GPPI - Environmental Law Outline

Environmental Law: A Structural Overview

Environmental Values and Policies: An Introduction

Environmental law grew from a sparse set of common law precedents and local ordinances to encompass a vast body of national legislation
Environmental Problems and Progress

Holdren and Ehrlich's I=PAT, i.e. Impact = f(Population, Affluence, Technology)
environmental issues have become more partisan than they were in the 1970s
environmental damages create winners and losers while remediation does the same

American Environmentalism: Sources and Values

different values frameworks are focused on: people, living things, entire ecosystems
many environmental issues involve the imposition of costs on people that are not of their choosing. some may value autonomy over efficiency.
environmental justice is an important new strain within the environmental movement

many environmental justice disputes involve the siting of LULUs (locally undesirable land uses)
empirical literature does not support discriminatory siting of LULUs but rather that LULUs are sited where communities are less politically organized and that these LULUs then make property values fall thus attracting an influx of poor minorities (p. 19)
Clinton executive order required all federal agencies to incorporate environmental justice as a consideration in their internal decision-making process
In 1997, the Atomic Safety and Licensing Board (ASLB) rejected a permit application from Louisiana Energy Services to locate a uranium enrichment plant in a poor black area based on the cursory attention Nuclear Regulatory Commission (NRC) staff had paid to the issues of environmental justice in the NEPA EIS. Full NRC board, however, overturned the ASLBs instructions to investigate whether racial discrimination had played a role in the siting decision. The board ruled that NEPA only required considering the disparate impacts on different groups.
Title VI of the Civil Rights Act outlaws discrimination on protected characteristics for any program or activity receiving federal funding (Sec 601). Sec 602 authorizes agency programs to issue implementing regulations. Environmental justice advocates have taken to filing administrative suits against these Sec 602 regulations. Such suits do not require them to show discriminatory intent.
Donahue: The order itself doesn't provide a cause of action; one would need to have a cause of action elsewhere. One way one could rely on the EJ order is by claiming, in a NEPA suit, that agency hadn't given adequate consideration to environmental impacts on low-income or minority community -- an interest whose importance is reflected in the Order. See Casebook p. 20 (discussing uranium enrichment plant in Homer, LA). See also id. at 21-22 (discussing uses and limitations of Title VI of the Civil Rights Act of 1964 as a means of litigating EJ claims).
cause of action - the basis of a lawsuit founded on legal grounds and alleged facts which, if proved, would constitute all the "elements" required by statute

Economics and the Environment

free-access problem ("tragedy of the commons"), people weighing private benefits against private costs (not social costs)
public goods, free riders, and transaction costs
polluter pays principle
beneficiary pays principle - applicable to international environmental law since sovereign states must voluntarily cooperate
Coase theorem - beneficiary pays and polluter pays lead to same outcome in efficient system
ecosystem services

example of NYC watershed protection vs. water filtration plant
CWA and CAA use human health-based standards
ESA and Marine Mammal Protection Act are species-specific (not ecosystem)

Common Pool Resources

prisoner's dilemma
problem of collective action

"it may be in everyone's individual interest not to cooperate in a collective effort even though everyone would be better off if everyone cooperated"

Environmental Statutes: A Historical Perspective

6 Stages in the History of US Environmental Law

The Common Law and Conservation Era (pre-1945)

state laws and local ordinances to protect public health and to require the abatement or segregation of public nuisances were common

Federal Assistance for State Problems (1945-1962)

Water Quality Act of 1948 provided grants to states for water pollution control
in 1956, Congress provided federal funding for municipal wastewater treatment

The Rise of the Modern Environmental Movement (1962-1970)
Erecting the Federal Regulatory Infrastructure (1970-1980)
Extending and Refining Regulatory Strategies (1980-1990)

many amendments aimed at forcing agencies to implement statutes more expeditiously

Regulatory Recoil and Reinvention (1991-present)

judiciary and congress were more conservative and skeptical of environmental regulation
1995 - Unfunded Mandates Reform Act added procedural hurdles for unfunded mandates
1996 - Small Business Regulatory Enforcement Fairness Act made it more difficult for EPA to issue regs that affect small businesses

Sources of Environmental Law

Common Law Roots

Essential question of environmental law is how to harmonize conflicts when the activities of one interfere with the interests of others in the quality of their physical surroundings (p. 63)
Common law relied primarily on nuisance law doctrines (p. 63)
Competing perspectives of "moral outrage" and "cool analysis"

"Moral outrage" - early nuisance common law held offenders strictly liable for actions that interfered with property rights held by others irrespective of the value/utility of the offender's actions

Strict liability is a legal doctrine that makes some persons responsible for damages their actions or products cause, regardless of any "fault" on their part.

"Cool analysis" - following industrial revolution, common law increasingly took a balancing approach and weighed the benefits of the offending activity

Private Nuisance

Requires a showing of significant harm
Interference with property rights must be intentional and unreasonable or actionable under rules imposing strict liability on those engaging in abnormally dangerous activities
"Sic utere" - the principle that no one has the right to use their property in a manner that causes harm to another
Industrialization caused the courts to tolerate a higher level of severity and unreasonableness
Private nuisance common law became a kind of zoning mechanism since the expectations for severity and reasonableness of harm depended upon location and situation
American and British courts did, however, reject the notion that any level of damage could be allowed if the activity took place in a lawful and "convenient" location. Also, courts rejected the "coming to the nuisance" doctrine which would have prevented new residents from complaining about conditions that existed before they arrived
Madison v. Ducktown Sulphur, Copper & Iron Co. (TN Supreme Court, 1904)

Landowners filed lawsuits against firms seeking recovery of damages and injunctions against copper smelting activities which they claimed were polluting
TN SC found that defendants were conducting their business in a legal way--the only technologically feasible way
Court balanced value of affected land against much larger economic value of mining operations
Court allowed for recovery of damages but refused to grant injunction
No question of damage or causality
Court weighs value of smelting plants against comparatively minuscule value of the claimants’ lands
Court did not balance economic interests in determining whether or not a nuisance took place

In Adkins v. Thomas Solvent Company (Michigan Supreme Court, 1992), the court found that landowners could not recover damages from diminished property values due to the contamination of a nearby site
Harmonizing Conflicting Interests: To Balance or Not to Balance in Fashioning Remedies for Nuisances?

Economists point out that strict liability is only efficient if a defense of contributory negligence is allowed; otherwise, victims of pollutions won't take the efficient level of avoidance actions
Were victims always entitled to injunctions, they could use this right as a means of extortion
Balancing approach that focuses on efficiency can have distributional impacts
Is a failure to issue an injunction tantamount to granting a polluter the right to condemn a victim's property?
Private nuisance common law is insufficient for many modern pollution problems with many victims because of the low level of individual damage despite high levels of aggregate harm

Public Nuisance

Public nuisance = "an unreasonable interference with a right common to the general public" based upon whether the conduct:

involves a significant interference with the public health, safety, comfort, or convenience
is illegal
is of a continuing nature or has produced a long-lasting effect that the actor has reason to know will be significant

Missouri v. Illinois (SCOTUS, 1906)

Chicago dug canal to drain sewage into tributary of Mississippi river, and St. Louis claimed that this led to an increase in disease in the city
Cause of action was federal common law of nuisance
SCOTUS has jurisdiction over disputes between states, so the case went straight to SCOTUS
SCOTUS appointed a special commissioner to find the facts of the case and make findings for the court to review
Court pointed out that Missouri allowed in-state cities upstream of St. Louis to similarly dump raw sewage into the Mississippi; this makes Missouri less of a blameless victim (“unclean hands”) as well as casting doubt on the claim that Chicago’s sewage is making Missourians sick
Court finds that Missouri itself pollutes the river sufficiently to require remediation that would also eliminate any potential impact from Chicago's pollution
"Reverse golden rule" = in a transboundary case, the affected state cannot demand that the source state adhere to a higher standard than the affected state applies to its own citizens
Holmes did think that the court was the proper venue for resolving the conflict—one of such magnitude that it might lead to war were the states independent nations

Georgia v. Tennessee Copper Co. (SCOTUS, 1907)

Georgia filed suit against Ducktown, TN, copper smelters alleging that their air pollution caused property damage in GA
Court did not endorse balancing of interests in this case because GA is a semi-sovereign state and thus should not have to give up its rights for monetary compensation. Court found GA could stand "upon her extreme rights" and get an injunction against the copper smelters no matter the economic consequences in TN
Holmes says GA has a right as a quasi-sovereign to determine what the level of pollution in the state should be—thus, the court did not weight the economic values on both sides as it did in Duckworth I
Majority used this case as support in decision in Mass. v. EPA to say that MA and NY as states had special standing

Regulatory Legislation

Environmental Statutes: A Historical Perspective
The Impact of Regulatory Legislation on Common Law Actions

City of Milwaukee v. Illinois [Milwaukee II] (SCOTUS, 1981)

Court ruled that Clean Water Act had pre-empted federal common law nuisance action. Since the pre-emption of federal common law did not involve the same federalism issues, Congress did not have to specifically say that the federal common law was pre-empted
Court found that Congress's comprehensive regulatory scheme in the CWA implicitly pre-empted federal common law
One motivation for this decision might have been that the court did not see itself as qualified to be judging technically complicated pollution cases and saw an opportunity to gracefully exit the arena and let Congress take it over exclusively

International Paper Company v. Ouellette (SCOTUS, 1987)

Lake Champlain property owners in VT filed a private nuisance suit against IP over pollution from its NY facility
Court found that Congress need not explicitly preempt state law and that it can be assumed when Congressional legislation does not "leave room" for state regulation

Article VI of the Constitution (the supremacy clause) gives Congress the power to preempt state laws in areas where Congress can legislate
In some areas where Congress has enacted very detailed, comprehensive legislation, the court will say that Congress has essentially “occupied the field” and that failing to preempt state law would undermine Congress’s legislation

Should state common law not be preempted by the CWA, the purpose of the act would be in jeopardy
Court finds that CWA precludes the court from applying the standards in an affected state to sources in the offending state
Aggrieved parties could bring a nuisance suit against IP under NY common law

Environmental Federalism: Three Models of Federal-State Relations

Federal financial assistance to encourage states to adopt environmental standards on their own
"Cooperative federalism" - optional delegation to states of federal programs
Federal control and preemption of state law
Arguments against devolution

economies of scale in national regulatory programs
national government better able to deal with transboundary pollution
equity concerns
possibly easier to overcome business interests at national level than at local or state level

New York v. United States (US 1992)

New York argued that the fed had infringed on its Tenth Amendment rights when it stipulated in the Low-Level Radioactive Waste Policy Act that states that failed to make arrangements to dispose of such waste by Jan 1 1993 must "take title" to all such wastes generated within their borders
Congress cannot "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program"
Where Congress has the authority to regulate, it may pass laws to regulate, but it may not compel states to pass such laws - Court notes that to do so would diminish democratic accountability
Court finds that the fed could not force either of the two "options" it offers states in isolation, so how then can the fed force the state to make a choice between them? The fed needs to give the state the real alternative of declining to regulate

Environmental Impact Assessment

National Environmental Policy Act (NEPA) Overiew

NEPA forces all federal agencies to consider the likely environmental impacts of their decisions
Congress created the Council on Environmental Quality (CEQ) to coordinate agencies' compliance with NEPA
Hundreds of judicial decisions have addresses NEPA
Calvert Cliffs Coordinating Committee v. United States Atomic Energy Commission (DC Circuit, 1971)

established judicial role in forcing agencies to jump through procedural hoops
AEC approved new nuclear plant at Clavert Cliffs along Chesapeake Bay
AEC required applicant power plants to conduct environmental reports; however, AEC regs did not require that the agency consider the report unless parties raised specific challenges to it
AEC contended that the vagueness of NEPA and its delegation allowed for sufficient agency discretion to make AEC regs acceptable
Court ruled that NEPA's substantive policy leaves room for flexibility but that NEPA includes procedural provisions which are not highly flexible
a detailed EIS provides evidence that an agency has in fact carried out the decision-making progress intended by Congress in NEPA and, furthermore, provides an opportunity for outside parties to get involved in decision-making
Courts have a responsibility to reverse agency decisions, not on substantive grounds, but if the agencies did not follow the procedure prescribed by NEPA
Court ruled that "accompany" in the Act meant not just the physical accompaniment of the environmental report with other documents used in decision-making but the actual consideration of the environmental report's findings

Strycker's Bay Neighborhood Council, Inc. v. Karlen (SCOTUS, 1980)

Plaintiffs sought to enjoin construction of low-income housing in NYC Upper West Side based on claim that HUD did not consider alternative sites
SC rejected circuit court's ruling and said that NEPA does not dictate a certain decision only a procedure for decision-making
Court affirmed that NEPA required only a consideration of environmental impact according to its procedural provisions and that HUD met the requirement for consideration

Under What Circumstances Must an Environmental Impact Statement Be Prepared?

Proposals for Legislation

Rarely performed
Citing deference to CEQ regs, SCOTUS ruled that appropriations are not "legislative proposals" (Andrus v. Sierra Club, 1979)
Public Citizen v. US Trade Representative (DC Circuit, 1993)

Court found failure to file EIS for NAFTA was not subject to judicial review because it was the final action of the president (not subject to NEPA) that would implement NAFTA

Major Federal Action

includes projects funded or carried out by the federal government and private projects subject to federal approval as well as federal programs, policies, and rules
questions have arisen about what part of a project is subject to an EIS when the federal "segment" of a project is only a small but integral part (e.g. part of a highway or electric transmission line)
In Minnesota Pesticide Information and Education Inc. v. Espy (8th Circuit, 1994), the court ruled that a decision to halt herbicide application on the part of the Forest Service did not constitute action

Problems of Timing and Scope

Kleppe vs. Sierra Club (SCOTUS, 1976)

Sierra Club claimed that the Interior Department needed to perform a regional EIS for coal programs in the Northern Great Plains
the Interior Department had already completed three EISs covering parts of the region and had completed an EIS for its national coal program
Court found that Sierra Club could only prevail if there was a federal proposal that related specifically to the Northern Great Plains as a region (rather than local or national proposals)
Court found that NEPA is quite precise in mandating at what point an EIS is required and explicitly rejected the "balance of factors" approach taken by the DC Circuit court in finding for the Sierra Club
Sierra Club also argued for a regional EIS because separate programs and projects within the region had cumulative effects
Court deferred to the expert judgment of the agency in determining whether cumulative effects warranted consideration of the region as a whole for an EIS
SC says it's up to the agency to decide the appropriate scope of an EIS

Procedure for Determining Whether or Not to Prepare an EIS

CEQ directs that, if an action normally does or does not require an EIS, then proceed accordingly; otherwise, perform an environmental assessment

Determining the "Significance" of Action

CEQ offers guidance based on "context" and "intensity"

What "Effects" Must Be Considered

Metropolitan Edison Co. v. People Against Nuclear Energy (SCOTUS, 1983)

Court found that NEPA did not require agencies to consider the potential harm to the psychological health of a surrounding community due to the restart of a nuclear reactor at Three Mile Island
Court ruled that effects must have a sufficienty close connection to the physical environment

Dept. of Transportation v. Public Citizen (SCOTUS, 2004)

Public Citizen claimed that NEPA required the Federal Motor Carrier Safety Administration (FMCSA) to evaluate the environmental impact from Mexican trucks crossing the border following their issuance of new regs
FMCSA issues a programmatic EIS but did not consider new truck traffic an "effect" of their action
Court of Appeals found for Public Citizen on the grounds that the President's rescission of the Mexican truck ban was a "reasonably foreseeable" consequence of the FMCSA action
Court ruled against Public Citizen since FMCSA lacked discretion to prevent the cross-border operations
Court found that a "but for" causal relationship is insufficient to make an agency responsible for a particular effect under NEPA--the Court had, in Metropolitan (above) drawn the analogy to proximate cause in tort law
Court found that there is an inherent "rule of reason" in NEPA which implies that an agency need not waste time on an EIS that could not affect its decision-making
Court ruled that NEPA is intended to inform agency decision-making, so when an element of an EIS cannot inform decision-making (e.g. b/c of a lack of discretion), then an agency need not address it in an EIS
president's decision to allow trucks, and the president is not subject to NEPA (only agencies)

Douglas County v. Babbitt (Ninth Circuit, 1995)

Court ruled that NEPA's EIS requirement does not apply to actions that conserve the environment (e.g. endangered species designation)

Is the EIS Adequate?

Litigation centers on the adequacy of agencies' assessments of alternatives and the scope and detail of environmental consequences

Alternatives

Trinity Episcopal School Corp. v. Romney (2d Circuit, 1975)

Plaintiffs challenged HUD decision to fund low-income housing project on site after HUD simply accepted NY City Housing Authority's unsupported claim that there were no alternative sites
Court found that HUD did have to consider alternatives even though it did not have to prepare an EIS

Vermont Yankee Nuclear Power Corp. v. NRDC (SCOTUS, 1978)

Court considered whether energy conservation needed to be considered as an alternative
Court found that definition of alternatives must be bound by some notion of feasibility and that the range of alternatives could evolve over time
To propose an alternative, intervenors' must make their participation "meaningful"
Accordingly, court decided that energy conservation was not a feasible alternative at the time that the EIS was prepared

Analysis

Quality of the Analysis in an EIS

Courts are often reluctant to judge the quality of analysis
Sierra Club v. US Army Corps of Engineers (2d Cir. 1983)

Westway case where Sierra club disputed validity of EIS claim that river area subject to landfill was a "biological wasteland"
Court found that DEIS sparked critical comments from other federal agencies which the Corps never substantively addressed in FEIS
Court agreed with district court's finding that the Corps violated NEPA since its EIS lacked a "substantial basis in fact" and thus did not permit decisionmakers to adequately consider environmental impacts
Court limited its ruling by saying that it did not intend to set the precedent that all factual inaccuracies in EISs would invalidate them
Court limited its ruling to cases where an EIS is prepared without a good faith effort to obtain accurate information

Sierra Club v. Marita (7th Circuit, 1995)

Court affirmed lower court decision that granted deference to methodology chosen by Forest Service for its scientific assessments and found that the FS had not acted arbitrarily or capriciously since the agency had considered and rejected alternative methodologies
Botanists and biologists had sued to get the FS to employ the principles of conservation biology

Marsh v. Oregon Natural Resources Council (SCOTUS, 1989)

Army Corps of Engineers issued final EIS for dam projects in Oregon
New information came to light thereafter that indicated greater environmental harms
Ninth Circuit ruled in favor of requiring a supplemental EIS based on new info
Court found that post-decision supplemental EISs were not addressed in the NEPA statute but that they are sometimes necessary to satisfy the act
in determining when supplementary EISs are warranted, application of the "rule of reason" turns on the value of the new information to the still pending decisionmaking process
Court rejected claim that it should judge the reasonableness of the Corps' decision since the decision required significant expertise and thus warranted deference; rather, the Court found that the basis for judgment was the standard of "arbitrary and capricious"
Court found for the Corps since it's decision was not "arbitrary and capricious"

Timing and Scope Revisited

Courts have generally found that scope varies depending on the case and that timing depends on how close an agency is to reaching a critical stage in decisionmaking

Analysis in Uncertainty

Save Our Ecosystems v. Clark (9th Cir. 1984)

Bureau of Land Management (BLM) argued NEPA did not apply to its decision to apply pesticides since EPA had approved such use
Court found that EPA approval did not rule out all risk with certainty and ordered a "worst-case analysis"

CEQ then rescinded its "worst-case analysis" reg and outlined new guidelines for dealing with incomplete or unavailable information

Epilogue: How Well Does NEPA Work?

Serge Taylor found that when agencies allow environmental analysts to explore a wide range of alternatives, all projects tend to benefit from relatively inexpensive mitigation measures. When concerned outsiders with access to the courts also get involved, some of the worst projects are eliminated
NEPA has deterred federal projects that could not withstand public examination and debate

Air Pollution Control

Link to CAA: http://www.epa.gov/air/caa/caa.txt
Questions

How does the EPA measure criteria pollutant concentrations (e.g. distance from stationary sources, etc.)?
How could EPA fit CO2 into NAAQS framework given that danger from CO2 is not necessarily related to CO2 concentration in specific locations at the surface level

The Air Pollution Problem

4 of the criteria pollutants--CO, VOCs, NOx, and lead--are produced by internal combustion engines
Sulfur oxides come mainly from coal combustion
Particulates also come largely from coal combustion and from agriculture and forest fires

The Clean Air Act: Basic Principles

some other environmental laws do regulate aspects of air pollution (e.g. hazardous waste)
CAA was the first of the major medium-based environmental statutes and provided the blueprint for many that followed
Air pollution often transcends municipal boundaries and the multitude of sources makes proving causation and fashioning relief problematic
CAA mandates that EPA set national ambient air quality standards (NAAQS) for six criteria pollutants
State governments decide how to achieve NAAQS via state implementation plans (SIP)

One state's SIP must not interfere with that of another
if state fails to produce adequate SIPs, EPA must prepare a federal implementation plan (FIP)

Areas that do not meet NAAQS are classified as non-attainment areas (NAs)
Areas that have air quality better than NAAQSs are regulated by the prevention of significant deterioration (PSD) program
EPA sets new source performance standards for stationary sources of air pollution, and CAA mandates a permitting program for such new sources
EPA regulates both fuel content and emissions standards for mobile sources (i.e. cars, trucks, buses)
CAA preempts all state authority to regulate auto emissions except for that of California and states can choose between federal and California standards
CAA Title IV is the acid rain program administered by EPA
CAA Title VI addresses pollutants that destroy the ozone layer

National Ambient Air Quality Standards

Establishing NAAQSs

Section 109 of CAA requires EPA administrator to set primary NAAQSs at the level "which in the judgment of the Administrator, based on [ambient air quality] criteria and allowing an adequate margin of safety, are requisite to protect the public health"
Lead added as criteria pollutant as a result of a citizen suit: NRDC v. Train (2nd Circuit, 1976)
NAAQSs are expressed as average concentrations over different periods of time
Lead Industries Association v. EPA (DC Circuit, 1980)

Lead trade association sought to have the EPA lead standard invalidated on a variety of grounds
Court found that EPA had to set standards based on public health alone--i.e. not costs
Lead Industries Association (LIA) argued that legislative history of CAA indicated that Congress only wanted EPA to regulate against effects known to be clearly harmful to public health
Court did not find support for LIA argument; rather the court pointed out that Congress instructed EPA to use an adequate margin of safety when setting standards to protect against unknown or uncertain harms

A NAAQS for CO2

Clinton admin's EPA general counsel issued a legal opinion that CO2 was covered by CAA sections 108 and 109
Bush admin's EPA general counsel (Robert Fabricant) repudiated the Clinton-era legal opinion on CO2
Fabricant relied on FDA v. Brown and Williamson Tobacco Corp. (SCOTUS 2000) in which SC found that Congressional legislation regulating tobacco following FDA's claims that it had no authority to do so effectively ratified the FDA's claim

Revising NAAQSs

EPA must review and revise NAAQSs every 5 years and to appoint an independent scientific committee to advise it
Environmental Defense Fund v. Thomas (2nd Circuit, 1989)

ED and six states sued EPA for not revising sulfur oxides criteria despite new evidence in EPA criteria documents
EPA argued that it was within its rights per the statutory "as may be appropriate" phrase which made any changes to criteria discretionary
Court rejected arguments of both sides and said that the EPA had to make some decision and could not avoid making a decision on the criteria altogether

American Lung Association v. EPA (DC Circuit 1998)

Public health groups sued EPA for not adopting a short-term sulfur oxides standards in light of impact on sensitive populations (e.g. asthmatics)
Courted remanded decision to EPA for further explanation having found that the EPA had failed to explain its decision as required by statutory obligation to "protect the public health"

American Trucking Ass'n v. EPA (DC Circuit 1999)

Industry groups argued that EPA had erred in setting new ozone and PM NAAQSs by not considering costs
Court invalidated EPA standards but not based on plaintiffs' argument
Court ruled that EPA had violated the constitutional doctrine against delegating legislative authority to the executive branch because the agency had failed to identify a rule of weighing findings in order to set a standard
Court found that EPA could have cured CAA of its non-delegation problem by announcing a determinate formula for setting standards

Whitman v. American Trucking Ass'ns (SCOTUS 2001)

Court found that the CAA text was absolutely clear in barring EPA from considering costs when setting standards (Congress does not hide elephants in mouseholes - argument used to reject claim that other sections of the statute that do mention economic costs should imply that Congress intended for EPA to do the same when setting standards)
Court rejects lower court finding regarding non-delegation. Court does not agree that EPA could cure CAA of non-delegation problem by simply not exercising some of its delegated powers [CB p. 490]

Article I of the Constitution vests all legislative powers with Congress
SC has found that "when Congress confers decision making authority upon agencies Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform'"
In this case, the court found that the scope of discretion in Sec 109(b)(1) (directing EPA to set "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator...allowing an adequate margin of safety, are requisite to protect the public health") are well within the outer limits of the court's non-delegation precedents. In all previous cases, the court had only found the requisite "intelligible principle" lacking in two cases, in one of which the statute gave literally no guidance for agency discretion

Court noted that it almost never feels qualified to second-guess Congress regarding the permissible degree of policy judgment Congress leaves to the executive branch while also noting that the acceptable degree of agency discretion varies with the scope of power Congress confers; nonetheless, the court has never required that Congress provide a "determinate criterion in the statute to say how much of a regulated harm is "too much"

Scalia found that the CAA did not delegate legislative power but rather involved regulatory gap-filling

Attaining and Maintaining the NAAQSs

Implementation and Compliance--The Basic Structure

CAA gives each state the responsibility for developing SIPs that detail how compliance with NAAQSs will be achieved in each air quality control region (ACQR)
Most states have adopted some categorical emissions limits for existing statutory sources, usually based on judgments about economic and technical feasibility
Section 179 of CAA specifies sanctions against states that fail to submit adequate SIPs on time--including loss of federal highway funds
Train v. NRDC (SCOTUS 1975)

NRDC challenged EPA's approval of a SIP that included a a variance procedure for sources unable to comply with standards
Court found that as long as an SIP meets the statutory requirements of CAA, EPA must approve no matter whether EPA thinks the SIP is a wise one or not

Union Electric Company v. EPA (US 1976)

Missouri adopted SIP calling for large reductions in SO2 in St. Louis area the burden of which fell heavily on the area's electric utility
Utility argued that EPA should not have approved the SIP since it called for technologically and economically impossible regulations
Court agreed with EPA that Congress had not intended for EPA to assess the feasibility of SIPs
Statutory use of "shall" indicated that EPA had to approve SIPs that met 8 statutory requirements--EPA could not consider any other factors
Court found that if a state wants to force a particularly onerous standard on an industry, it's up to the state to make that determination and bear the risk of losing the industry
Court found that, having met national standards, states have virtually absolute power in allocating emissions limits
Court found that CAA was meant to sometimes be technology-forcing--i.e. to set standards that require innovation to attain

If EPA discovers after approving a SIP that the SIP will not prove adequate in meeting NAAQSs, EPA can call for revisions to the SIP
Virginia v. EPA (DC Circuit 1997)

Northeast Ozone Transport Commission (OTC) created by 1990 CAA Amendments
OTC recommended states adopt the California Low Emission Vehicle program
EPA issued order calling state SIPs inadequate and requiring that states either adopt the California program or one other specific--and essentially infeasible--option
Court ruled that EPA's actions left the states with no "real option" at all
Court found that CAA Section 110 does not allow EPA to force control options on states as condition of SIP approval
Court found that section 184a (OTC section) does allow EPA to order adoption of specific controls but that other sections of CAA specifically prohibit EPA from ordering states to adopt auto emissions standards different than the federal ones

Alaska Department of Environmental Conservation (ADEC) v. EPA (US 2004)

Case concerned PSD permit issues for Red Dog Mine by ADEC
ADEC issued a draft PSD permit that determined Low NOx to be BACT for new generator at mine (as opposed to selective catalytic reduction (SCR))
ADEC staff's analysis determined that SCR was technically, economically, and environmentally feasible
ADEC accepted Red Dog Mine's plan to add Low NOx to new and existing generators to lower emissions below what would occur with only SCR on new generator
EPA objected that PSD required BACT on new sources regardless of changes to existing sources
ADEC issued PSD permit claiming that SCR would impose a disproportionate cost on Red Dog Mine and thus classifying Low NOx as BACT despite admitting ADEC had received no cost info from Red Dog Mine
EPA held that CAA requires states to determine BACT in a manner faithful to the statute's definition and that EPA can review states' decision to ensure that they do
Court found that EPA had rationally construed the CAA text and respected the EPA's reading
Court found that just because EPA could not define a specific BACT, that didn't mean it couldn't guard against unreasonable designations by states
Court rejected ADEC claim that, despite explicitly endorsing an expansive surveillance role for EPA in other sections, Congress would implicitly preclude the EPA from verifying substantive compliance with the BACT provision
Court applied standard of review of APA ("arbitrary, capricious...")
Court found that ADEC lacked cause for selecting Low NOx as BACT since it did not have evidence to support its claim that SCR was economically infeasible

Evolution of the Programs to Achieve and Maintain the NAAQS

New Source Performance Standards (NSPS)

[Donahue:] The NSPS provisions, see CAA Sec. 111, establish uniform national performance standards for categories of stationary sources -- these standards don't vary depending on local air quality (eg., they don't care whether source is in a clean air area or a nonattainment area). They apply to even to relatively small sources, such as residential wood stoves.
[Donahue:] The standard for NSPS controls is defined in Section 111(a)(1) -- it's the "best system of emissions reduction" taking into account cost that EPA determines has been adequately demonstrated. Because there are different NSPS for different types of polluting equipment, the relation of the NSPS requirement to PSD requirements will depend on the circumstances, but NSPS requirements will often be less stringent than the BACT requirement under PSD, and very often less stringent than LAER (lowest achievable emission rate), the NNSR requirement. Another key practical difference is that EPA has identified "modifications" for NSPS purposes based on whether the changes to the source increase the rate of emissions, whereas it has traditionally assessed modifications under the NSR programs based on whether there will be an increase in actual, annual emissions -- this is what the New York v. EPA and Duke Energy disputes are about. EPA has lately proposed to switch its NSR test to a rate-based approach, which would significantly limit the NSR programs' application to changes to existing sources.

Nonattainment and Prevention of Significant Deterioration

1972 district court ruling held that CAA statutory requirement to "protect and enhance" air quality meant that EPA had to write rules to prevent deterioration of air quality in places that already met the NAAQSs
In 1974 (in response to wildly unpopular FIPs), Congress stripped EPA of authority to include land use and transportation planning in FIPs
1977 CAA Amendments created new statutory programs that build on EPA programs that had sought to protect clean air areas
New Source Review program involves pre-contruction permitting for new stationary sources in NA and PSD areas

New Source Review for PSD and NA

New Source Review (NSR) embraces two distinct programs that impose source-specific requirements for large new (and modified) stationary sources: (1) the PSD provisions for sources in "attainment" areas for a given pollutant, see Sections 160-169; and (2) the Nonattainment New Source Review (NNSR) provisions, see Sections 171-179B, applicable to sources in areas that are in nonattainment for a given pollutant.

The PSD provisions require that the new (or modified) source obtain a permit after a public hearing and a review of impacts of proposed operation on local air quality -- the permit must require installation of the Best Available Control Technology, which is selected based on what other similar sources used, the cost of alternative technologies, and efficacy of alternative controls. See Secs. 165(a), 169(3). See Alaska Dept. of Environmental Conservation case. The PSD provisions also require that states manage new sources so as not to allow too much degradation of air quality. See Sec. 163, 165(d). We didn't discuss the complex details of State management of increment and ceilings; and I won't test you on it.
The NNSR provisions, unsurprisingly, impose more stringent requirements on new sources. (They even impose some requirements on existing sources -- adoption of the Reasonably Available Control Technology). Sections 172 and 173 require new (and modified) sources to obtain reductions in pollution from existing sources to offset any additional emissions, see Sec. 173(a)(1), (c), and must install controls to ensure the "lowest achievable emissions rate" see Secs. 171(3), 173(a)(2), a standard that is significantly tougher than BACT. The NNSR provisions also contain an elaborate set of requirements that State SIPs demonstrate that the state is taking action to move it toward attainment -- with heightened demonstrations for severe NA areas.

One way for firms to avoid NSR is to take advantage of "netting out" by reducing emissions from an existing plant component when adding a new source (where EPA considers a single plant with multiple emissions sources as a "bubble")
CAA provisions for new stationary sources also apply to "modified" stationary sources--intended by Congress to provide existing sources with a limited grace period
Wisconsin Elec. Power Co. v. Reilly (7th Circuit, 1990)

WEPCO contested EPA decision that its planned renovations did not qualify for the routine maintenance repair and replacement (RMRR) exception to New Source Review
EPA applied case-by-case evaluation method to proposed renovations
Court sided with EPA
Evidence included WEPCO documents describing the planned renovations as "life-extension projects"

In 1999, EPA went after several power companies it claimed had made "modifications" to existing power plants without seeking permits
Power companies claimed that:

EPA interpretation of RMRR provision was a new one for which they lacked fair notice
EPA should determine routineness based not on whether MRR was routine for a specific plant but rather for the industry
Power companies took issue with the method EPA used to determine whether their actions increased emissions

United States v. Duke Energy Corp. (4th Circuit 2005)

Court heard appeal by US of lower court ruling in favor of Duke in terms of definition of routine and emissions calculation
EPA's NSPS regs defined emissions in terms of kg/hr
subsequent PSD regs defined emissions in terms of tons per year
Applying Chevron analysis, court found that Congress had defined "modification" identically in NSPS and PSD statutes so that EPA could not then define "modification" differently it its respective regs
Court drew upon SC case Rowan Cos v. US (1981) in which court found that "wages" had to mean the same thing when used in two places in statutes

Environmental Defense v. Duke Energy Corp. (US 2006)

Court found that 4th circuit's ruling essentially invalidated EPA regs which only the DC Circuit could do according to the CAA
Court found that a word need not take on the exact same meaning when used in different parts of a statute even if defined identically in the different parts

New York v. EPA (DC Circuit 2005)

Another case where industry challenged EPA regs' different interpretation of modification (this time between NSR and NSPS)
Court found that Congress had in some cases made specific reference to EPA regulatory interpretations in statutes, so where it did not do so, this indicated that Congress did not require EPA to interpret "modifications" in identical fashion when the word was used in two different places in the CAA
Moreover, at the time of the 1977 Amendments, EPA had already promulgated two different and inconsistent regulatory interpretations of "modification" within NSPS so how could Congress have intended for EPA to use a specific interpretation

Multi-State Air Quality Problems

CAA mandates that states' SIPs prohibit emissions that "contribute significantly to non-attainment, or interfere with maintenance by, any other state with respect to any [NAAQS]" Section 110(a)(2)(D)
the 1977 CAA Amendments included a provision regarding PDS and visibility standards
the CAA contains a provision permitting downwind states to petition EPA for a finding that a major stationary source or group of sources was interfering with the downwind states' air quality efforts
Ozone is the product of chemical interaction of VOCs and NOx in the presence of sunlight
1990 CAA Amendments included Section 184 which created the Ozone Transport Commission
Section 110 gives EPA the authority to issue a SIP call if a state's SIP proves to be substantially inadequate--including inadequate in addressing interstate pollution
1998 "NOx SIP Call"

EPA exercised Section 110 authority to issue SIP Call
EPA claimed SIPs failed to address regional transport of NOx
Midwestern states, industry groups, and electric utilities challenged the SIP call

Michigan v. EPA (DC Circuit, 2000)

Midwestern states, industry groups, and electric utilities challenged the NOx SIP call
Petitioners made four arguments

EPA acted contrary to precedent
EPA considered cost, a forbidden factor
EPA irrationally imposed uniform NOx controls on the states
EPA's determination lacked an intelligible principle and thus violated the non-delegation doctrine

Court rejected precedent argument. EPA had not bound itself to any criteria in judging past cases of interstate air quality interference
Court rejected cost argument. Section 110 refers to sources which "contribute significantly to nonattainment" in other states. Court found that "significant" in this case should not be read as implying a unidimensional assessment (e.g. health only)
Court held that this case did not fall under the precedent of Train since EPA did not mandate specific controls but rather just set NOx emissions limits for the states to meet--EPA does not tell states how to achieve SIP compliance

Appalachian Power Co. v. EPA (DC Circuit 2001)

While NOx SIP call was in progress, several northeastern states filed Section 126 petitions which EPA deemed meritorious. Rather than ruling against the offending sources, EPA initially decided to wait for the NOx SIP call to resolve the issue. Ultimately, EPA decided to issue a Section 126 order against the offending sources and to mandate a NOx cap-and-trade program
Parties challenged the EPA's Section 126 order claiming that EPA could not make any Section 126 findings while the SIP call was in progress (both because of the statutes themselves and because of the "cooperative federalism" embodied in the CAA)
Challengers argued that the "cooperative federalism" goal of the CAA required that EPA let states try to reach their own solutions to the NOx problem via the SIP call process rather than mandating a Section 126 program
Court found that EPA reasonably construed Sections 110 and 126 as "independent statutory tools" for addressing interstate air pollution; moreover, provisions of 126 would lose their force were EPA to have to defer to the interest of "cooperative federalism"
Petitioners claimed that EPA's Section 126 mandate violated the court's finding in Virginia (i.e. that EPA cannot mandate specific controls in the SIP approval process); the court rejected this argument since Virginia did not imply that states could draft their SIPs in the absence of extrinsic legal requirements--e.g. Section 126 requirements

Clean Air Interstate Rule (CAIR)

EPA finalized the CAIR in 2005 which aims to reduce SO2 and NOx in order to help achieve NAAQSs for ozone and PM2.5

Cap-and-Trade and Other Economic Incentive Programs (EIPs)

EIPs include cap-and-trade and the netting/bubbling options under New Source Review (NSR)
Objections: hot spots, distributional concerns, rent-seeking, market manipulation

Acid Deposition

Title IV of the 1990 CAA Amendments addresses acid deposition
In the 1970s utilities responded to CAA by building large (>500ft) smokestacks. Section 123 of the 1977 amendments fixed this loophole, but utilities had already constructed the 111 "big dirties" with their large stacks
Alliance for Clean Coal v. Bayh (7th Circuit, 1995)

in 1991 Indiana adopted the Environmental Compliance Plans Act (ECPA) which allowed utilities to get early prudence review by submitting plans to the PUC for complying with federal air quality legislation. To be approved plans had to include provisions to maintain the usage levels of Indiana coal or to justify decreased Indiana coal use based on economic factors that include the effect on the Indiana coal mining sector
the Alliance sued saying that the ECPA unjustifiably discriminated against interstate commerce
Court used as its threshold inquiry whether ECPA was a protectionist measure or whether it was aimed at legitimate local concerns with only an incidental effect on interstate trade
Court found that ECPA's avoidance of an outright prohibition on out-of-state coal and its reliance instead on economic incentives for use of Indiana coal did not make the law less discriminatory

CAIR is a SIP call directed at 28 states in the Eastern and Midwestern US

CAIR Case

Petitioners' argument

EPA's CAIR program violates the CAA and is unreasonable

Standard of review

do the CAIR SO2 rules exceed EPA's statutory authority?
do the CAIR SO2 rules constitute an impermissible statutory interpretation or are they otherwise arbitrary, capricious, or an abuse of discretion?

EPA's CAIR SO2 Program Is Unauthorized and Unreasonable

Congress doesn't hide elephants in mouseholes--it would have been explicit if it had wanted to authorized EPA to make such sweeping changes to the Title IV program

EPA's CAIR SO2 program violates Title IV

CAIR improperly unravels the Title-IV Allocation and Trading System

Congress established "fixed currency" in allowances and a nation-wide (explicitly not a regional) system of trading
Title IV includes no mechanism for restricting the number of allowances

CAA Section 403(f) does not empower EPA to restructure the Title-IV SO2 program

Section 403(f) is a savings clause and does not grant any authority
In drafting the bill, the conference committee explicitly dropped the phrasing "the Administrator" in favor of "the United States"
[EPA: in drafting the bill, Congress dropped the House text that explicitly forbade EPA from nullifying allowances]

Congress intended Title-IV only to cap annual SO2 emissions from utility units on a nationwide basis, not to protect against local or regional increases in SO2 emissions

Congress rejected a two-region Title-IV program

EPA acted contrary to law by including certain exempt units in its CAIR SO2 program

EPA's CAIR SO2 program violates Title I

EPA failed to provide any reasonable Title-I based explanation for its determination of states' SO2 emissions budgets

past EPA interpretations of Section 110(a)(2)(D) involved some linkage between upwind states' emission reductions and the estimated impact of their emissions on downwind states
CAIR simply mandates an across the board reduction in Title-IV allowances--both eschewing a direct connection between emissions and nonattainment and (by relying on out-of-date baselines) avoiding the application of its previous "cost-effective controls" standard

CAIR impermissibly intrudes on state discretion to fashion SIPs

EPA requires SIPs to include control provisions (i.e. retirement of allowances) that have nothing to do with meeting the requirements of Section 110(a)(2)(D)
EPA offers states no real choice since SIPs that do not include retirement of allowances must not regulate EGUs (electricity generating units), which would make it impossible for the state to meet the CAIR emission reduction targets

EPA's CAIR SO2 program is an unreasonable construction of the CAA

EPA has elevated its policy preferences over those of Congress
EPA's fears about the consequences of a stand-alone CAIR SO2 program are illusory

Mobile Air Pollution

Three options for reducing mobile source air pollution

install equipment to capture pollutants (e.g. catalytic converters)
adjust fuel composition
reduce the rate of use of mobile sources

Emissions Standards

1970 CAA directed auto manufacturers to curtail emissions of hydrocarbons and CO by 90% within 5 years and a similar reduction in NOx within 6 years
Congress arrived at 90% figure based on back-of-the-envelop calculation considering NAAQSs and % of pollution from mobile sources
Technology-forcing: Congress was well aware that the technology did not yet exist and had an unknown cost
International Harvester v. Ruckelhaus (DC Circuit, 1973)

court overturned EPA's refusal to grant a deadline extension for mobile source emissions standards
Court found that the risks from an erroneous rejection of a deadline extension were far greater than those from an erroneous granting of the deadline extension so that the burden lay on EPA to rebut auto makers' claims that they could not meet the deadline

Fuel Content

Section 211(c) grants EPA authority to restrict or prohibit the use of any fuel additive that contributes to air pollution and that may endanger the public health or welfare
1990 CAA Amendments include two fuel content provisions

Regions in nonattainment of ozone NAAQS must use reformulated gasoline
Regions in nonattainment of CO NAAQS must use oxygenated gasoline (this led to the MTBE debacle)

Alternative Vehicles

Engine Manufacturers Association v. South Coast Air Quality Management District (US 2004)

SCAQMD instituted rules for vehicle fleet owners to purchase "clean fuel" vehicles
Auto and engine manufacturers challenged the rule as preempted by the CAA
CAA Section 209(a): "no state...shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles..." [Section 209(b) defines waiver provision for California]
Scalia (in majority) overruled the lower courts' interpretation of "standard" saying that lower courts had confused standards with the means of enforcing them by equating "standard" with a production mandate (since lower court had said a purchase requirement did not constitute a "standard")
Court declined to read into CAA Section 209(a) a purchase/sale distinction

Transportation Control Plans and Other Measures Directly Affecting Drivers

In 1970's, EPA (in response to a suit for not issuing a FIP in light of LA area's NAAQS attainment failures) issued a FIP that included gasoline rationing in a plan to reduce auto use by 80%--the public reaction was very negative
1990 CAA Amendments require more aggressive inspection and maintenance (I/M) programs for areas in nonattainment for ozone or CO
10% of vehicles account for 50% of pollution from mobile sources
Worried about fraud, EPA issues regs requiring that emissions testing facilities be separate from repair facilities (thus making I/M more burdensome on car owners)

Massachusetts v. EPA (US 2007)

States, local governments, and private organizations petitioned SC to determine whether CAA Section 202(a)(1) grants EPA the authority to regulate GHGs and, if so, whether EPA's stated reasons for refusal to do so are consistent with the statute
SC had first to determine if petitioners had standing before the court
In 1999, a group of 19 private organizations filed a rulemaking petition asking EPA to regulate GHG emissions from new motor vehicles under Section 202(a)(1) of the CAA
In 2003, EPA denied the rulemaking petition based on 2 arguments:

CAA does not authorize EPA to regulate in this case
even if EPA did have authority, regulation would be unwise at the moment

EPA referred to the Court's decision in FDA v. Williamson Tobacco in which the court found that FDA did not have authority to regulate tobacco because of the "political history"

Congress enacted the CAA to address local air pollution issues
Congress had failed to add a global warming amendment to the 1990 CAA Amendments
Congress had passed other legislation related to global warming
Regulating GHGs would have even greater economic implications than regulating tobacco

Standing

parties' dispute turns on the proper construction of a congressional statute
CAA Section 307 allows for judicial review
Court established standards for standing in Lujan case:

concrete and particularized injury that is actual or imminent
injury is fairly traceable to the defendant
a favorable decision is likely to redress the injury

a litigant with a procedural right to protect his concrete interests must meet a less strict standing requirement--i.e. he need only show that the procedural step is connected to the injury
Massachusetts is granted special solicitude in terms of standing because of its procedural right and its quasi-sovereign interests

Injury - sea level rise leads to a particularized injury to Mass as a coastal landowner
Causation

EPA said not to dispute linkage between GHGs and global warming, but EPA maintains that its refusal to regulate GHGs from new vehicles has a negligible impact on global warming
Court says that an agency needn't solve a problem in one fell swoop and thus the incremental nature of the regulation does not make it irrelevant to the injury

Remedy

Court finds that irrespective of other factors, the regulation in question would slow the pace of global emissions increases
Also, the court places stock in EPA's other efforts to combat GHGs--why would EPA engage in these efforts if the agency did not think its actions would have a discernible impact on global warming

Does Section 202(a)(1) of the CAA grant EPA authority to regulate GHGs?

Court rejects comparison to FDA v. Williamson Tobacco

Congress has made no legislation that conflicts with EPA regulation of GHGs
EPA had never before claimed that it lacked the authority (as FDA had in tobacco case), so Congress was not acting against such a regulatory "backdrop"

Congress may not have anticipated global warming from GHGs when it wrote CAA, but it did recognize the need for regulatory flexibility as science and circumstances changed
Given that CAA does grant EPA authority, EPA must make a judgment in response to the petition. EPA can only decline to regulate if it finds that the emissions do not contribute to climate change or if EPA provides some reasonable justification for not deciding whether the emissions contribute to climate change. If EPA makes a judgment of endangerment, it must regulate the emissions
Instead, the court finds that all EPA has done is list reason why it would prefer not to regulate the emissions

Dissent

Dissenters reject the finding of standing for Mass--"SCRAP for a new generation"
Roberts says that majority's reliance on Mass's quasi-sovereignty is faulty
Moreover, the court's finding of standing wrt to the 3-part test is flawed

Injury

Global warming is inconsistent with the standing requirement that a petitioner seek relief that "directly and tangibly benefits him" in a manner distinct from its impact on "the public at large"

Petitioners do not actually demonstrate a loss of Mass coastal land from sea level rises--Roberts calls it conjecture

Moreover, the threatened injury is not "certainly impending"

Causation

Petitioners cannot show that the minuscule contribution of GHGs (globally speaking) from new vehicles is linked to coastal property loss

Redressability

petitioners cannot predict what will happen to the 80% of emissions from outside US
it is pure conjecture to say that proposed EPA regulations would likely prevent the loss of Mass coastal land

Scalia

Congress made no provision in CAA that forces EPA to make a judgment when a rulemaking petition is filed
What's more, the statute makes no mention of acceptable reasons for deferring a judgment
Scalia makes a textual argument that GHGs do not necessarily fit the definition of "air pollution" (hinges on interpretation of phrase with "including" in the statute)
Court should defer to EPA definition of "air pollution"--i.e. impurities in ambient (near-surface) air

Green Mountain v. Vermont (VT District, 2007)

In 2004, California adopted new GHG emissions regulations for new vehicles and applied for an EPA waiver under CAA Section 209(b)
Energy Policy and Conservation Act (EPCA) Section 502 directs DOT to set fuel economy standards while Section 509 preempts any state laws or regulations related to fuel economy standards
CAA Section 202(a)(2) requires EPA to take technical and economic factors into consideration when setting regulation deadlines
VT adopted CA regs because motor vehicles account for much of VT's air pollution
Dr. James Hansen testified that the motor vehicle regs were consistent with his recommended scenario of GHG emission reductions needed to avoid dangerous climate change
Dr. Barrett Rock testified as to the particular injuries to VT from climate change--e.g. damage to maple syrup and skiing industries
Plaintiffs allege that VT's regs are preempted by EPCA both explicitly and by implication
Court finds that the preemption doctrines do not apply in the case of CAA Section 209 vs. EPCA Section 509

SC in Mass. v. EPA found no conflict between EPA regulations of GHGs and CAFE
Original text of EPCA in 1975 allowed for auto makers to apply for modifications to CAFE for model years 1978 thru 1980 if it could show that other federal standards (including CA's regs) reduced fuel economy
1994 recodification eliminated this provision but Congress said the recodification was not intended to make any substantive changes
DOT has consistently treated CA regs as "other motor vehicle standards of the Government"

Court nonetheless performs a preemption analysis

Express preemption

EPCA preemption provision cannot invalidate VT's regs unless Congress had the clear and manifest purpose to do so
Plaintiffs argue that VT regs are de facto fuel economy standards (so they certainly "relate to")
Court finds that since VT regs address CO2e and allow multiple means to comply (e.g. refrigerants, clean fuel vehicles), they do not simply constitute fuel economy regs
Also VT regs take into account upstream emissions, which further differentiates them from CAFE stds
SC has noted that if "related to" were taken to its furthest reaches, there would be no end to preemption
Congress undoubtedly did intend for fuel economy to be an exclusively federal domain, but it established CAFE in the context of other laws and regs that might affect fuel economy--e.g. emissions, safety, and noise standards

Field preemption

this doctrine holds that state law is preempted if it attempts to regulate in a field that Congress intended the federal government to occupy exlusively
Court refers to SC finding that GHG regulation is not the exclusive domain of DOT and points out that Congress was aware of California's waiver status when it enacted EPCA

Conflict prevention

this doctrine holds that a state law is preempted if it actually conflicts with a federal law or if it stands as an obstacle to the accomplishment of Congress's purposes and objectives
Plaintiffs claim that VT's regs conflict with CAFE in 3 ways:

by frustrating Congress's intent to have a single nationwide fuel economy program

Congress understood the potential for overlap and instructed DOT to consider other federal standards when setting fuel economy standards

by upsetting the balance that DOT has struck in setting CAFE stds
by failing to ensure the absence of a conflict with EPCA objectives (function of EPA waiver approval process)

Water Pollution Control

Water Pollution Problems

treatment of municipal wastewater may be single biggest factor behind improvements in water quality
agriculture is the most extensive source of water pollution, affecting 70 percent of impaired rivers and streams and 49 percent of impaired lake acres
combined sewer overflow (CSO) systems channel storm water thru sewer systems and discharge raw sewage during major storms

Statutory Authorities for Protecting Water Quality

Water Pollution Control: A Historical Perspective

water pollution control was considered a local responsibility
Rivers and Harbors Act of 1899 barred unpermitted discharges of refuse into navigable waters, but this was motivated by a desire to preserve navigation rather than to protect water quality
Post-WWII industrialization exacerbated water pollution
Water Quality Act of 1948 offered federal grants for state pollution control programs
Federal Water Pollution Control Act of 1956 offered direct federal aid for construction of municipal sewage treatment facilities
modern era of comprehensive federal regulation began with the Federal Water Pollution Control Act Amendments of 1972 (FWPCA or Clean Water Act [as renamed following '77 amendments])

Statutory Authorities

FWPCA broke new ground in 3 areas

mandated imposition of technology-based discharge limits
imposed a nationwide permit system for point sources
expanded federal role in financing municipal treatment facilities

Structure of the Clean Water Act

Sec 301: Effluent Limitations (covers existing sources)
Sec 302: Water Quality Related Effluent Limitations (allows for more stringent limitations when water quality is poor)
Sec 303: Water Quality Standards & Total Maximum Daily Loads (TMDLs)
Sec 304: Federal Water Quality Criteria and Guidelines
Sec 306: New Source Performance Standards (best demonstrated control technology)
Sec 307: Toxic and Pretreatment Effluent Standards (best available technology economically achievable)
Sec 309: Enforcement Authorities
Sec 319: Nonpoint Source Management Programs 9states must prepare management plans to control nonpoint sources)
Sec 401: State Water Quality Certification - states must certify that federal actions will not violate state water quality standards
Sec 402: National Pollution Discharge Elimination System (NPDES) Permit Program - administered by EPA or delegated to states
Sec 404: Dredge and Fill Operations (requires Army Corps of Engineers permit)
Sec 505: Citizen Suits (authorizes citizen suits against polluters and EPA)
Sec 509: Judicial Review
Sec 518: Indian Tribes

Scope of Federal Authority to Regulate Water Pollution

Unites States v. Riverside Bayview Homes, Inc. (US 1985) (CB p. 600)

Bayview Homes placed fill material on wetland property adjacent to a lack in Michigan
Army Corps of Engineers filed suit claiming that Bayview had to get a permit from the Corps
Court had to decide whether CWA authorized Corps to require landowners to obtain permits before discharging fill material into wetlands adjacent to navigable bodies of water
1975 Corps regs interpreted "waters of the United States" to include navigable waters, tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. The Corps construe the act to cover all freshwater wetlands adjacent to such other covered waters.
District court found for Corps
Circuit court reversed district court saying that only wetlands that were frequently flooded by the adjacent navigable water fell under the Corps definition of wetlands in its own regs
SC reversed circuit court
SC rejected circuit court's interpretation of Corps use of term "wetlands" and, instead, decided the case based upon whether the Corps' regs were reasonable in light of the statute (Sec 404) (and its legislative history)
Court found that the boundary between "waters" and "dry land" is blurry. In seeking to define the boundary, Corps may look to legislative history and underlying policies of the CWA

Congress demonstrated broad concern for protecting water quality and aquatic ecosystems
EPA and Corps have decided that wetlands are important to water quality and aquatic ecosystems
Corps' decision to include wetlands under its jurisdiction is not unreasonable

Solid Waste Agency of Northern Cook County (SWANCC) v. US Army Corps of Engineers (US 2001)

SWANCC questioned Congress's constitutional authority to force it to get a permit before filling in an abandoned sand and gravel pit; SWANCC relied on Lopez
Seventh Circuit upheld application of CWA Sec 404(a) to case at hand since pit served as habitat to migratory birds which had substantial ties to interstate commerce (i.e. bird watchers and hunters)
SC reversed circuit court
SC found that "navigable" could not be read out of the statute by accepting the Corps' expansive interpretation of its authority
Court found Sec 404(a) to be clear in not covering the water in question; nonetheless, the court would not have granted Chevron deference since the court expects a clear indication from Congress when a stature is meant to invoke the outer limits of Congress's power--in fact, Congress expressed the opposite intention in the CWA (i.e. to preserve the primary responsibilities and rights of the states)

Rapanos v. United States (US 2006) (Supplement p. 1076 and CB p. 608)

Rapanos wanted to fill wetlands separated by an earthen berm from an adjacent nonnavigable tributary
SC reviewed two Sixth Circuit decisions upholding federal jurisdiction over wetlands adjacent to nonnavigable tributaries to navigable waters
Scalia: the Corps has stretched the term "waters of the United States" beyond parody

Scalia looked at the difference between "water of the United States" and "waters of the United States" and found that the use of the latter in the statute indicates that Congress was writing only of water as found in streams etc.
Scalia argued that:

Corps cannot ignore "navigable" although it is to be construed more broadly in this statute than in other cases
"point sources" include channels so these cannot be included under waters
Corps' interpretation of "waters" violates Congress's intention to preserve States' rights and responsibilities
Corps' interpretation stretches outer limit of Congress's power

Scalia claims that court's ruling in Riverside Bayview allowed Corps to regulate adjacent wetlands simply because of the difficulty in marking the line between them and the adjacent waters; as such, "adjacent wetlands" must have a continuous surface connection to "waters"
to fall under federal CWA regulation, Scalia says a wetland must be adjacent to a "navigable water" (i.e. a permanent stream, river, lake, etc.) of the US and there must be a surface connection--this rules out wetlands connected via intermittent or seasonal connection and groundwater connections
Controlling precedent in a split decision like this (4-1-4) is the opinion of the justice who concurs in the disposition of the case on the narrowest grounds (in this case Kennedy)
as such, this case was viewed as an avoided bullet by the pro-federal wetlands regulation folks
Kennedy concurred in judgement

in SWANCC, court held that a wetland must have a "significant nexus" to waters that were navigable in order to be under the authority of CWA
Corps may rely on adjacency (reasonably inferred to mean ecologic interconnection) to establish its jurisdiction when seeking to regulate wetlands adjacent to navigable-in-fact waters--this is the holding from Riverside Bayview
when seeking to regulate wetlands adjacent to non-navigable-in-fact waters, the Corps must demonstrate a "significant nexus"
case should be remanded to Court of Appeals for proper consideration of nexus requirement

Rapanos v. United States (US 2006) - [notes from reading of full decision]

Scalia

In Bayview, court upheld application of Corps' jurisdiction to wetlands adjacent to navigable waters since it is not obvious where to draw the line between waters and dry land
CWA categorizes the conveyances that carry intermittent flows as point sources--so they can't be waters as well

Kennedy

CWA Section 404 mentions wetlands as being among regulated waters
Kennedy reads plain language of statute to include intermittent flows as waters
Bayview allowed for an overly inclusive Corps defn of wetlands because of the difficulty of defining a boundary between wetlands and waters; therefore, where a boundary is obvious, that doesn't mean the Corps can't regulate
the plurality's requirement of a continuous surface connection does not, as it claims, fit with the avoidance canon
dissent ignores "navigable" in the statute
Kennedy finds current Corps regs insufficient in justifying jurisdiction over wetlands in question since they don't indicate why such wetlands have a "significant nexus" with a navigable water
Absent suitable regs, the Corps must find a significant nexus on a case-by-case basis

Stevens

Court owes deference to Corps regs under Chevron
Riverside Bayview did not require a continuous surface connection to justify classification of wetland as a water
Congress specifically considered the scope of the Corps' regs in 1977 and rejected an amendment to the CWA that would have limited the scope of jurisdiction
Riverside Bayview made clear that the Corps need not engage in case-by-case examination of wetlands links to adjacent waters in order to determine jurisdiction

Regulation of Discharges from Point Sources

Sec 502(12) of the CWA defines "discharge of a pollutant to include "any addition of any pollutant to navigable waters from any point source"
Defining the "Addition of Any Pollutant"

National Mining Association v. Army Corps of Engineers (DC Circuit 1998)

"Tulloch Rule" adopted by Corps in 1993 clarified that any excavation activities producing any incidental redeposit of dredged materials (however temporary or small) require section 404 permits when they would degrade or destroy wetlands
trade association challenged Tulloch Rule since incidental redeposit did not constitute any net addition of pollutants
Court found for the plaintiffs, agreeing that "addition" could not include incidental fallback of dredged material
Court found that Congress could not have intended for incidental fallback to be an "addition" and thus a "discharge" since excavation of dredged material is covered by an entirely separate statute (Rivers and Harbors Act of 1899)
Court found that if Corps were to draw a line between incidental fallback and regulable deposits of dredged material, that reg would warrant deference

Defining "Point Sources" Subject to Permit Requirements

South Florida Water Management District v. Miccosukee Tribe (US 2004)

did transfer of water from one navigable water to another via a pump make that pump and pipes a point source?
Court found that pump was a point source, but remanded the case for further consideration of whether the two water bodies were "meaningfully distinct"
Government argued against need for separate permit since waters should be thought of as unitary body

NRDC v. Costle (DC Circuit 1977)

EPA issued regs exempting certain categories of point sources from the Act's permit requirements on the grounds of administrative infeasibility
NRDC challenged saying that EPA did not have authority to exempt any categories of point sources
Court ruled against EPA
EPA argued that legislative history and the otherwise unmanageable burden of the permitting program supported its interpretation of its authority
Court found that EPA's interpretation would mean that the agency had broad discretion to exempt point source categories which clearly violates the intent of the statute
Court found that EPA could not use lack of national uniform effluent limitations as an excuse for not administering permits
Sec 402 grants EPA considerable flexibility in defining permit requirements, but the statute does not allow that EPA respond to a difficult challenge by not trying at all

United States v. Plaza Health Laboratories Inc (2nd Circuit 1993)

Villegas (dumped blood vials in river) claimed he did not fit the defn of a "point source" in CWA
Court found for Villegas
Looking at the statutory language, court found that including a human being as a point source did not make sense
Looking at the legislative history and context, court found no indication that Congress intended to regulate humans such as litterers and urinating swimmers
Oakes dissented

a "point source" is simply an identifiable conveyance of pollutants
the rationale for regulating point and nonpoint sources differently provides insight into what a point source is
just because Villegas's means of discharge was unusual doesn't mean Congress didn't intend to cover it in CWA
would still read the statute as ambiguous regarding individual litterers as opposed to disposers of industrial waste

Technology-Based Effluent Limitations

Congress mandated uniform national standards in part to avoid race-to-the-bottom
Application to Industrial Discharges

The Development of Effluent Limitations

Du Pont v. Train (SC 1977)

Court agreed with EPA that CWA mandated effluent regulations by "categories and classes" and not on a case-by-case basis

Weyerhaeuser Co. v. Costle (DC Circuit 1978)

Court rejected claim that condition of receiving waters had to be taken into account when establishing effluent limitations

EPA v. National Crushed Stone Association (US 1980)

SC held that firms could be forced to comply with technology-based effluent limits that would force some firms in an industry subcategory to go out of business

Effluent Standards for Toxic Water Pollutants

Water Quality-Base Controls: The Regulatory "Safety Net"?

Congress retained water quality controls as a safety net underneath the technology-based effluent controls
CWA Section 303 requires states to adopt water quality standards
CWA Section 303(d) directs states to identify waters with insufficient controls and to calculate limits on pollutant loading
CWA Section 301(b)(1)(C) requires NPDES permits to include any more stringent limitations necessary to meet Sec 303 water quality standards
Water Quality Standards

Designated Uses and Antidegradation

Sec 303 directs states to consider the use and value of their waters "for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes including navigation"
NRDC v. EPA (4th Circuit 1993)

VA and MD adopted water quality standards for dioxin that were far more (1000X) lenient than those recommended by EPA
court held that EPA could approve such standards as long as they were scientifically defensible and protective of designated uses even though states used different assumptions than EPA in setting standards

Water Quality Criteria

Sec 304(a) directs EPA to develop water quality criteria as a point of reference for states
1987 CWA Amendments require states to set numerical water quality criteria for toxic pollutants
Sources of Scientific Uncertainty

The Impact of Water Quality Standards on Permit Limits

Water quality standards can affect NPDES permits in the following ways:

application of water quality standards to discharges that contribute to interstate pollution

Arkansas v. Oklahoma (US 1992)

OK argued that discharges from AR wastewater treatment plant should not be permitted because they would degrade water quality downstream in the OK section of the Illinois River in violation of the OK state water quality standards
AR argued that the CWA did not require AR to comply with the OK water quality standards
SC avoids the question of whether the CWA requires EPA to apply the water quality standards of one state to another when granting permits; rather, the court accepts EPA's interpretation of the CWA as requiring it to do so
Congress grants EPA broad discretion in text of CWA Sec 402(a)(2) where Congress defines rules for EPA administration of permit program
SC rejects the ruling of the Court of Appeals that the CWA prohibits approval of a permit where discharge will enter a water that already violates water quality standards
Court found that OK's water quality standards had a federal quality (granted by their treatment in EPA regs) which entitled EPA's interpretation of them to substantial deference by the court

individual control strategies for toxics under Sec 304(l)

1987 CWA Amendments included Sec 304(l) which requires EPA and states to identify waters with toxic problems and to impose new controls on sources of discharge to them

Section 401(a) certifications

Sec 401 has been considered a "sleeping giant" of the CWA because of the power it gives states to impose requirements on entities seeking federal permits
PUD No. 1 of Jefferson County v. Washington Department of Ecology (US 1994)

Court considered whether a state could condition a Sec 401 certification for a FERC license to construct a hydroelectric dam on the imposition of minimum stream flow rates
Petitioners claim that the state requirements for certification were unrelated to the actual discharges from the dam project (i.e. some dredge & fill material during construction and the tailrace waters exiting the dam) and thus beyond the scope of the state's authority to impose requirements
Court read the language of the statute to mean that states could impose requirements on applicants rather than discharges (given use of the word "applicant" in Sec 401(d))
Court found EPA regs to be consistent with the statute since EPA regs require that the permitted "activity" meet state requirements--thus the court found the EPA regs to be reasonable and warranting of deference
Court agrees with the state that assuring compliance with Sec 303 (water quality standards) is a proper function of the Sec 401 certification. Sec 401 does not mention Sec 303, but it does mention Sec 301 which includes Sec 303 by reference; moreover, Sec 401 refers to "any other appropriate requirement of State law"
Petitioners claimed that Sec 303 requires states to protect designated uses solely through the use of specific numerical "criteria" (i.e. not minimum flow standards)
Court read language of statute to mean that a water quality standard consists of both designated uses and water quality criteria; moreover, the state's water quality criteria cannot be expected to encompass all possible water quality issues that may arise and threaten designated uses
Court rejects petitioners' claim that the CWA regulates only water quality and not water quantity since the court acknowledges that the two are intimately linked
Dissent (Thomas & Scalia)

statute addresses state requirements for the discharge in question
state min flow req has nothing to do with the discharges in the case
majority's interpretation gives states "limitless" power under Sec 401(d)

establishment of total maximum daily loadings (TMDLs) of pollutants under Sec 303(d)

Sec 303(d)(1)(C) requires states to establish TMDLs subject to EPA approval
States must then incorporate the waters listed as having "insufficient controls" and TMDLs into their "continuing planning process[es]" as defined under Sec 303(e). The continuing planning processes give operational force to the TMDL information gathering requirements provisions. EPA must then approve state continuing planning processes subject to requirements, but states are free to develop their own plans (see CB p. 688)
TMDLs are now being used to combat non-point source pollution
Pronsolino v. Nastri (9th Circuit 2002)

EPA disapproved California's 303(d)(1) list because it omitted sixteen water segments impaired solely by nonpoint sources; EPA created its own list for CA
CA tried to comply with EPA's list by restricting nonpoint source pollution from logging and spurred farm organizations to sue
Appellants challenged EPA's authority to apply TMDLs to Garcia River
CWA Sec 303(d) requires states to identify and compile a list of waters for which certain "effluent limitations" "are not stringent enough" to implement the applicable water quality standards
Court ruled on whether the statutory language covered waters for which effluent limitations do not apply to the pollution sources at all (i.e. waters affected solely by nonpoint sources)
Pronsolinos maintain that the term "not stringent enough to implement..water quality standards" [303(d)(1)(A)] means that the effluent limits are not sufficient and that the pollution sources are subject to effluent limitations
Court finds that one should look forward to the goal to be attained when interpreting the statutory language
Court finds support for its interpretation (in support of EPA) by placing the contested language in the broad statutory context. Congress tells states to start with the set of all of their waters and then limit the list to those which will not meet water quality standards even with applicable effluent limitations
Pronsolinos argued that the CWA as a whole has a separate treatment of point source and nonpoint source pollution which must also be implicitly assumed in Sec 303(d); the court rejects this argument
Pronsolinos also made an argument on federalism grounds claiming that EPA was intruding on traditional state and local control of land use; the court rejected this claim since TMDLs do not require any specific measures that states should take

Wetlands Protection and the Section 404 Permit Program

Structure of the Section 404 Program
Section 404 Permit Process

decisions concerning permits turn largely on an analysis of alternatives to a proposed project
Sec 404(b)(1) guidelines provide that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative...which would have less adverse impact on the aquatic ecosystem"
Bersani v. Robichaud (2nd Circuit 1988)

"market entry" theory - "availability" of alternative property should be judge at the time the wetland was purchased rather than at the time of the permit application

Future Directions in Water Pollution Control: Nonpoint Source Controls, Watershed Protection, and Effluent Trading

CWA defined CAFOs as point source subject to permit effluent limitations based on "professional judgment of best management practices"
CWA did not regulate nonpoint sources but Sec 208 did establish an ineffectual planning requirement for states
1987 CWA Amendments required EPA to bring stormwater discharges into the NPDES permit program
1987 CWA Amendments also added Sec 319 which requires states to prepare "state assessment reports" that identify waters that cannot reasonably be expected to meet water quality standards because of nonpoint source pollution

Environmental Enforcement

Monitoring and Detecting Violations

Determining compliance via monitoring is difficult, so environmental enforcement authorities rely extensively on self-monitoring and self-reporting requirements
Most major federal environmental statutes have "whistleblower" provisions
1990 CAA Amendments included bounty provision
CAA assumes high emissions levels for CEMS outages
several states have enacted laws making the results of such audits privileged information
1991 DOJ issued guidelines saying that self-auditing and voluntary disclosure of environmental violations would be considered important mitigating factors when DOJ exercised prosecutorial discretion
EPA issued a final policy statement to encourage firms to voluntarily discover, disclose, and correct environmental violations by reducing civil penalties for such violations and by agreeing not to pursue criminal prosecutions for them if certain conditions are met. EPA retains its full discretion to recover any economic benefit gained by a firm via noncompliance

Enforcement Authorities and Policies

Deterrence-based enforcement (substantial penalties)
Conciliatory, cooperation-based enforcement
Enforcement Authorities

Congress consistently expands and strengthens enforcement authorities when it reauthorizes environmental statutes
Most environmental statutes authorize EPA to issue administrative orders which give officials flexibility to specify remedial action that must be taken by a certain date

Penalty Policies

EPA's Policy on Civil Penalties considers:

economic benefit of noncompliance
gravity of the offense (impact on public health, environment, and EPA's ability to regulate)
willfulness of the offense
past compliance and cooperation

Sierra Club v. Cedar Point Oil Co. (5th Circuit 1996)

Oil company discharged polluted water from its operations into the Galveston Bay without a permit
Court considered how great a penalty to assess
District court had not assessed any penalty beyond economic benefits
CWA statute includes guidelines for setting penalty amount Sec. 309(d)

In determining the amount of a civil penalty the court shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require

In Tysons Foods, Eleventh Circuit developed a procedure for assessing penalties whereby it established the maximum as a starting point and then determined if it should be reduced by reference to statutory factors; the district court had followed this procedure in the case under review
court found that district court had not abused its discretion. In Tull v. United States, SC had found that weighing the statutory factors in calculating civil penalties under CWA was "highly discretionary"
court found it clear that the lower court had considered all the statutory factors in setting the penalty

The Federal-State Enforcement Relationship

EPA can delegate to states responsibility for administering and enforcing the clean water, clean air, and hazardous waste programs
EPA can withdraw delegation but almost never does because it doesn't want to take on the burden
EPA usually has the authority to take enforcement action on its own when it does not believe that states have adequately addressed certain violations
Harmon Industries v. Browner (8th Circuit 1999)

Harmon manager at manufacturing plant discovered that maintenance workers had been dumping volatile solvents behind the plant for years. Harmon's management had been unaware.
After discovery, Harmon ceased dumping and voluntarily contacted the Missouri Dept. of Natural Resources (MDNR) and agreed to a clean-up plan
Separately, the EPA initiated an enforcement action against Harmon seeking $2m+ in penalties
MDNR agreed not to seek penalties after request from Harmon for leniency
district court found that EPA's decision to impose civil penalties violated RCRA, and EPA appealed to circuit court
court applies Chevron analysis

RCRA lets states apply to EPA to administer their programs in lieu of the federal government's hazardous waste program"
EPA argued that plain language of RCRA Sec 6928 allows the federal government to initiate an enforcement action even in states with delegated responsibility
Court considers the statutory interpretation rule that requires examining the text of the statute as a whole by considering its context, object, and policy
court found that an examination of the statute as a whole supported the district court's ruling since the administration and enforcement of a program are inextricably linked
statutory language highlighted by EPA, court interpreted to mean that Congress gave EPA the authority to pursue enforcement action in cases where states with delegated authority had failed to take any enforcement action

Other circuit courts have reject or declined to apply Harmon

Criminal Enforcement

Almost all federal environmental statutes now provide for criminal penalties for "knowing" or "wilful" violations of environmental regulations
United States v. Weitzenhoff (9th Circuit, 1994)

Weitzenhoff was the manager of the East Honolulu Community Services Sewage Treatment Plant
Weitzenhoff ordered the surreptitious dumping of sewage waste (waste activated sludge, WAS) into the ocean
CWA makes it a felony offense to "knowingly violate" various sections of the CWA "or any permit condition or limitation"
prior to the criminal trial of Weitzenhoff, the district court construed "knowingly" as requiring only that the defendents were aware that they were discharging the pollutants in question and not that they knew they were violating the NPDES permit for the sewage plant
court found that it was unclear from the statute whether the law required knowing violation of the law or knowing conduct that is in violation of the law, so the court looked to the statute's legislative history
court found that Congress intended the district court's interpretation
Dissenters to refusal to hear en banc

dissenters claimed court had ignored plain language of statute and potentially made criminals of morally innocent people

Standing and Citizen Access to the Courts

Sierra Club v. Morton (US 1972)

US Forest Service asked for bids to develop a ski resort in Mineral King Valley and accepted bid by Walt Disney Co.
Sierra Club sued to stop the plan under the APA and as a membership corporation with "a special interest in the conservation and sound management" of such lands
In previous cases, the SC had ruled that persons had standing to obtain judicial review of federal agency action under Sec 10 of APA when they alleged that the action had caused them "injury in fact" and when the injury was to an interest within the zone of interests addressed by the statute in question
Court addressed question of standing, in particular "what must be alleged by persons who claim injury of a noneconomic nature to interests that are widely shared"
Court found that Sierra Club had failed to establish that it or any of its members would be directly affected by the challenged ski resort

In dissent, Justice Douglas argued that inanimate objects should have standing

Standing Doctrine in Environmental Cases after Sierra Club v. Morton

In recent years, the court has articulated the requirements of standing as follows:

that the challenged action will cause plaintiff some actual or threatened injury-in-fact
that the injury is fairly traceable to the challenged action
that the injury is redressable by judicial action
that the injury is to an interest arguably within the zone of interests to be protected by the statute in question

[Class Notes] standing requirements said to be constitutionally required:

that the challenged action will cause plaintiff some actual or threatened injury-in-fact
that the injury is fairly traceable to the challenged action (causation)
that the injury is redressable by judicial action (i.e. can the court fix the plaintiff's injury?)

[Class Notes] prudential standing requirements (developed by courts)

that the injury is to an interest arguably within the zone of interests to be protected by the statute in question (is the plaintiff one that Congress intended to have standing); court usually thinks of the zone of interest very broadly
generalized grievance--if an injury is felt by everyone, then the court should not be adjudicating but rather the legislature should address the issue. Congress can decide to allow people to sue even in the case of a generalized grievance

Organizations have standing to assert the interests of their members so long as

the members themselves would have standing to sue
the interests organizations seek to protect are germane to the organizations' purposes

Lujan v. National Wildlife Federation (US 1990)

NWF challenged decision by BLM to lift restrictions on 180 million acres of public land
court ruled that NWF lacked standing
Court found that NWF affidavits expressing injury were not specific enough

Lujan v. Defenders of Wildlife (US 1992)

Defenders challenged the decision of the Secretary of the Interior that the Endangered Species Act did not apply to US agencies' actions outside the US
Court found that Defenders did not meet the standing requirements of injury and redressability
Defenders' affidavits indicating two members' desires to travel to places to observe endangered species did not show imminent injury in the court's opinion because of their "some day" nature
court acknowledges that aesthetic harms (if sufficiently immediate) are cognizable as cause of action
the lower court had held that Congress had conferred upon all citizens a "right" to have the executive branch observe the procedures required by the law
SC rejected lower court's ruling and reiterated that it has consistently found that plaintiffs do not have standing if they sue based simply on a general interest in seeing the executive branch properly apply the laws and the Constitution
Scalia is concerned with standing because of a concern over Constitutional separation of powers; the power to enforce laws is constitutionally granted to the executive and citizen suits represent a congressional usurpation of executive power

The Zone of Interests Test and Standing for Business Interests

in several cases, the courts have used the "zone of interests" prong of standing doctrine to reject efforts by industry groups to use the environmental statutes to their benefit (CB p. 997)
Bennett v. Plenert (9th Circuit 1995)

Court found that ranchers did not have standing to sue because theirs did not fall within the zone of interests of the statute (ESA and preservation of species)
Supreme court overturned this decision in Bennett v. Spear (US 1997) citing the expansive language in the ESA citizen suit provision as having expanded the zone of interest eligible for standing

Citizen Suits

Citizen Suit Provisions in the APA and the Federal Environmental Laws

federal environmental laws generally authorize private parties to bring three types of lawsuits

citizen enforcement actions - "private attorney generals" to supplement government enforcement
suits to force officials to perform their mandatory duties (often to comply with deadlines)
citizen suits to review the legality of agency actions (judicial review)

Norton v. Southern Utah Wilderness Alliance (US 2004)

Environmentalists challenged BLM's failure to enforce laws government management of public lands
plaintiffs argued that BLM failed to carry out its non-discretionary duty to prevent impairment of wilderness study areas for suitability as wilderness and to undertake certain actions identified in its own land management plans
court considered the limits APA places upon judicial review of agency inaction--court found that a claim can proceed only when an agency has failed to take a discrete action that it is required to take
Court found that it is not empowered to issue general orders compelling compliance with broad statutory mandates--this would necessarily involve the court in determining compliance and thus in day-to-day agency management
Court found that land use plans were really just statements of priorities that does not prescribe actions and thus such plans could not be the basis for an APA Sec 706(1) suit

CWA Sec 505 authorizes citizen suits:

SEC. 505. (a) Except as provided in subsection (b) of this section and section 309(g)(6), any citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the
extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this
Act which is not discretionary with the Administrator

Federal district court can apply the same penalties available when the federal government engages in enforcement; although, the citizens do not get to keep any penalty monies
citizen suit requires 60 days advance notice to government and violator
can't bring a citizen suit if government has already engaged in enforcement action but a citizen can intervene

as an intervenor, a citizen can appeal a loss by the government
as an intervenor, a citizen has a seat in any settlement discussions

Sec 505(d) awards attorney fees to the prevailing party
Sec 505(g) defines eligible citizens: For the purposes of this section the term ‘‘citizen’’ means a person or persons having an interest which is or may be adversely affected.

Gwaltney v. Chesapeake Bay Foundation (US 1987)

Meatpacker had chronic issues with exceedances of NPDES permit.
Citizens group notifies the meatpacker and files suit under the CWA citizen suit provision
however, the statute's language says that citizens can sue someone who "is in violation" so that the citizens can only sue if the defendant is currently (present tense) in violation whereas the alleged exceedances all happened in the past and the violations had ceased
the SC upheld this ruling; the court held that citizen suits were meant to be supplemental to EPA enforcement and not co-equal. The court was worried about citizen suits against firms whom the EPA had already gotten to comply.
Court acknowledged that their decision might open the door to firms who would violate like crazy only to stop as soon as they received notification of a citizen suit; the court said that the plaintiffs could amend their complaint to document a bad record of violations that indicate the likelihood of future violations

Friends of the Earth v. Laidlaw Environmental Services (US 2000)

Company ceased discharging after notice of citizen suit was filed
District court imposed penalties but not an injunction, but then the defendant questioned what the citizen plaintiffs' standing was--the plaintiffs wouldn't get the fine nor was there an injunction that would provide relief
Court declined to find the case moot because violations has ceased
The case was an easing of requirements for citizen suits under CWA

Toxic Substance Regulation

Modern Approaches to Assessing Risk

4 Step Process

Hazard identification
Dose-response assessment
Exposure assessment
Risk characterization

Population risk
Individual risk

Uncertainty clouds each step in the process

How Safe Is Safe?--Modern Approaches to Managing Risk

EPA first regulated lead in gasoline (prior to banning it) without being able to actually forecast the danger of lead
Introduction: Remedial Approaches in Reserve and Ethyl Corp.

Decision by EPA to phase down lead resulted in the data used to justify its elimination from gasoline via cost-benefit analysis

Statutory Authorities for Regulating Risks

A multitude of statutes authorize many agencies to regulate toxics
The Toxic Substances Control Act (TSCA) is not a licensing act. It requires firms to notify EPA prior to the manufacture of a new chemical or the use of an old one for a new purpose. EPA can intervene to ask for more info and can thereafter regulate, but otherwise, there is no specific approval required.

3 general approaches to "how safe is safe?" question:

Risk-benefit balance
Feasibility-limited standard - maximum technically feasible protection of health
Health-based statutes - regulation considers only protecting public health

Risk-Benefit Balancing Approaches

Example: The Toxic Substances Control Act (TSCA)

EPA can regulate when there is a "reasonable basis to conclude" that a substance "presents or will present an unreasonable risk of injury to health or the environment"
TSCA also explicitly requires EPA to make findings concerning the benefits of various uses of a substance, the availability of substitutes for it, and the "reasonably ascertainable economic consequences" of regulation
Moreover, TSCA directs EPA to regulate "to the extent necessary to protect adequately against such risk using the least burdensome requirements"
Presidential Executive Orders have for decades required Quantitative Risk Assessments (QRAs) even for statutes that do not mandate them
EPA Proposed Ban of Asbestos Products

EPA's reasoning

Human studies attribute disease to asbestos
People are frequently unknowingly exposed
Additions to current stock of asbestos products would increase environmental exposure
Asbestos is released at many stages of commercial cycle
Such releases are substantial
Existing regulatory patch-work leaves too many holes
Asbestos continues to be used in large quantities
Substitutes do or soon will exist
Ban includes an exception where substitutes don't become available

Corrosion Proof Fittings v. EPA (5th Circuit 1991)

Asbestos industry challenged EPA's proposed ban claiming the rule was flawed and lacked a basis on substantial evidence
Court assessed whether EPA's rule met the TSCA statutory requirements
Court found that Congress's rejection of a "no-risk" approach meant that sometimes the intended policy would allow for more risk than the most burdensome (i.e. a total ban)
Court upheld EPA's invocation of the TSCA but took issue with its supporting analysis
Court found that EPA's analysis of just "no regulation" vs. "total ban" was insufficient to satisfy statutory dictates by failing to demonstrate the insufficiency of some intermediate regulatory regime
Court said that the proper process would be to consider each successively more burdensome regulatory option in sequence
Court took issue with EPA's failure to quantify saved lives beyond 13 years and its treatment of any such saved lives and "unquantified benefits" that could be used to tip the scale in favor of regulation when the $/life saved were enormous; court said that unquantified benefits should be a tie-breaker
Court criticized EPA's defense of bans of asbestos products without substitutes that referred to its waiver process since the waiver placed the burden on the regulated entities.
Court also faulted EPA for failure to assess the potential harms of products substituted for asbestos despite warnings from industry that such products could be even more dangerous--court claimed that this failure meant EPA had not met the statutory requirements of TSCA
Statutory requirement to prevent "unreasonable risk of injury" implies a balancing of costs and benefits which the court found the enormous costs of lives saved did not meet (up to $74 million / life)

(Technology-Based) Feasibility-Limited Regulation

this is the most common standard-setting methodology mandated by Congress in regulating toxics
Supreme Court (in a case concerning OSHA) held that "feasible" meant capable of being done both in terms of technology and economics

Health-Based Regulation

De Minimis Risk and Comparative Risk Assessment

those subject to regulation often argue that regulation should accept a certain de minimis risk that is a level of risk that should be acceptable to society; one can identify such a level of risk via comparative risk assessment where one looks to the risks from things that people generally view as being safe (e.g. living in Denver where one is exposed to more cosmic radiation or accidental death rates in the safest occupations)
Public Citizen v. FDA (DC Circuit 1987)

Delaney Clauses prohibit the use of any food additive, color additive, or animal drug that is found to induce cancer in man or animal
Case concerned dyes approved for use in cosmetics that were linked to a trivial risk of cancer
Court found that the law does recognize as a general principle the idea of the de minimis doctrine (de minimis non curat lex, "the law does not concern itself with trifles")

Court must look beyond statute's plain meaning to its purpose in cases where a too literal application would lead to absurd or futile results or even results counterproductive to the purpose

Nonetheless, Court found the Delaney Clauses' language allowed for no de minimis application--the language was too absolute

Les v. Reilly (9th Circuit 1992)

Court ruled that Delaney Clauses allowed no de minimis exception in the case of food additives either
Congress subsequently amended the Delaney Clauses

Acceptable Risk and Section 112 of the Clean Air Act

Prior to 1990 Amendments, Sec 112 of CAA was interpreted as a zero-risk statute since it required EPA to regulate toxics to provide an "ample margin of safety to protect the public health"
NRDC v. EPA (DC Circuit 1987) aka Vinyl Chloride

court held that to comply with CAA Sec 112, EPA had to first determine what was safe (i.e. a reasonable risk to health but not zero risk) irrespective of cost or feasibility and then to consider costs and feasibility in determining how far to go beyond that level (i.e. the margin of safety)
acceptable risk to health being greater than zero is not a cost-benefit issue but rather stems from the fact that many activities people consider safe are not zero-risk
Decision forced EPA to confront the question of how safe is safe

Following Vinyl Chloride, EPA proposed a new benzene rule that specified how the agency would determine what is "safe"

first step is to determine the risk to a person exposed to the maximum level of pollutant for a lifetime--this is the maximum individual risk (MIR)
if the MIR is no higher than about 1 in 10k, then EPA considers a set of other factors
EPA held that even if MIR is low, if many people are exposed and thus incidence is high, that is not safe
EPA also considers the distribution of risks, science policy assumptions and uncertainties, and the weight of evidence
In the second step (ample safety margin determination), EPA considers costs and technology

1990 CAA Amendments changed Sec 112 to mandate that EPA set maximum achievable control technology (MACT) standards for a statutory list of 189 toxics

Congress gave EPA 10 years to comply
by statute, EPA must regulate additional toxics if exposed individuals face more than a 1 in a million lifetime cancer risk

Regulation Through Revelation

Safe Drinking Water Act requires public water suppliers to inform customers when they violate standards with the hope that public pressure will resolve violations
EPA's 1983 attempt to use information to galvanize asbestos removal in schools misfired and led to panic and counterproductive results
The Emergency Planning and Community Right-to-Know Act (EPCRA)

Sec 313 of EPCRA requires annual reporting of toxic chemical releases via Toxic Release Inventory (TRI)

No additional monitoring required for reporting
Statute allows for citizen suits against firms and EPA

Waste Management and Pollution Prevention

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
Waste Management and Pollution Problems

Superfund program under CERCLA concentrates on remediating past hazardous waste contamination while contemporary management of hazardous waste is handled by the Resource Conservation and Recovery Act (RCRA)

CERCLA Liability

CERCLA's Basic Principles

CERCLA was enacted by Congress in large part due to the crisis sparked by Love Canal
CERCLA represents a natural adaptation of centuries of common law developments as extended by modern environmental statues
CERCLA is a direct extension of common law principles of strict liability for abnormally dangerous activities
CERCLA Sec 107 identifies four classes of potentially responsible parties (PRPs) who bear cleanup liability:

current owners and operators
owners and operators at the time of the waste disposal
generators of the waste
persons who transported the waste to the facility

Liability Provisions of CERCLA

CERCLA broadly defines both "hazardous substance" (drawing largely on definitions of regulated substances in other environmental statutes) and "release"
United States v. Olin Corp. (11th Circuit 1997)

Olin and US had entered into a consent decree in which Olin agreed to pay for all response costs associated with a contaminated site
District court ordered the parties to address the impact of the recent Lopez decision on the legality of the proposed consent decree; Olin responded by claiming that the Commerce Clause precluded application of CERCLA in this case
In Lopez, the SC found that the Commerce Clause empowers Congress to regulate:

channels of interstate commerce
instrumentalities of and persons or things in interstate commerce
intrastate activities that substantially affect interstate commerce

In determining whether the activity in question fell into the third category above, the court had to determine whether the activity was one of those (from Lopez) "activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affect[] interstate commerce"
Court found that the district court had misapplied Lopez, and the court rejected Olin's constitutional challenge
Court found that on-site waste disposal does significantly affect interstate commerce based on evidence in the legislative history
Olin also objected that its waste related activities were not economic in nature, but the court ruled that activities themselves need not be economic so long as they substantially affect interstate commerce under Lopez

Responsible Parties

CERCLA does not authorize EPA to set standards for the prevention of hazardous waste contamination but rather defines the potential consequences for polluters
Owners

New York v. Shore Realty Corp. (2nd Circuit 1985)

Shore bought a contaminated piece of land to develop it. Shore knew that the land was contaminated when it bought the land. The state of NY sued Shore to clean up the hazardous waste
Shore was aware that the land's tenants were operating a hazardous waste dump. In fact, Shore hired an environmental consultant to review the land who called the property a "potential time bomb"
Shore claimed that CERCLA Sec 107(a)(1) ("owners' liability") did not cover it based on a convoluted reading of the statute. The court found that the statute was unequivocal in covering Shore as liable as the current owner of the facility subject to strict liability.
Shore also claimed that it hadn't caused the hazardous substance release and so was not liable; the court found that acceptance of this reading of the statute would render surplus the explicit exceptions (affirmative defenses) to strict liability laid out in the statute. The court refused to, without explicit instructions from Congress, read the statute in such a way as to make some of its provisions surplusage

In its 1986 Superfund Amendments and Reauthorization Act (SARA), Congress enacted a defense for so-called innocent land purchasers with conditions. In 2002 in the Small Business Liability Relief and Brownfields Revitalization Act (SBLRBRA), Congress instructed EPA to issue regulations for what pre-purchase assessment conditions would qualify one as an innocent land purchaser
Courts are split over whether "passive" disposal (e.g. leaking) constitutes disposal that makes an owner liable, but more courts have followed US v. CDMG Realty (3rd Circuit 1996) which found against "passive" disposal based on the active words used in the statute to define disposal and because to allow for "passive" disposal liability would vitiate the innocent purchaser defense

Operators

FMC Corp. v. United States Dept. of Commerce (3rd Circuit 1994)

US government held liable as operator for contamination caused by a privately owned rayon manufacturing company that operated at the direction of the War Production Boad during WWII
Court applied a standard of "substantial control" to find operator liability

In United States v. Gurley (8th Circuit 1994) the court adopted an "actual control" test for when individuals can be held liable as operators under Sec 107(a)(2) of CERCLA. The court held that two elements were required for such liability:

that the individual had the authority to determine whether hazardous wastes would be disposed of and their method of disposal
that the individual had actually exercised that authority

United States v. Bestfoods (US 1998)

Bestfoods bought a chemical plant thru a wholly-owned subsidiary and kept the plant's management team as employees of the subsidiary and the parent company
US sued Bestfoods to recover costs of cleaning up the plant and the suit focused on whether, as the parent company, Bestfoods was liable under CERCLA Sec 107(a)(2) as having "owned or operated" the facility
Court found that it is a general principle of corporate law that a parent company is not liable for the actions of its subsidiary and nothing in CERCLA purported to reject this "bedrock principle." However, the court also noted that it is a general principle of corporate law that the corporate veil may be pierced and the parent company shareholders held liable for the actions of the subsidiary when the corporate form is a mask for illicit behavior. CERCLA also does not say anything that rejects this principle. So, a parent company may only be held liable when the corporate veil may be pierced.
Court finds that nothing in CERCLA bars holding a parent company liable for its own actions that constitute "operation" of the facility in question; however, the court finds the statute's defn of "operator" useless and is left to interpret the statute using the term's "ordinary or natural meaning"--i.e. an operator must manage, direct, or conduct operations specifically related to pollution to be held liable
court held that district court was incorrect to focus on whether the parent company controlled the subsidiary; rather, the real question was whether the parent company or its employees controlled the facility when acting as agents of the parent company
I took corporations, albeit not to great effect, but I think the basic difference is that under the law of corporations veil-piercing is generally appropriate only if someone has abused the corporate form -- e.g., by fraudulently hiding behind it to manage a company for personal benefit (to the detriment of other shareholders) or to commit criminal or fraudulent acts on the outside world. The form of operator liability recognized in Bestfoods does not require such culpable conduct -- it can apply when an agent of the parent company is directly involved in managing the affairs of the subsidiary (particularly as relates to hazardous waste) in ways that go beyond normal oversight by a parent corporation of a subsidiary. That conduct might not be culpable, or a basis for veil-piercing, but it fits within the meaning of the CERCLA term "operate" as construed by the Bestfoods Court.

Transporters

Transporters' liability is premised on the idea that transporters have some say in where and how hazardous waste is disposed.
Tippins, Inc. v. USX Corp. (3rd Circuit 1994)

Sec 107(a)(4) applies in any case where the transporter's advice was at least a contributing factor in the decision of how/where to dispose of hazardous waste

Generators

In a substantial modification of common law, CERCLA imposes liability on the nonnegligent generators of waste
recognizing the difficulty of matching actual waste in toxic sludge to its generator, courts have interpreted Sec 107(a)(3) broadly to promote the remedial purposes of Congress
United States v. Aceto Agricultural Chemicals Corp. (8th Circuit 1989)

Aceto was one of several pesticide manufacturers who contracted with a formulator to mix its chemicals into commercial grade pesticides. EPA and the state of Iowa sued to get these manufacturers to pay for response costs in cleaning up after the formulator on the basis of these firms' having "arranged for" disposal of hazardous substances (since the firms owned the chemicals while the formulator was working on them)
Defendants moved to dismiss the case arguing that they had arranged for the processing of a valuable substance and not the disposal of waste
Complaint alleged that Aceto was liable as a generator of hazardous waste since it owned the pesticide material through the formulators' processing and because the release of hazardous waste was an "inherent" part of the formulating process for which Aceto had contracted
Court ruled against the defendants' "narrow" interpretation of the statute based on several decisions by courts to liberally interpret the statute in keeping with CERCLA's "overwhelmingly remedial" statutory scheme
Court interpreted the statue in light of Congress's two goals in enacting it: first, to promptly give government the tools to deal with hazardous waste; and (2) to make those parties responsible pay. Court found that accepting the defendants' interpretation of "arranged for" would frustrate the second goal.
Any other decision, the court found, would allow generators to "close their eyes" to the waste disposal practices of their business partners
Court notes that other courts have even imposed liability when a party has arranged for disposal of wastes at a site unknown to it or when the waste is disposed at a different site than it had thought it would be

Survey of cases by Third Circuit noted that "arranger liability" is fact-dependent but found a lack of agreement among different courts as to what constitutes liability. Nonetheless, the Third Circuit concluded that liability depends on on three factors:

possession or ownership of substance, and
knowledge of disposal, or
control over the process that results in disposal

the Small Business Liability Relief and Brownfields Revitalization Act (SBLRBRA)

added a liability exemption for "de micromis" generators or transporters (those dealing with defined, small amounts of substances)
added a liability exemption for certain small businesses, non-profits, and homeowners for their generation of municipal solid waste (MSW)

Strict, Joint, and Several Liability

Strict liability relieves the government of the need to show that the release of a hazardous substance was due to negligence or that a defendant's conduct was intentional and unreasonable
application of joint and several liability avoids complicated fights over the apportionment of liability from delaying clean-up efforts
O'Neil v. Picillo (1st Circuit 1989)

Picillos allowed their pig farm to be used as a hazardous waste dump. A fire occurred and the state had to clean up the mess.
The state settled with most of the generators of waste, but a few held out and were found jointly and severally liable at trial
Two of these generators appealed the case arguing that their contribution to the contamination was negligible and thus it was unfair for them to be held jointly and severally liable for all of the state's clean-up costs not covered by the settlement
Courts have historically followed torts law standard that damages should be divisible only when the defendant can demonstrate that the harm is divisible.
Court found that Congress, were it unhappy with this approach, could have addressed it in its subsequent amendments to CERCLA, but that Congress did not do so even while Congress did amend the law to tell EPA to offer early settlements to de minimis offenders and Sec 113(f)(1) which creates a cause of action in contribution
Firms claimed that because one could determine the fraction of barrels of waste for which they were responsible, one could apportion the clean-up costs accordingly
EPA argued that it was not, in fact, possible to accurately determine which waste barrels were from whom
Court reviewed evidence and agreed that one could not accurately determine the amount of waste for which the firms were responsible

Liability: Amount and Allocation

Standards and Costs of Removal and Remediation

Allocation of Liability

CERCLA Sec 113(f) authorizes private parties to seek contribution from other PRPs except for those who have already settled with the government
Sec 113(f) says that "any person may seek contribution from any other person who is liable for potentially liable under" Sec 107(a)
In a Sec 113(f) contribution suit, a court must allocation the fair share of the cost among the PRPs. Courts use the six Gore factors (named after Sen. Al Gore) as guidance; however, courts have not limited the equitable factors that they may consider to the Gore factors but instead treat them as a matter of case-by-case judgement. Courts consider such factors as: volume of waste; parties' relative levels of fault; degree of care exercised;

there are orphan shares of the cost--i.e. the fair share of cost allocated to entities that are now defunct
some courts have left the PRP suing under Sec 113(f) holding the orphan shares other courts have spread the orphan shares across all the PRPs
CERCLA provides incentives for settlement. EPA can protect PRPs who settle against Sec 113(f) contribution claims

Cooper Industries, Inc. v. Aviall Services, Inc. (US 2004)

CERCLA Sec 113(f)(1) specifies that a party may obtain contribution "during or following any civil action" so the court ruled that a party not subject to a civil action cannot sue for contribution under Sec 113(f)
Aviall had bought a property from Cooper that they both contaminated. Aviall cleaned up the site voluntarily under the supervision of the state and then sued Cooper for contribution
District court ruled that Aviall could not sue under Sec 113(f) since it had never been subject to a Sec 107 suit or a Sec 106 administrative order
Appeals court first affirmed (panel) then overturned (en banc) finding that the savings clause in the text of Sec 113(f) meant that the cause of action for contribution was not limited to those who were subject to civil action under Secs 106 and 107
Court overturned appeals court ruling. Court read the statutory text so as to give every word meaning and so as not to render surplusage some of the statute's provisions
Court interpreted the savings clause as merely saying that nothing in Sec 113(f) limited any causes of action for contribution that might exist outside of Sec 113(f)

United States v. Atlantic Research Corporation (US 2007)

Court had to decide whether CERCLA Sec 107(a) provides potentially responsible parties (PRPs) with a cause of action to recover costs from other PRPs. Court held that it does.
CERCLA Sec 107(a)(4)(A)-(B) specifies the costs for which parties are liable
Sec 107(a)(4)(A) provides for liability for costs incurred by the government
Sec 107(a)(4)(B) provides that PRPs "shall be liable for...any...necessary costs of response incurred by any other person consistent with the national contingency plan"
CERCLA Sec 113(f) authorizes one PRP to sue another for contribution in certain circumstances
Atlantic Research leased DOD property and retrofitted rocket motors for the Navy. Atlantic's operations led to hazardous waste contamination. Atlantic paid to clean the site and then sued the US under CERCLA Secs 113(f) and 107(a) to recover some of its costs. The Cooper Industries decision meant that Atlantic changed its suit to rely solely on Sec 107(a). The US moved to dismiss which the district court agreed to do. The appeals court reversed, however.
Court found that the case turned on the meaning of "other person[s]" in Sec 107(a)(4)(B)
US argued for a somewhat tortuous reading on the statute (i.e. that "other person" excluded PRPs as defined earlier in the section) which the court rejected, holding that the statute must be "read as a whole"
Court rejected US argument that its interpretation would create a friction between Secs 107(a) and 113(f) since the court found that they made for two "clearly distinct" remedies

Sec 113(f) creates a right to contribution for PRPs that have been the subject of an action and held liable for more than their fair share of the cost of clean-up incurred by a third-party (e.g. the government)
A party may recover clean-up costs via a Sec 107(a) suit when the party has incurred its own costs of clean-up rather than paying a settlement

Preservation of Biodiversity

Congress enacted the Endangered Species Act (ESA) in 1973 after passing much weaker legislation in 1966 to address the issue
Convention on International Trade in Endangered Species of Wild Fauna and Flora addresses international species protection
Why Should We Preserve Biodiversity?

E.O. Wilson: aesthetic value, practical benefits from research, and biological stability
nearly one-third of species native to US for which data are available are at risk of extinction

The Endangered Species Act: An Overview

Major Provisions of the ESA

Section 3: Defns

"take" defined to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct"

Section 4: Listing Endangered and Threatened Species

Sec 4(b): listing decisions to be based on "best scientific and commercial data available" whereas the designation of critical habitat should also take into consideration economic factors

Section 7: Review of Federal Actions

Sec 7(a)(2): all federal agencies must insure that their actions don't hurt protected species

Section 9: Prohibitions (private takings)
Section 10: Habitat Conservation Plans
Section 11: Enforcement and Citizen Suits

TVA v. Hill (US 1978)

TVA began construction on Tellico Dam and nearly completed it
A UTenn biologist discovered a species of fish, the snail darter, unique to a location that would have been affected by the dam
Secretary of the Interior listed snail darter as an endangered species and declared the area to be dammed as critical habitat
Enviros filed the case under review by SC to enjoin the completion of the dam
District Court found for TVA and rejected petition for an injunction
Court of Appeals reversed and found for enviros
SC found that the plain language of Sec 7 of the ESA allowed for no ambiguity or exception
TVA and dissenters argued that ESA did not apply to federal projects already underway when the ESA was enacted; however, the court found that the TVA would need to "carry out" an action to close the gates of the dam
Court found that the language, history, and structure of the bill indicated that Congress had intended for the preservation of species to be of the highest priority (and thus worth incurring enormous costs)
Court ruled that it had no role in striking a balance between the benefits of the dam and the loss of the snail darter--to do so would both violate the plain language and intent of Congress as well as the separation of powers
Court rejected argument that Congressional appropriations for the dam after the enactment of ESA constituted an intent to exempt the dam from the ESA requirements since the court disfavors "repeals by implication"

In response to TVA v. Hill, Congress amended the ESA to include Section 7 exemptions for qualified activities and from the "God Squad"

Federal Authority to Preserve Biodiversity

Following US v. Lopez, challenges to the constitutionality of ESA provisions under the Commerce Clause arose
National Association of Home Builders v. Babbitt (DC Circuit 1997)

Wald

Appellants challenged the application of Sec 9(a)(1) of the ESA to the Delhi Sands Flower-Loving Fly on the grounds that the fly is found only in one state and thus the federal government does not have the authority to regulate the use of non-federal lands to protect the fly
Court applied the three-part standard endorsed by the SC in Lopez for judging whether the federal government can use its commerce clause power

Channels of interstate commerce: court found that this commerce clause justification did apply since (1) the ESA provision in question is necessary for the government to control the transport of endangered species in interstate commerce and (2) Congress has the authority to keep the channels of interstate commerce free from immoral and injurious uses (Heart of Atlanta Motel v. US)
Substantially affects interstate commerce: legislative history judged to indicate that Congress enacted the ESA in part owing to the importance of a diversity of species to interstate commerce (such legislative findings were missing in Lopez)

Biodiversity is a natural resource that can result in commercial products and so species extinctions in the aggregate can have a substantial effect ("option value" for species as yet unexploited commercially)--e.g. potential to genetically engineer honeybees with genes from the fly in question should that prove useful
Destructive Interstate Competition - Congress can regulate to prevent a "race to the bottom"

Henderson, concurring

disagreed with rationale but agreed that fed had commerce clause authority since the loss of biodiversity has a substantial effect on our ecosystem and likewise on land and objects involved in interstate commerce
the protection of an intrastate species will (due to interconnectedness) likely affect land and objects that are involved in interstate commerce
in addition, in passing ESA, Congress contemplated that it would require regulating land and its development which has an obvious connection to interstate commerce

Sentelle, Dissent

Criticizes Wald for essentially arguing that Congress had commerce clause authority in this case because the objects that would be used to harm the fly were involved in interstate commerce (i.e. Wald is basically arguing for the elimination of endangered species from interstate commerce, according to Sentelle)
Takes Wald's argument about biodiversity to mean that Congress has the authority to regulate anything so long as there is some chance that at some point in the future it may find itself involved in interstate commerce
In response to Henderson, Sentelle offers that the Constitution allows Congress to regulate "commerce" and not "ecosystems"

Gibbs v. Babbitt (4th Circuit 2000)

some red wolves re-introduced into the wild were found to be venturing onto private land
Fish and Wildlife Service (FWS) extended the takings prohibitions of ESA Sec 9(a)(1) to the red wolf on private land with certain exceptions
Appellants sought declaration that the FWS regulation regarding takings on private land exceeded the fed's authority under the commerce clause
District court rejected petition for declaration finding that the wolves were objects that had crossed state lines and were followed by tourists, academics, and scientists
Court considered the case in light of the Lopez framework
Court found that the case did not concern channels of interstate commerce or things in interstate commerce
Court found that the regulated activity did substantially affect interstate commerce and was economic in nature since it involved a variety of commercial activities; moreover, the regulation is part of a comprehensive federal regulatory regime
Taking of red wolf deemed economic since it was done to protect economic interests (e.g. livestock) and the taking affected interstate commerce insofar as species extinction would affect tourism, scientific research, and pelt trading
Court found that it is not the court's role to separately evaluate the commercial potential of each species (rather, this is a task for Congress and the FWS)
Moreover, the court has no role in balancing competing interests, that too is for Congress
Court also ruled that the regulation was constitutional on the basis of being "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated" (citing Lopez). Court held in previous cases that for such a comprehensive regulatory scheme it is only necessary to show that the whole scheme meets the commerce clause requirements rather than showing that every little aspect of it does
Court also found that conservation is not a traditional area of state power but rather one where the fed has a history of regulation
Dissent:

taking of wolves is not an economic activity nor can one show that it substantially affects interstate commerce without too great a number of inferences

GDF Realty Investments v. Norton (Fifth Circuit 2003)

Court upheld ESA prohibition of takings of species of invertebrates found only in TX caves on the grounds that the activities typically regulated by ESA are commercial and that the prohibitions in question were an integral part of the comprehensive ESA regulatory regime and thus qualified for aggregation with the more commercial impacts of similar prohibitions (e.g. similar to aggregation used in Wickard (wheat) decision)

Review of Federal Actions: Section 7 (agencies must ensure that their actions don't endanger protected species)

Thomas v. Peterson (9th Circuit 1985)

Plaintiffs sought to enjoin construction of a timber road in a previously roadless National Forest area claiming that the Forest Service failed to meet its obligations under ESA Sec 7 by considering the effects of the road and resultant timber sales on the endangered Rocky Mountain Gray Wolf
The Forest Service did not prepare a biological assessment as required by ESA Sec 7 for an area where it had been determined that an endangered species is present
Court found ESA procedural reqs analogous to those of NEPA but warranting even more stringent enforcement given the ESA's substantive provisions
Court ruled that all that was necessary for enforcement was for the plaintiffs to show that the circumstances existed to trigger the ESA's procedural requirements--i.e. the plaintiffs did not need to show that the action would harm the endangered species
I [Donahue] think the theory of standing in the standard ESA failure to consult case is (1) plaintiffs have demonstrated the always-required personal stake in the species in question (e.g., we like to observe/study wolves; or we're a business who take people on wilderness trips to see wolves, or the like), and (2) the agency has failed to follow a procedure that's designed to protect interests like plaintiffs' (i.e., in general, consultation is expected to help species; even if you can't show consultation would have led to a different result, the agency's failure to follow a procedural requirement generally designed to protect species, combined with the plaintiffs' demonstrated concrete interest, is enough for Article III). This is the theory of Scalia's footnote on procedural standing in the Defenders of Wildlife opinion

Roosevelt Campobello International Park Commission v. EPA (1st Circuit 1982)

Case concerns proposed oil refinery and marine terminal in Eastport, Maine
EPA regional office declined to issue NPDES permit after consultation with National Marine Fisheries Service (NMFS) indicated that the project might hurt protected whales and eagles
Administrative Law Judge (ALJ) overturned NPDES denial
Petitions sought review pursuant to CWA provision
Court held that its role was to review the agency decision to see if the agency had considered all relevant factors or made a clear error of judgment
Court overturned ALJ ruling given evidence that the EPA had not employed the best scientific data available in making its ESA-related decision since the EPA had not required the shipping traffic simulation that involved parties deemed necessary to accurately gauge the risk of oil spill

Carson-Truckee Water Conservancy District v. Clark (9th Circuit 1984)

this case concerned whether the Secretary of the Interior was exceeding his authority under the ESA by refusing to sell them water from a dam the dept. managed in order to preserve endangered fish species
Appellants argued that the Secretary could only reserve enough water to avoid placing the protected species in "jeopardy" given his authority under ESA Sec 7(a)(2)
Court found that Sec 7(a)(2) was not the provision in question at all and that the Secretary was well within his authority given the ESA's broad mandate to protect species as found in several provisions of the statute

Protection Against Private Action: Section 9

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (US 1995)

FWS promulgated regulation saying that a taking included habitat modification that actually injures or kills a protected species justified by the "harm" verb in the defn of take
Court finds this to be a reasonable interpretation

Respondents challenged the statutory validity of FWS regulation prohibiting harm to the habitat of protected species that in effect prohibited their logging activities
Court found that the text of the ESA provided three reasons to support the FWS regs as reasonable

an understanding of the plain language of the text (namely the word "harm") supports the inclusion in the regulation of habitat destruction since "harm" can include direct and indirect injury
Regs supported by the broad purpose of the statute
Congress's 1982 authorization of the Secretary of the Interior to issue permits for incidental takings implies that Congress meant for Sec 9 of ESA to cover indirect takings
Concurrence:

agreed with the Court predicated on the understanding that harms must be actual and not speculative and that the regulation is limited by ordinary principles of proximate cause

Dissent:

Regulation makes habitat modification that harms protected species unlawful regardless of foreseeability, intent, or proximate cause
the regulation does not require an actual act but will also apply to omissions (where there is a legal duty to act)
regulation covers injuries inflicted not only on actual animals themselves but also upon their species as a whole

National Association of Home Builders v. Defenders of Wildlife (US 2007)

Sec 402(b) of CWA requires EPA to approve delegation of permitting powers to states upon states' showing that their program meets nine enumerated criteria
Sec 7(a)(2) of ESA requires federal agencies to consult and insure that their actions will not jeopardize protected species
Court rules that ESA Sec 7(a)(2) does not act as an effective tenth criterion for delegation of permitting under CWA Sec 402(b)
Arizona in 2002 applied for delegation of NPDES program. EPA consulted with FWS regarding endangered species. FWS replied that it was worried that delegation would lead AZ to issue more permits and spur development that would injure protected species.
EPA concluded that (1) this link to harming protected species was too attenuated and (2) it had not discretion under CWA to refuse delegation since AZ met the nine statutory requirements
Court of Appeals overturned EPA's decision to delegate permitting program to AZ as arbitrary and capricious; respondents filed suit under provisions in CWA that authorize suits to review EPA's delegation decisions in federal appeals court
Court found that the CWA Sec 402(b) language made delegation mandatory and the list of criteria exclusive--i.e. EPA does not have discretion once it has determined that a state has fulfilled the nine criteria
Court held that it disfavors "repeals by implication" and found no language to suggest that the ESA was meant to repeal mandatory dictates in other statutes
NMFS and FWS issued regs stating that ESA Sec 7 applies to all discretionary federal actions, and the court recognized the need to grant deference to the agencies' reasonable interpretations of the statute under Chevron
Court found agencies' regulation reasonable since when an agency lacks discretion it has not power to "insure" that it will not jeopardize a protected species
Court rejects claim that TVA v. Hill decision supports respondents' position since the dam project in that case was discretionary
Dissent:

court's duty is to give full effect to both statutes if possible when there is a seeming conflict
given the ESA statutory text, which offers no exceptions or qualifications, and the TVA v. Hill decision, dissenters found that the court ought to have concluded that the Sec 7 reqs applied to all federal agency actions
court also essentially pointed to "wiggle room" in the two statutes that might allow for them to be "harmonized"

Protection of the Global Environment

Introduction to International Environmental Law

"little procedural hierarchy"
does not give any court or agency an "accepted primacy over another"
litigation and adjudication are rare
"soft law" that is largely the product of international diplomacy and custom
enforcement depends more on "moral" suasion or fear of diplomatic retribution
international treaties between sovereign states are the most significant source of international environmental law
international environmental law can also come from customary practices observed by nations or from domestic practices observed by nearly all nations
The UN Conferences

1972 Stockholm Conference - first Conference on the Human Environment
1992 Earth Summit in Rio de Janeiro

Agenda 21

2002 Johannesburg Summit - World Summit on Sustainable Development

Assessment of progress since Rio

Gus Speth's criticisms of legalistic approach to global environmental protection:

UN agencies are weak
negotiation process easily stalled by recalcitrant parties
"environment vs. economy" and "North vs. South" conflicts

International Adjudication of Environmental Disputes

most disputes are adjudicated by domestic courts since sovereign countries are reluctant to accede legal responsibility to a foreign tribunal
International Court of Justice, Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), 1997

Hungary pulled out of a joint dam project on the border citing, in part, environmental concerns
Nations had agreed to joint project as part of 1977 treaty
Court found that 1977 treaty had articles that required parties to protect the quality of the Danube river and to protect nature generally
Newly developed norms of environmental law focus on the ever-evolving nature of environmental science and protection
As such, the treaty requires the parties to re-assess their obligations for environmental protection based on latest understanding of the environmental risks

Protection of the Global Atmosphere

Ozone Depletion

Montreal Protocol

Gus Speth's assessment of reasons for success:

successful defn of problem in public mind as one of skin cancer and other public health threats
proponents succeeded in acting on "precautionary principle" rather than waiting for certainty
ozone hole discovery provided media and public attention
proponents out-hustled the opposition

Global Climate Change

1992 Framework Convention on Climate Change signed at Earth Summit (Rio)
Kyoto Protocol negotiated in 1997

avg reduction of 5% compared to 1990 baseline for Annex I countries
CDM faced free-rider problem--i.e. lowest cost projects are those most likely to be undertaken anyway

US State Efforts

2004 CA Air Resources Board (CARB) approved the first standard to require reductions in CO2 emissions from new cars and light trucks; Alliance of Automobile Manufacturers filed suit
CT v. American Electric Power

nuisance suit filed by 8 states and NYC against 6 large electric utilities seeking injunctive relief to restrict CO2 emissions

Massachusetts v. EPA (see above)
Push to get SEC to require GHG emissions disclosures
California AB 32 - California Global Warming Solutions Act of 2006

environmental justice focus
instructs agency to minimize "leakage"
sets 1990 emissions level as target for 2020
authorizes state board to implement cap-and-trade program

CERCLA Section 107
(a) Covered persons; scope; recoverable costs and damages; interest rate; “comparable maturity” date

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for—

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 9604 (i) of this title.