costs> benefits Change must be made Circumscribes discretion from agency

o 5) Generate or Disclose Information: Law will require government to prepare, make public information about environmental activities, or impacts of

proposed plans or plants, etc…around citizens Environmental Impact Statement /Assessment

Creates more Perfect-Information, avoiding Free Market Flaw (supra EG: Emergency Planning and Community Right to Know Act

In reaction to Bopal incident, in India this law allows public to know what companies near them are using what chemicals

Toxic Release Inventory: Companies report information on kinds and quantities of chemicals they use EPA then makes information available to public, ranking worst-best Effect:

Companies don’t want to be seen at top of list Incentivizes them to reduce use of bad/toxic stuff

May induce citizen boycotting, inducing change as well Creates more Perfect Information for consumer to make choices

IV. Other Questions we Consider in understanding a Statutory Design Choice : o 1) Who does the statute regulate or affect?o 2) What are the consequences of non-compliance?

Damages Penalties Jail Time

Depends on the goal of the statuteo 3) Does statute dictate conduct or induce conduct?

Dictate: How you can or cannot do something. Permitted to emit X…. Induce: Emissions trading, taxing, threat of CL liability

o 4) What are the roles of Federal Government and States in Statutory Scheme? Who adopts the statute and who enforces it? What are the constitutional concerns? Citizens can bring suit to enforce

Supplementary role

Environmental Federalism

I. Generally: o Now that we know we need regulation, and common law to supplement that regulation, the question becomes why should it

be the Federal Government who is responsible? Why the Federal Government or Why the States? Most Federal Statutes carve out a position for states to administer a federal law, so there is Federalism Concern

II. Power: o Federal Power:

1. Commerce Power The most often used to regulate the environment

2. Treaty Power

18

3. Property Clause 5. §5, 14 would have to be based on environmental justice argument Limits on Federal Power:

Enumerated Powers 10th amendment Bill of Rights

o State Power: Plenary Police Power to regulate the health, safety, welfare Limits on State Power:

Dormant Commerce Clause Article IV Supremacy Clause Preemption

o Interests In Who Regulates: Industry:

Will argue that 10th amendment limits state, hoping that state will regulate less stringently Commerce ClauseArgue that they cannot regulate that thing because its not within enumerated power May Seek preemption claim

Environmental Groups: Desire broad Commerce Power to regulate all Narrow 10th amendment

III. Rationales for Federal Environmental Regulation: o 1) Interstate Externalities:

Because there are many differing forms of pollution moving across state borders, Federal Regulation is accepted

Because states don’t have incentive to abate interstate pollution, they could simply dump into bordering states…making the pollution extend from state to state

Because of lacking incentives, it is better to have 1 regulator overseeing all Most Common and Least Controversial

o 2) Economies of Scale and Resource Pooling: 1 institution doing all will help it develop expertise and experience to further progress Large Operations are therefore more efficient

This is better than all 50 states individually regulating, and having overlapping efforts Free Rider Concern:

If we left it to states, instead of 1 central Federal Gov, some states would rely on others to put effort in If all states followed this path, there would be no incentive to act

Resource Pooling: The Federal Government has more resources to act…$$

o 3) The Race to the Bottom: Theory is based on idea that without federal government oversight, states will relax environmental standards to

attract big business, and the economic impact it has Creates Jobs, Tax Revenue, Land revenue

Because more attractive to business there than a more environmentally stringent state, states will follow suit, cutting environmental standards until they are no more

This cycle of deregulation results in poor environmental protection Opponents:

Revesz Argue this is unfounded, and the free market will create environmentally and socially efficient outcome

Proponents: A. Congress

Has utilized this theory as a reason to regulate 1977 Congressional History: “States may find themselves forced into a bidding war, squandering

resources” B. Kristen Engel

Polled states about the theory, and found that most made their environmental decisions based on industry…while those that did not cited federal standards as the reason why

19

Direct proof that states are looking at industry in debating whether to regulate environment

C. Study of Statutes Some statutes specifically say that the state cannot regulate more stringently than the federal

standard Proves that state is showing industry they will be regulated no more Desire to not get more stringent, slowly ma turn to race-to-bottom

The Race to the Bottom has Been Seen in Many Instances: 1) Delaware Corporate law attracting business by having lax liability, tax standards 2) Internationally

Emerging countries will lower/end environmental standards, seeking other country’s waste for business

USA did it in Kyoto Protocol, as Clinton refused to sign, saying that he USA signed and China or India did not, we’d be at a competitive disadvantage

o 4) Centralized v. Decentralized Argument: While environmental law is a hybrid of central/decentralized actions, there are arguments A. Centralized:

Harms won’t be addressed unless a central authority is present Need Uniform Standards, rather then 50 different ones

Reduces Costs, especially in interstate commerce, only complying with 1 standard Seen In Uniform Emissions Standards

Cannot worry about 50 different emissions standards Industry actually seeks centralized Federal Regulation, so that they only work with 1

standard Seek preemption B. De-Centralized:

States/Local Government are more familiar with local needs Can adapt more easily to meet local conditions, then 1 federal regulator can

1 Regulator is non-sensitive to local concerns Enhances policy that states should experiment Citizens have greater accessmore democratic Some argue that states are actually taking the lead What incentives do States have to protect the environment:

1) Respond to local constituency who value environment 2) Attracts new residents who value environment 3) Qualifies for Federal Financial Assistance, sometimes 4) Restores Useless property to productive use 5) Minimizes need for Federal Regulation, if many states actmay convince Fed Gov. that they

don’t need to 6) Get Credit

o 5) Not In My Back Yard: People in states will want to benefit from something, but not want it near them

Close enough to gain benefit, but far enough to avoid adverse spill-over effects This is the opposite to the Race-To-The-Bottom argument

Pushes away spill-over elsewhere Therefore, we need federal oversight and incentive

o 6) Political Process Justification: Should be Federal, because Federal Politics represent the national agenda…and environment is of national

significance Rather then fighting in state legislatures, fight in only 1 legislature Argues that State Government may be more likely to be influenced by special-interest groups

IV. The Commerce Power [Article 1, §8, Cl. 3]o Note: Most environmental laws are passed under this powero Gibbs v. Babbitt:

20

F- Endangered Species Act, §1538, disallowed the “take” of the red wolf, which extended to federal government land, or private land. About 41/75 of the wolves strayed to private land in North Carolina. North Carolina passed law making it lawful to kill, and π shot and killed 1. Was prosecuted.

I- Can the Federal Government regulate with the Endangered Species Act through CC? R-

Does the Government Have the Power? 1. There are Limits to commerce power

Under Lopez and Morrison, activities that are not economic in nature, and intrastate cannot be aggregated

2. The Commerce Clause Rule Lopez Framework: Congress may regulate:

1) the Channels of Commerce 2) The instrumentalities of Commerce 3) Activities that substantially affect interstate commerce

If the activity is economic in nature, can apply Wickard aggregation, aggregating wholly intrastate activities that would negatively undercut interstate market

3. Here, Substantial Effects Test Applies A. Endangered Species are economic in nature, and therefore can be aggregated, even if wholly

intrastate, to find substantial effect on interstate Commerce B. Endangered Species are Economic Unlike Lopez and Morrison, who’s activities’ were not economic

1) Is Valuable Resource $29.2B in tourism in aggregate for people who travel to see wildlife

2) Scientific research of them creates jobs, in incalculable future value of that research 3) This reaches to private land because species wandering onto private land need to be

continually regulated or else the tourism and scientific research would be affected if they could be killed there.

Does this Infringe on the state/Infringe on 10th Amendment? 1. Endangered Species are not traditionally concern of sovereign state

While states have regulated them, and have an important role, it is circumscribed by Federal Power in this case

Precedent of Court has held that Federal Government can regulate specieis 2. Land is traditional police power of State

But, congress can regulate for environmental and wildlife conservation Has done so for long time Precedent has upheld this rule

3. There is Race-To-Bottom Concern Overall

The regulation of endangered species is within the Congress Commerce power, and the Court is not place to resolveDeference to Congress

Dissent: Argues it is not an economic activity at all The Judiciary, after Lopez and Morrison is a check on the commerce power, and should not be as

deferential (Pre- Lopez view), but more closely scrutinizingo Post- Gibbs:

Gonzales v. Raich: reaffirmed the Courts use of Wickard, that purely local, intrastate activities, when in the aggregate would have substantial affect on interstate commerce

Only Need rational basis to conclude so While Pre-Lopez environmental challenges to Commerce Power failed, Post-Lopez there was idea that commerce

clause may not be able to reach environment, and many challenges followed Gibbs and after have shown many failures to environmental challenges

21

o While Congress can regulate Environment through Commerce Power, Court has Found way to Limit: Courts haven’t struck down the use of power

But have struck down scope of power that an agency has interpreted Congress to have intended to give, if may raise question of its within Commerce Power

When getting close to what may be the edge of Commerce Power, Court will construe statute so as not to have reached that far…limiting enviro. protection

Solid Waste Agency of N. Cook County v. Corps of Engineers (SWANCC): F- Court had interpreted CWA provision, which requires Corps to give permit, to extend a “navigable

water” to reach habitat of migratory bird. Group of cities wanted to build a waste disposal site , but pools formed during construction. Corps denied a permit, and city sued.

I- Did Congress intend this broad reach of its Commerce Power? R-

Clear Statement Rule: When an agency has interpreted a statute as getting to the outer limits of

Congress’s Power requires clear congressional intent Court Policy to not needlessly reach Constitutional Question Check on an Agency interpreting statute too far

o While Congress has regulated under Commerce power, if agency takes that too far it could reach constitutional question of if Congress could in fact regulate through Commerce Power

This idea is enhanced when interpretation infringes on state power Here

Statute did not have clear intention to reach that far, and it extended onto state traditional power of land use planning.

Additionally, Statute said “we recognize traditional states rights,” showing lack of intent

Rapanos v. US: F- Corps had statute which allowed regulation of Lake, but Corps interpreted it to reach farther back in

tributary system: LakeCreekDrain/DitchWetlands: Corps wanted to reach back to the wetlands R

A Plurality Opinion Scalia: Found no clear statement, under SWANNC, and was concerned with the frustration of a

traditional state function on “land use” Kennedy: advocated a test, in concurrence

That if wanted to reach back to wetlands: there must be a “significant nexus” to be able to reach that water way in addition to those clearly under statute

Overall: SWANNC and Rapanos Court establishes rule and desire to not want to address a Commerce Clause

question when close to what may be the edge. So Court says that Congress didn’t intend to reach that far, nor intend for Court to address that question

Clear Statement Rule and Chevron Deference: The CS rule is a cannon of construction—the relationship between these 2 tests could be:

1. Avoiding the federalism question, by using Clear Statement displaces, and bypasses Chevron entirely

2. Or, Chevron step 1 applies Using Clear Statement Rule as Cannon of construction, which is what happens in Step

1, and Congress was clear, and did not intend it to go this far (because didn’t clearly say it)

3. Or, Even if it is a step 2 question, the interpretation is unreasonable because it raises federalism questions under the Clear Statement Rule

V. 10 th Amendment Concerns and Federalism: o Generally:

Because the Federal Government has limited Resources, it enlists the help of states There may be a point that Constitution limits Federal Government’s power to enlist this help in pursuing

environmental goals, however

22

o 2 Models of 10 th Amendment Analysis: 1. Determine the Constitutionality of Statute, by inquiring if it is within delegated power

If Yes: Constitutional No issue of 10th amendment Deference to Legislature: Idea is that legislature is made up of different states, who would not

have voted for something if they disagreed If No:

Unconstitutional 2. Determine the Constitutionality of Statute, by inquiring if it is within delegated power

If Yes: Does the statute infringe on traditional state sovereignty, and 10th amendment?

If Yes Unconstitutional Court has more exacting scrutiny, and is not as deferential

o New York v. United States F- Dealing with a shortage of low-level radioactive waste disposal sites, Congress enacted LL Radioactive Waste

Policy Act. It had 3 provisions. 1, a monetary incentive for states that met standards and charged others more to use; 2, a denial of access to certain states from continuing to dump elsewhere, and 3, a take-title provision which gave state choice of regulating it themselves, or taking title.

I- Is this an infringement on the 10th amendment? R-

1. This was within Commerce Power, so did it infringe on 10 th amendment? 2. Rule:

Congress cannot Commandeer the State’s legislative process to enact a federal program Makes state officials accountable to the people, while they didn’t have a choice in the

matter, but Federal regulators remain immune 2 Exceptions: 1) Spending Power

Can attach conditions to get state to act, and this is ok South Dakota v. Dole:

o 1) Spending must be for general welfareo 2) Conditions must be unambiguouso 3) Conditions must be reasonably related to the purpose of expenseo 4) Cannot violate constitutional prohibition (like 10th)

2) Cooperative Federalism: give state the choice of: A. State can regulate according to federal standards or B. Be preempted, and federal law will apply

o This does not force the state to do anything…but merely gives them a choice to act if they want, and if not they don’t have to do anythingremain accountable

3. Provision 1 and 2 were under the first model of 10 th Amendment Interpretation Provision 1

is an authorization under the Commerce power for state to discriminate on interstate commerce

is a Tax and, adequate under the spending power Because was within enumerated power, not any 10th amendment concern

Provision 2 Is an authorization under the Commerce power for state to discriminate on interstate

commerce…perfectly ok Is use of Cooperative Federalism:

If they chose not to regulate, they didn’t have to do anything, the other state was responsible because they couldn’t access (Preempted by federal law applying)

Because was within enumerated power, not any 10th amendment concern

23

4. Provision 3 “Take Title” was under second model of 10 th amendment Interpretation Provision 3 Required state to Regulate according to Federal standard or take title to the waste

created within its state This was not acceptable use of Cooperative Federalism

In CF, state can regulate or be preempted (doing nothing) Here, state had to regulate or take title

o Had no choice in the matter Commandeeringo Cannot force State to serve federal regulatory purposeo State cannot decline to act in this situation (unlike cooperative fed.)o Unconstitutional

o Post New York: Accorn v. Edwards , 81 F.3d 1387 (5th Cir. 1996) (where unconstitutional to force states to clean lead from

drinking water, or face penalties for not doing so). Printz v. US:

Extended New York, to disallow commandeering of state officials Reno v. Condon:

Banning state from doing something is not a commandeering…not forcing state to do anything Has consistently been allowed throughout jurisprudence

Overall 10th amendment has not played a large role in environmental lawo Problem P. 84, 2-1:

Congress probably has the power under Commerce Clause But, under 10th amendment:

Commandeers state government If there is penalty for not researching unconstitutional But, if no penalty, and they don’t have to choose anything

Could argue that silence as to alternative might mean state does not have to act But will implicate Commandeering doctrine

If Preempted adequate under Cooperative Federalism model

VI. 11 th Amendment and State Sovereign Immunity: o Can people seek remedy from State for environmental harm?

* No, not under 11th amendment sovereign immunity States are immune from citizens of their and other states, in federal and state court Kennedy: “11th amendment stands for inherent design of constitution, althought sovereignty is not within

the text” But there are ways around it:

1) Government could enforce environmental standards 2) State can Waive Sovereign Immunity

Must be clear and explicit….not constructive 3) Congress can Waive it under §5, 14th amendment

But can only use enforcement power to remedy or prevent constitutional violation under 14th amendment.

Would implicate environmental justice Very few environmental cases under 14th amendment

4) Spending Power Congress could attach conditions to funds to ask state to waive right to sovereign

immunity (Subject to South Dakota v. Dole limitations) 5) Suit against municipal government

11th amendment does not apply 6) Suit against state officers Ex Parte Young:

Can Only Get Injunctiono Overall, it is clear that States have a reduced chance of liability for violating federal environmental law

VII. Savings Clause, Delegated Programs, and Preemption:o General:

24

Assuming that Congress is within the Commerce Power, and has not violated 10th amendment or it is not being used as a limit Congress can determine what role the states play

When Congress wants state to work with them: Savings Clause: Federal law, specifically stating-

It retains common law causes of action Broad Policy Objectives to “preserve states’ rights and responsibilities”

Seen in the Clean Water Act May state that federal standard is floor, but states may ratchet it up

*most common application Seen in the Clean Water Act

Delegated Programs: A Function of Cooperative Federalism Typically Make use of Conditional Spending Power

The state or subdivision can retain or assume responsibility for implementing and enforcing a federal program if it wants to

“Delegated” Federal Regulation is delegated to state to do Examples:

Clean Water Act : The Permitting system is originally in the Federal Agencies’ hands, but states may pass laws and make commitments to establish that they are qualified to assume the permitting system role

Their system doesn’t have to be exact same State can lose the role if deemed inadequate

Clean Air Act : Opposite of the CWA, this sets forth the power in the states originally Only if Federal regulator determines state is failing does state lose power

o Preemption: Emerges from Article VI, Supremacy Clause Policy:

While Congress does want state assistance, it doesn’t always 1. Centralized System

Desirous of uniformity in regulation 2. Avoids subjecting regulated entity to multiple conflicting mandates (theoretically, up to 50

different state ones) Centralized, Preempted system usually applies to:

Products in interstate commerce When 1 nationwide distribution standard is optimal

Economies of Scale Argument More Efficiency with 1 standard Basics:

Express Preemption A clear expression from Congress that they intend to preempt state law

But not always clear Must determine the scope of the intended express preemption, and then determine if state activity is within that scope

Implied Preemption A. Field Preemption:

When Federal legislation is very comprehensive in a particular area that congress could not have intended to permit supplemental state regulation

A floor and ceiling o No more regulation because no room left

Method: o Define the Field Congress occupies, and determine if state law is

within that field B. Conflict Preemption:

Congress hasn’t chosen to occupy the field, but state or local regulation conflicts with the federal law

2 Ways to Conflict:

25

1. When state regulation frustrates/is an obstacle to the purpose of Federal Law

o When Congress makes a ceiling, and state makes a lower ceiling 2. When Federal and State law are impossible to both comply with

o Either law you choose to comply with violates the othero Rare

Method: o Define the purpose of the Federal Law Does state law interfere

with that federal purpose? Engine Mfr’s Ass’n v. S. Coast Air Quality Mgmt:

F: Respondent, local California branch responsible for air pollution enacted 6 fleet rules prohibiting the purchase of a vehicle that does not comply with their local stringent emissions standards. The Federal Clean Air Act stated in §209 that “no state may adopt any standard relating to control of emissions from new motor vehicles or engines”

I: Is local statute expressly preempted by the Clean Air Act? R:

District Court: focusing on the word “standard,” read local statute to deal with purchase while Clean Air Act dealt with sale of new engines

Supreme Court: 1. Determine the Scope of the express Preemption:

Respondents argue the CAA only applies to manufacturers, not purchaser so state law is not within the scope of CAA

This portion of CAA §209 (a) is a standard that applies to the vehicle, not the manufacturer or the purchaser

o The view that the standard applies to manufacturer only, confuses the standard, with how to enforce it

So Vehicles are within the scope of this preemptiono Not manufacturer rather then purchaser

The Fleet restriction was an attempt to enforce its own emissions standard on the car Congress Already did this

2. Does not Make Sense to differentiate Seller and Buyer: Scalia says, forcing a producer to sell according to federal approved law, but

allowing purchaser to buy a different level makes no sense When you prohibit a buyer then to buy the federal level emissions, it prohibits

the sale 3. Congress’s intention was to create 1 uniform law for car emissions Therefore, the

car is within the scope of preemption and you cannot differentiate between buyer and seller laws…Expressly preempted

Clean Air Act thus preempted state standards that were more stringent then the CAA, because the scope of the CAA covered vehicles

Pacific Gas & Electric v. California Energy: F- State law was adopted putting a moratorium on nuclear facility building until findings emerged that

there was adequate waste disposal sites. Π wanted to build one, and argued that Congress had occupied this field with Atomic Energy Act.

I- Is the State law In Field with or Conflict with, and therefore preempted by Federal Law? R-

Field Preemption Claim: Supreme Court determined the field Congress intended to solely occupy was “safety” of

atomic energy Not all of Nuclear energy So State law dealing with economic concerns of increasing taxes to find new waste

disposal sites was not within the field of “safety” Π’s argument that Congress promoted Atomic Energy was snubbed, because Court

determined it was not a promotion at all expenses Conflict Preemption Claim:

26

Supreme Court defined the purpose of state law as “Economic Concern” of having higher taxes and electricity prices (Based on legislative findings)

Congress, however, was concerned with “Safety” Therefore Objective of Congress was not frustrated by state law

VIII. Dormant Commerce Clause Limitations on State:o Idea that State may not infringe on Interstate Commerce

Reciprocal of the Commerce Clause Inferred that States may not infringe on interstate commerce

General idea: States will utilize protectionist economic action to protect their own state interest, Out-of-staters don’t vote, and thus do not matter

o SDDS, Inc. v. South Dakota: F: SDDS filed permit to construct waste disposal site—Lonetree, which was extremely large and would almost

exclusively be used to import other states waste for disposal. It was issued a 1 year permit, but then Supreme Court voided the permit. New law then required state legislature approval of all facilities that were large and to be environmentally safe and in publics’ interest. Law then required referendum of people to vote for or against it too. The pamphlet sent to the South Dakota Population was extremely against Lonetree.

I: By prohibiting the building of this Waste Disposal site, was DCC violated?

R: Dormant Commerce Clause Framework:

1. Is Challenged action Discriminatory to Interstate Commerce? Facially Discriminatory Facially Neutral, with discriminatory Purpose Facially Neutral, with discriminatory effect

2. If yes: Strict Scrutiny, with virtual per se rule of invalidity

Must show the local benefits and unavailability of nondiscriminatory alternative

o A. Can be No other means available Economic Protectionism is unconstitutional

1 exception: Quarantine for emergency/safety (Maine v. Taylor) 3. If no:

Pike v. Bruce Church balancing test If not discriminatory, allow the law unless the burden on interstate commerce

outweighs local putative benefits Here:

Discriminatory Purpose: New law of dual approval only applied to Lonetree Designed to hinder importation of waste Legislative history showed protectionist rhetoric “We’re not dumping ground” Pamphlet sent to referendum voters was extremely 1 sided

Discriminatory Effect: Facility was huge, and prohibiting its use denied states to export trash here, increasing

huge costs Did not meet Strict Scrutiny:

While legitimate purpose of protecting environment and local benefits, they already had a way to do that with legislative review

Was no emergency The dual review was no additional benefit

There were other means not necessarily related Already had review of legislature Send out more neutral pamphlet Discussing the environmental issues, rather then restriction of trade is another

method

27

o Some have argued the Unintended effects of Dormant Commerce Clause: 1. While avoids interstate commerce discrimination, has environmental justice issues

a. Allows flow of waste from rich states to poor states b. Allocates the burden of waster to a lesser population with lesser financial resources

2. Thus, because poorer states get waste, it undercuts that state’s ability to distribute environmental justice there Gets passed into poorer state to poorest residents

3. Environmental Justice Theorists say that, unless facial discrimination should be allowedo Other Cases in Dormant Commerce Clause Environmental:

1. Philadelphia v. New Jersey: Creating the virtually per se rule of invalidity in a facial discrimination of accepting Philadelphia’s waste

2. Waste Management v. Gimore: Court disallowed a cap on the trash accepted by Virginia from other states

3. Oregon Waste v. Dep’t of Enviro. Quality: The Law applied a differing fee on the disposal of or treatment of out of state waste

Court, in dicta, said it would allow a compensatory cost to alleviate the elevated cost, but no more!

Here, the charge on out of state waste was much more, so discriminatory

Administrative Law

Basics I. Concerned with 2 Broad Issues:

o 1. What is the role of the 3 branches of government that is established by the Constitution that is propero 2. What procedure should agencies, executive, and independent agencies follow in adopting standards that govern private

conduct II. Why are we dealing with administrative law?

o 1. Most environmental law is administrative law o 2. Sets the rules with how these agencies interact with the 3 branches of government

III. How Agencies Interact with the 3 Branches: o 1. Agencies and Congress

A. Agencies implement the programs that congress adopts Congress gives them authority Agencies have no inherent authority This is done through a statute:

Statute creates procedures to promote legitimacy and consistency 1. Organic/Substantive Act:

The act that empowers that agency EG: the ESA gives procedures to Fish and Game Service

2. If Substantive Act is silent: APA is the default gap filler

3. If APA and organic/substantive agency act conflict: Organic/Substantive statute will prevail

Scope of Authority may come into question “Ultra Vires” or “Outside Scope” is commonly argued

See Rapanos and SWANNC B. Congress Also Limits Agencies

1. Can threaten to cut their appropriations 2. Have Hearings 3. Amend Statutes to reduce the agency’s authority

Amend By: 1. Requiring more procedure

Deadlines, specific criteria that must be used, to decrease agency discretion as to how it can act

2. Substantive may require further actions, or reassurance by agency Information Quality Act (p.213)

28

o Required agencies to prove ‘policy and procedural guidance for ensuring maximum quality, objectivity, utility and integrity of information disseminated by agencies.

o This gave regulated entities a new means of challenging agency decisions

o The affect Ossifies regulation by agencies, as they reassure their information is adequate

EG: 1984 Amendments to RCRA reduced the scope by explicitly instructing what agency would due, and creating deadlines to do it in

o 2. Agencies and Executive Branch A. Once Congress creates, it becomes part of the executive branch B. President can Limit Agencies

Appointment Power Who is the official

Executive Order Requires that certain things be considered, or procedural requirements 12,866:

Delegated authority to scrutinize agency rules to make sure Costs/Benefits were utilized Raises Separation of Powers Issues (210-217):

1. If an EO is inconsistent with an organic agency statute typically provides “to extent permitted by law” If organic statute regulates, it trumps

2. Does Executive even have power to regulate discretion of Agency? If Congress gives agency discretion, but EO constrains it this may infringe on

Congressional power and intent Clearance

Can require an agency to clear a decision with the president, or a subordinate he designates, before they go into effect

o 3. Agencies and the Judiciary Congress has the ability to empower the Courts with the responsibility to review agency decisions

Court Can: 1. Unconstitutional 2. Excessive: Doctrine of “Ultra Vires” to say that an agency action was beyond the scope of the

power congress intended 3. Lack of Explanation: Court may require an explanation for a decision based on the statutory

authority Typically reverses decision, and remands it for further consideration

4. Lack of Following Procedure: If court finds that agency did not specifically follow procedure prescribed, it may invalidate

Generally: Courts defer to agency expertise, especially on technical/factual matters However:

Courts are empowered to review agency action Ensure it does not deviate from the mandate

Depending on the Issue of dispute Court may defer or may more intrusively scrutinize…but depends

IV. How Agencies Act: o §551 APA

Each agency statute will authorize which of the follow two can be done: Rule Making: formulating, amending, or appealing, a rule which can implement, interpret or prescribe law and

policy of an agency Analogous to legislation, except regulation is from the Agency and not Congress Informal Rule Making (Notice and Comment Rule Making)

1. Notice is issued Publish in the federal register what it is doing, and why

29

2. Solicit Public Comment Collects comments from public and considers them

3. Publishes the final rule in the Federal Register Concise rule with explanation of

Where authority to do this is from Why agency decided to do this

Adjudication: is very particular enforcement of a rule Similar to a trial

V Judicial Control of Administrative Environmental Decision Making :o General: To utilize the court’s role that congress has empowered them for, litigants must be able to argue in front of court

If Litigants cannot access the court, the court cannot fulfill its function Public Interest Groups are Typical Litigants:

1. They sue regulated entities under Congressionally authorized statutes Allege that Regulated Entity is in violating of obligation

2. They sue Agencies Claim that agency did not comply with their mandate in correct way Sue to make agency act in appropriate time fashion

3. Access the Court to allow enforcement of statute if they couldn’t sue, the law would lose accountability In certain scenarios, agencies do not want to comply with an environmental law because it

negatively impacts their purpose 4. Sue EPA

Make sure it fulfills its potential Without Access, Court would never be able to see if EPA fulfilled duties

Vi. Environmental Standing under APA and Article III o With these ideas in mind, above, standing is an obvious key issue in Public Interest litigation and to utilize the Court’s basic

function of “check” on agencies activities o Basic Understanding of Framework:

All Litigants must meet the Modern Article III standing Requirements (Post Lujan 2 test) Then All litigants must meet the APA or organic statute standing created by Congress:

APA has requirements in §702: Additional Requirements specified such as “Final” and “Agency Action” Zone of Interest Test

Impose additional or different standing regulations in an Organic Statue Can eliminate non-constitutional standing hurdles

o Historical Evolution: Pre-1960s:

Standard “Proof of Harm” also known as Legal Rights Test Had to show that your legal right was infringed on Favored Regulated Entity More then Environmental Groups/Regulated beneficiaries

The Regulated Entities actually had “legal right” that could be infringed on Environmental groups, as we have seen, didn’t have any specified legal rights

Circa. 1972: Standing becomes Pro-Environmental Around 1972, the Injury in Fact standard emerged, and moved away from the “Proof of Harm”

standard the result was much more environmental litigant friendly Standard

Under Both the APA and Article III requirements: Injury in fact and

Under SCRAP injury can be very attenuated to alleged cause Injury is “arguably within the zone of interests to be protected or regulated by

statute that was allegedly violated Under Morton non-economic, aesthetic harms are within zone

Sierra Club v. Morton: F: The US Forrest Service and Dep’t of Interior began accepting bids for a Game Refuge to turn

it into a ski resort. Walt Disney eventually bid for it and was going to turn it into ski resort,

30

cutting road and power lines through Sequoia National Park. Sierra Club filed suit, seeking declaratory and injunctive relief, even though there was no specific statuteso they brought under §702 APA: “person adversely affected or aggrieved by agency action is entitled to review.”

I: Did π have standing to bring suit? R:

1. What must be alleged under §10 (702) APA to meet standing? Need Injury in Fact:

o To be “person adversely affected or aggrieved”o Not just a “mere interest” in the problem, but need a personal stake in

the controversy- an injury to youo Here:

Π alleged “development would destroy, affect scenery and wildlife” but didn’t say its members used the land…need more then just a “mere interest in problem”

More Specified Injury needs to be alleged Needs to be within Zone of Interest/Cognizable Interest

o Congress intended to get review of regulatory actions to those injured by agency action

o So here Because didn’t allege injury in fact, was not within zone of interest congress intended to regulate

2. Court Specified 2 key successes for environmental groups: 1. A Non-Economic, aesthetic interest is a cognizable interest within the

zone of interest to cause injury in facto Did away with legally protected interest standard

2. Injury to the general public can be used in allegations after they have met the injury in fact standard

3. Effect: This evened the playing field between Public Interest Groups and Regulated

Entities Post Morton: environmental standing was not very difficult

US v. Students Challenging Regulatory Agency Procedures (SCRAP) F: Students argued that increase in rates of transporting recycled goods would discourage use of

recycled material, which would lead to discarding it instead of recycling, which would lead to litter in Shenandoah National Park which we personally use on the weekends.

I: Did π’s have standing? R:

Court recognized the non-economic aesthetic injury that they were personally injured in fact

Attenuated Connection between alleged causers of harm and injury Here, the facts were extremely attenuated, but the court accepted it

Injury to the public is acceptable if you have been injured in fact While General Public Injury is not acceptable, an injury to the public which

you are in fact injured is acceptableo Just because many people harmed does not deny recovery

Post Morton and SCRAP: Very expansive standing for environmental litigants Not a very difficult requirement to meet Combined, Morton and SCRAP signaled from the Court to lower courts that they were to allow

standing to environmental litigants, and that there should be no special barriers… For 17 years, environmental π’s were not thrown out…. until Lujan cases

Circa 1990 Standing takes a distinct turn to the more difficult for environmental litigants Lujan v. National Wildlife Fed’n [Lujan 1]:

F: The respondents sued the Department of Interior, alleging that the agency violated Federal Land Policy Act by revoking land withdrawals—allowing the department to market and develop

31

land that was previously withdrawn from market. Respondent alleged recreational harm and aesthetic harm (Seeming ok under Morton and SCRAP) and sued under §10 APA.

I: Did Respondents have standing under §10 APA as “persons adversely affected or aggrieved?” R:

1. Congress can add additional standing requirements, Here APA §10 requirements are “Final” and “Agency action”

Here, Court said that revoking a Land Withdrawal was not an “agency action” but instead was a “continuing and constantly changing operation” so it couldn’t be final

o There were 1250 lands being revoked and reclassified… Court also restricted its jurisdiction of “programmatic agency action” as this

was for Congresso The program here, although alleged violations, was deemed not an

agency action—instead Scalia considered it a program that needed improvements which is normally left to congress

o Would not allow the Courts to be used to modify or improve an agency program –wasn’t an agency action within meaning of ‘agency action’ in §551 APA.

o Separation of Powers invoked 2. Court Differentiated between standing at 12 (b) motion and Summary

Judgment 12 (b) only requires general allegations, while Summary Judgment is

heightened Although standing doesn’t change, the facts needed in affidavits at Summary Judgment need to be more specific

3. Needs to be Geographic Nexus or proximity to have Injury in Fact While under SRAP and Morton, it would be ok to allege aesthetic and

recreational harm to area…standing evolved Π must show that he actually used the affected area, not area “roughly in the

vicinity of it” Must show what land it was, and how you were affected by agency decision

with “geographic particularity” Here:

o Π’s did not have particularity in their affidavits 4. SCRAP was overly expansive Cannot be very attenuated now

That an industry may use land or that you use land in the vicinity of that which will be harmed is too attenuated

Post Lujan 1 Standard for Article III and APA §702 Injury in fact to the π

In Environmental case, must be a geographic nexus or proximity between the resources that are allegedly injured by the agency’s decision and the areas used by the π or members

Cannot be as attenuated between injury and cause and Injury must be within the zone of interest the statute intended

Lujan v. Defenders of Wildlife [Lujan 2]: F: §1536 (a) (2) of ESA required that each federal agency should consult with secretary of

interior to insure that any action…funded by an agency is not likely to jeopardize any endangered species in foreign country. When this was amended to solely apply to US and high Seas, ∆’s brought suit seeking declaratory judgment under the ESA citizen suit provision.

I: Did π’s have standing? R:

Depending on how you are affected, standing may be heightened: Directly Impacted:

o Meaning, if you are personally harmed by the agency decisiono If you are directly impacted by the agency decision, standing will not

be any more difficult

32

Peripheral Impact:o Bringing suit over something that affects an agency versus you (You

are not part of governments objective to regulate)o If you are bringing suit to show agency is not doing their job

“Standing is Substantially more difficult to show” Injury in Fact requires a Temporal Proximity

A proximity between the alleged adverse consequence of agency action and members’ imminent use of resources effect

“Some Day” Intentions not enougho Cannot just say I have used it, or I will use it again in the future

Here, members said they would go back to Africa at some point in future

o Need specified imminent harm to show injury in fact Lack of Redressability:

Scalia said, even if court ordered secretary of interior to apply old standard, it wouldn’t reach the agencies who were not funded by the secretary because he had no authority to bind them

Also, because foreign agencies only provide fraction of foreign funding for projects, ending their funding of a project which may kill endangered species could still kill it

Procedural Harm: If there is Procedural Harm, Redresability and Cause Mitigated:

Because Procedural Environmental statutes merely require agency to listen inputs of various parties, it would be impossible to show that their ultimate decision would be redressable by court forcing them to hear more opinions…wouldn’t change decision

To show a procedural harm, you must still show you had injury in facto “A separate Concrete Interest” other then public injury

Harm to the public, without injury in fact is not a “case or controversy” under article 3 and not by itself justiciable

Injury in Fact is a minimum constitutional requiremento Π must show their injury in fact from the procedural harmo Here Citizen Suit provision saying “all people” does not eliminate

injury in fact requirement Standing is a function of Separation of Powers

o “Case or Controversy” requirement, which has been interpreted as needing Injury in fact without this, judicial branch would go beyond constitutional limit of Article III power, usurping congress and executive power

If No Injury in Fact is a General harm, and for legislature:o General harms are for congress to address, not the courto Standing and injury in fact prong of standing keep a threshold

between courts power and congress’s power Article 3 Environmental standing after Lujan 2:

1. Injury in Fact Concrete and Particular

Geographic Proximity (Lujan 1): between resources allegedly injured by agency and areas used by the π or members

Actual or Imminent (Not Hypothetical) Temporal proximity (Lujan 2): between the alleged adverse consequences of

agency’s action and members’ imminent use of the resources adversely affect Procedural harm may be relied upon only if it impairs a “Separate Concrete

Interest” (meaning you have a particular injury separate from public harm) 2. Causation

33

Fairly traceable to ∆’s action If procedural Harm

o Mitigated Causation 3. Redressability:

Court’s action will redress the situation If procedural Harm

o Mitigated redressability

Post Lujan 2 Standing and Historical Overview: Historically: function of standing was to ensure litigants were truly adverse parties, likely to

present an effective case because of their concern with and investment in the result This investment ensures the truth will be found Circa 1970: Court specifically stated: “it is not just about separation of powers, but

instead related to case or controversy.” Modernly:

Court has done a 180。, stating that standing is understood through separation of powers

Post Lujan 2, it is difficult to see that standing is used to accomplish the Historical Goal of letting those parties with interest litigate

Standing is Function of Separation of Powers Now: Used to halt the expansion of Judicial power, allowing court to take hold of

some cases and defer to congress with others Evidenced by Scalia even argues that if Congress makes a public harm

recoverable, it takes away from Executive’s right to manage agencies, violating the “Full Faith and Credit” clause.

Circa 2000 Environmental Standing General:

With the following two cases, the Article 3 standing doctrine begins to be less strict on environmental litigants…

Friends of the Earth v. Laidlaw: F: South Carolina granted permitted based on §402 of CWA. It issued permit to Laidlaw to

discharge into river. ∆’s discharges exceeded mercury allowed by permit, and π brought citizen suit action alleging non-compliance seeking injunctive relief and civil penalties

I: Does π have standing? R:

Injury In Fact: Court applied the modern Article 3 Test, looking for concrete/particular and

actual/imminent with geographic and temporal proximity Look at Harm to the π not harm to Environment

o Fear of Harm/Risk of Harm is sufficiento Recreational and Aesthetic Harm sufficient

Π lived ½ miles from river alleged he had used the river previously and stopped using it because it looked and smelled polluted so he stopped using it out of fear

This satisfied Lujan 1 Geographic proximity and Lujan 2 temporal proximity according to Court

Redressability: ∆ argued that there was no standing to seek civil penalty because it was paid to

government—so not redressable ever The Deterrence of future conduct supports redressability

o Abdicating future conduct, preventing future breach does redress, as it reduces chance of illegal discharge in future

Π’s had standing Mootness:

34

A case may be moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not be reasonably expected to recur

o Heavy burden on moving party to demonstrate Here:

o The ∆ offending factory following suit began complying with statute, and eventually shut the plant down

o Not Moot they still had the permit to operate, so it was not absolutely clear that it was not reasonably expected to recur

o Still possibility Scalia Dissent:

No Standing because was not concrete, or particular was vague, contradictory, and unsubstantiated to meet the injury particularity requirement

Was not within geographic scope Redressability was too speculative Separation of Powers Argument:

Said that expanding standing beyond “traditional scope” exceeds the Court’s article 3 jurisdiction, therefore infringing on seperation of powers

Impact of Laidlaw: Lower courts immediately responded, lessening standing threshold… Expands Injury in Fact, and Redressability

Not being able to utilize recreational/aesthetic satisfaction for fear of harm is sufficiently concrete and particular under Laidlaw

Massachusetts v. EPA: F: State filed rule-making petition to EPA to regulate greenhouse gas under §202 of CAA. EPA

denied the rulemaking petition because it said 1) it didn’t have the authority to do so under the act and 2) it was unwise. Π sought review of EPA’s decision under CAA §307 (b), Citizen Suit provision which allowed review of EPA’s petition denial procedural review

R: Injury in Fact:

Massachusetts argued that their coast line was receding due to the greenhouse gas emissions, about 10-20 cm.

o Although was a public harm all people suffer, π showed a concrete harm, that was sufficient interest to bypass the bar of general harm

o Follows SCRAP idea of a general harm to all is not a bar to all if one has a concrete harm from it

Π as state gets “special solicitude” because it, as sovereign entity has given power to federal government who is in charge of EPA, so state gets special treatment

Procedural Harm: Because state is bring suit under “CAA citizen suit provision” which allowed

suit for procedural harm (the denial of petition)o Do not have to meet all normal standing requirements

Mitigated Causality and Redressability (Lujan 2) All that is needed for procedural standing is to show the

possibility that requested relief will prompt cause of injury to reconsider the decision…not alter it…

Causality: Just because EPA refusing to act only partially contributes to harm does not

mean no causeo Contributing to the harm, even though it is small cause show

causalityo

Redressability: EPA argued that many other countries contribute to greenhouse gas, so

judgment will not redress

35

Court held: Incremental steps, although not redressing whole problem are redressing it

o Only have to show harm will be reduced, not eliminated Robert’s Dissent:

No Injury in Fact: here is global injury, so it is not concrete and particular Not actual or imminent because won’t occur for 100 years

Causality as contribution to cause is oversimplifying a complex problem Redressability is purely conjecture Overall, says this is a return to SCRAP and lack of judicial restraint in what the court

can and cannot hear Argues Standing is form of Separation of Powers, versus historical view of

adversarial interests Modern Article 3 Standing:

General Idea: Standing is modernly, through Court’s jurisprudence a form of “case or controversy requirement”

Seems to have gone back to the idea of historical standing use as function of standing was to ensure litigants were truly adverse parties, likely to present an effective case because of their concern with and investment in the result

This investment ensures the truth will be found Argument Remains:

Whether Standing is used as a “separation of powers” limit on the Court’s reach into other branches’ powers, usurping power and therefore unconstitutionally extending jurisdiction or

Whether standing is a function of the “case or Controversy requirement”

Modern Test Article 3 Standing Test:

_______________________________________________________________________

1. Injury in Fact: Concrete and Particular and

Fear or Risk of harm ceasing use of recreational/aesthics will suffice (Laidlaw)

Allege concrete harm you have been dealt that is particular to you look at precedent above to see how particular needed

Harm to General Population does not bar you, if you have a concrete and particular harm (Lujan 2, SCRAP)

Actual or Imminent (Not hypothetical) Geographic proximity between resources alleged injured and area of land

used (Lujan 1) Temporal proximity between adverse consequences of agency action and

member’s imminent use of resources adversely effected (Lujan 2) Concrete, separate interest must be asserted if relying on procedural

requiremento Meaning, must show your particular concrete harm

2. Causation: A causal link that is fairly traceable between the ∆’s conduct and π’s injury in fact ∆ being a contributing factor, rather then whole cause is enough (Mass. v. EPA) If Procedural harm: only need to show mitigated causation

3. Redressability: Likelihood that relief requested will redress alleged injury Incremental Improvement to the harm is enough (Mass. v. EPA) Deterrence of Future Conduct of harm is enough (Laidlaw)

_____________________________________________________________________

36

o In Addition to meeting Article 3 standing requirements: 2 additional sets of standing that must be met: Must Meet:

1. Article 3 Is the floor, and Congress may not waive this

2. Statutory Standing Requirements 3. Prudential Standing Requirements

1. Statutory Standing Requirements: Created by Congress General:

The statute under which the π is bring suit may provide standing above, and beyond Article 3 Congress may waive statutory requirements May not waive Article 3 standing Floor

Zone of Interest Test: Under APA §702:

This test emerges from §702 APA: “person adversely affect….within meaning of relevant statute”

Court has interpreted this to mean: To meet statutory standing, π must show that he is within “zone of interest” Congress intended to protect with the statute that the ∆ allegedly violated

Bennet v. Spear Testo To determine what zone of interest is of substantive statute while

bringing suit under §10 APA, “evaluate by referencing the particular provision whose violation forms basis of complaint”

If non-APA, Organic Statute Suit Provision: Look to the statute’s provision to see if it requires its own “zone of interest” statement Or:

The organic statute may have its own specific standing requirements Bennet v. Spear:

F: Agency was involved in irrigation project, and notified FWS that there were 2 species of fish that might be adversely affected. FWS gave two alternatives, which Agency complied with. 2 districts which were to receive the water, and ranchers in those districts sued, arguing that there was not enough evidence to have to protect the fish. Π’s argued that FWS violated §7 ESA (violating mandate that FWS had to ensure that each agency wasn’t jeopardizing species” and brought suit under citizen suit provision.

I: Was suit to bar protection of species within “Zone of Interest” R:

1. Congress waived “Zone of Interest” under ESA (Organic Provision) While government argued ESA was designed to protect species, not allow

people to sue for overprotection… Scalia said Congress waived “Zone of Interest” because citizen suit

provision says “any person”o Any person means actions to protect environment and actions to

assert overprotection So, ESA had no additional statutory mandate other then article 3

2. They also brought Suit under §10 of APA ( Apply APA Zone of Interest) were people adversely affect…within meaning of statute (ESA)? Look to substantive statutory provisions allegedly violated

o Evaluate “Zone” by referencing particular provision whose violation forms basis of complaint

Here: o Because statute says “use best scientific and economic data,” that

means the purpose was to ensure ESA wasn’t applied without correct data, and to protect from “needless economic [spending] by overzealous officials unintelligently pursuing environmental objective”

37

o Zone of Interest of ESA included those wishing to sue to hurt environment too

2. Prudential Standing Requirements Court Created, but waiveable by Congress 2 Requirements:

1. Plaintiff must assert his own legal rights—not those of 3rd parties This seems to go back to the historical understanding of wanting those who are most

invested in the litigation Those who assert their own right will be most invested

Plaintiff may not assert a Generalized Grievance 1. Seems to Overlap with Article 3 “particularity requirement”

This prudential requirement (Which is supposed to be above and beyond Article 3) can be seen to coincide with Article 3 Injury in Fact as not being very different

You may need to argue Article 3 particularity and Prudential Standing “Generalized Grievance”

o Covington Case: To Show Injury in Fact, perhaps passing “Generalized

Grievance” argue that not only is harm particular to you, it is concrete (Show facts…allege under Laidlaw Fear/Risk)

2. If Understood in “Separation of Powers” idea of Standing Generalized Grievances are for Congress to legislate Problem of all is a political issue left to congress Not to Court See Lujan 1…and Dissent in Laidlaw and Mass v. EPA and above

o Partisan (Conservative) Justices seem to follow the idea that Standing is a separation of powers doctrine, used to not usurp other Branch powers.

o They limit the Court to “case or controversy” thus limiting its jurisdiction and Separating power from infringing on other branches, and want to exhibit judicial restraint

How to Argue Around: 1. Show your particularized injury 2. Narrow the range of π’s, so that it is not a “generalized grievance”

VII. Other Threshold Justiciability Issues (Other then Standing)o Generally:

Depends on delineation between Legal question and Factual Question Interpreting what congress meant when wrote statute Purely Legal Question What statute means May be mixed question of law and fact

o 1. Finality: If ∆ can show that the agency decision was not final Throw out case From §704 APA

Actions Reviewable: “Actions made reviewable by statute and final agency action…” Lujan 1:

This is where Scalia argued it was not reviewable because it was not final and was not an agency action

Abbot Laboratories: “Crystallization of pre-enforcement” decision may apply to finality tooo 2. Ripeness (More Justiciability based then based on APA, unlike “Finality” above):

Court should defer ruling on issue if it has been brought prematurely also deals with finality of decision

2 Issues: 1. Is the issue fit for judicial resolution?

If Issues are purely legal, may be more likely to review and resolve, if factual maybe not 2. Would the π suffer hardship if the court did refuse to hear case?

The more serious the injury π is waiting to redress, the more likely to hear case now rather then there being an issue of Ripeness

38

Nat’l Assn. of Home Builders v. US Army Corps of Engnr’s: Court held that judicial review of EPA’s defining of when CWA permit requirement

applied was ripe because issues were purely legal and industry was facing hardship that it was forced to apply for permit

Statement in Preamble of Regulation of Federal Register: C. and S.W. Serv. V. EPA : an EPA declaration in preamble to a final ruling qualifies as reviewable

regulation…is ripe Example of Not-Ripe:

Ohio Forestry Ass’n v. Sierra Club : Land use plan of Forrest Service to log 126,000 acres of Ohio National Forrest was not ripe for

review Not really “hardship” on π because the exact location of those acres being logged had

not been determined Review would hinder an agency action, but there wasn’t’ “hardship” More Factual question, then legal

“Crystallization” of Agency policy or position that is Pre-Enforcement If the agency has taken a final position on something, but has not enforced its position… Overall Pre-Enforcement Review may be ok if 1. Fully Crystallized and 2. Purely Legal Issues Abbot Laboratories v. Gardner :

If final agency position is “crystallized” decision Will be Ripe, because it is final If not crystallized Argue that it is not ripe

See: Gen. Motors Corp v. EPA:

Letter confirming hazardous waste regulations did apply to industrial process while discussing the possibility of enforcement actions

Not Ripe Independent Equipment Dealers Ass’n v. EPA:

An EPA letter that didn’t announce a new interpretation or change, imposing no obligations

Not Final agency action

o 3. Exhaustion of Administrative Remedies Allows the court to dismiss the claim on lack of jurisdiction…that π has not pursued all remedies available in

administrative process Affords the agency the first opportunity to perform the review function Effect:

Promotes Administrative Autonomy and Efficiency Promotes Agency performing its function within its Fact-Finding and Technical competence

EG: If there is an administrative process for appeal, and you sue prior to appealing Exhaustion If Under Organic Statute (Non-APA):

Court has discretion to allow the remedy If Under APA

Court has limited authority to use exhaustion Derived from §704 APA

“agency action is otherwise final…unless the agency otherwise requires by rule…for appeal to superior agency authority”

Court may not dismiss a claim for relief under the APA unless the organic statute involved specifically mandates exhaustion is allowed

Darby v. Cisneros So bring suit according to APA, suing under an organic statute, if that

Organic statute does not allow exhaustion as a remedy, it cannot be raised as a defense

When Court will not apply Exhaustion: 1. When agency exceeds delegated power 2. When administrative remedies are deemed inadequate

39

3. When it would be futile to pursue them or 4. When the question is purely a legal one

o 4. Primary Jurisdiction Arises when court has original jurisdiction of a claim requiring resolution of issue by agency

When Concurrently before agency and Court Court suspends judicial process Once Agency decides, can be brought back to court

The Court is less likely to invoke defense if purely legal issue If the issue is more technical determination, may be more likely to apply

o Overall These defenses are all issues of timing…when should the suit arrive in court?

Many times they overlap, being used in the same case Reflect:

Balance of 1. Court being concerned with making a decision that’s better made by agency with more technical knowledge of subject and expertise and 2. Not subjecting π to too much hardship (If legal issue, rather then technical, more likely to hear, prohibiting use of defense)

Problem 3-2 (Based on Mulberry Hills v. US, 772 F. Supp 1583 (D. Md. 1991)) 1. Finality:

This is not a final decision because, even though letter was issued, they could still issue a permit If Pre-enforcement of cease and desist they have “crystallized their position to decline permit”

then may be final If they decline permit Then it may be final, and this defense wouldn’t work

2. Exhaustion: If they sue under APA must check organic statute that it mandates “exhaustion”

CWA requires exhaustion, so BHD should challenge Corp’s determination in agency proceeding first

Exhaustion can be argued as a defense 3. Ripeness:

This seems to be a question of law and fact, so it is arguably for and not for judicial resolution If crystallized decision prior to enforcement, can argue Most likely not a good argument for not being ripe

4. Primary Jurisdiction: This is a technical and factual situation of what wetlands are…not legal

So, court should afford defense of primary jurisdiction and suspend judicial action VIII. Reviewability of Agency Action:

o We Know: 1. §702 Standing:

gives the “Right to Review” to “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action…”

2. §704 tells what is “Reviewable: “Agency action made reviewable by statute and final agency action” §551 (13) tells “Agency action” includes “Failure to Act”

4. §706(1) “Scope of Review” What Can the Court do? Allows federal courts to “compel agency action unlawfully withheld or unreasonably delayed”

Overall: Seems as though APA allows broad access to court for act or failure to act

o 1. §706 (2) (a) Agency Inaction: Heckler v. Chaney:

While the presumption is that agency action is reviewable There are exceptions

§701 (a) 2: If agency does not act, not reviewable if Statutorily prohibited or “Committed to agency discretion”

Norton v. South Utah Wilderness Alliance (SUWA): F: Bureau of Land Management was given authority my FLPMA to manage public lands. FLPMA

required BLM to manage land use. Wilderness Act of 1964 designated some land as wilderness. When

40

applied for to congress, in the interim, BLM was given duty by FLPMA to 1. “Not impair suitability for wilderness.” Respondent argued that because Off Road Vehicles were using land, destroying it, BLM failed to act Brought suit under §706 (1) a.

I: What limits does the APA place on judicial review of agency inaction? Rule

§706 (a) 1: “Court may compel agency action unlawfully withheld or unreasonably delayed” §706 (a) 1 can proceed only when π asserts agency

1. Failed to take a discrete action that B. Discrete means individualized, distinct action, specific

o Cannot be broad programmatic issue…or general mandate 2. It was legally required to take

A. Court can only compel agency to perform non-discretionary §706 (a) 1o If Discretionary, cannot compel §701 (a) 2

B. If legally required can compel agency to act o This may in turn compel a ministerial acto But cannot direct how it shall act o If there is a time frame on action, court can compel but cannot tell

how to act (This would mean it’s required)… Claim 1: BLM was required to “manage Wilderness area so as not to impair it…”

This is not Required Mandatory objective to achieve with great discretion in how to do so is not

legally required agency action (and no time frame) Not Discrete

This was only a general mandate to protect wilderness area Not discrete (individualized) General compliance without specific action

isn’t discrete Court cannot compel general orders would mean court is supervising rather

then agency Compelling non-discrete act is court interfering with agency discretion

Claim 2: BLM Failed to comply with land use plans Plan that agency created for itself is not requirement

Statute said “manage in accordance with land use plan”o This isn’t requirement:

Plan is statement of priority, but does not prescribe agency action

The plan could be set aside by agency…so is not required “Will do” plans, at some point in future are not “required” and cannot be compelled

They cannot be required because congress hasn’t appropriated funds for agency in future yet…so makes no sense to compel

Claim 3: Failure to Fulfill NEPA NEPA requires environmental impact statement Sometimes, “supplemental impact statement” is required

Only when “there is remaining Major federal agency action” left If agency is in continued action, with remaining action left Supplement Here court said that, the Plan is a proposed action

Not an action yet…so no need to supplement o 2. Judicial Review of Statutory Interpretation Chevron Test

Assuming a court will hear the case, how closely will the Court review it? What “Scope of Review”

Historically: During the 1960s, Court was extremely deferential to Agency interpretation and interpretation of their

own statute 1970s, Courts, during the environmental movement were more exacting and rigorous in their review

Modern: In 1980s, new deferential review was ushered in

41

While it would seem that Court would interpret statute, as that is what they do all day, they defer to agencies interpretation of their own organic statute

Chevron v. Nat’l Resource Defense Council: F: The EPA interpreted a “stationary source” as something causing an increase in emissions. In

this case, one was closed and one was opened. A Modification occurs when “a physical change…of stationary source…which causes increase in amount of air pollutant. But here, the 1 opened and 1 closed netted out—so EPA determined it was not a modified stationary source under Clean Air Act. It would seem, however, that expanding a smoke stack is modifying stationary source

I: Will Court Defer to EPA, or accept the NRDC’s interpretation of statute? Rule

Chevron Deference Test: 1. If Congress has directly spoken on the issue, and clear unambiguous intent

of congresso Effect:

Court must give Congress’s intent effect Agency’s construction is rejected…The End

o To Determine: Employ traditional tools of statutory construction to

ascertain congress intent Legislative History Wording A de novo review (Low or no deference)

2. If not clear intention, defer to Agencies reasonable interpretation… prevails

o If Congress has explicitly or implicitly left gap- delegated to agencyo Effect:

Defer to Agency’s reasonable interpretation It will stand The court does not jump in an interpret

o To Determine: The more technical, the more deferential… Look at ambiguity, silence, and lack of clear intent

Reasons why Deference: 1. Separation of Powers:

o Congress intentionally left a gap explicitly or implicitly to allow agency to interpret the scope of the statute

o Stepping in would negate Congress’s intention theno Sometimes, Congress does this explicitly because it is easier to pass a

broadly worded statuteo Avoids infringing on Executive Branch

2. Give Authority to Expertise:o Agency works with statute everyday, with those wordings, and has

the ability to balance all conflicting interests involvedo Technical expertise

3. Give it to People more responsible to Voters:o Better to defer to the executive branch The voters vote them in, and

that democratic effect does trickle down to agency appointmentso At least indirectly accountable to the executive, while Federal Judges

are appointed for life Threshold Question for Chevron Deference:

Does it even apply? Chevron “Step 0” Question United States v. Meade Corp:

Chevron Deference Test applies to Agency if it appears Congress gave agency authority to:

42

“Make rules carrying the force of law” Examples:

o Internal agency documents Not ‘force of law’o General Rule making power Is ‘force of law’

If so Apply Chevron Deference Test If Not

o Skidmore v. Swift & Co. Deference: Defer to agency actions that have the “power to persuade” Evaluate by looking at if the agency is consistent with what

its said in the past, relative expertness Largely Seen as less deferential then Chevron

Agency will Argue That 1. Chevron Test does apply

Avoiding Skidmore 2. The Case is a Chevron Step 2 Case

arguing that it is not clear what congress’s intention was on meaning Step 1 Cases are more searching and exacting for Congressional Intention

Is this True? Does it Really Matter What Step? Step 1 Cases EPA will lose about 60 % of the time

Court will find statute was clear, and EPA mis-interpreted it Step 2 Cases EPA will win about 94 % of time

Court is much much more deferential to Agency’s interpretation if Congress not clear Challenger has almost no chance

Example and Application: 1. When Agency issues its own internal manual about how to govern its own conduct

Not subject to Chevron Deference Does not carry force of law 2. Christensen v. Harris County

Interpretation contained in an opinion letter did not warrant Chevron Deference Skidmore

Modern Process: 1. Chevron Step 0 Question 2. Either Chevron or Skidmore Apply 3. Chevron Step 1 or Step 2

o 3. Judicial Review of Statutory Implementation: Citizens to preserve Overton Park v. Volpe:

Addresses 2 Questions: 1. An additional threshold Justiciability Question

Does the case belong in court, or is it committed to agency discretion and therefore prohibited from review according to §701 (a) (2)

2. How careful should court review an agency decision? Chevron applies to the Agency’s own interpretation Overton Park applies to Agency’s implementation of the statute

F: Park was 342 acres, Tennessee wanted to build highway through it. Secretary announced final approval and it would destroy 26 acres. DOT statute required secretary use “feasable and prudent alternatives” but he approved, giving no reason as to why. Π’s sue arguing that there were ‘feasable and prudent alternatives’ and that there were possible methods to reduce harm.

R: Threshold Justiciability of §701:

APA applies unless 1. Statute precludes judicial review

o Only applicable Congress must “show clear and convincing evidence of

legislative intent to restrict judicial review” Abbot Labs 2. “When agency action is committed to agency discretion by law

o Only Applicable

43

“When statute is drawn so broadly that there is no law to apply”

Only applies then, to the broadest statute However: Mere existence of agency discretion does not

shield it from review, and is not enough because that would negate §701 (a) 2 a: “arbitrary and capricious, an abuse of discretion

So its not merely agency discretion in the matter, but ‘no law to apply’

Here: There was law to apply the statute creates hierarchy of values…and says

“feasible alternatives”…showing there is law to apply here Does not have complete discretion over the matter, because statute says this So, it is reviewable

What Scope of Review should court Use, then? Separation of Powers:

1. If scrutinize agency decision too much, may infringe on Congress or Executive

o Infringe on Congress’s prerogative to choose which branch to allow agency reviewability

o Infringes on Agency’s authority 2. If scrutinizes too little, becoming rubber stamp

o Infringes on Congress’s intent to allow court to review, contrary to Congressional Intent

So, all of these are balanced in the scope of review…balancing the check on agency with infringing on separation of powers

§706 (2) F: De Novo: Set aside agency action if, unwarranted by facts Non-Deferential Π’s will always seek this, but rarely applied if ever 2 circumstances where applicable:

o 1. Where agency action is adjudicatory, and fact finding was inadequate

o 2. Issues not before an agency are raised later in proceeding to enforce non-adjudicatory action

§706 (2) E: “Substantial Evidence Test” Generally:

o A deferential standard of review by courts Statute:

o “unsupported by substantial evidence in a case subject to sections §556, 557 of APA

Only applicable when:o 1. Agency action is taken pursuant to rule making provision of APA

§553o 2. Or, when agency action is based on public adjudicatory hearing

§556, §557 Here:

o This was not formal rule-making as these statutes refer §706 (2) A:

“Reviewing Court shall hold unlawful and set aside agency act found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”

General: o A deferential standard that presumes validity, although seems non-

deferentialo Court may not substitute its judgment for the agency’s

Rule:

44

1. Did the agency base its decision on relevant statutory factors? 2. Did agency make any clear error in judgment? Modified by Motor Vehicle Ass’n v. State Farm:

o 1. Did agency rely on factors congress didn’t intend it to consider?o 2. Failed to consider an important aspect of the problem?

Fails to address factors statute made relevanto 3. Offered an explanation that ran counter to evidence before ito 4. If agency decision is so implausible that it could not be ascribed to

simply a ‘difference of view or product of expertise’ Essentially Ask:

Did the agency act rationally, providing reasons? Did it provide a cogent explanation for its action?

Here: Court looked at the record, and it was lacking so couldn’t tell if it was arbitrary

and capricious Remanded for factual finding, testimony, records Secretary couldn’t explain, found arbitrary and capricious Blocked

Overall Effect of Overton Park: Agencies have better records

Have cogent explanation, so agencies’ had better records While these leaves them open to arguments on inconsistencies in the records,

they still have very elaborate descriptions of why they did what they did

___________________________________________________________________________________________________________________

The National Environmental Policy Act [NEPA: 42 USC §4321-4370]

History and Basics: o January 1, 1970o The simplest of the statuteso The most importanto Goal and Purpose:

§4321: “to declare a national policy…encouraging productive and enjoyable harmony between man and

environment”… very broadly, and perhaps most broadly stated environmental goals on record But Court has only recognized 2 goals and purposes

1. “Think” To force government decision makers to incorporate and consider their environmental effects Consider the adverse impacts your decisions will have prior to implementing them Done through “Action Forcing” provision The Environmental Impact Statement

2. “Disclose” Disclose the internal deliberation process, considerations, so public can assess if agency acted

appropriatelyo The Council on Environmental Quality [CEQ]

NEPA created the CEQ Housed in the executive branch Primary overseer of NEPA

Issues regulations on how to comply with NEPAo How NEPA achieves Goals:

§4332/ NEPA §102: Specifies 10 mandates all governmental agencies must comply with 102 (c) Environmental Impact Statement

The most important

45

“Every agency must include in every recommendation…for legislation, or any other major federal action significantly affecting the human environment a detailed statement on ‘environmental impact….’

However, NEPA never specifies if it is judicially reviewable or enforceable o NEPA is judicially reviewable Calvert Cliffs Decision:

F: Court considered a challenge to the Atomic Energy Commission that did not prodide and EIS R:

1. NEPA compels agencies, and is judicially enforceable 2. NEPA 102 (2) C must be complied with ‘to the fullest extent possible’

difficult, delay or cost are unacceptable excuses 3. Complying with NEPA is not APA §701 (a) 2 ‘agency discretion’ 4. Court may order agency to comply

Exemptions: o The First Questiono Generally:

While NEPA creates a mandate for Environmental Impact statement, there are certain things that don’t applyo 1. Categorical Exclusion or CATX:

CFR §1508.4: “category of actions which do not individually or cumulatively have a significant effect on the human environment no environmental assessment or impact statement is required”

Created by CEQ Agency must:

1. Properly create the categorical exclusion in question 2. Does the action in question fit within the scope of the CATX? 3. Even if it does, are there extraordinary circumstances that preclude reliance on CATX?

What Counts? Replacing a Road Replacing a Bridge Routine administrative action

o 2. Judicial Interpretation of §102 Exemptions: §102: “Congress authorizes, to the fullest extent possible…” Effect:

Courts have interpreted this section of NEPA, to effect it as subordinate to an organic statute in some circumstances

1. When unavoidable, direct conflict between NEPA and organic statute Compliance is impossible as both are mutually exclusive Flint Ridge:

F: Full disclosure act required statement on developments effect in 30 days, while NEPA requires an Environmental Impact Statement

R: Court held, it was impossible to create an EIS in 30 days, so there was a

‘fundamental conflict of statutory duty’ 2. When NEPA and organic statute are ‘functional equivalents’ and would be duplicative

Catron County Bd. V. US FWS: F: Secretary of Interior proposed listing 2 species as endangered, creating critical

habitat for them. 74 miles of river—secretary said he was not required to comply with NEPA, because the ESA was exempt. He finalized regulations and County filed suit

I: Whether US FWS was required to create EIS? R:

While the ESA has similar NEPA provisions, it is closely parallel Partial overlap, or fulfillment is not ‘functional equivalent’

o NEPA has things ESA does not Look at alternatives

o Responsibilities of the two are different

46

NEPA looks at consequences while ESA deals with economic and other impacts…they are not functionally equivalent to make them duplicative

Designating a critical habitat may affect local economy, roads, ranches, flood control…compliance with NEPA considers these, while ESA does not

o 3. Other Exemptions: 1. Emergency (§1506.11)

If there is an emergency, and significant environmental impact from necessary action to occur, and it really isn’t possible to complete an EIS

CEQ will negotiate with agency to resolve Rare

2. National Security: If an agency action will affect the environment, but is in the name of national security

Courts often wont get involved at all Will simply accept the argument and will not scrutinize at all

Weinberger v. Catholic Action: F: Navy claimed exempt from EIS for new storage facility of weapons. Π argued it would store

nuclear weapons so it had to provide EIS. R: Supreme Court allowed exemption, holding that making public through an EIS, classified

national security matters is exempt Winter v. NRDC:

F: Nav was engaging in sonar training in water, which π argued would have damaging effect on whales

R: National security trumped, and no injunction had to be ordered Court did not even get into argument of restricted space They do not want to be responsible, or get involved for effect national security

3. Enforcement Decisions: An agency refusing to enforce action against private party

Court will not use NEPA to force Agency to explain how decision will affect environment 4. Inaction:

Failure to Act does not qualify for NEPA if: 1. No statute requires agency to act

If agency has discretion in choosing to act, no EIS will need to be prepared under NEPA because they failed to act

Failure to Act does qualify for NEPA if: 1. If statutory duty to act and not acting violated this duty

Defenders of Wildlife v. Andrus: F: Alaska was having wolf hunt on Federal land—π requested Dep’t of Interior to intervene, and

they refused to act Held:

NEPA does not apply when no statutory duty to act Ramsey v. Kantor , 96 F. 3d 434 (9th) Reason:

CEQ stated in §1508.18: states “Action includes failure to act…that is reviewable under APA” So, we go back to SUWA case and the rule under which an agency action can be

compelled under §706 (a) 1 Only actions that are legally required can be…

So agency inaction under NEPA simply a function of if required or not to be reviewable 5. Non-Discretionary Act:

NEPA does not apply when an agency action is required, and non-discretionary Rationale:

Because it will occur either way, the EIS will make no difference But: If EIS is prepared, and public outcry, wouldn’t that reach legislature, who wrote

the laws forcing agency to act…possibly changing them? DOT v. Public Citizen:

47

F: President ended moratorium on Mexican cars in America. DOT didn’t prepare EIS, and were sued.

R: This was non-discretionary act, as DOT simply had to issue a permit if cars complied with requirements…they had no discretion on cars being there or not

5. Congressional Exemptions: Congress frequently passes legislation that specifically exempts certain agency projects from NEPA

EG: Alaskan Pipline Congress, sometimes, makes NEPA specifically applicable to an Agency or Project May occur in new appropriations

Appropriation Rider, exempting some Agency from NEPA Is an Environmental Impact Statement Required:

o The Second Questiono Process:

Assuming there are no exemptions, 3 elements must be met to mandate an EIS, that emerge from NEPA §4332 (2) (c):

“Major Federal action significantly affecting the quality of the human environment…” If 1 or more of these 3 elements are missing, no Environmental Impact Statement is required

Prepare an Environmental Assessment [§1508.9]: “A concise public document…that serves to briefly provide sufficient evidence and analysis for

determining whether to prepare an environmental impact statement or Finding of No Significant Impact A Mini-ESI Requirements:

1. Analyze evidence to determine if significant 2. Brief discussion of need for proposal 3. Alternatives (same as in EIS) 4. Environmental impacts of proposed action and alternatives 5.

If EA decides an EIS is not needed because lack of element FONSI: Finding of No Significant Impact

§1508.13:o A statement which briefly presents reasons why no significant impact

will occur, and no EIS is preparedo Includes the Environmental Assessment

Effect: o Bypasses entire EIS processo FONSI is much quicker

If EA decides an EIS is needed because all elements are evident Prepare an EIS

o Element 1: Federal

Generally: NEPA only applies to Federal Government Agencies, or Federal action

§1508 (a): Action that potentially subject to federal control and responsibility

§1508.18 (b): 1. The adoption of official polices, such as rules, regulations, and interpretations pursuant to APA 2. The adoption of treaties and international conventions or agreements 3. Adoption of formal plans…which guide or prescribe alternative uses of federal resources, which future

agency actions will be based 4. The adoption of ‘programs, such as a group of concerted actions to implement a specific policy or plan

or allocating agency resources to implement a statutory program or executive directive 5. Approval of specific projects such as “permit, or other regulatory decision as well as federal and

federally assisted activities” Agency approvals of private projects

Projects funded by Federal Assistance:

48

State and local government may fall under NEPA “federal” action if funded by federal assistance, or federal control or supervision

Small Handle Problem: In these cases, there may be a link between the private/state project and the Federal government, but my

be so insignificant, or not of significant magnitude to bring it to be ‘federal’ Split of Authority “The But For Test” Contra Colorado River Tribe v. Marsh:

F: 156 acres of development project, but only federal permit required was for a sole river bank stabilizer

I: Is this significantly Federal, to require NEPA? R:

Court utilized the “But For Test” stating, But for the permit being granted, the project would not have occurred

It was sufficiently Federal to Require NEPA to apply, because but for the federal permit, no adverse effects would occur

Winnebago Tribe v. Ray: F: Power company project was 67 miles long, laying transmission cable. A permit was

required for a 1.25 mile section that crossed the Missouri River. I: Was this sufficiently Federal to Require NEPA? R:

Court rejected the but for test, saying that NEPA did not apply to the entire transmission line

That portion of the line had no adverse effects To Solve the ‘Small Handle’ problem of if it is sufficiently Federal, Test has been proposed:

SW Williamson County v. Slater: “The Federal agency must be able to influence the outcome of a project

through sufficient control and responsibility” o Not Seen as Helpful:

Could argue they cannot control where project done Could argue that, but for the permit, no project could occur

o Element 2: Action: Generally:

Typically an obvious question §1508.18:

Include new and continuing activities, projects, programs, new or revised agency rules, regulations, plans, policies

EG: Issuing a regulation Building something

Remember: Agency inaction is no ‘action’ if not required by statute Inaction is an action and judicially enforceable only if it was statutorily required to act Inaction does not qualify for NEPA if it is not statutorily required to act

See Infra Exemptions See Kleppe MUST BE PROPOSAL! 40 CFR §1508.23

o Element 3: Significant: Generally:

The Federal action must ‘significantly’ affect the quality of the human environment While §4332 (2) c, states “major” the CEQ has specified it reinforces, but does not have meaning

independent of significantly -§1508.18 This is the most contested issue, and the threshold question for if an environmental impact statement is

needed, or if a Finding of no Significance is issued Framework:

See EP Info. Center v. USFS For example on application of factors CEQ in §1508.27 specifies factors that must be evaluated to determine ‘significance’

49

Context Factors: Looks at the Scope of the Action The significance must be analyzed in context of the action

A smaller action evaluated in smaller locality If setting is larger, may need to consider significance to whole world Short and long term effects are relevant in context

Intensity Factors: The severity of the impact, should evaluate:

1. Beneficial and Adverse effects 2. Degree to which proposed action affects public health & safety 3. Unique characteristics to georgraphy, proximity to historic, cultural

resources…park lands 4. Degree to which effects the quality of the human environment…

o If there is a physical impact to environment, consider the economic and social impact

Deals with urban environment, noise, traffic, etc… Must be causally related to physical impact

o Does not include ‘psychological harm’ Metropolitan Edison v. People against Nuclear Energy: the

court rejected the use od psychological impact as significant, thus needing and EIS

Fear of risk, did not qualify as effect on human environment, because the connection from physical impact to the impact on people psychological harm was too tenuous and not causally related enough

5. Degree to which effects on human environment will be highly uncertaino Uncertainty is significant, because we want to force agencies to think

of potential consequenceso If it is uncertain, the potential is that it is significant, and forcing them

to consider it allows reduction of uncertainty and potential significant impact

o Nat’l Parks v. Babbitt: Agency was uncertain about environmental impact of

increase in ships in bay. Court held that an EIS is mandated whenever uncertainty may be resolved by further collection of data

Uncertainty is a reason to prepare an EIS, not avoid it 6. Degree to which action may adversely affect Endangered or threatened

species or habitat o EP Info Center v. USFS:

Look to the effect on the species, not individual members of the species

If the species deemed unaffected, even though 1 or 2 may be, this seems to suffice as non-significant

7. Mitigation measureso During an EA, agencies will include the mitigation measures of their

action This may reduce a significant effect, into simply an effect

o CEQ has allowed but: Only if mitigation techniques are legally enforceable Some Courts: Have accepted mitigated findings, even though they are not,

under NEPA, enforceable Other Courts:

50

Have invalidated decision to FONSI, because mitigated FONSI mitigation efforts were simply too general

o Cannot merely list…must be specificity Standard of Review:

§706 (2) a: Arbitrary and Capricious Review Courts may utilize this standard if factual question of ‘if significant’ and findings displayed Marsh v. Oregon nat. resources: established that Arbitrary and Capricious was the correct

standard of review, because it was factual question, searching, but narrowly applied While deferential to agency, experts and technicalities, still need to review the

administrative record under Overton Park…not simply a rubber stamp Evaluate what the agency has done to assess the significance of effect…

If more of Question of Law: Some courts evaluate under ‘reasonableness test’ Goos v. ICC:

Court held that reasonableness standard of judicial review applied to determine whether the elements of NEPA apply

The Environmental Impact Statement: o Purpose (§1502.1):

The Purpose of an EIS is to serve as an action forcing device…It shall provide full and fair discussion of significant environmental impacts, and shall inform decisionmakers and the public …

o Generally: Assuming that no exemptions apply, an Environmental Assessment has determined it is federal, action and

significantly effects environment When Environmental Impact Statement is Needed :

1. Provide Notice of intent 2. Scope of the Process 3. Draft the EIS 4. Agency and Public review and comment 5. Final EIS 6. Record Decision

Question becomes Is the environmental assessment adequate?o Required Parts of EIS:

§1502.13: Purpose and Need Statement §4332 (2) C:

1. The environmental impact of the proposed action Adequacy of description of this is the most often challenged

2. Any adverse environmental effects which cannot be avoided should the proposal be implemented 3. Alternatives to proposed action

Agency’s failure to address potential alternatives is often challenged 4. Relationship between local short term uses of man’s environment and long term 5. Any irreversible and irretrievable commitments of resources involved if action implemented

o Adequacy of The EIS: Description of environmental impacts and Alternatives: Adequacy is a question that addresses the adequacy of the scope of the alternatives discussion and adequacy of the

scope of the environmental effects discussion 1. The Overall Scope of an EIS that needs to be discussed §1508.25:

Scope of an EIS consists of the range of actions, alternatives, and impacts to be considered Scope of Effects of Proposed Action (1508.25 (a) and (c))

1. Look at the action Connected, closely related which should be discussed in same impact

statement (Segmentation issue)o See Florida Keys Case, infra

2. Look at cumulative actions —which when viewed with other proposed actions have cumulatively significant impacts, and should be discussed together

51

§1508.7: Cumulative impact results from the incremental impact of the action added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes them

o Can result from individually minor, but collectively significant actions over period of time

See Grand Canyon Case, infra 3. Look at Similar Actions:

when viewed with other reasonably foreseeable agency actions, have similarities that provide basis for evaluating them together

3. Impacts: §1508.8:

o Direct Effect: caused by action, occur at same time and placeo Indirect Effects: caused by the action, later in time or removed in

distance, population density, growth rate, ecosystemo “effects and impacts” are synonymous.

Look at 1508.27: These intensity factors need to be discussed in the ‘effects of an EIS’ See supra discussion within the EA portion Significant environmental effects shall be discussed

Must Discuss Mitigation measures See Robertson v. Methow Valley Case, infra

Scope of Alternatives that must be discussed: No Action Alternative Reasonable Courses of action Mitigation measures

2. Issues arising with Element #1 Description of Effects: Generally:

If an agency does not want to prepare an EIS, or minimize how ‘significant’ something is: 1. May break down a large project into many smaller projects so that little projects are

not significant or In an Environmental Assessment

2. Show that, even if smaller projects are significant, each little piece seems not that significant

Each of these versions thwarts NEPA With these methods, objectors argue that it is an inadequate description or evaluation of the

environmental impact required in EIS requirement and wrongly limits scope 1, §4332 (c) 2; CFR 1508.25

1. Segmentation Approach: Florida Keys v. US Army Corps of Engineers:

F: Safety improvements to a road were being made, in addition to fixing a bridge. Π’s argued that these two projects were improperly segmented to avoid showing that project is extremely significant. Wanted to minimize the effects of an EIS

R: Does the project have independent Utility?

o “Will the project serve a significant purpose, even if the second related project is not built?”

If not may be improperly segmented, requiring 1 cumulative impact statement

Does project commit decision makers to future action?o If project stands on its own, may consider the effects of it individuallyo If commits to a future action, strong argument that joint evaluation

needed EIS only applies to proposed actions, not hypothetical / theoretical

possibilities

52

o Pre-proposalProposal Action Here:

o Bridge was separate, distinct and had independent utility from safety of road. There was no commitment to future action. Could be segmented

Segmentation: Typically occurs with Highways And, typically it is approved

2. Regional / Program Impact Statement: Generally:

If an agency is performing a large program, which has a significant environmental impact, Agency may try to treat the large program as individual projects.

Either accomplisheso # 1: Avoid an EIS all together

by covering only additional impacts not covered in EIS of program, making the FONSI

o #2: Make a site specific EIS, so scope is much narrower and seems less significant

Kleppe v. Sierra Club: F: π’s sought a comprehensive EIS of a region of Northern Great Plains. The Dep’t of

Coal Leases did a study, and already issued a Nationwide Program EIS on Coal and a study on the Region. However, π’s wanted an EIS for the program within the Region.

PH: Lower court overturned, saying that because the Dep’t had contemplated the program, it had to make EIS for it

R: 1. §4332 (2) C says “EIS required when agency makes proposal for

federal action”o Does not need to make an EIS when contemplated, or hypothetical

actionso Here, no proposal was made for coal mining in the Great Plains so an

EIS was not required general background of location…for subsequent projects

potentially Judicial creation of 4 part test is illegitimate

2. When is a Program/Regional EIS required?o 1 comprehensive statement should be made when several proposals

that have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency…Their environmental consequences must be considered together

3. Suit brought under “arbitrary and capricious review”o Technical nature of determining if proposals are interrelated, or

synergistic is also highly expertise dependent Defer to agencies Mere study in one region does not require 1 EIS It is a prelude to, and background to further action

o Therefore, deference to agency on if should be 1 or more EIS 3. Effect of Kleppe:

o Agency may not need to perform an EIS until agency formally announces proposal

As long as they don’t say it, No EIS required Deference to agency

o CEQ did come out with regulation 1508.23, which creates test of when proposal occurs

Under this test, Kleppe would have bee decided opposite

53

But, must consider whether Kleppe controlling or CEQ has power to amend law to reverse court decision

So far, no case has addressed if agency has this power, like Congress’s power to do so

Example of when Program EIS Required: NRDC v. Hodel:

Plan for construction of more thermal power plants. The program contained specific plans for regional development, and there was 1 plan. So, specific projects within that program are interrelated according to an integrated plan

Tiering: The opposite of the above, agency trying to get out of making 1…here agency wants

only 1 so it does not have to re-do §1508.28:

“The coverage of general matters in a broad EIS (Such as national program or policy statement) with subsequent narrower statement (Regional/Site Specific program) incorporating by reference the general EIS. It is appropriate when:

o 1. Statement is from program, plan or policy EIS of lesser scope or site-specific statement

o 2. From an EIS on specific action at early stage to supplement or subsequent statement or analysis at later stage

Sometimes, if a program impact statement is created, it eliminates the need for site-specific EIS within the program

Decision is fact specific, depending on the courts evaluation of if sufficient detail of site-specific impacts were covered in the more broad Program EIS

2 Issues: o 1. The Site specific inquiry is very specific, while Program EIS was

too broado 2. New subsequent environmental conditions have changed

Courts will not allow tiering to avoid site specific effects or if new environmental information has come to light, that is relevant to new project, since the broad program EIS was created

Cumulative Impacts: General:

§1508.25 requires discussion of the cumulative impacts 1508.7:

o Cumulative impact is the impact on the environment resulting from incremental impact of action added to other past, present, and reasonably foreseeable future actions…regardless of what agency takes them

2 Effects: 1. Agency may fail to consider adequately, the cumulative effects, so that the

description of them is inadequate 2. Agency may fail to consider cumulative impacts such that it found FONSI,

so that its not significant Grand Canyon Trust v. FAA:

F: FAA worked with local airport to determine if constructing a new one made sense. It examined 3 alternative sites and no action alternative. In creating their EA ( remember, cumulative impact is within EA and EIS) they concluded FONSI on Zion National Park. Π argues that FAA only considered the incremental increase in impact of new airport over the old one, rather then ‘addition of reasonably foreseeable future impact’ from the new airport.

54

I: Was the FAA arbitrary and capricious, in failing to consider the cumulative noise impact on the park, rather then additional noise impact from old airport to new one?

R: 1. §1508.7 says that you must consider the incremental impact added to..

o Here—they did consider incremental impact from new proposal compared to old one

o May Not Isolate a proposed action in a vacuum…statute doesn’t allow

The old airport and new airport would have the same amount of noise

o But you must add to that consideration, the future effects…additional flights from a new airport

Here there were many more flights added in future Future effect of each flight would be up to 23 times louder in

park… FAA did not consider this…only considered existing noise

impactso For baseline past and present actions…Must consider the current

cumulative impacts…of airport and o Must also consider other present proposed actions

Of noise from all other sources effecting this park Then, compare this to the new noise from the new airport

Once have cumulative impact now, in light of all other effects on park, then you can compare cumulative impact of new project’s effects on park

Coal. On Sensible Transport v. Dole: p. 309o Consider effects of other projects in baselineo What if another agency considering that project?

Could make an argument that statute says ‘regardless of other agency…” 1507.8

Issues with Cumulative Impact Question: Are future plans ‘sufficiently concrete’ to be considered within cumulative impact?

See Florida Keys: Future cumulative impacts of non-proposal was ‘pure speculation and not required.’

Proposal may occur, but future plans may not be concrete… What is Reasonably Foreseeable?

Agencies will argue, it is not a proposal under Kleppe Or, future cumulative impacts are not ‘concrete’ enough

Mitigation: NEPA requires discussion of mitigation measures

Inherent in §4332 (2) C ii Inherent in idea that you discuss what cannot be avoided, is that you discuss

what can be avoided Mitigation Robertson Clearly in:

1508.25(b)o Mitigation measures Scope of discussion

1502.14(f)o Mitigation measures discussed in alternatives section

1502.16 (h)o means to mitigate adverse environmental impacts

1505.2 (c)o Requires EIS to state that all practicable means to avoid or minimize

Environmental harm be adopted, and if not, explain why

Robertson v. Methow Valley Citizens Council:

55

F: USFS granted permit to create a ski resort in a pristine meadow. EIS was prepared, and had 5 alternatives. Some of the mitigation measures it proposed did not exist yet, and others stated that unless taken, a significant impact would occur. It discussed direct and indirect mitigation measures

PH: π’s appealed the granting of permit. 9th Circuit said that the agency had an affirmative, substantive duty to develop the mitigation measures, because the EIS had found a significant impact would occur unless they were created

R: NEPA is only procedural; it is not substantive

o It only requires that an agency discuss the requirements, not that they have a duty to enact them

o Once identified, and discussed, NEPA is complied with Only prohibits uninformed not unwise action

o Mitigation is inherent in 4332 2 (c) iio But, while NEPA does mandate discussion it does not mandate that

agency actually take that action To Argue Mitigation:

Post Metho Valley, Mitigation must merely be discussed General Courts uphold a discussion as adequate…but fact specific inquiry To argue it was inadequate:

1. Vague 2. Non-descriptive Cuddy Mtn. V. USFS (9 th ):

o USFS admitted timber sale would negatively effect an endangered species, but proposed only a general description of the mitigation measures

o “Broad generalizations and vague references to mitigate….does not satisfy ‘arbitrary and capricious’ review under NEPA”

Under Metho Valley: Courts may uphold mitigation measures discussed that may not be successful:

o Laguna Greenbelt v. US DOT (9th)(p.319).o Requirement 2: Alternatives:

Note: Alternatives applies to an Environmental Assessment also §1508.9 Strykers Bay P.291: (Court can only force consideration of alternatives)

Defined: CEQ §1502.14:

The Heart of the environmental impact statement Should provide environmental impacts of the proposal, and the alternatives in

comparative form, sharply defining the issues providing a clear basis for choice… 2 Types:

Primary: An action that is a whole substitute for agency’s proposed action

Vermont Yankee Example of rejection of primary alternative Secondary:

Retain the proposed action, but secondary alternative modifies it Makes changes that mitigate harmful environmental impacts Courts are more likely to accept that agency failed to consider secondary alternative

Requirements: 1. Environmental impacts of alternatives 2. Consideration of a no action alternative

The EIS/EA must consider ‘no action,’ remaining at status quo Helps create a baseline of where we are now Determines what effects avoided by staying or going forward with new project Overall, §1502.14 (2) / §1508.25 (b) requires it be considered as an alternative

56

3. In an EIS, 1508.25 (b), mitigation measures of alternatives 4. CEQ regulation §1502. 13 Purpose and Need Statement:

Related to alternatives, an EIS requires a statement of purpose and need of action “Briefly specify the underlying purpose and need to which agency is responding in

proposing the alternatives including proposed action Effect:

Narrows the range of alternatives of proposed project to what the purpose and needs are EG: if agency proposes to widen a bridge, and that is the purpose, don’t need

to consider alternatives that have no effect on congestion Possible Manipulation:

An agency could narrow a statement so much that few, if any, alternatives exist Shrink purpose and need effectively there may be 0 alternatives

Citizens against Burlington v. Busey: F: π’s argued that an alternative should have been considering the expansion

of a nearby airport. Not the one proposed. Same purpose, with less environmental cost

R: o Purpose and need statement only stated that particular airports needs,

so other airports didn’t need to be consideredo Courts deferred to agency

How many Alternatives dependent on: “Rule of Reason, as to how many alternatives”

Vermont Yankee: Don’t need to consider everything possible

Did interested Parties suggest alternatives in Comment Portion? Vermont Yankee

Purpose and Impact Statement Vermont Yankee Nuclear Power Corp. v. Nat’l Resource Defense Council:

F: π filed for 2 permits for nuclear reactors. 2 groups opposed application. Hearings ensued, draft EIS issued and 2 groups disagreed in comment. CEQ revised alternatives in 1972 to consider energy conservation, 1 year after final EIS. Groups filed suit, saying that EIS didn’t consider the energy conservation alternative

I: Whether agency must consider all alternatives, or a specified number of them? R:

1. NEPA requires consideration of alternatives, but does not require it to consider everything possible:

Don’t have time or resources to ferret out unknown alternatives Alternatives evolve over time:

Range of alternatives expands or contracts based on information acquired, understood, or known

Here: Energy conservation was brand new No information was known on the subject Not even CEQ had it at the time

The burden is on the intervener to let the agency know of an alternative Must participate meaningfully to alert agency of an unknown alternative Cannot spring a new one on an agency in court

2. The judiciaries role in determination of alternatives is limited: Court should not substitute its judgment for that of the agency’s Kleppe

Note: Courts generally defer to an agency’s decision on the range of alternatives considered if it

appears sufficiently comprehensive and there is no attempt to eliminate alternatives that could be viable

But: California v. Block:

57

o Court held that alternatives considered were inadequate…should have considered that artificial water storage was alternative to using pond’s water…which would be environmentally devastating

Statutory Modification to Alternatives Requirement: Congress has responded by modifying this requirement as it applies to transportation projects… Gives agencies the ability to determine what alternatives are needed and should be considered

o Is NEPA Procedural or Substantive Robertson:

NEPA has no substantive component It is solely a procedural statute EG: Agency identifies a proposal as severly damaging and an alternative as no impact…If it

chooses the severerly damaging option NEPA has been satisfied…merely requires procedure of discussing its requirements

Courts cannot prescribe a remedy under NEPA if agency merely chooses unwisely Only if chooses uninformed, from not following procedures

What Possible Causes of Action: 1. Argue an EA/EIS is inadequate

Procedural Argument: A. EIS was inadequate B. You prepared an EA, when should have prepared EIS

Remand C. You did not include enough information to reach the conclusion you reached (Court

may remand to enforce 2 overarching goals of NEPA): Lack of Information to make informed “Think” decision Lack of Information to make available to public

D. You had a Federal, Action, ‘proposal’ and therefore must have a NEPA—not covered by exemption

2. Argue the decision is arbitrary and capricious If adequate, wont find Arbitrary and capricious under NEPA, but: Could make an argument that, while NEPA has been met, the Agency decision is still arbitrary

and capricious under the organic agency statute Overton Park and State Farm

If Factors not considered, that were required under Organic Statute, may be able to make Arbitrary and Capricious Argument

o But, many organic statutes don’t have factors Will be difficult then

Remedies: 1. Remand for compliance 2. Injunction of project, pending NEPA compliance

Test: Balancing of Equities:

Compare harms of issuing an injunction to failure to issue in addition to probable success on merits

Mootness: If one not issued, mootness will become issue By the time agency finishes, NEPA will be irrelevant because case is moot

If Injunction granted Become Permanent? Winter v. NRDC & Monsanto v. Geerstein Seed

Make it much more difficult to gain a permanent injunctiono Test:

Must show that π’s would suffer irreparable harm that outweighs the harm that would result from failing to issue the injunction

Success of Agencies: Agencies fare very well Most cases do not get to injunction question

58

Makes the most sense for the agency to simply comply with NEPA, create an EIS and then make whatever decision they want

If they realized this, they would do so USFS repeat offender, has not gotten the point

Overall: NEPA is common suit The mere threat of a potential injunction is enough to force agencies to comply, because they do not want

their plans derailed

___________________________________________________________________________________________________________________

The Endangered Species Act [ESA]: o Case Cross-Reference:

Gibbs; Catron County; Lujan II; TVA v. Hill; Cape Hatteras; Babbitt v. Sweet Home; Defenders of Wildlife v. Andrus

o Policy: Species are extincting at highest rate in 65 million years do to unlawful taking of them, degradation of habitat due

to development, timbering, mining, damming, pollution, etc… Reasons:

Utilitarian: 1. Species are useful to us

The benefit us in prescription drugs (25% come from plant), crops, etc… 2. Invaluable

There are inherent hidden values that we simply don’t know about These uses, if lost, will be lose to humanity of potentially unquantifiable amount

3.The healthiest ecosystems are richest in biodiversity 4. “Canary in Coal Mine”

Death of species may alert us to issues, as a species may be more susceptible then us to an adverse effect

Their extinction shows something is extremely wrong EG:

o Coral death in water alerted scientists, which identified a harmful bacteria to humans

Ethical: We have duty to future generations to conserve these resources Arrogant to kill

We have just as much a right to continue on as they do Leopold Land Ethic and Ecological Conscience

Esthetic: Beauty Valuable:

Study has shown Nature is worth $5T a year Deforestation costs 4.5T/year Wetlands contribute $3.5T Millions travel to see nature

Beneficial to our economics Congress was cognizant of all of these reasons and decided to create the ESA

Criticisms: Congress voted for different Picture:

Thought of Big Animals: Cranes, Eagles, Grizzly Bears, Big Cats

Did not think of: Flies, Owls, and fishes

Protecting smaller ‘insignificant’ animals constrains land Environmental Policy has improperly constrained economic management

Species protected are not as important

59

The most hated statuteo Our Focus:

§4 [1533] Determination of Endangered Species and Threatened Species Listing Designation of Critical Habitat

§9 [1538] Prohibited Acts Prohibits taking, and applies to Federal Government and Individuals

§7 [1536] Interagency Cooperation Obligates agencies to comply Analogous to NEPA §4332 2 (c)

Both only apply to Fedeeral Agency and not Private Sector Difference:

ESA has substantive component Not entirely procedural, like NEPAo Generally:

1973 Administered By:

Fish and Wildlife Service Department of Interior Marine Fisheries Service

§2 [1531] Purpose: “To provide a means whereby ecosystems upon which endangered species and threatened species depend

may be conserved, to provide for a program to conserve them and to take steps to achieve this”

§3 [1532] Definitions: Conserve:

“Mean to use all methods, procedures…to bring any listed species to the point where measures provided pursuant to this chapter are no longer necessary”

Endangered Species: Any species in danger of extinction throughout all or a significant portion of its range other then

certain bugs…o An Overview of the Act:

Tennessee Valley Authority v. Hill: F: TVA was constructing a dam. During the construction, it was discovered that a 3 inch fish, the snail

darter, was found in waters—and would be killed if the dam was built. The secretary listed the fish as an ES, and fish would be adversely affected. However, appropriations continued for dam. Citizens filed suit

I: Does result violate ESA – What is the appropriate Remedy? R:

1. Result would violate § 7 (a) 2 This requires that federal agencies insure their actions not jeopardize the existence of a

species or result in destroy/adversely modify its critical habitat Court held This language is clear

o “Admits of no exceptions” Here Building would jeopardize species TVA Argues:

1. Grandfathered out, because dam construction began prior to ESA birtho No: The Dam is not finished, and therefore must comply with the

ESA’s clear mandate 2. Exempt because congress continued to fund money

o “Implicit repeal by Congress is disfavored” If merely funding a project could repeal substantive

legislation, almost every appropriations measure would be questioned about repealing some substantive legislation

2. Congressional Intentions are Clear that Endangered Species get Highest Priority Language, structure show Legislative History shows desire to devote whatever needed to accomplish this

60

Purpose Statement in 1531 is broad No Ambiguity—“Conserve means to bring to where ESA not needed” §7 specifically prohibits Federal Agency Action that jeopardizes

It is clear, that Congress intended to end these actions at all costs Therefore, mid project, whenever…Congress foresaw the §7 would

sometimes require agencies to alter/halt ongoing projects because of priority granted to Endangered Species

Final version of Act, omitted any reservations in Senate discussion 3. Remedy:

The Court may not balance the equities to determine an injunction Congress has ‘already struck the balance’ in favor of Endangered Species They have the highest priority Congress’s Clear intention

Separation of Powers: Congress clearly intended that any jeopardizing be halted Court may not then balance the equities…legislature has Not Function of Court

o ES are Technical o Court cannot simply redo congress’s intent

o § 4: Listing of Species and Critical Habitat: The Listing Process:

§3 (6): Endangered Species: species which is in danger of extinction throughout all or a significant portion of its range other then certain bugs

§3 (20): Threatened Species: Species which is likely to become endangered within the foreseeable future throughout all or a significant part of its range

Difference: Degree of immediacy of extinction Listing is critical, because under TVA v. Hill, government has mandate to protect

1. §4 (a) 1: Secretary determines what species are endangered or threatened

Look at Factors: Present or threatened destruction, modification, of its habitat or range Overutilization Disease or predation Other natural or manmade factors

§ 3(16): Species: Subspecies of fish, wildlife, or plant, vertebrate fish, interbreeds…

§4(b) 1 (A) To determine Listing of Species: 2. Only use the best scientific data available to him after reviewing status

May not consider economic impact of listing! Reviewability of Listing:

Courts may defer due to technicality, unless agency departed from mandate of statute The Critical Habitat Process:

Generally: Does not always occur, only does in about 18% of listings

§3 (5): Critical Habitat: specific areas within geographic area occupied by the species, at the time it is listed, which is

essential to the conservation of the species and Geographical areas outside are occupied, if secretary determines that area is essential to

conservation Except when Secretary determines, critical habitat does not include entire geographic area

occupied 1. § 4(a) 3(A):

Secretary shall determine to maximum extent prudent and determinable Concurrently with listing, designate a ‘critical habitat’

61

§4 (b) To determine critical habitat: 1. Look at the Best scientific data available and 2. Economic impact of designation 3. Impact on National Security and any other relevant impact The Secretary may exclude an area from critical habitat if he determines the

benefits of excluding outweigh the designation as critical habitato Reason:

If FWS proposes rule to designate critical habitat, owners of land may rush to develop that land, rendering it useless for designation as critical habitat

Defeats purpose of ‘designation’ Here then, Secretary may exclude…

o Courts are Split on excluding: o NRDC v. US Dep’t of Interior:

F: FWS failed to designate a critical habitat, arguing that the designation would risk threat that public would enable people to develop quickly and that designation wouldn’t appreciably benefit species

R: 1. Court disagreed with ‘increased threat rationale’ as inconsistent with duty to balance the listed factors

Cape Hatteras Access Preservation Alliance v. US Dep’t of Interior: F: FWS listed the Piping Plover as endangered. The designation of a critical habitat requires that

the ‘economic impact’ be considered in deciding. Here, the designation did occur. Π business corporation sued arguing that the designation adversely effected tourism, and economics.

I: To what extent does economic impact play in designation? R:

1. There is a Circuit split of which ‘analysis framework’ to utilize 10th Circuit Functional Equivalence or D.C. Circuit ‘Baseline Approach’

Here The Court denounces the “Functional Equivalence Approach” “Functional Equivalence Approach”

The FWS had a long standing policy that the listing of species and the designation of critical habitat were cumulative, and redundant

o Thus, a project that won’t jeopardize a species won’t degrade a critical habitat

o This effected ‘Economic Analysis’ and § 7 Consultation “Baseline Approach”

Evaluate the world before the critical habitat designation with the world after DC/5 th /9 th View of Functional Equivalence on § 7 Consultation:

1. FWS had Policy that designation was redundant and duplicative to listing 2. § 7 requires a ‘consultation’ when agency ‘jeopardizes’ species or

‘adversely modifies a critical habitat’ 3. FWS defined ‘jeopardize’ and ‘adversely modify’ the same: “action that

reasonably expected to reduce… both survival and recovery” o defined the same due to their policy

4. This means, because of ‘and recovery’ that the consultation would occur only when ‘survival’ was at risk, and not only ‘recovery’

Reasoning: o Therefore, consultation won’t occur when an agency ‘adversely

effects’ a critical habitat, which in § 3 is for ‘conservation’ which is designed for the recovery of the species, so that ESA is no longer necessary

So the functional equivalence doctrine frustrates the purpose of ESA:o Underprotects species recovery by essentially prohibiting a

‘consultation’ when ‘conservation’/recovery is effected, limiting it only to survival

62

o This is contrary to the ESA’s Purpose to ‘conserve’ or recover Statute requires consultation when species is ‘jeopardized’

or for actions adversely effecting ‘conservation’ efforts. And functional equivalence undoes the latter…contrary to statute

Overall:o Under protects species

Does not require the consultation of affected critical habitats, which would have led to RPAs to promote conservation/recovery, pursuant to goal of ESA

This hampers recovery, that would have been benefited by the §7 consultation

Effect on Economic Factor in Designation of Critical Habitat: Functional Equivalence treats the listing and designation of critical habitat as

essentially the sameo So, because listing and designation treated the same, there will be no

economic impacts of designation above those at listingo But using the functional equivalence test means that there will always

be no economic impacts at listing… so never consider themo But ESA mandates they be considered in §4 (b) So Functional

equivalence cannot be right Designation can have economic impact above and beyond listing

DC/5 th /9 th View of Baseline Approach: A reasonable method for assessing the actual economic impact of designation The world with designation must be compared to world without it World Without designation (Baseline):

o Includes the listing…but the economic impact of lising cannot be used to designate or not…that would then be looking at economic impact of species listing, which ESA says you cannot do

o § 7 Interagency Cooperation and Not-Jeopardizing Species General:

Only applies to federal government §7 Process:

1.§ 7 (a) 2 Each Agency shall consult with the Secretary to insure that any action it takes is not likely to

jeopardize the continued existence of endangered species or threatened species or destroy or adversely modify its critical habitat

2. § 7(c) Biological Opinion: Secretary shall determine if Species is located in that area and If Jeopardy or adverse modification will occur

If Not Over If Yes

Give Reasonable and Prudent Alternatives (RPAs) The secretary will give changes to be made to agency action to avoid jeopardizing or

adversely modifying crticial habitat 3. Judicial Review:

If Agency follows RPAs Likely OK If agency does not follow RPAs:

While not required to, it is more likely to be held to violate the no jeopardy provision “Aribtrary and Capricious Standard”

Idaho Dep’t of Fish & Game v. National Marine Fish Service: F: The biological assessment issued focused on the years an endangered fish

stayed alive R:

o Baseline life expetency to determine if jeopardized was low compared to other numbers that had been used in the past

63

o It could have resulted in higher protection…but didn’to Arbitrary and Capriciosu

Gifford Pinchot Task Force v. US FWS: F: Biological assessment used a ‘population proxy’ calculation R:

o Court held this was acceptable and not arbitrary and capriciouso Had detailed account of how to use calculations, which were accurateo ESA did not specify…so not arbitrary and capricious

4. § 7 (e) Exemptions: In certain circumstances, “The Endangered Species Committee” may exempt an agency from

following §7 a (2) National Ass’n v. Defenders of Wildlife:

F: Under the Clean Air act, states may apply for ability to grant permit. 9 criteria are set out, which EPA must grant permit to state if met. However, § 7 of the ESA ‘no jeopardy’ provision provides that each agency shall insure action doesn’t jeopardize endangered species. Concern was that if ESA gave permit to Arizona, they would not have to abide by ESA, because §7 ESA only applies to federal government. So then, Arizona could simply grant permit without considering ESA. EPA approved permit program grant to Arizona.

I: CWA has only 9 elements to consider, while ESA has 1. Does ESA become another element to consider under the CWA?

R: 1. The FWS interpreted its own statute:

§420.03 “§7 only applies to discretionary federal involvement”

o If action is not discretionary, §7 does not applyo If discretionary, §7 applies

2. Court Disfavors “Repeal by implication” Argument that one bill came after, so repealed reject

Court disfavors repealing by implication Will not assume the ESA repealed the CWA, unless “clear statutory evidence”

o Later statute must explicitly contradicto Implied Repeal must be absolutely necessary to afford statute

meaning If this approach it used, it creates precedent to simply overturn older statute based on

newer one that seems to be in contest…Bad precedential value 2. Chevron Test:

The statute is very ambiguous This signals that Congress’s intent was not clear Step 2 “Reasonable interpretation”

Based on Statute this is reasonable Harmonizes the 2 statutes Avoids ‘Implied Repeal’ § 7 says ‘insure’

o You can only insure something when it is discretionary…if not, you cannot insure anything

3. This is in line with TVA v. Hill: Although there, the Court said there were no exemptions, that action was

discretionary…so §7 applying made sense and is in line with decision today Stevens Dissent:

1. TVA v. Hill said ‘§7 admits of no exception’ This decision subordinates the ESA, which is contrary to the purpose

2. The statute simply states that §7 applies to ‘discretionary’ action, but not only discretionary action

64

Majority—there is no reason to have superfluous statute 3. Even if §7 limited to discretion EPA Has discretion in applying 9 factors

So, because its discretionary §7 should apply EPA has discretion in many areas Majority—some discretion is not enough…statute does not clearly grant discretion, but

instead, seems to limit discretion to those elements National Homebuilders Effect:

The issue becomes whether agency authority, under many statutes, is discretionary or not If the Court interprets no discretion, then §7 simply does not apply

Then, there is not much of §7 left Counter Argument:

o If §7 begins to erode and erode, one could argue that it begins to seem as though Congress placed it there superfluously…which cannot be correct

Arbitrary and Capricious Review: What if agency makes a decision, but then changes its mind?

Arbitrary and Capricious Inconsistent application to regulated entities Not Arbitrary and Capricious If better policy, and good reason they should

change it What if agency changes mind because of change of administration of government and

new appointment? Not Arbitrary and Capricious

o New presidents have the right to do soo Could argue that factors are being considered that are not in

substantive act…Political issues…?

§9 What is Prohibited under the ESAo General:

Unlike the remainder of ESA, § 9 applies to ‘any person’ §3 (13):

Person means an individual, corporation, partnership…other entity 1. § 9 (a) Takings Prohibited

It is unlawful for any person to Import an endangered species Take any endangered species within the US or in territorial sea of US

§3(19) Take: Take means ‘harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or attempt to do any of those… Possess, sell, deliver, carry, transport…any endangered species

Does not include plants Applies to threatened species as well:

While not on its face, §4 (d) allows the secretary to make protective regulations for ‘threatened species’ whenever he deems it necessary to conservation of that species

Has extended §9 to threatened species as well 2. §10 (a) 1 b Incidental Take Exemption

Secretary may permit… An act otherwise prohibited, for scientific purposes or to enhance propagation or survival of

species Any taking otherwise prohibited by §9, if such taking is incidental to and not the purpose of

carrying out an activity 3. Violation of §9 §11:

A. Civil Penalties B. Criminal Violation

Up to $50,000 and 1 year in prison

65

o Babbit v. Sweet Home Chapter of Communites: F: §9 makes it unlawful to take an Endangered Species. But, the act does not define ‘take’ beyond what §3 (19)

says. Take is defined as ‘harass, harm…’ any species. The FWS has interpreted ‘Harm’ as meaning ‘act which ‘significantly modifies that habitat or degrades it’. The Logging companies argued that this is beyond what the definition means.

PH: District Court said that ‘take’ means directly killing an animal, but not doing something that has the effect of killing an animal. So, §9 cannot be read as the definition FWS created.

R: 1. FWS interpreted its own statute defining ‘Harm’:

An act which actually kills or injures wildlife. This includes significant habitat modification or degradation, where it actually kills or injures wildlife be impairing essential behoivor patterns

2. Π’s argue: Only §5, §7 are other methods to protect species Senate had more extensive language, and then erased it—showing its intent ‘Harm’ was added on floor without debate, so it could not be given significant weight

No In ESA Secretary has broad discretion act/ Congress delegated authority This is a Chevron Step 2 Question

1. The Broad purpose of ESA is to protect species and its habitat FWS definition then is reasonable

2. Complies with TVA v. Hill broad protection of species 3. §10 allows ‘incidental take’ permit, but not purposeful permit

Congress specifically prohibits purposeful killing, but you need a permit to incidentally kill

So killing other than direct was within Congress’s intention Therefore D.C. circuit is wrong…Take cannot only mean purposeful, if

congress thought of incidental If they were right §10 would be meaningless, which is not right

Reasonable Limits on Take including ‘significant habitat modification and degradation’

Proximate Cause and Foreseeability There must be a proximate cause between the habitat modification and the actual

death, harm There is a limit…

Effect: Had FWS not won, their sole recourse to assist the habitat would have been §5 §5: Secretary may use the land acquisition, to acquire…purchase…lands and waters

o Issues: 1. If new administration comes in, and amends the agency interpretation of ‘Harm’

Chevron deference? Or Arbitrary and Capricious? It greatly depends on what the Court decides

2. Does Death Actually have to occur? Harm:

in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

May be difficult if death or injury does not ‘actually occur’ Harass:

Also part of ‘Take’ was defined by the FWS “in the definition of "take" in the Act means an intentional or negligent act or omission which

creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering”

This could justify that only need to be ‘likelihood’ of injury… Cases:

66

American Bald Eagle case: When argument ensued that ‘harm’ included potential injury, court declined

•NWF v. Burlington Northern R.R., (9th Cir. 1994): “a definitive threat of future harm to protected species,” can violate § 9 but “mere speculation”

cannot. •Forest Conservation Council v. Rosboro Lumber, (9th Cir. 1995):

“harm” included proposed logging that was reasonably certain to injure the owls by significantly impairing their behavioral patterns.

Marbled Murrelet v. Babbit: ‘Reasonably certain’ threat of imminent harm to protected species was sufficient to get injunction

Included harm to breeding 3. Failure to Act and Inaction

May failure to act create a “Taking” under §9? Scalia (dissent in Babbit v. Sweet Home)

Says No Harm:

“an act” It would be difficult to argue that ‘inaction’ was a taking under ‘harm

Harrass: §7 (a) 1:

“All other Federal agencies…shall carry[] out programs for conservation of endangered species”

This may create a duty to act Harass:

Says “Act or omission” Therefore, an argument could be made under §706 of APA to compel agency action, which §7 (a)

1 gives them (Inaction led to taking). Could also argue that their inaction was a taking because it ‘harassed’ and ‘created likelihood of injury to wildlife…

But: You would still not reach as far as “harm” does…which extends beyond the animal to

its habitat You would have to argue that ‘behavior patterns’ were affected by affecting its

habitat…

___________________________________________________________________________________________________

THE POLLUTION HALF OF THE STATUTES

Risk Management of Pollution is our concentration: o Ambient/Risk/Harmed Based Approach:

Clean Air Act is representative of thiso Technology Based Approach:

Determine what the best available technology is capable of, and mandate that level Essentially ‘do the best possible,’ with the goal that the end result will be acceptable Clean Water Act is representative of this

o Market Based Approach The belief that the above 2 approaches are too costly for their results Use the free market to achieve environmental sustainability at the lowest cost capable EG: Tradable Emissions, straight tax on emitters

o Liability Based Approach: Essentially, Common Law incarnate in statute—Superfund Statute 1. It is fair to be held liable for compensation if you harm someone 2. Deterrent Effect

o Other—Outright Ban or Prohibition Some substances are strictly banned, with no amount of emissions available Largely disfavored due to draconian consequences

67

o Each statute we focus on will have a mix of the above…not merely one Some statutes have changed over time

CAA has moved from ambient/risk based to technologically based CWA has moved from technologically based to risk/ambient based

The Clean Air Act

Case Cross-References: o Mass v. EPA; Engine Mfrs. Ass’n v. S. Coast Air Quality; NRDC v. Train; Lead Indus Ass’n v. EPA, Va. v. EPA, Sierra

Club v. EPA History:

o Created in 1970, it was a result of terrible air pollutiono Denore Story

Smog, made up of So2 and CL, from a Zink plant near Pittsburgh, settled over the town and killed people While many years after Denore, stories like this led to the creation of air pollution laws

o Has Been Effective: The reason we don’t really have this anymore, is the CAA But other countries still suffer

o Original Vote: Was 374:1 In the House

Today This would be impossible!!! Why:

In 1970s, (infra) urgency of Environment was national agenda…now it has subsided Possibly due to these laws being passed Not as immediate threat and ‘out of sight out of mind’/ NIMBY still seems employed Industry is strong—especially in a weak economy with people suffering—last thing they want is

spend money on environment, when they don’t have a jobo Pollution’s Effects:

Smog (O3) has been shown to cause lung disease, and death in US—thought to be responsible for 400,000/year Used Risk Assessment to determine what the probability of effects were, and to determine what the most harmful

chemicals were—Regulate those However Gets into issues of environmental justice, and distribution due to wind effects

Someone is paying for permit, but locals don’t get effects….someone thousands of miles away may Different programs under the Clean Air Act

o 1. NAAQS There are currently 6 chemicals

o 2. Emissions Standards Technology Based: EPA must mandate, and revise, standards to best technology available National Uniform New Source Standards: For all new sources, Technology standard applies Uniform National Emissions for Hazardous Pollutants:

§112 A function of the 1990 amendments, giving Congress place to establish which pollutants it deems

hazardous There are currently 189 chemicals listed

Technology Based Standards for Vehicle: §202 (a)

EPA shall create a list, and revise it, to create standards from any class or classes of new motor vehicles, which in his judgment (1) cause or contribute to air pollution and (2) which may reasonably be anticipated to endanger public health or welfare

Case Cross Reference: Engine Mfr’s Ass’n v. South Coast Air Quality Mgmt (infra)

Clean Air Act Purpose: o §101 (b): The purpose is to protect and enhance the quality of the Nation’s air resources so as to promote the public health

and welfare Method of Regulation

o The Clean Air Act is an Ambient/Risk based approach to regulating pollution

68

It sets an ultimate goal, by using scientific assessment, and then requires we reach that goal by a certain date However, through amendment, it has certain technologically based risk management approaches also

Process of the NAAQS Program: o 1. Determine the maximum possible concentration of pollution allowed into air to achieve goal (NAAQS)o 2. Calculate the maximum aggregate emissions level in an area that will not go above that concentration (SIP)o 3. Divide up the aggregate number among polluters, allotting an amount to each (Permit Programs)o Quick Synopsis of Process:

1. §108: Make a list of air pollutants it deems meet the §108 criteria This list is based on scientific data that they are harmful Create “air quality criteria” for that substance Becomes “Criteria Pollutant”

2. §109: Create a National Ambient Air Quality standard [NAAQS] for each criteria pollutant b (1): Primary NAAQS Standards: purpose is to protect people/public health with adequate margin of

safety b (2): Secondary NAAQS Standards: purpose to protect public welfare

§302 (h): effects on soils, water, crops, vegetation, manmade materials, animals, climate… Anything that isn’t public health is welfare Rarely used or issued separately

Some Pollutants: Have 2 NAAQS for short and long term Designed to avoid acute contact and chronic contact We are unsure of what exactly the effect is, so this avoids short and long term to make sure

3. Informal Rule Making: Issue Proposed NAAQS

Solicit Comment Receive Comment and Consider Adopt Final Version

4. §110: State Implementation Program How state will attain the NAAQS level States have primary responsibility for designing and implementing plans to achieve NAAQS §107 (a),

§110 If Dirty Non-Attainment area (varying in degree) If Clean Prevention of Significant Deterioration (PSD)

There are sanctions if not complied with 5. Enforcement:

§113: civil and criminal penalties for statute and regulatory violations §304: Citizen suit provision §307: Judicial Review

6. Non-attainment and Prevention of Significant Deterioration Permit Programs o Overall:

The EPA has only adopted 6 criteria pollutants with NAAQS over the last 40 years Ozone—Lead—Sulfur Dioxide—Nitrogen Oxide—Carbon Monoxide—Promethium

Reason: 1. Because the Clean Air Act has other programs within it, NAAQS being one, there are other means to

regulate other pollutants The Hazardous Air Pollutants §112 method there are 189 listed in that program Also Acid Rain program and Stratospheric Ozone program…while our concern is the NAAQS

program Regulating these pollutants does not mean the regulation only effects these 6…regulation has

effects on other pollutants, limiting them as well 2. There have only been 6 because, at that level, EPA has had a difficult enough time, and does not want

to infringe on States too much o Step 1. §108: What substances get Air Quality Criteria, and NAAQS:

§108 (a) 1:

69

To create NAAQS for primary and secondary, the EPA Administrator shall make a list, and periodically revise it, for each pollutant:

a. The emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare and

b. The presence of which in ambient air results from numerous or diverse mobile (car) or stationary sources (plant).

§108 (a) 2: Within a year of substance being on the list, EPA Administrator must issue “air quality criteria” Air Quality Criteria accurately reflect latest scientific knowledge useful in indicating the kind and extent

of effects on public health and welfare from presence in ambient air Air Quality Criteria: Is simply scientific data, that tells about the effects of exposure at various

levels we are exposed to it Risk Assessment

NRDC v. Train: F: Citizen suit brought to compel EPA to place lead on the list of air pollutants under §108 (a) 1. EPA

Argues that 108 (a) 1 a, and b are met…but says it must also meet c, which says “which are planned” and that it had no plans to list lead. Furthermore, it argues that already is limiting lead under §7545 emissions program.

R: 1. The EPA has a mandatory duty to list a pollutant, if 108 A 1 a and b are met

C, was not meant to be part of the test, but to deal with past issue has no substantive effect

A & B are only test EPA has no discretion, once A & B are met

2. If this duty was discretionary, it would be Contrary to Congress’s Intent: Congress intended 109 and 110, which automatically turn on if 108 met, to regulate the

NAAQS, because states were dragging their feet originally If EPA had discretion, it could delay regulating forever Even if EPA is regulating under §7545 Fuel Program, regulating lead, that will make it

easier for states to comply with their State implementation programs theno Step 2. §109 National Ambient Air Quality Standard:

§109 a (a): The administrator shall publish an NAAQS for each listed criteria pollutant in §108 §109 (b) 1:

After a reasonable time for Notice and Comment NAAQS shall be standards, in the judgment of the administrator, based on criteria allowing an adequate

margin of safety, and a level to protect the public health While EPA is supposed to, under §109, issue both for primary and secondary standards, it does not

typically Consider Uncertainty of Harm, Size of effected population, Severity of effect Risk Assessment used to manage

Lead Industries Association v. EPA: F: the Petitioners contest the listing and NAAQS created for lead. They argue that 1. the EPA should

consider the economic and technological impacts when setting ‘adequate margin of safety’ 2. The adverse effects must be clearly harmful to avoid adverse economic effects more protective standard would apply 3. That EPA didn’t have enough evidence to set the level they chose, and 4. That they can only set 1 margin of safety.

R: 1. Economic and Technologic effects in setting NAAQS play no part in EPA Consideration

In other portions of statute, it specifically states these 2 factors So Congress clearly intended where to put it and leave it out of. The legislative history shows that the concern was health, and subordinated all other

concerns But, specifically left out because they should not be considered 109 considers only 2 factors Public Health and Welfare

70

2. Adequate Margin of Safety Consideration is EPA’s discretion The Goal of NAAQS is to protect from adverse health effects It is preventative in nature, and precautionary—preventing before occurs Because of scientific uncertainty, Congress intended to err on the side of caution, in a

false positive approach, to prevent…that’s the point of the Margin of Safety Without certainty then, Congress wanted to regulate and gave EPA discretion The EPA, in §109 (b) 1 has “judgment of administrator” to determine what level is ok

Pursuant to §109, EPA has authority to regulate risk of adverse health effects of pollution

It performs a Scientific Assessment, looking at severity and probability Protect most vulnerable

So harm does not have to be ‘clear’ and EPA has discretion to set the level and margin of safety

If EPA waited until something was clearly harmful…would negate congress’s preventative intention

Here EPA looked to children when dealing with led…was acceptable “Margin of Safety” is a buffer…that EPA, has discretion to tack on

a cushion to attempt to be as precautionary as possible…lower then standard you already thought was acceptable

3. Courts are Deferential to EPA’s evaluation of Evidence “all that is required is evidence on record which substantiates conclusion about health

effects on which decision made” Subclinical effects (Those seen in laboratory, but not in a face to face doctor visit,

which are clinical) are indicative of health effects, and can be used—even CDC uses While there may be disagreement, and uncertainty at a certain level of

NAAQS, EPA has authority and Courts should defero Technicality of question, and congressional intent to give EPA

authority to decide require deference EPA:

1. Determines level of Safety 2. Adds Margin of Safety

4. Congress delegated authority to determine how to create Margin of Safety as long as not abused

While the statute seems to elude to 1 Margin of safety, the complexity of determining a level may allow EPA to adopt margin of safety on many different factors, in addition to the final number

This also coincides with Congress’s intent to set a precautionary level Note:

Scientists have argued the a margin of safety is erroneous—the only real way to assure, due to the uncertainty contained in science, is to prohibit or ban a substance—level of 0

Post-Lead Industries Case: The EPA, in 2008, lowered the level from that case to 10x less—due to findings that it was still

decreasing children’s IQ Associated Battery Recycles Ass’n v. EPA , 604 F.3d 613 (D.C. Cir. 2010) (deferred to EPA’s

determination of a level 10x less and use of evidence) Proponents still argue that should be another 10x less Overall:

The margin of safety is a great idea, but, is not a fail safe—as exemplified above, even at the margin of safety level, EPA was still 10x too high…even with margin of safety, may not be even close to what is necessary to protect

Here, regulating at children’s level…seems to overprotect other people This coincides with the idea of scientific uncertainty…and is exemplified by the idea that

although we are overprotecting some, with an adequate margin of safety, as time goes on, it may become clear that the level set was in fact not overprotecting…but underprotecting all

§109 (d)

71

EPA is supposed to revise NAAQS for criteria pollutants every 5 years… But has had its hands full with just these 6 anyway, and hasn’t met that interval

o Step 3. §110: The State Implementation Plan: Generally:

Once an NAAQS has been determined by EPA (§108, 109), States have the primary responsibility for designing and implementing plans to achieve that NAAQS, a function of Cooperative Federalism

Once approved by the EPA, state SIPs are enforceable by the state or Federal authorities A separate SIP must be created for each Criteria Pollutant (6) §107 (a) “Each state shall have primary responsibility for assuring air quality…by submitting an

implementation plan for State, that species the manner in which primary and secondary NAAQS will be achieved and maintained”

Cooperative Federalism: Pursuant to the 10th amendment, the court has allowed the federal government to give

state choice 1. Preemption of state standards or 2. To follow federal standards Here, Government has lead Role but state has role too…too much to do for just the

federal government, so enlists aid of states However—CAA is not completely Cooperative Federalism

1977/1990 Amendments: These sets of amendments significantly reduced the discretion states had in

how they could control emissions in their SIP—primarily because the NAAQS had not been met by the deadline

States had been dragging their feet, due to the fact that implementing these standards may infringe on valuable industry to the State

o This competition between states could have led to a “Race to the Bottom” type approach

Also, Congress Always Retained ability to Control: In the following programs, Congress retained control, vicariously through

EPA, and did not enlist the efforts of the states §111: New Source Emissions Standards

o EPA may set its own national uniform emissions standards for new stationary sources

§112: Hazardous Pollutant Standardso A different Regulatory Programo Congress may list pollutantso Uses technology based approach

§202 (7521) Emissions Standards for new Motor Vehicleso EPA has authority to adopt new emissions standards

§110: The State Implementation Plan: Generally:

While EPA, pursuant to §108 and 109 lists and sets the Ambient Goal, large discretion is given to states to come up with a plan that largely works for them and their local needs

Basics: In Total There will be 6: one for each NAAQS (And there are 6) 1. §110 a (1) ‘Each State, after NAAQS created, and after notice and public hearing (procedure),

must adopt an SIP for primary and secondary standards” Deadline: within 3 years of NAAQS creation (or shorter)

To avoid states dragging their feet They do not want to issue an SIP that restricts industry in their state…so

pressure on them is needed to gain compliance (Pressure also exerted through sanctions infra)

2. §110 a (2) §A-M The substantive requirements There are about 13 substantive requirements A: Enforceable emissions limits, permits, etc… C: Regulate of modification of existing, and construction of new stationary source to

assure that NAAQS are achieved

72

H: “Provide for the revision” of the plan L: Owner/Operator of source must pay for permit… ….

EPA’s Role: The EPA may either approve the SIP, deny it or seek revision §110 (k) 3 Full and Partial Approval:

“EPA shall approve if it meets all the applicable requirements” Once the state has complied with §110 (a) 2 A-M, EPA must approve the plan

§110 (k) 4: Conditional Approval §110 (k) 5: Call for SIP Revision

When EPA finds SIP is substantially inadequate, the EPA requires it to revise plan ‘as necessary to correct such inadequacies”

Virginia v. EPA (infra) Sanctions:

§7413: a) When EPA finds that any person has violated applicable SIP, and 30 days after

notice given—EPA May: If a state fails to submit an SIP, or adequately revise it

1. Prohibited from Federal funds for highway, if non-attainment--§110 (m), §176 (c) (example of spending power limit within allowable scope of 10th amendment)

2. §110 (c) 1: Federal Implementation Plan The EPA will create a Federal Implementation plan

o If the state failed to make a submission of an SIP oro The submitted SIP, with revision does not satisfy the minimum

criteria of §110 (a) 2 A-M (Gets chance to revise) State’s Point of View in creating its own program:

In determining how to divide up the aggregated level of NAAQS, how does a state go about doing so How does it divide up among polluters?

Historical Use: For a particular source, choose a baseline year, measure off of that Depending on meeting NAAQS, adjust the level up or down

Economic View: Based on the economic benefits of some industries, allow more or less pollution For instance, if 1 industry is particularly beneficial, let them pollute more, while a less

economically beneficial industry must pollute far less Technological Feasibility:

Mandate according to a Technological Approach What technology is capable of, force industry to use it

Industry with best technologyFor use, to pollute least Auction:

Auction off the right to pollute Those with biggest need, and ability to use will pay the highest—those who don’t need

it, will not buy it and wont pollute Allocation between Stationary Source and Mobile Source:

Congress has been much less inclined to regulate mobile sources (cars) then stationary sources While the 1990 amendments regulated, and banned Lead as Fuel additive~~

People get mad about their cars Congress has shied away from o For instance, for a brief period of time EPA set regulations for non-

attainment areas like LA (Used an FIP) You may not drive on certain days of the week, if your

license plate is XYZ, in an attempt to limit emissions People did not like it, and were getting angry—EPA ended it

o Other instance EPA wanted a centralized, state run emissions program that

States would have to run—would avoid people getting

73

around it by being friendly with gas station attendants, or bribing them

State wanted de-centralized system, because less of a hassle for people to run to their local gas station, State didn’t want to have to deal with it, and businesses had already invested in that equipment

While EPA won, State brought 10th amendment suit…and EPA quickly ended their regulation, essentially giving State the option

Virginia v. EPA: F: EPA adopted a rule, requiring States who were in non-attainment to meet California’s standards—Low

Emission Vehicle. States had submitted SIP to EPA, who rejected it, requiring the LEV standard, pursuant to §110 (k) 5 SIP Call. LEV cuts back on Ozone—a combination of nitrogen and other chemicals that forms when in contact with sun light.

State argues that it has the ability to determine how it will deal with SIP substance, and the EPA cannot force how to met NAAQS

EPA argues it has this authority I: Can EPA mandate how a state will create its own SIP, or merely approve or reject? R:

1. EPA has authority to seek revision pursuant to § 110 (k) 5 If state SIP deemed inadequate, EPA can tell them, and get it revised EPA may only tell them if adequate or inadequate (If meets A-M, must approve)

2. EPA May implement a Federal Implementation Plan §110 (c) In Cooperative Federalism—this is preemption

State does not have to do anything State may even choose from the beginning to simply not comply with CAA, in

which case FIP would preempt them Not commandeering EPA, may in FIP set standards it believes will meet NAAQS

However: States generally don’t want to do this It may harm their industry, in a way they could have avoided May also end spending on certain things…with sanctions

3. But EPA Has No Authority to determine how a State will create its own SIP EPA may merely tell state to revise, or implement an FIP 1977:

NRDC v.Train: interpreted that Congress intended to give states “significant responsibility” and the primary, initial chance to determine manner in which NAAQS would be achieved

EPA may only tell them if inadequate, or if adequate As long as the end (NAAQS) will be met, up to the state to adopt whatever

means it believes the mix of which is best (SIP) 1990 Amendments

Telling them method in which SIP should work implicates 10th amendment EPA read “as necessary to correct” to give them the authority to do so 1990 amendments changed Train “Division of Responsibilities” slightly

o Because states had been so slow to reach, or most had not reached NAAQS…State discretion was reduced

o If they were creating an SIP They had more of ‘checklist’ to go through ~§110 (a) 2 (A-M)

Clear Statement Rule: When an agency interprets authority to reach the outer limits of

constitutionality, Court will not interpret it that far unless Congress clearly stated it was their intention to do so

74

o Here Adding 2 words, in amendment, was not enough to show congress intended 10th amendment question

o Instead, read 110 (k) 5 to mean, EPA was limited to tell state how to fix SIP, only to what was necessary to meet NAAQS

See Clear Statement Rule with Chevron Deference, infra § Rapanoso Most Likely, Chevron is displaced by clear statement rule

o When NAAQS not met §7501 Non-Attainment Provisions: In this scenario, the NAAQS has been created (Goal, with margin of safety), and States have created their SIP to

meet that goal However, we have not met NAAQS yet Note:

You can be in attainment or PSD for one criteria pollutant, and in non-attainment for another 1977/1990 Amendments The Birth and Evolution :

First created in 1977 due to the fact that many States had failed to meet the deadline of NAAQS set in the original Clean Air Act

§171 (7501) Created New Label for Non-Compliance “Non-Attainment” “Nonattainment area means for any air pollutant, an area not meeting §107 (d) (7407 (d))— “an

area that does not meet, or that contributes to ambient air quality in nearby area that does not meet, the NAAQS for primary or secondary standards of a pollutant”

1990: Subsequent to the 1977 amendments, States still had not met their non-attainment goals So, the 1990 amendments further circumscribed the state discretion

So, states in nonattainment had far less discretion then in an SIP, to determine how emissions would be controlled

The Further out of compliance a state is The Longer you have to get into compliance **But** You have less discretion, and many more steps to meet

o More strict requirements o EG: §181 (7511a) is just for Ozone non-attainment

Sanctions: §113 (§7413)

Spending Power threat Reduction in highway spending if not in attainment §110 Federal Implementation Plan

§172 (7502) Non-Attainment Process: Generally:

State SIP must be amended to begin to come into compliance towards NAAQS More strict requirements set forth in §172

§172: For Existing Sources (Plants): c) 1: Plan will implement all reasonably available control technology for existing sources

Note: Congress, in creating the Non-attainment provisions, moved from Ambient

risk management approach to a technology based approach c) 6: Plan must have enforceable limits and schedules and timetables to comply

Note: Again, the use of deadlines that are enforceable to avoid state feet dragging

c) 2: Plan must require reasonably further progress §7501:

Reasonably Further Progress means an annual, incremental reduction in the emissions of pollutant, as may be set by the EPA

The Goal, being, to annually decrease the emissions to move towards an NAAQS

Congress may mandate more specific reduction: In §7511 (c) 2 B, for instance, congress requires a specific annual percentage

be met—they set the increment for the state for Ozone c) 9: Contingency Measures

75

SIP must provide for ‘specific measures to be undertaken if plan fails’ to make reasonably further progress to attain NAAQS

Sierra Club v. EPA: F: In Non-attainment, a state must submit an SIP, pursuant to the requirements of §172

(c) 1,2, and 9. EPA granted a §110 (k) 4 Conditional approval—without meeting any of these 3 requirements in the Non-attainment SIP. EPA argued that §110 (k) 4 only needs a state ‘to commit to adopt a specific measure’ even if they don’t know what it is, or if they know it, or if they even tell it to EPA

R: 1. The Interpretation of §110 (k) 4 is Incorrect:

o The statutory language is unambiguous §172 (c) 9 says the plan has to comply with “specific

measures” within certain time frameo Agency allowed completely unspecified

This is not in line with statutes meaning o The Non-attainment SIP conditional approval provision is meant to

give EPA opportunity to see what back up plan is there if SIP fails… To do so, they must be specific

o EPA’s interpretation is contrary to specific language For New Sources (Plants) New Source Review

What if industry wants to make a new plant, or modify plant that emits the same criteria pollutant already putting location in non-attainment?

1. Who does it apply to: § 172 (c) 5: A non-attainment SIP, must require that every new or modified major stationary source must have a permit (complying with §173)

Major Stationary Source (§302 J): Any stationary facility or source, which emits or has the potential to emit 100

tons/year of any air pollutant Modified (§111 (4))

“any physical change in, or change in the method of operation of a stationary source, which increases the amount of any air pollutant emitted by that source or permits emission of air pollutant not previously emitted (See Chevron)

Stationary Source (§111 (3)): Any building, structure, facility, or installation, which emits or may emit any

air pollutant. 2. Permit (§7503 a, b (2)):

If someone wants to build a non-attainment area stationary source “By the time the source is to start operation” it must comply with the Lowest

Achievable emissions rate §7501 (3): “Lowest Achievable Emissions Rate” is

o Emissions that are the most stringent limitation in the SIP of any state in country for that source or

o The most stringent emission limit achieved in practice by that type of source

o Note: The permit program uses a technology based risk

management approach to achieve the NAAQS level Once a permit is granted to a new, or modified source:

You are now allowing further pollution to be emitted into a non-attainment area, which is by definition above the NAAQS allowed

In a non-attainment area, we must have reasonably further progress, which is an annual incremental reduction in emissions to reach NAAQS (§172 (c) 2)

§173: a) By the time the source starts, it must be offset by emissions reductions so

that the total allowable emissions from existing sources added to proposed

76

source will be sufficiently less then total emission from existing sources prior to the application for a permit

b) Any emissions reductions must be federally enforceable before permit granted

o Must show that new plant, or its modification will be more then offset by a decrease in emissions elsewhere in the nonattainment area

You must close one of your other plantso Or

You must convince another industrial party to close theirs And have them agree to be legally enforced against if they

fail to meet Do so by paying the other party $ received for him must be > cost to decrease emissions and

any loss in production due to it Policy:

New Source Review is expensive and time consuming Lowest Achievable Emissions Rate is extremely expensive and difficult to comply with EPA has been requested to lessen standards

Chevron: o An Example of EPA interpreting what ‘modification is’ to avoid the

nonattainment permit applying to 1 sourceo “Bubbling Concept”

Modification requires that an increase in pollution occur But, EPA has interpreted the modification definition to net

out the change in pollution Although 1 source might increase in pollution, if another

offsets it—a bubble is put over both and the net change is 0 So No modification has occurred and no need to meet

“Lowest achievable emissions Rate” Non-Attainment and Mobile Sources:

1990 amendments created a ‘transportation control’ Mandatory Car-pooling Increased bridge and highway tolls to deter driving Centralized Vehicle Maintenance (see infra) But, get tough policy lasted only 2 years

o When NAAQS Met: Prevention of Significant Deterioration: Birthed in 1977 amendments, in this scenario, an area has reached NAAQS and is doing better, and is designed to

continue the clean area’s NAAQS attainment rather then having it regress PSD Plan:

1. The PSD Purpose: §160 (7470) “To protect public health and welfare from any actual or adverse effects, even though the area is

in attainment” 2. PSD Plan Requirements: §161 (7471)

PSD plans must contain emissions limits and other measures that may be needed to prevent significant deterioration of air quality

3. Areas Classified in 3 Areas: §162 (7472) Class 1:

All national wildenerss areas > 5,000 acres National memorial parks > 5,000 acres National parks > 6,000 acres

Class II: All ares in a State that are not Class 1 or III Somewhere in the middle

Class III 4. Incremental Degradation: §163 (7473)

77

The idea is that class 1 areas are highly regarded, and pristine…even though they are in attainment, we don’t want to allow degradation to the point that they lose their class status

Depending on the Class then, incremental degradation allowed is less or more Look at the allowed degradation increment

Accomplish PSD Goal New Source Review: Generally:

New Source Review is broken down into 2 parts—1 part being used in nonattainment (infra), and the other part being used in Prevention of Significant Deterioration

Process: §165 (7475) 1. Permit Required for all new major stationary sources or modified sources

Definitions: §169 (1):

o “Major emitting facility” is any stationary source capable of emitting 100 tons of pollutant per year

§111 (a) 4: o “Modification” means any physical change in or change in the

method of operation of a stationary source which increases the amount of any air pollutant emitted…

a) 1: A permit must be issued for a major proposed emitting facility

a) 3: The owner or operator of the proposed facility must show that emissions from

proposed facility will not cause or contribute to air pollution in excess of:o 1. Maximum allowable increase in increment allowed

Depending on what Class area iso 2. NAAQS

In This scenario, a new source permit being issued, with the allowable increment based on the class may not take it above the NAAQS…into non-attainment

So, if allowable increment would take you above NAAQS, permit will not allow you to have all of the increment, but will stop your allowed emissions prior to NAAQS

o 3. Any other emission or performance standard a) 4:

Proposed facility uses “Best Available Control Technology”o §169:

Taking into account energy, economic impacts and costs, and environmental factors, it is the emissions limit that is determined achievable, through available methods

o Note: Another use of technology based risk management technique A Performance Standard, not a design standard—so level

of emissions set, but industry is free to choose its own method/ type of technology, so long as this level is met!

LAER is seen as > BACT, and this makes sense in that the more strict emissions technology is used in non-attainment areas

o EPA’s Attempt to Alter “New Source Review” Generally:

New Source Review in the non-attainment program and PSD program only kick in when there is a construction of a new source, or modification of an existing stationary source

The Most litigated component, however, is not the construction of a new source That’s typically clear “Modification”

§111 (a) 4: “any physical change in, or method of operation change, which increases the amount of any air pollutant emitted by the source

78

Chevron: Allowed the bubble Concept The netting out of 2 sources was not ‘increase’ There have been 3 cases recently, where EPA has attempted to circumscribe ‘modification’

1. 2000 EPA Regulation: EPA ruled what a modification was:

“Determine whether a physical change would result in an increase in emissions over the current baseline pre-permit scenario”

o Baseline = Measured by the industry, by 12 month period proior or, by any 2 consecutive year period in past 10 years

o Effect: This allows industry to pick the highest 2 year emissions

level, so that changes wont be modifications….as they wont be increase over the baseline!

Decreased number of permit applicants 2. New York v. EPA :

Allowed the Rule as a reasonable interpretation EPA was Arbitrary and Capricious, however, in not requiring industry to keep records

Without having records, EPA had to accept industry word that no change had occurred…there was no way to prove or enforce

Need some way to prove accuracy 3. New York v. EPA (2003):

F: EPA issued a new regulation to further reduce scope of ‘modification’ An existing rule was that ‘routine repairs and maintenance’ were not

modifications 2003 EPA altered: Routine Maintenance now was broadened to “any physical

change, even if emissions were increased, as long as increase was not greater then 20% of total emissions”

R: Completely Contrary to §111 (a) 4: which says ‘any physical change’ and

‘increase’…Those are factors…not economics 4. Enviro. Defenders v. Duke Eneregy Corp.

F: New Rule changed an old rule that measured ‘annual emissions’ of past 12 months, or any 2 consecutive year period in last 10 years. Now, EPA looked at “Average hourly emissions” before permit

R: This is inconsistent with permit program as statute is traditionally interpreted It allows a polluter to pollute less per hour, but run infinitely more hours…

increasing the pollution!!! Contrary to the entire purpose of permit programs §111—EPA’s Authority to set Standards of Performance for New Stationary Sources:

o Generally: §111, gives EPA the authority to create technological controls on new stationary sources May Determine the emissions level from new sources

o Step 1: §111 (b) 1 (A): “EPA shall make a list of stationary sources, which in his judgment cause, or contribute to air pollution which

may reasonably be anticipated to endanger public health or welfareo Step 2: §111 (b) 1 (B)

Once listed, EPA must issue standards of performance §111 (a) 1 “Standard of Performance”

Is a standard for emissions of air pollutants which reflects the degree of emissions limits that are achievable through the “best system of emissions reduction” that has been adequately demonstrated

Factors: Cost of achievement, impact on environment, energy requirements

o New York v. Reilly:

79

F: §111 requires that once listed, EPA set standard of performance that is ‘best demonstrated.’ Here, EPA allowed the continued burning of lead batteries. However, in Comment Portion, a recommendation was made to ban battery burning as the best demonstrated technology

R: 1. EPA must explain why one is better then the other, considering factors set forth

Does not require 100% efficacy…that’s not what it says… Must prove one is better then another

o Reasons for §111: The authority for EPA to set Standards of Performance for New Stationary Sources was given to EPA to avoid the

Race to the Bottom Strong interest in avoiding Forum Shopping of Industry The Natural incentive for states is to regulate leniently, to gain economic benefit of attracting industry

Seen in: Hodel (Where court stated preventing Race to Bottom was concern, and sufficient to

satisfy commerce clause) Ranchio Viejo v. Norton (impact on interstate commerce by removing incentive of race

to the bottom) While States may not go below the §111 floor set

§116 Preserves states rights, except that under §111, a state may not go below that level…but may

enact more stringent controls on New Stationary Sources

The Clean Water Act:

Generally: o Has been rather successful but there are defects

Only about 60% of waters and 55% of Lakes are performing the uses desired of them Inventory of Waters is lacking too

Many water systems are simply unknown, as to their pollution effect and level o Pollution Types:

Silt, Bacteria, Metals, etc…o Cost to Clean our Water:

From 1972 – 1996 $700B For the next 20 years, we need to invest $277B, to update our water infrastructure

o Implications: While mainly has dealt with point sources, non-point sources are also a large portion of our pollution National Security is also at issue, as the threat to drinking water from attack is viable

A Technology Based Statute: o Approach:

The clean water act is a Technology risk based management approach Reason:

No actual reason Ambient based had been sole approach tried, and in 1972, when CWA created, tried this approach…as

Ambient approach hadn’t been a successful o History:

A political compromise occurred also, in that the Senate pushed for a Technology Based Approach following the failure of the 1948 Federal Water Pollution Control Act

Reason for 1948 FWPCA Failure: 1. Required incredible amount of procedure

Required that Federal Government gain consent of state that pollution occurred With “Race to Bottom” No way State would ever consent!

2. Tracing

80

The 1948 version required that you must show the polluter had cause the pollution, and it was his pollution in the water

With many polluters, how can you? Technology wasn’t capable, and Federal Government lacked capacity to do so—

impossible o Arguments For and against Technology Based Statute:

Proponents: 1. Avoids Cause and Effect Problem

Simply set a standard based on what is currently achievable, Violation is shown if particular source exceeded their permit…don’t need to show cause

2. Promotes Investment in Technology Efficiency is cost effective…so promotes search for more efficient means **Is a Performance Standard—Not a design standard Many people create technology, other then industry, in search for something Industry will have to

use—encourages R&D There is an incentive to create new technology because of regulation being a performance

standard…it allows any way possible as long as that level is reached Opponents:

1. Lacks Cause and Effect knowledge 2. Technology relied in is not good

Water is still poor quality 3. Even if Technology is adequate, there are so many polluters complying with it, that water quality is

still overpolluted 4. More Capable Waterways

If a certain Water can eat up more pollution then another, there is no reason to regulate “Treatment for Treatments Sake”- there is no adverse effect, so wasting resource We Should regulate those areas that need regulation, are actually harmed

5. Inconsistent Regulation Because some waters are more proficient in cleaning themselves, some waters are overregulated,

while others are underegulated 6. Discourages Technology Investment and Improvement:

Because a technology based approach focuses on the best technology, whenever a better one is created, all have to comply—Solution: Do not come up with any more, and stay stagnant

Basics: o Purpose and Goal:

§101 (a): “The objective is to restore and maintain the chemical, physical, and biological integrity of the Nation’s Waters

(a) 1 Broad Goal: “Eliminate discharge of pollutants into Navigable Waters” (a) 2 Interim Goal: “To provide water quality which protects the propagation of fish, shellfish, and

wildlife, and provides for recreation in and on the water” The Fishable Swimmable Goal

o Regulation of Point Sources: Generally:

The CWA focused its efforts on Point Sources Non-Point Sources (generally run-off areas, or something not defined as a point source) are not regulated

Why: Limited Resources must be effectively used Technologically and Economically, easier to limit point source Politically, easier to point to a pipe dumping water Non-point sources, such as Agriculture, are politically strong

Congress is reluctant to regulate Regulating non-point source gets into Land use Planning

10th amendment Federalism Issues 1. Regulated Through National Pollutant Discharge Elimination Program [NPDES]

2 Types of point sources regulated

81

§1362 (14) “Point Source” Any discernible, confined and discrete conveyance, including pipes, ditches, channel,

tunnel, well…from which pollutants may be discharged A. Industrial

Requires NPDES permit “Direct Discharger”

Dumps directly into the water “Indirect Discharger”

Sends waste to POTP First, which then dumps B. Publically Owned Treatment Plant (POTP)

Gets waste from Households, and industry Note:

Based on Direct, Indirect, Industrial or POTPs, CWA applies different technology based controls to each

New and Existing Point Sources: Both have technological based control, but New Point source more strict

EPA Effectuates technology through the permit program By creating a technology standard, the regulatory limits are placed into the

permit Creates “Permit Sheild” §402 (k)

o Discharge in excess of your NPDES permit is violation of CWAo *But* If you comply with your NPDES permit, you’re shielded

through citizen suits for pollutants not in permit but you comply with their limits

they now have also permitted to discharge un-listed pollutant that’s been

disclosed to EPA, but hasn’t been listed 2. Water Quality Standards:

A Backup, Ambient Based/Harm based risk management approach Protects the water quality when many dischargers are complying with technology, but due to so many

polluters—water still becomes polluted Federalism Issues:

The NPDES permit program is in the hands of EPA initially Unlike CAA, which gives permitting authority to states initially

However, State may apply, and gain authority to be permit §402 (b) States May Submit an application to be the Permitting Authority:

State Governor desiring to admit its own permit program may submit a full and complete description of the program

Administrator of EPA shall approve each submission, unless he determines it does not meet §402 (b) 1-9

National Ass’n of Homebuilders v. Defenders of Wildlife: If the 9 criteria are met, EPA must issue the authority to permit to the States “By its terms, statute is mandatory and list exclusive…if the 9 criteria are met,

EPA (may) not deny transfer application” EPA may exercise some judgment in determining the §402 (b) criteria Transfer of Permitting Authority to states does not trigger §7 (ESA)!!!

§1370: Retention of State Authority Retains all state’s rights, except that a state may not go below what is mandated May exceed, or require more stringent limitations however

§1313: Water Quality Standards States are required to adopt water quality standards EPA may adopt its own standards, for State standards that are inadequate

EPA may enforce its own issued permits and state issued permits §1251 (b)

82

Police of CWA and Congress to recognize preserve and protect primary responsibilities of States….

The National Pollution Discharge Elimination Program: o 1. The Entire CWA surrounds 1 Statute:

§1311 (a): “Except as in compliance with…1342 (NPEDS Program) and 1344 (Dredge and Fill Program)…,

the discharge of any pollutant by any person is unlawful” This is the building block of the entire CWA—to even apply under CWA

§1362 (12): A “Discharge of a Pollutant is” (4 elements)

1. Any Addition 2. Of any Pollutant

§1362 (6) An extremely broad statute in definition of just what may be pollutant

3. Into Navigable Waters §1362 (7)

“means the waters of the United States…” 4. From any Point Source

§1362 (14) “means any discernible, confined and discrete conveyance…from which

pollutants are discharged “Point Source” and “Addition”

South Florida Management District v. Miccosukee Tribe: F: C-11 Canal collects ground water, from 104 mile basin. It pumps through an S-9 pipe pump,

into undeveloped everglades; WCA-3. 2 levees prevent return flow; L-33, and 37. Phosphorous, from Agriculture in C-11, runs off into C-11…is pumped over the WCA-3, where unnatural algae grows. Respondent brought suit arguing a NPEDS Permit was required.

I: Was Pump a Point Source and Was pollution “added” R:

1. A Point Source Is a Conveyance, and need not Add any pollution The Pump was a “Point Source” by definition Point source does not need to add any pollution, and pollution does not have to

start there Only needs to ‘convey’ it, or transfer pollution Clear that in §1362 (14) the examples listed don’t add any pollution either POTP does not add anything, and is a Point Source…only transfers/conveys

2. Unitary Waters Argument Argument that the CWA intends that all waters in the United States are 1 body

of water. So, nothing is being added to the water here, but instead, Pollution is being picked up from one portion of everglades, and conveyed to another

Only addition occurs on initial entry into the Unitary Water Because it is the same body of Water, as All USA Water is…nothing is being

“added” but instead moved, as it was already there Court Remanded:

o Court was unsure about this theory…as there was some evidenceo However, Congress also has specific regulations pertaining to specific

bodies of water…So, if all USA waters were 1 body, why would it do this?

o Alleged EPA regulation on this didn’t exist 3. Bodies of Water involved are the same

Even if the Unitary Waters approach is not accepted, an argument can be constructed that the conveyance from one water to another is really all the same body of water

Again, rather then “adding” anything, It is merely shifting pollution from one area of the water to another area of the same body of water.

83

Therefore There is no addition Remand:

o Evidence was that these 2 waters were “Hydrologically connected” such that moving pollution from one portion to another isn’t addition, after all

o Factual Inquiry of if this is all 1 everglades body of water o “Putting Ladle in One Soup bowl, lifting up, and pouring soup back

into the bowl” Note:

Friends of Everglades v. S. Fla. Water Mgmt , 570 F.3d 1210 (11th Cir 2010) On remand, the Government Won

Why? o EPA came out with a regulation saying that transfer of water from

one body to another was not an addition, without an intervening industrial addition (basically accepting Unitary Waters)

o Deferred to under Chevron Cert. Petition is waiting

Prior to EPA Regulation Most Circuits Rejected the Unitary Waters Approach

Catskill Mntn. Chapter of Trout v. NY: 2nd circuit did not buy EPA interpretation holding that the transfer of water

from 1 body to another was an addition Dams:

Dams change temperature, specieis action, add silt, and chemical balance However, they have not been understood to “Add” National Wildlife v. Gorsuch

“Pollutant” §1362 (6) Definition is extremely Broad

Sierra Club v. Cedar Point Oil: Held that the list was not exclusive Court may find a particular substance is in fact a pollutant

Weinberger v. Romero-Burcelo: Unexploded military bombs were pollutants

Ass’n to Protect Hammersley v. Taylor: Muscle Shells, that were added to water, were not pollutant because they were naturally

occurring and no the “waste product of transforming human process” Fairhurst v. Hagener:

Using pesticide that complied with FIFRA, to rid river of a non-native trout species was not a pollutant

No NPEDS Permit required EPA subsequently excluded pesticide use from NPDES permit

“Navigable Water” Generally:

For the 1342 NPEDS permit program to apply, the addition of a pollutant by a point source must be into ‘navigable water’ or a water of the united states as defined

In 3 subsequent cases, “Navigable Waters” have been defined through the 1344 Dredge and Fill permit program, and not the 1342 program

1344 Applies to land developers who want to dump fill material into water to fill it Issued by Army Corps of Engineers

Note: You will need to argue that the 1344 definition applies to the 1342 program

1. It should apply to both programso a. There is 1 definition of “Navigable Waters”

84

o b. 1311 is 1 prohibition that applies to both Permit Programs So intended to use same definition for both programs

o c. One Word Cannot mean 2 different thingso Therefore, interpretation applies equally to 1344 and 1342 programs

2. Counter Argument:o a. The Court was concerned with §1251 (b) ( 101)

Which preserves “states rights” and federalism, rather then the 1311 prohibition

o b. To Reach outer limit of Congressional Power Clear Statement A Point Source is pollution emitter: Not a State Function A Dredge and Fill Permit is Land Use: Is a State Function Therefore, regulating pollution is not a traditional state

function…and should apply differently Arguably then, Definition of “Navigable Waters” should

apply to 1342 program but not 1344 program 1344 (t) has specific land use provison…so could be 2

meanings… US v. Riverside Bayview:

F: The Corps defined “Navigable Waters” also as “tributaries” and “all wetlands adjacent to Navigable waters.” Wetlands were defined as “areas inundated or saturated by surface or ground water, to support prevalence of vegetation….” They generally include marshes, swamps, bogs. Π owns 80 acres of land near a marsh. He was dumping fill materials into the marsh. Corps brought suit saying he needed a permit

I: Is extension of definition to Wetlands adjacent to navigable waters reasonable? R:

1. Wetlands Adjacent to Navigable Waters is within Purview of Definition Statute was ambiguous in definition Language, Broad §101 purpose of act, and legislative history support this Comprehensive idea of CWA is only met when regulate an entire ‘water

system’…the adjacent waters can affect the actual navigable waters Technicality and inherent difficulty in determining what “navigable water” is

difficult Due to the large purpose of CWA, ambiguity of definition, the Corps must

come up with definition..is reasonable o Not For Court to change—Defer

2. ∆’s land is within Definition of Wetlands: Definition does not require flooding be frequent Just requires “inundated or saturated” ∆’s land met definition and, wetland was adjacent

Wetlands Adjacent to in fact Navigable Waters are within Definition SWANNC v. US Army Corps of Engineers:

F: Land in question was previously dried. However, some ponds had formed. Π’s hoped to develop the land, but sought Corps interpretation. Pursuant to Migratory Bird Act, which defined “navigable Waters to include intrastate waterways or wetlands, rivers, streams, that could be used by migratory birds and interstate commerce.” Corps witnessed 120 species of birds there.

I: Are Non-Adjacent Waters, wholly intrastate and non-navigable within CWA jurisdiction? R:

1. Riverside Bayview allows CWA to extend to non traditional ‘navigable’ water Legislative Acquiescence to Corps interpretation showed intend to reach that

far There was “Significant Nexus” between a clearly navigable water and wetland

2. While Extended, ‘Navigable’ may not be eliminated from definition and Significant Nexus between Regulated Water and ‘Navigable’ Water

Here A pond, 2 counties inland of any water, that was previously dry because birds live there is not within purview of ‘navigable water’

85

Did not have a ‘significant nexus’ 3. Clear Statement is needed to reach Outer Limits of Congress’ Power

Here, because the reach is so far, perhaps to the limits of Congress’s power, there must be a clear indication that Congress intended to reach that far

o Federalism Concerns: States have a 10th amendment Concern Traditional primacy, and power over land and water would

be infringed on Traditional Land use is for States

o Without a clear statement—Court will not reach the question of whether Congress has this power or not

o §1251 (b) Preserves State Rights, and seems as though a clear statement that Congress did not intend to reach this far

Chevron inquiry is not acceptable hereo Statute is clear that it did not intend to reach this far Step 1o Even if statute were ambiguous, Chevron deference is not applicable

in this scenario anyway Migratory Bird Rule is Unconstitutional

Stevens (dissent): ‘Navigable’ was already eliminated by further defining it as a ‘water of the united

states’ Navigable was a term of art then, and Congress further defined it This may be interpreted as ‘any water’ in the United States, without relevance

to its adjacency or not Therefore, corps definition is within the purview of the Clean Water Act No Federalism Issue:

Land Use Planning is a State Function, which choose how to use a land Environmental laws merely require that however it is used, it doesn’t fail to

protect the environment Federal Authority has always been there fore environmental regulation

Rapanos v. United States: F: 2 Cases consolidated. In Rapanos, dumping into a wetlands, which were connected to a drain,

which drained into a creek, which drained into a River. I: Does the CWA cover wetlands adjacent to Tributaries which are Adjacent to Navigable

Waters? In essence, how far does Navigable Waters Reach

R: Scalia Approach:

1. Navigable Water has a definite meaning by using dictionary comes up with, Navigable Waters are:

o “Relatively Permanent, standing, flowing bodies of water—connotating continual presence, as opposed to intermittent, ordinarily dry channels…described ordinarily, as streams, oceans, rivers, and lakes

2. Wetland has meaning too “A Continuous Surface connection with a navigable body of water, as defined”

o In practice, this means it will be difficult to tell where a wetlands ends and navigable waters begin

o That is when they may be reached under CWA 3. Federalism Concern:

Water and Land use planning are quintessential state and local power Cited §1251 (b) Allowing a broad definition like this, treats Corps as a Local Zoning Board Clear Statement is needed to show this far of a reach

86

o Without it, Court will not interpret statute that broadly…avoid CC/10th questions

Stevens Dissent Approach: Stevens argues that Riverside Bayview already controls

Their holding pertained to “Wetlands adjacent to Navigable Waters or tributaries” so this decision has been made

Chevron Applies: Ambiguous Statute Technicality of Issue is difficult Wetlands are extremely important to the total purpose and scheme of CWA

o Offer flood control, sediment protection and water purification, species food and habitat

Chevron Step 2: o Agency Validly and reasonably interpreted their statute

SWANCC is irrelevant Case dealt with non-adjacent non-wetlands, so it should not apply

Remand: If works under Kennedy or Scalia Should apply

Kennedy Concurrence: Disagrees with Scalia:

Artificial, unsupported restrictions foreclose what may have previously been acceptable

Restricts Agency Disagrees with Stevens:

Stevens defers no matter what; excessively deferential reaches too far SWANNC And Bayview created a framework:

1. A significant nexus must exist between wetlands and typically navigable water

o to determine, look at the purpose and goals of the CWA 2. The Goal is Broad 3. “Wetlands possess the required significant nexus, with a navigable

water, if they ‘significantly affect the chemical, physical, biological integrity of the navigable waterway”

o Categories: 1. If Speculative or Insubstantial it should not apply 2. Pursuant to Riverside Bayview, those waters that are

adjacent to a navigable water categorically qualify 3. Wetlands adjacent to major tributaries may be ok 4. Army Corps of Engineers may be able to identify

categories of tributaries that, due to the volume of flow, proximity to navigable waters, or other relevant considerations are significant enough to qualify under the Significant Nexus Test

o Test: If fits into one of these 3 Categories Ok, but if not: Case-By-Case evaluation under the Significant Nexus Test If does not fit No CWA Jurisdiction

Who Is Controlling? Kennedy Stevens

Who says Kennedy or Scalia Task:

You will need to argue 1. 1344 interpretation applies to 1342 2. Argue and Explain Differing Opinions and 3. Fit Facts to the interpreted definition to make it apply or not

87

Ground Water: Federal Circuits are split on whether discharge into underground aquifers that connect to surface

streams need an NPEDS permit or not Umtailla Water Quality Ass’n v. Smith Frozen Foods:

Court held that does not apply 1. CWA is ambiguous 2. EPA never interpreted act 3. State had its own permit program for surface and ground water discharge for

25 years, without EPA interjection Following Riverside Bayview, SWANNC, and Rapanos, will need to argue it fits into the

definition one of the cases proffered Perhaps argue it is continuously connected, to surface water, which pollutes an infact

navigable water 2. Once deemed applicable under §1342, 1311 (a), must comply with §1311 (b) Effluent Limitations:

o General: 1311 (b) deals with existing point sources Once you meet the criteria of §1311 (a), you must have a NPDES permit to discharge. 1342, the NPDES permit

program if you comply with the requirements of 1311…etc... So, once you are legally required to get a 1342 permit, look at 1311 (b) to see what applies §1311 (b) houses the Technology based Risk management requirements 2 Phases:

Phase 1 = §1 Phase 2 = §2 “Effluent Limitation”

§1362 (11): any restriction established by a state or EPA on quantity, rate, concentrations of chemical, physical, biological…discharged from point source into navigable water…

Transfer of technology: EPA may transfer technology between industries, if it ‘reasonably believes it is available or could be

made available in an industry where it does not exist yet” EPA has gone so far, as to require other countries’ technologies…

Hypothetical Technology: Must show it is available…

o There are 2 Phases of Compliance:

Phase Type of Pollutant

TBELs Compliance Deadlines

Applicable Factors

Available Back-end Adjustments

1 Conv, non-conv., and toxic

BPT §1311(b)(1)(A), (C)

§1314(b)(1)(B)

FDF variances

2 Toxic (§ 1362(13))

BAT §1311(b)(2)(C)-(D)

§1314(b)(2)(B)

FDF; § 1311(k)

Conventional (§ 1314(a)(4))

BCT §1311(b)(2)(E)

§1314(b)(4)(B)

FDF; 1311(k)

Non toxic, non-conventional

BAT §1311(b)(2) (F)

§1314(b)(2) (B)

FDF; 1311(c), (g), (k)

88

1. Phase 1 = §1 (Circa 1977): §1311 (b) 1 (A-C)

Who Complies: All Point Sources are required to Meet Phase 1 Regardless of Pollutant type or point source *Remember, that industry effluent limits differ, however

Technology Level Required: (A) Best Practicable Control Technology currently available (“BPT”) + (C) Any more stringent level required by states

A. Because EPA isn’t regulating enough or B. To meet that States Water Quality Standards

The Process: EPA regulates categories, within industry For instance, all energy companies that come in for an NPDES permit are required to use the BPT

level from that industry…regardless of what effluent is EPA looks at the industrial category, and puts that into your permit Note:

Again, the Clean Water act only mandates performance standards…not design standards…

So, Industry with permit does not need to utilize or install that specific technology…Point source only needs to meet that level of effluent emission!! No matter what technology chosen

Look at End not the means Dupont v. Train (Where EPA gets authority for industry-wide):

F: EPA regulated industry, by imposing industry wide limits. §1311 requires the technology and, in 1314, EPA evaluates factors to do so.

EPA Argues that, under 1311 (a) it could issue an industry wide standard That industry comes in, and you get permit according to your level…quicker, and more

efficient, Industry argued: 1311 (b) is what each plant per permit requires. And, that EPA must evaluate

point source by point source what their effluent level will be, in order to slow down EPA’s ability. With 42,000 point sources, it certainly would slow down.

I: While CWA does not specify, may EPA issue industrywide effluent limit? R:

1. Phase 2: 1311 (b) 2 A says “Category or Class” Although there is nothing in Phase 1 text, Phase 2 (1311 b 2 A) says EPA may

set effluent limitations for “category or class” Congress intended to regulate groups all at once, and not individually

o So Industry argument didn’t work for Phase 2 So For phase 2, EPA may issue across the board, industry wide effluent

limitations rather then point-source by point-source 2. But, 1311 (b) 1 (A-C), Phase 1, Doesn’t Have this Language?

While it may seem that absent this same language, adopted in 1983 for phase 2, it wouldn’t apply to phase 1…

However, Court says there is no evidence that Congress intended to treate phase 1 as a point-source by point-source consideration, and phase 2 not

It would be an anomaly The 304 factors are not wholly different either Also, if phase 1 and 2 they would be reviewed in two separate courts…would

lead to conflicting interpretation and makes no sense Category/Industry-wide regulations promote a consistent, and centralized

regulation in line with Congress’s intention 1 Limitation:

o Phase 1 must have ‘allowable variances’ to individualized plans 3. §1316 New Point Source Review:

89

Identical to CAA New Source Review 1. The EPA sets ‘standards of performance for new sources’ “Standard of Performance” is a standard of control for discharge of pollutant,

which is the greatest degree of effluent reduction achievable through best available demonstrated control technology

∆ argues it must allow for a varianceo No EPA is prohibited, the Court says, from making any

variances to new source standards of performance (e) Court Says:

o Congress intended this to be strict, and prohibitory and it speaks in terms of ‘standards’

o §1311 speaks of “limitations” Turns Out this is no convincing:

o Other parts of the CWA say standards, and have variances 1317 Chemical Mfrs. Ass’n v. EPA (holding that

variances are appropriate with standards 1326 (b) says standards refers to 1311, which in this

opinion said must have variance… 1311 (c), (g) allow modifications to Phase 2 permits,

based on requirements…so something being a ‘limit’ or ‘standard’ obviously isn’t as relevant as Court thought

o Absolute Language Argument: Court also argued that because of the mandatory language in

306, that means there can be no variances, but… Mandatory “shall” appears in 1311 (b) 1 A too So mere fact that absolute language doesn’t mean no

variance eithero §1311 (c) Only Applies to Phase 2:

Based on this reasoning then, even if Court was reasoning that a variance is needed where it says, and not where it doesn’t say

It just ruled above that Phase 1 needs a variance, but there is no variance section for phase 1…?

Contrary to its holdingo National Uniformity Argument:

Phase 2 rationale, above, listed the desire for national uniformity…and it requires variance

And now here, argues national uniformity requires no variance contradictory

Factors EPA considers to Evaluate Phase 1 Technology of BPT: §1314 (b) 1 (B):

“Factors relating to assessment…” EPA looks to “the average of the best performers in the industry”

o Ignores the non-best/less effective performerso Averages out the best ones level, and then regulates to that level

Cost benefit Analysis:o “Consideration of the total cost of technology in relation to effluent

reduction benefits” So Phase 1 requires a CBA Judged by:

“Average of the Best Plants in a Particular Industry”o Hooker Chem. & Plastics v. Train (EPA correctly looked at average

of best plants, as it’s in line with legislative history)o Chemical Mfrs. v. EPA (EPA is allowed to look at technology that is

outside of a particular industry, and to transfer other industry technology

90

What if EPA Has Not issued Technology Regulation for Particular Industry Yet? Note that Dupont, above, gives EPA the authority to regulate industry by industry If they simply haven’t regulated a particular industry yet:

1311 (a), by definition says you cannot pollutant, but §1342 (a):

says that “EPA may issue a permit according to 1311, or prior to taking of necessary implementing actions relating, conditions as the administrator determines necessary to carry out the provisions of the chapter

o So EPA is allowed to craft individualized effluent technology limits “Best Professional judgment” In the absence of industry wide regulations, EPA is to give

permit “with conditions as EPA shall deem necessary” 1342 (a)

Note:o This is why industry argued in Dupont to have all permits be case by

case evaluation Phase 2 = § 2 (1311 (b) 2 (A-F)):

Generally: Based on what pollutant you discharge, phase 2 regulates each differently as described below Each of these is designed to be an incremental step beyond Phase 1 BPT in an effort to move

towards the goal of CWA Note that the title of each pollutant isn’t exactly relevant—but it conveys the desire to

get better and better At this point in time:

Aside from those sources that haven’t gotten industry wide regulations yet, everyone should be on their way to complying with phase 2, having already complied with phase 1

Compliance Based on Pollutant Type: Conventional Pollutant (§1314 (A) 4)

Generally thought of as Biodegradeable Toxic Pollutants (1311 (b) 2 (D))

Those not biodegradable, that create a risk of substantial human health impairment Non-Toxic/Non-Conventional (1311 (b) 2 F)

all pollutants other then Toxic or Conventional Technology Required:

§1314 (b) 4 (B) Conventional Pollutants “Best Conventional Pollutant Control Technology” (“BCT”)

§1311 (b) 2 (C, D) Toxic Pollutants “Best Available Technology Economically Achievable” (“BAT”)

§1311 (b) 2 (F) Non-Toxic/Conventional “Best Available Technology Economically Achievable” (“BAT”)

Factors EPA Considers to Evaluate Phase 2 Technology: Depends on the pollutant and technology level

1. Conventional Pollutants get BCT according to 1314 (b) 4 B 1. Conventional pollutants are not considered as bad as Toxic or the uncertain

non-toxic/non-conventional oneso So, Congress did not want to create as big an increment that exists

between BPT and BAT to regulate “Conventional Pollutants” 1314 (b) 4 (B)

o Further shows Congressional intent that Conventional pollutants are not as bad as others

o 2 Cost Benefit Tests: 1. Compare costs of attaining reduction to effluent reduction

benefits derived and

91

2. Cost and level of reduction of pollutants from Publically Owend Treatment Works to cost and level of reduction of industrial sources

Why: Because, the same conventional pollutants from industry are the same conventional pollutants as a POTW

So because both industry and POTW are dealing with same conventional pollutants, makes sense to compare them and treat/regulate them the same

2. Toxic and Non-Toxic/Conventional get “ BAT ” §1314 (b) 2 (B) “Factors relating to the assessment…include cost”

o No Cost Benefit Analysis is requiredo Note:

This, from a policy standpoint, makes sense Phase 1 should consider it, but Phase 2, dealing with toxic

chemicals, should not be concerned with Cost While EPA has to consider cost as a factor, it does not need

to weigh the two **Cost Benefit Analysis would almost always lead to a less

restrictive technology being implemented This pollutants are more uncertain, and potentially deadly…

so cost benefit not used “False Positive” rather then False Negative

EPA looks to the single best performero Whatever is best, we regulate to that levelo Congress’s intention was to regulate a more aggressive and stringent

level in an effort to move towards CWA’s goal Congress even explicitly stated that if this pushed some

businesses out of business, they were ok with it and was part of the plan

Ass’n of Pacfic Fisheries v. EPA: F: In considering phase 2 BAT limits, what needs to be ‘available’ and what is ‘economically

achievable?’ R:

Available: Legislative history of CWA specifically states that if 1 facility demonstrates

that level of technology, it is available or if there is sufficient relevant data from plant to provide the needed economic and technological justification for it

EPA may use 1 study to show that the technology is the best units can meet ito Bust must be able to demonstrate its effectiveness and articulating the

reasons for its determination Economically Available:

EPA must consider factors set out in 304 (2) (B) Does not have to be a cost-benefit analysis But, does need to consider all costs that may occur from using technology

o Here, ‘significant amount of land will be required by technology recommended’ so EPA must consider land cost and especially when its not readily available

o Variances Back end and Front End Adjustments—Why there are 2 different BAT Technologies: Variances provide the flexibility in what otherwise seems like a rigid system of controls under CWA

Originally, in Chemical Mfrs Ass’n v. NRDC, the court stated that EPA may grant variance on the ground that dischargers situation was ‘fundamentally different’ from its industrial class

Congress eventually agreed, and codified it Front End Adjustment: Regulation through technology based controls

92

Back End Adjustment: an opportunity for individual point sources to come in and seek a modification for some special reason that the point source describes

“Fundamental Variance Factors” §1311 (n) Fundamentally Different Factors:

EPA may establish an alternative requirement…if the owner/operator demonstrates that 1 (A). The facility is fundamentally different with respect to the factors listed in 1314

(b), other then cost Note So if the ‘applicable factors’ portion of slide above doesn’t apply to

you, may be able to get a variance 1 (B) The application must have information and supporting data… 1 (C) Alternative is no less stringent… and 1 (D)

Phase 1: Gets the FDF Factors listed above

Phase 2: Toxic: FDF, above, and 1311 (k)

Innovative Technology Variance Conventional: FDF above, and 1311 (k) Non-Toxic/Non-Conventional: FDF above, 1311 (k) and 1311 (c) and (g)

1311 (c) may get modification if 1. Will represent the maximum use of technology within economic capability of that point source and 2. Results in reasonably further progress towards elimination of discharge pollutants

1311 (g) specific pollutants Other Technology Based Approaches in the CWA:

o 1. New Point Source Review 1316 (a) 2: Those who commence construction after the publication of a proposed regulation Best Available Demonstrated Control Technology

The most stringent New sources are subject to this more stringent standard because they are on notice of it…if you build

post-regulation you get a ratcheted up standard Also, more cost-effective, arguably, as they don’t have to retrofit their plant, but instead can build the

technology into the structure Counterargument is that it is a disincentive to build new plants… so old plants will continue and

because they are worse, pollution will actually be worse In Practice New Point sources get a Phase 2 technology for many industries

o 2. Publically Owned Treatment Works 1311 (b) 1 B Primary Treatment Removal of the biosolid Secondary Treatment separate water and biosolids easier

CWA only regulates to the secondary treatment levelo 3. Indirect Discharger 1317

Indirect dischargers are those industries that send their effluent to a POTW 2 Levels of Control:

1. Prohibited Discharge Standard: Industry cannot send effluent to POTW that harms POTW or interferes with operation

2. Categorical Pre-Treatment If industry is sending an effluent to POTW that it cannot treat, or that would go right

through the treatment indirect discharger must pre-treat it o 4. Biosolids Disposal (1345):

The waste that is skimmed out of the POTW needs to be put somewhere Could be tainted if there is indirect discharger…we don’t want to use the human waste to fertilize if its

tainted with an indirect industrial effluent This section then, deals with specific practices designed to protect with “Best Management Practices”

Water Quality Standards 1313 (c) 1:

93

o Above is the core of the clean water act but, WQS provide a safety net Because technology based standards don’t regulate the total amount of pollutant allowed, but instead regulate the

level allowed to be emitted…there may be many polluters using the best technology possible, and we still end up with dirty water

WQS allows this to occur Is the Ambient Quality Risk based approach we saw in CAA, incorporated into CWA

o The Process: All states have assumed the responsibility to set WQS, subject to EPA’s review and approval

1. Establish a designated use: §303 (c) 2 A specifies some public water, propagation of fish and wildlife, recreational

purposes, agriculture, industrial, etc... EPA:

A. Limits states ability to alter a use designation to make less demanding B. May ratchet the use up beyond where it is C. States are supposed to set their uses such that waters leaving the state don’t impair

downstream states to meet their WQS D. States traditionally have substantial discretion in setting use.

2. Adopt Water Quality Criteria for each body that is consistent with the designate use: Set at:

1. Quantitative Concentrations (40 CFR 131.3 (b) 2. Narratives:

May say something like “cannot have pollution” or toxins But this is very broad, and uncertain and most likely unenforceable Actually is a case requiring change to quantitative from narrative

1314 (a) 1: EPA sets its own WQS to help states determine what the appropriate WQS is for that particular designated use based on the ‘latest scientific knowledge’

While states may deviate, they must ‘have sound scientific rationale for doing so’ State will need to convince EPA why their standard is wrong or why their water is

unique The Burden of Deviation is on the States 3. Apply a Non-Degradation Policy:

required, but very little is known about it 1313 (d) 4 B: Waters with WQS must comply with the EPA non-degradation policy Tier 1 Waters: Waters where the fishable-swimmable goal is attainable can only be degraded if

degradation ‘preserves the attainability of that goal’ Tier 2 Waters: Waters with a better then fishable-swimmable goal may only be degraded as

‘necessary to accommodate and important economic or social development’ Tier 3 Waters : Outstanding National Resource Waters are protected by an irrebuttable

presumption that existing water use and quality must be maintained 4. State Submits their proposed WQS to EPA for review:

The Role of EPA: 1. States submit their WQS to EPA for review 1313 (c) 2 A

Such submission to EPA must have designated use, water quality criteria, and “shall be…to protect the public health or welfare, enhance water quality and serve purposes of CWA”

2. 1313 (c) 3: If EPA Approves Becomes Federal Standard 1313 (c) 3: If EPA disapproves

o remands to state to make changes to fix problem 3. 1313 (c) 4: If EPA determines after state has had chance to redo, or hasn’t submitted

that it is inconsistent with what CWA requires, EPA may promulgate its own WQS for states

EPA Has been granted the authority to do so Nat’l Wildlife Fed’n v. Browner: held that EPA doesn’t automatically have to

accept the states promulgated WQS—instead, it has discretionary authority to do so

5. Establish TMDL’s (1313 (d) 1 C) and Allocate them among potential sources

94

A TMDL is the total capacity a body of water can take of a pollutant—how much can be discharged into that body of water, without exceeding WQS

This is what is put into the permits and allocated Again—the whole idea is to prevent going over the WQS

So while we allow pollution in, through technology based limits above, the TMDL makes sure we do not go above the WQS + Margin of Safety

Note: Unlike technology standards above, WQS TMDLs apply to both point and non-point

sources 1313 (d) 1 (A):

Each state makes a list identifying and ranking in priority those waters where technology limits are not enough to meet WQS

Pronsolino: has held that EPA’s view that the list should include all impaired waters is accepted

1313 (d) 1 (C) Components 1. Waste Load Allocation: The amount allowed from point sources 2. Load Allocation: The amount allowed from non-point sources 3. Natural Background Concentrations of relevant pollution

how much pollution is already within the water 4. Seasonal Variations: 5. Margin of Safety (which takes into account uncertainty and lack of knowledge and

its effect on water quality) Process:

1313 (d) 2: Once a state creates a TMDL it submits it to EPA for review EPA approval means that state incorporates TMDL into its current plan Disapproval means that EPA promulgates its own TMDL

1313 (f): No matter what, states may not undercut the 1311 technology requirements People must continue to comply with them

1311 (b) 1 C: States may, however, ratchet above the TMDL It goes into the NPDES permit and becomes enforceable under 1311 (b) 1 C Reasons why a state would go above:

o 1. Want cleaner watero 2. Perhaps so that it can overregulated point sources, so that non-point

sources may be left along 1313 (d) 2: If State Fails to Establish TMDL:

EPA may promulgate its own TMDL for the state and determine the loads for waters EPA determines are necessary to implement the WQS

Litigation is Vast Over This Issue: o Many litigants argue that 1313 (d) 2 is a mandatory duty of EPA’so 1. Litigation is vast because TMDL brings same idea of the Pre-1948

FWPCA, which needed a cause and effect relationship TMDLs are allocated to people who may not actually be

polluters, such as non-point sources who argue industry is a polluter while they are not

Scientific Uncertainty is also a large issueo 2. Political Pressure: When a state makes a TMDL, political pressure

begins to mount from industrial polluters—make the TMDL large so there is more to allocate to point sources

This is more true when allocation occurso If TMDL is narrative rather then quantitative also makes a big issue

of what it exactly means and who it make be allocated to American Paper Inst. v. Train actually required a narrative

be changed to a quantitative statement Can a TMDL solely apply to Non-Point Source:

95

Pronsolino v. Nastri: F: California submitted its WQS pursuant to 303 (d) and EA disapproved.

California failed to resubmit so EPA created their own. California then made the TMDLs, and allocated some of them to non-point sources. Π owned 800 acres, and TMDL effected him, because he had to avoid sediment runoff into water, which harmed his logging for almost $1M. He sued

I: Whether TMDLS may apply to non-point sources? R:

o 1. Arguments: EPA argued that 1313 (d) 1 applies to all waters, and point

and non-point sources Pronsolino argues 1313 (d) 1 is only for point sources

o 2. 1313 (d) 1 says ‘waters’ it does not specify whether it should be from point souce or

non-point source Only deals with impairment of waters and not how they got

impaired o 3. Statutory Construction Argument:

1. ∆ argued that 1313 (d) 1 should be read to apply to the words ‘effluent limits’ which only apply to point-source which by definition would exclude non-point source

2. No read naturally, you read forward towards the ‘water quality standards’ language…not backward

3. Also, 1313 (d) is sandwiched in between a, b, c, and e, all of which deal with WQS which by nature does not distinquish between point and non-point sources

4. So, it makes sense that 1313 (d), within all of those provisions does not either

o 4. Federalism Argument: 1. The TMDL only applies to broad categories of non-point

sources rather then particular parcels it avoids the argument that EPA is infringing on traditional land use

2. Does not force state how to implement TMDL State is in no way required to act here function of

cooperative federalism and spending power Here, state choise if it would comply with it and how it

would comply with it o Note: Although EPA May Promulgate its own TMDL

State does not have to follow and EPA cannot enforce it Why: Stems from Congress’s desire to steer clear from any non-

point source issues—pursuant to the political issues Even though they may have been able to reach them, this is

more of land use planning then the CAA, where EPA can enforce its NAAQS it adopts

However While EPA cannot enforce its adopted WQS TMDLs, its power is the ability to void an NPDES permit issued by the state 1342 (d)

So EPA Says Fine, if you wont allocate TMDLs to non-point sources, we may void a NPDES permit you issue…this gives EPA the ability to influence states choices in allocating at least part of their TMDL to non-point sources

96