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Environmental Law OutlineCase Fall 2011

ThompsonEnvironmental Law: POLICIES, PROBLEMS AND VALUES

”Nature teaches the connectedness of all activities, but most current-generation law regulates separate pollutants with little consideration of ecosystems as a whole.” – Donald Elliot

I. ENVIRONMENTAL VALUES AND POLICIES Disciplines : sound environmental policy is formed at the intersections of politics, law, science, economics, and ethics Values Views : (1) Nature for nature’s sake; (2) self-interest to reduce risk to our health and areas we live; (3) Good

economic sense - $ to be made (cost benefit analysis). *Sometimes these conflict Politics - Environmental policy is created in the most combative regulatory arena in American politics. Divisive

political conflict and confrontation play a large part in environmental regulation and policymaking. **See Policy Making in an Environmental Warzone 50 Emory L.J 1, 16-26 (by Professor Case)

A. ECONOMICS & THE ENVIRONMENTa. ROLE OF PRICES AND MARKETS:

i. COLLECTIVE ACTION PROBLEM - Individual actors are motivated to maximize individual gain; drives the “tragedy of the commons” & such actions ultimately begin to yield negative returns. **Society needs to find ways to either force rational actors to internalize external costs

ii. ENVIRO ECONOMISTS VIEW THE WORLD IN 3 BASIC PROCESSES: (1) Extraction –raw materials and fuel from the environment; (2) Processing/fabrication – turn these into end products; (3) Consumption – of these resources

III. PROCESSES CREATE WASTE STREAMS (external costs) THAT FIND THEIR WAY BACK INTO THE ENVIRONMENT: Plant generates externality – pollutes river & people who subsist on its resources are burdened - all cost being imposed on someone other than the generator. Plant treats these costs as zero, but it’s only zero to them, not the environment

1. What public polices will induce the generator of the externality to take the external costs into account; internalize the externality? (“Polluter pays principle”)

iv. INTERNALIZE THE EXTERNALITY – Primary Enviro Q = what public policies will induce the generator of the externality to take the external costs into account to internalize the externality?1. When market failure (externality) occurs, economics believes government regulatory intervention is justified2. Regulation forces the generator to internalize external costs by paying or change its behavior

b. OPTIONS:(1) Court System – Common Law (tort); criticisms: ad hoc; costly; time-consuming; reactive and not preventive(2) Direct Regulation – performance standards (uniform requirements) & technical controls (require installation of

pollution control equipment); *pretty much where the law is now(3) Market-Based Approaches – economic incentives for polluters to control emissions (pollution taxes; subsidies

on reductions of emissions; marketable permit systems; information disclosurec. COST-BENEFIT ANALYSIS – seeks to compare the social benefit of policy to its opportunity cost. Ex: 70’s debate on lead

removal from gas; decision made after CBA found that doing so would reduce deaths, lower health care costs, & ultimately outweigh the cost of imposing the regulation.

d. CONSUMERS CAN EFFECTUATE CHANGE: Tire companies – cheap, well-functioning tires is what consumers want, thus tire making co’s don’t care about pollution. Save the dolphins movement –public said they weren’t buying tuna from dolphin killers and that got the job done.

i. Toxic Release Inventory (TWEN) – part of Emergency Planning and Community Right to Know Act - After India chemical release disaster in 1980s. Economists recognized a direct correlation bw release of info & the stock market (raw #s didn’t really mean anything, but the public would see 10 worst polluters and the reaction was strong). *Info disclosure to the public has an effect. This disclosure led to company attempts to lower TRI profile for the sole reason of public perception.

ii. Tuna and the Environment HO: In the 1940s commercial tuna fishermen realized that the best way to find yellow-fin tuna was to find the dolphins because they would swim together; a lot of dolphins were killed to catch the tuna. Undercover video revealed that the Marine Mammal Protection Act was not being enforced; after the video was released the public went out and effectuated real change. Dolphins have really awesome PR. Companies want to do environmentally friendly things I F consumers know about it (labels; commercials; packaging …etc).Note, there are methods to govern advertising environmentally-friendly measures i.e. Chik fil a example saying their wrappers were environmentally friendly because they were recyclable, but they weren’t recyclable

e. RULE OF UNINTENDED CONSEQUENCES (ecological rule of thumb) - seemingly simple actions typically will have non-obvious and unintended consequences that may culminate in a threat to ecosystem stability. “Environmental science assumes that every new technology introduces undesirable and commonly unanticipated impacts” We should avoid taking those actions until we have learned enough about it to anticipate the consequences.

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ThompsonII. SOURCES OF ENVIRONMENTAL LAW

1. COMMON LAW ROOTS a. PRIVATE NUISANCE – non-trespassory invasions of another’s interest in private use and enjoyment of land; requires a

showing of significant harm and interference with property rights must be intentional and unreasonable or actionable under rules imposing strict liability on those engaging in abnormally dangerous activities (Fletcher v. Rylands)

i. Susquehanna Fertilizer Co. v. Malone (1890) – Court said the law won’t balance injuries to P & losses to D becaue no one ha a right to erect works that are a nuisance to a neighbor, who is entitled to reasonable and comfortable enjoyment of his property. BUT American courts were generally more inclined to balance environmental damage against the value of polluting activities.

ii. Madison v. Ducktown Sulfur (1904) – the right must be clear and the injury must be clear; benefit of the doubt will be given to D if his trade is lawful and the injury is not the necessary and natural consequence of the act and if the injury can be adequately compensated with monetary damages; (Utility of factory v. P’s damages). TN Co. near GA-TN border, runs a copper smelting operation and sulfur dioxide (H.O.1 of 6 major pollutants now regulated strictly) is emitted into the air and is settling on neighboring farms (rain made it acidic). Timber and crops are damaged and Ps living situations are less enjoyable, (they are inconvenienced, “annoyed, and discommoded”). “In a case of conflicting rights, the law must make the best arrangement it can between the contending parties, with a view to preserve each one the largest measure of liberty possible.”

Injunctive relief - equitable option with nuisance because absent termination, the victim would continue to be damaged.

Proof of causal injury is a substantial obstacle to CL recovery Problem : Only those who have property rights and privileges with respect to the use and enjoyment of the

land may recover, and only if the harm they suffer is significant.b. PUBLIC NUISANCE – unreasonable interference with a right common to the general

public; courts consider whether the conduct: (1) involves a significant interference with the public health, safety, comfort, or convenience; (2) is illegal; or (3) is of a continuing nature or has produced a long-lasting effect on the public right that the actor has reason to know will be significant

i. Missouri v. Illinois (1906) – Picture of Externality: pushing problems downstream. Chicago dumping raw sewerage into lake; cholera deaths led them to build a canal linking the sewage to flow into the MS River. MO brought suit seeking injunctive relief. Clean hands problem and causation problem. MO lost.

ii. Georgia v. TN Copper Co (1907) – interstate pollution case – a state has certain rights to protect their citizens and they will be treated differently because it is dealing with matters of federalism- Copper Companies discharging noxious gas from TN to territory in Ga. Some TN residents sued to get an injunction and lost (private nuisance). GA did not own a lot of public lands, so they weren’t being hurt directly, but as a sovereign state they had an interest in their residents’ land (public nuisance). Specific relief was the only relief that could work. **Georgia succeeded where Missouri did not based on evidence of causation.*Note - GA may very well have businesses that are doing similar things – J. Holmes said we are with you here, but understand that you are setting a precedent.

c. TRESPASS – protects against invasions of exclusive possession in land; liability attaches even in the absence of harm2. REGULATORY LEGISLATION: legislative activity began in 1970, the year of the first Earth Day celebration

PROBLEMS WITH CL SYSTEM : (1) law was reactive; (2) conducted by non-experts; & (3) initiated largely by private enforces- Impact of Regulation on Common Law Actions: International Paper Co v. Ouellette (1987) – IPC dumping paper waste into Lake (NY/VT); VT lakeside residents bring private nuisance action. IPC moves to dismiss on grounds of preemption. The court makes a distinction between source state & affected state. CWA preempts CL of affected state, but not of source state. “Ouellette preserves the ability of plaintiffs to bring state common law actions against polluters so long as the law of the source state, rather than the receiving state, is applied.”

3. PRIVATE RIGHT OF ACTION: Congressional intent to provide Ps a federal remedy to challenge admin. agency actions: (A) Statute expressly grants P a private right of action (explicit language) or (B) APA establishes a “cause of action” for any person suffering legal wrong or adverse effect because of agency action if there’s no specific piece in the statute for standing

a. BURDEN OF ESTABLISHING STANDING: Even when Congress has conferred a private right of action, Ps must still independently satisfy Article III standing requirements that limit the power of the federal judiciary to resolution of “cases or controversies” - (1) Court must have SMJ; (2) P must have a private right of action; and (3) P must have standing.4 BASIC REQUIREMENTS : party invoking jurisdiction bears the burden of establishing the standing elements (Lujan)

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Thompson1. Injury in fact - invasion of a legally protected interest which is - (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical. **Minimal hurdle, just show that you use the area in some way – “when I go there, it’s pretty and stuff” – that’s good enough

a. Lujan v. Defenders of Wildlife (1992) – Enviro aesthetic desires are undeniably a cognizable interest, but an injury-in-fact requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured. “Respondents had to show not only that listed species were in fact being threatened by funded activities abroad, but also that one of more of respondents’ members would thereby be `directly’ affected apart from their `special interest’ in the subject.” ---Past Injury Not Enough.

b. Sierra Club v. Morton (1972) – injury to “environmental, aesthetic, or recreational interests” actually suffered by persons can qualify as injury in fact- Associational or Representational Standing: An association can sue in its own name on behalf of its members if: (i) one of its members would have standing to bring the action; (ii) the lawsuit relates to the purposes of the organization, and (iii) neither the claim asserted not the relief requested requires the participation of individual members (declaratory or injunctive relief is the goal, not individualized damages; if members want monetary damages than they need to sue on their own)

i. The Sierra Club alleged they had standing without their members being affected; the Sierra Club could have hit a single on any one of those points, but they tried to hit a home run and struck out.

ii. J. Douglas’ dissent: argues that the trees have standing!?! “The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issue to be litigated . . . in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.”

2. Fairly traceable to the challenged action - causal connection bw injury and conduct complained of –injury has to be fairly traceable to the challenged action of D (Lujan)

3. Redressable - Must be likely, as opposed to merely speculative, that the injury will be redressed (Lujan)4. Injury must be within zone of interests protected by the statute alleged to have been violated

B. STANDING DOCTRINE IN ENVIRONMENTAL CASES AFTER SIERRA CLUB – Massachusetts v. EPA (2007) - Refusal of the EPA to regulate greenhouse gas emissions of cars under the Clean Air Act. To the majority, injury is established by rising sea levels that, according to affidavits from Ps’ experts already are swallowing up coastal lands. -- J. Stevens stresses that redressability does not require that the problem of climate change be solved “in one fell regulatory swoop.” Incremental progress to slow or reduce the injury is all that is required. Note 4 – real divide concerns the proper role of the judiciary in deciding issues of environmental policy.-----------------------------------------------------------------------

III. REGULATION ALTERNATIVES (a web of societal responses)INSTITUTIONAL MECHANISM ADVANTAGES DRAWBACKS(1) MARKET FORCES - Can control risks rapidly & efficiently when

consumers are informed and have alternatives- Inadequate incentives to generate and disclose accurate info to consumers

(2) COMMON LAW LIABILITY - Can provide compensation to victims of environmental damage

- Inadequate incentives to control risks bc of causation and redressability difficulties

(3) GOVERNMENT REGULATION (*WHAT THIS COURSE IS ABOUT)

- Can efficiently prevent environmental harm by internalizing external costs of risky activity; can respond to equity concerns by altering distribution of risks and benefits; can be used to generate better information about risks

- Difficult to tailor regulation to take into account relevant differences within classes of regulatory targets; can be counterproductive in the absence of accurate information about the nature of risks and control

(4) INSURANCE - Helps ensure compensation - Reduces incentives to prevent damage

IV. REGULATORY PROCESS 1. AGENCY DECISION MAKING –administrative procedure act and the environmental laws under whose authority the agency acts

outline the ground rules for agency action, but agencies generally have considerable discretion.2. RULEMAKING PROCEDURES: agency process for formulating, amending or repealing a rule; Three Steps: (1) notice; (2)

comment; (3) publication – in federal register 3. REFORMING RULEMAKING – regulatory agencies are attempting to make it easier for the public to participate in rulemaking

proceedings. Technology improvements make it easier, but if access isn’t accompanied with reforms in the process, the slow pace and contentious nature of rulemaking may be exacerbated.

a. Negotiated Rulemaking – major groups interested attempt to resolve their differences through negotiations prior to issuance of a proposed rule; Congress explicitly endorsed it in 1990 with the Negotiated Rulemaking Act.

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Thompsonb. Generic Approaches : Formal Rulemaking requires an agency hearing (a public trial); Congress only does this if they

think it’s important; Hybrid Rulemaking - Congress can, and often does, impose specific rulemaking procedures within specific statutory schemes. These may be more detailed than the informal rulemaking process but less detaile than the formal rulemaking procedures.

c. Concerns : administrative rulemaking process can be unduly burdensome to small business by imposing costs that might be disproportionately heavy to small businesses. The Small Business Regulatory Enforcement Fairness Act was passed requiring agencies to consider the impact of proposed rules on small business when such rules may adversely affect them. EPA must give small business reps the opportunity to review and comment on such rules before the rulemaking process begins.

d. Reinventing Regulation - Every President from Nixon on has had great oversight of the EPA and tried to influence the decisions of the administrator as well as the rules that come out of the administrative process.

4. PRESIDENTIAL OVERSIGHT OF RULEMAKINGSierra Club v. Costle (1981) - A full-record review does not require that courts know the details of every White House contact in this informal rulemaking setting. The court finds that an intra-executive branch meeting during the pos comment period that was not docketed did not violate due process or CAA procedures. - President Carter wanted to talk with EPA administrator about a proposed rule (essentially behind closed doors). This is not illegal, but should it have been discussed on record? Should informal oral communications with White House Staff or the President be docketed on the rulemaking record during post-comment periods with individuals outside EPA?Concerns: transparency; a derived rule based on politics and not substantive merits. But these concerns are not legitimate if the reviewing court finds factual support for the rule. If the rule were based on political motives it would not make it past review.

5. JUDICIAL REVIEW AND THE REGULATORY PROCESSa. Scope : Courts shall: (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and

set aside agency action, findings, & conclusions found to be (a) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege or immunity; (c) in excess of statutory jurisdiction, authority or limitations; (d) without observance of legal procedure; (e) unsupported by substantial evidence; or (f) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

b. Chevron – test for agency’s statutory interpretations - is it reasonable? If it is, then courts defer to administrations’ interpretations. (1) is the statute silent or ambiguous on the precise interpretive question at issue? If No, the court must apply (and the agency must follow) the unambiguously expressed intent of Congress and the inquiry ends. If Yes, then move to (2) Is the agency’s interpretation based on a permissible (reasonable) construction of the statute? If No, the court proceeds to provide a reasonable interpretation. if YES, the court defers to the agency’s interpretation.Justification for Agency Deference:1. Gap Filling: Congress made a legislative delegation of authority to the agency to fill gaps in the statute.2. Agency Expertise: Agencies have the expertise, time and resources to consider technical and complex regulatory policy questions in a detailed and reasoned fashion.3. Legal Realism: Federal judiciary is not as accountable of a political branch as the executive, which the agency is a part

---------------------------------------------------------------------------------------------------------------------------------------CHAPTER 8I. THE NATIONAL ENVIRONMENTAL POLICY ACT OVERVIEW (NEPA; 42 USC §§ 4321-4370a) - first major environmental

statute, signed into law in 1970 by President Nixon; inaugurating “the environmental decade” It emphasizes information rather than regulation-------------------------------------------------------------------------Preamble: purposes are: to declare national policy which will encourage productive and enjoyable harmony between man and

his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation….

Purpose: inform the public as well as decision makers about the proposed action and available alternativesGoals: (1) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) Assure for

all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings; (3) Attain the widest range of beneficial uses of the environment without the degradation, risk to health or safety, or other undesirable and unintended consequences

Policy: (1) Preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice; (2) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and (3) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

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ThompsonNEPA is unusual because (1) it focuses on regulating the decision-making processes; (2) requires federal agencies to weigh the

impact of their actions before activities are performed.**A lot of states have started setting forth NEPAs – state versions

§ 101 use of all practicable means to create and maintain conditions where man & nature exist in productive harmony. § 102(2)(c) requires all federal agencies to prepare an environmental impact statement (EIS) on major federal actions

significantly affecting the quality of the environment (**the beating heart of NEPA) All agencies are required to (c) include in every recommendation or report on proposals for legislation and other major

federal actions significantly affecting the quality of the human environment , a detailed statement by the responsible official on

The environmental impact statement (EIS) is a detailed statement including: (i) impact of proposed action; (ii) any adverse environmental effects; (iii) any alternatives (**IMPT); (iv) relationship between local short-term uses of man’s environment and the maintenance and enhancement of long term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

§ 102 (2)(e) requires all federal agencies to study alternatives to actions involving unresolved resource conflicts The Congress authorizes and directs that, to the fullest extent possible…all agencies of the Federal Government shall –

(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources

§ 201 requires the president to submit to congress an annual environmental quality report§ 202 establishes a three-member council on environmental quality (CEQ) in the executive office of the president§ 204 outlines duties and functions of CEQ including annual reporting on the condition of the environment, information

gathering, and review and appraisal of federal programs and activities

Abstract breakdown: Proposal Triggers NEPA/Requires EIS Agency decision – either (a) YES we are doing it after considering alternatives or (b) NO we are not doing it. BUT agency decision and the alternatives (specifics) are substantive and NEPA is only the procedural process leading up to the decision.

A. Calvert Cliffs Coordinating Comm. v. U.S. Atomic Energy Commission (1971) – Procedurally, NEPA says make a report so the AEC said, “aright we’ll do that,” but they never looked at it and did not use it in their decision making process; Calvert addresses the substantive requirements in NEPA; historical view of what NEPA could have been (what NEPA was intended to be). Judge Wright calls the AEC’s action a mockery of the act. “Accompany” means more than physical proximity; NEPA obviously requires that the report be considered throughout the process. It doesn’t require any particular result, but it does require consideration. In light of the judicial deference standard, NEPA sets the minimum- you must make the report and it must be considered …the arbitrary and capricious standard can still be violated in light of the facts, even if the process is followed. Judge Wright says we will review a substantive agency decision AT LEAST on the basis of arbitrary and capricious even though NEPA does not demand or dictate a particular result, but the Court can look at the result and evaluate it in light of the research required in the report.

B. Strycker’s Bay Neighborhood Council v. Karlan (1980) - low-income housing in Manhattan; HUD didn’t want to review alternatives because they were tired of the delay. They considered 9 alternatives and stopped. This is a challenge to the decision making process. 2nd Circuit’s asked if the decision was arbitrary/capricious in light of “Determinative Weight” to environmental factors.- Supreme Court held that the only role for the court is to see that the agency considered the factors and said the court cannot “interject itself within the area of discretion of the executive as to the choice of the action to be taken.” NEPA was designed to insure a fully informed and well-considered decision, but not necessarily a decision that judges would have reached. NEPA IS STRICTLY PROCEDURAL AND SHOULD HAVE NO EFFECT ON THE SUBSTANTIVE DECISION. Basically, Did the agency consider the report? Yes – court’s review is doneJ. Marshall’s dissent: The court should be conducting an arbitrary and capricious review. The question is, whether HUD in considering the environmental consequences of its proposed action gave those consequences a “hard look.” We can analyze the decision under an arbitrary and capricious standard. Is the decision irrational or unreasonable- if they didn’t give them sufficient weight, then their decision was arbitrary. (difference between considering and giving weight- can give something consideration and then throw it in the trash)

C. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) Well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values

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Thompsonoutweigh the environmental costs.**WE AREN’T FOCUSING ON SUBSTANCE, WE FOCUS ON THE PROCESS – WE ASK, IS NEPA REQUIRED AND, IF IT IS, WHAT ARE THE REQIREMENTS? NEPA DOESN’T CONSTRAIN THE FINAL ULTIMATE DECISION – NEPA DOES NOT REQUIRE SUBSTANTIVE RESULTS OF ANY KIND – BUT THE PROCESS IS REQUIRED

II. UNDER WHAT CIRCUMSTANCES MUST AN ENVIRONMENTAL IMPACT STATEMENT BE PREPARED(1) Adoption of official policy such as rules, regulations, and interpretations adopted pursuant to the APA. (2) Adoption of formal plans such as official docs by agencies that guide/prescribe alternative uses of federal resources(3) Adoption of programs such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.(4) Approval of specific projects such as construction or management activities located in a defined geographic area.

1. PROCEDURE FOR DETERMINING WHETHER OR NOT TO PREPARE AN EISNEPA § 102(2)(E) - to the fullest extent possible all agencies of the Federal Government shall (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources

- Hanley I required federal agencies to affirmatively develop a reviewable environmental record to support the determinations (known as the “environmental assessment” (EA).

Categorical Exclusions category of actions that are expected to not have individual or cumulatively significant environmental impacts;

still allows parties to petition the agency to prepare an EA/EIS

When CE is not appropriate, agency must perform the Environmental Assessment (EA): (a) Means a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for the decision (EIS or No Significant Impact). (2) Aid an agency’s compliance

with the Act when no EIS is necessary. (3) Facilitate preparation of a statement when one is necessary.

**In most cases the EA is the last word since findings of significant environmental impact are less than 1%

EA is used to determine if EIS is required: directs agencies to determine whether the proposal normally requires an EIS

If, on the basis of the EA, there’s no requirement to prepare an EIS, the agency must make the finding of no significant impact (FONSI)

If, there’s no FONSI, then EIS is required.- The most intensive level of analysis and NEPA concludes when a Record of Decision (ROD) is issued

2. SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT – one of the most contentious NEPA issues bc almost every major federal action, no matter how limited in scope, has some adverse effect on the human environment and actions which are environmentally important to one may be of no consequence to another.

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Thompsona. Context and Intensity : CEQ guidelines interpret the phrase to require (1) consideration of effects in terms of

context (current state of the environment) and (2) intensity/severity of impact (harm the project will cause)i. Consider : (1) impact that may be both beneficial and adverse (note. agencies cannot ignore significant

impacts on the belief that they will be offset by benefits; (2) degree to which the proposed action affects public health or safety; (3) unique characteristics such as proximity to history or cultural resources, parklands, wetlands, or ecologically critical areas

1. Metro Edison Co v. People Against Nuclear Energy (1984) – Court held that psychological effects about restarting a nuclear reactor were not effects that NEPA contemplated because they are too far removed from the environment

ii. CEQ reg. §1508.8 states that effects include: (a) Direct effects - caused by the action and occur at the same time & place; and (b) Indirect effects - caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable

1. NEPA is generally not considered to be applicable to federal actions abroad or those that have significant extraterritorial effects- Dept. of Transportation v. Public Citizen (2004) –how far removed from NEPA can the effects can be? Because FMCSA lacks discretion/authority to prevent cross-border operations of Mexican motor carriers, neither NEPA nor the CAA requires FMCSA to evaluate the environmental effects of such operations. Divides direct and indirect effects and the Court says you can’t make a causal connection between decisions about regulation-making and environmental effects (even if it is assumed that there are environmental effects).

ii. John’s Show and Tell – seeing what an actual E.A. looks like – 70 waterworks projects with federal money post-Katrina. **Remember Stryker’s Bay says we don’t evaluate the final decision, but we do require the process to be done correctly – it’s when they don’t take the hard look that companies are told to turn around and try again.

a. Controversial or Uncertain : CEQ guidelines require an EIS for highly controversial actions (doesn’t mean opposed, but rather dispute as to the size, nature or effect of the action)

b. Balancing Test : requires an agency to consider (1) extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area; and (2) the absolute quantitative adverse environmental effects of the action itself. Hanley v. Kleindienst (1972) (Where conduct conforms to existing uses, its adverse consequences will usually be less significant than when it represents a radical change.)

i. For example, one more highway in an area honeycombed with roads usually has less of an adverse impact than if it were constructed through a roadless public park, BUT the absolute, as well as comparative, effects of a major federal action must be considered because in some circumstances an action can be the final straw that breaks the back of the environmental camel.

3. TIMING AND SCOPE OF NEPA i. Kleppe v. Sierra Club (1976) – When an agency has several proposals that may have a cumulative effect on the

environment, an EIS covering them all is necessary. ii. Thomas v. Peterson (1985) - Forest Service planned construction of a gravel road to service a timber harvesting area.

They concluded that the road wouldn’t have “significant” effects on the environment and approved construction without an EIS. Conservation claimed they were looking at their projects in isolation – not considering the bigger picture i.e. what will the road lead to. CEQ and supporting case law require “connected actions” to be considered together in a single EIS. The road and timber sales are so interrelated that they are required to both be on the EIS to evaluate the combined impacts of the road and timber sales. The agency may not escape compliance with regs by proceeding with 1 action while characterizing the others as remote or speculative.Connected Actions must be considered in a single EIS - actions that (i) automatically trigger other actions which may require EIS; (ii) cannot or will not proceed unless other actions are taken previously or simultaneously; (iii) are interdependent parts of a larger action and depend on the larger action for their justification.Cumulative Actions must be considered in a single EIS - actions which when viewed with other proposed actions have cumulatively significant impacts.

iii. Sierra Club v. Peterson (1983) - Prior to granting the leases (separated environmentally sensitive lands as a category with stipulated lease that required approval before drilling), the Forest Service conducted an EA and determined that as long as the leases were issued with stipulations, there wouldn’t be significant adverse impact to the environment, thus no EIS was required. The agency did take a “hard look” but their conclusions that there would be no sig. environ.

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Thompsonimpact were unsupported.4-Part Analysis of Agency’s Finding of No Significant Impact (FONSI): Whether the agency (1) took a hard look at the problem; (2) identified relevant areas of environmental concern; and either (3) made a convincing case that the impact was insignificant or (4) if there was a significant impact, convincingly established project changes that reduced the impact to a minimum.

III. IS THE EIS ADEQUATE? Once an EIS is prepared, the focus of judicial review shifts to the adequacy of that document. A. ALTERNATIVES – NEPA doesn’t define alternatives, but it’s generally accepted they must be bound by notions of feasibility.

CEQ guidelines: EIS must include all reasonable alternatives including (1) those that would eliminate the need for this action (reasonable alternatives); (2) those that would mitigate any environmental impact (mitigation measures); and (3) the lack of any action in this case (no action alternative)

i. Vermont Yankee Nuclear Power Corp. v. NRDC (1978) –how far does the agency have to go when considering alternatives? The Supreme Court’s tone here reflects the view that the environmental group being the action was uncooperative and obstructionist. As in NRDC v. Morton – an agency is required to consider all reasonable alternatives, whether or not the alternatives are within the authority of that agency, but at least some of the burden of presenting alternatives lies on the opponents of a project and not just the agency. Both the agency and the opposition are required to make evaluations of reasonable alternatives in good faith. **Note that statements of alternatives don’t fail just because they don’t include EVERY alternative. An EIS should generally consider: direct and indirect effects; possible conflicts between proposed action and other uses of the land; environmental effects of alternatives; energy requirements and conservation potential of alternatives and mitigation measures; urban quality, and the historical & cultural resources.

Note: the concept of alternatives is an evolving one: it would be outrageous today for a company to consider whether a power plant should be built without considering conservation because today conservation is very well established. There’s no way this case would come out the same today.

B. QUALITY OF THE ANALYSIS IN AN EIS:i. National Autobahn Society (TWEN) – the quality of analysis was poor and the decision basically just involved “going

through the motions” with no serious consideration. In cases of obvious avoidance or lack or compliance, the Court will use the “hard look” requirement and require the company to re-do their analysis.

ii. Sierra Club v. United States Army Corps of Engineers (1983) – Corps planned a superhighway and their EIS characterized the Hudson as biological wasteland, but there were populations of fish there and everyone knows it. Corps acknowledged the EIS was wrong, but they went forward anyways. (Corps may as well put up a big flashing billboard that said “WE DON’T CARE”). P challenged the plans because the deficient EIS lacked a substantial basis of facts. Relying on false information demonstrates bad faith and, modern courts use the “hard look” (Kleppe) requirement to decide that an EIS is inadequate. Agencies must make adequate compilations of relevant information that is reasonably analyzed without ignoring pertinent data, and has made disclosures to the public. It killed the project; even though the Corps could have re-done the report and came to the same decision, there was not enough money to do so.

C. REVIEW OF THE EIS DECISIONi. Marsh v. Oregon Natural Resources Council (1989) –Corps completed an EIS for a three-dam project in Oregon’s

Rogue River Basin. Ps argue that the Corps was required to prepare a second, supplemental EIS because memos indicated that the project would have greater adverse impacts on the environment than previously thought. There is a duty to supplement an EIS after it’s been prepared. CEQ and Corps regulations that require agencies to supplement with significant new circumstances. Supplemental impact statements must be filed up to the point at which the governmental action would no longer be environmentally “significant.” It makes sense to hold NEPA inapplicable at some point in the life of the project because the agency would no longer have a meaningful opportunity to weigh the benefits of the project versus the detrimental effects on the environment.Court’s test: (1) how significant is the information and (2) how much major federal action hasn’t been completed yet

ii. Center for Biological Diversity v. National Highway Traffic Safety Administration (2008) – Supreme Court held that the decision not to prepare a supplemental EIS is reviewed under the arbitrary and capricious standard (Marsh) and it is presumed that the same standard of review applies to the decision whether to prepare an EIS.- NHTSA issued a Draft EA, which stated that the cumulative effects would be very small &, regardless, they are making things better (but if you know there is a benefit, you should consider alternatives bc there could be more of a benefit). Two questions regarding the EA: whether it adequately considered possible consequences of the proposed agency action and whether the determination that no EIS was required was reasonable. The court found NHTSA’s reasoning is

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Thompsonarbitrary and capricious because the EA’s analysis was inadequate (didn’t evaluate incremental impacts or any alternatives) & the FONSI was contradicted by evidence in the record. The Record is insufficient to order an immediate preparation of an EIS. FHTSA was required to prepare a revised EA or, as necessary, a complete EIS.

D. EPILOGUE: HOW WELL DOES NEPA WORK?Professor Case: I think there are plusses and negatives. -- He would like them to amend the statute and overrule Strykers Bay. If company has to expend the resources to do it, it should have some substantive effect. What NEPA has done: changed agencies perceptions of their missions – they know NEPA is a serious statute and they are aware that they have to undertake and develop information in good faith. You would hope that reasonable people will take all the money and work and allow it to have an effect on their decision-making process (not required, but you would hope)**Article on TWEN about positive impact of NEPA

------------------------------------------------------------------------------------------------------------------------------------------------------------CHAPTER 6 WATER POLLUTION CONTROLI. PROTECTING WATER QUALITY

a. HISTORY: shift to waterborne methods of human waste disposal made water pollution a major concern. Water pollution control had been a local responsibility – i.e. Rivers and Harbors Act (1899) - but that aimed to prevent interferences with navigation, not protect water quality

b. CLEAN WATER ACT (1972) – prohibits all unpermitted discharges into the waters of the U.S. of pollutants from point sources, imposes effluent limitations on dischargers and requires statewide planning for control of pollution from nonpoint sources- New Ground: (1) mandated the imposition of technology-based discharge limitations; (2) Congress imposed a nationwide permit system while retaining the previously required water quality standards - serving to transform generally applicable effluent limitations and other standards into obligations; and (3) Congress substantially expanded the federal role in financing construction of municipal treatment facilities. *This remains the principal federal statute regulating water pollution

OTHER WATER-RELATED ACTSa. Ocean Dumping Act – prohibits in the area seaward of the inner boundary of US territorial sea the transportation of

wastes for dumping and the dumping of wastes unless a permit has been obtainedb. Oil Pollution Act – makes owners of vessels discharging oil liable for costs of cleanup; establishes an Oil Spill Liability

Trust Fund to pay response costs; and imposes minimum design standards to prevent spills by vessels operating in U.S. waters

c. Coastal Zone Management Act – offers federal financial assistance to states that adopt federally approved coastal management plans and requires federal actions in coastal areas to be consistent with state programs. *Amended in 1990 to require states to adopt programs to control nonpoint sources of coastal water pollution

d. Safe Drinking Water Act – regulates contaminants in drinking water supplied by public water systems, establishes a permit program regulating the underground injection of hazardous waste, and restricts activities that threaten sole-source aquifers.

c. STRUCTURE OF THE CLEAN WATER ACT: 1st Ring – § 301 - prohibits discharges of pollutants from point sources except as permitted by Act2nd Ring – § 402 - establishes National Pollution Discharge Elimination System (NPDES) for point source dischargers3rd Ring – § 404 - establishes the dredge and fill permitting programPolicy Goals: CWA § 101(a) – The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter –

i. It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;ii. It is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and

propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;Problems with Reaching 1972 Goals: CWA only controls “point source” pollution - § 101(a)(7) added in 1987 articulating a goal to control nonpoint source pollution but no actual federal regulatory programs yet implemented Permit program allows discharges of pollutants from point sources at certain levels into covered waters CWA does nothing to remediate past pollution problems

II. JURISDICTIONAL REACH OF CWA:

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ThompsonA. HOW BROADLY TO INTERPRET NAVIGABLE WATERS (“WATERS OF THE US”)

- Approximately 98-99% of the nation’s water bodies are not waters that would be considered traditionally navigable, BUT the quality of navigable waters is significantly affected by the quality of both their non-navigable tributaries and of wetlands adjacent to both navigable waters and their non-navigable tributaries- Corps interpretation of “waters of the United States” includes (1) Navigable waters; (2) Tributaries of navigable waters; (3) Interstate waters; (4) Tributaries of interstate waters; (5) Non-navigable intrastate waters (whose use or misuse could affect interstate commerce); (6) Freshwater wetlands adjacent to other covered waters

a. Riverside Bayview Homes (1985) - Corps construed CWA - Cover all freshwater wetlands that were adjacent to other covered waters, even if the wetland was not regularly flooded by conventional “waters”; Corps defined wetlands in 1997 as: “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.”

(1) Chevron analysis to determine whether the EPA & Corps had overstepped CWA jurisdiction: Deference to Agency interpretation of statute unless the clear expressed intent of congress conflicts with the agency’s interpretation or, if no clear intent, unless the interpretation is not reasonableThe Court deferred to the EPA under the second step of its Chevron analysis . Court determined that Corps has ecological expertise, and had made an “ecological judgment” that protection of wetlands (regardless of whether they are filled w/ waters from navigable waters) is necessary to protection of more traditional navigable waters, because these wetlands are so interconnected (as filters, flood prevention devices, etc) with the other covered waters.Note 2: Lopez (1995) - Congress has constitutional authority under the Commerce Clause to regulate: (1) Channels of interstate commerce; (2)Instrumentalities of interstate commerce or persons and things in interstate commerce; and (3) Intrastate activities that substantially affect interstate commerce.

ii. SWANCC (2001) – Corps 1977 definition of “wetlands” extended jurisdiction to isolated waters whose use could affect interstate commerce; regulating under its Migratory Bird Rule, which included waters (1) used as habitats for migratory birds, (2) habitats for endangered species, or (3) to irrigate crops sold in interstate commerce. Court said that the CWA unambiguous: statutory language expressly precluded jurisdiction over the isolated wetlands then no need for Step 2

iii. Rapanos (2006) – Court ruling split 4-4-1 (3 important opinions) - Michigan wetlands lie near ditches or man-made drains that eventually empty into traditional navigable waters constitute “waters of the United States.” Scalia’s plurality opinion: The CWA’s “waters of the United States” includes only: Relatively permanent, standing or flowing bodies of water (this excludes intermittent flow channels), or Wetlands with a continuous surface connection to bodies that are waters of the U.S. in their own right.Based on:

- Dictionary definitions (“the waters” indicates bodies forming conventional geographic features),- Plain meaning (interpreting waters to mean dry land defies commonsense understanding),- Use of term “navigable” suggests only discrete bodies of water are intended,- Separate definition of “point source” encompasses intermittent flow water channels indicating intent that

“navigable waters” be a distinct and separate category,- Furthers CWA policy of preserving right and responsibility of States to plan and develop land and water use

Kennedy’s Concurrence: “Significant nexus” test: jurisdiction extends to wetlands if they possess the requisite nexus. If the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters more readily understood as `navigable.’ When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term `navigable waters.’Which Rapanos Test is Controlling: Some circuit courts consider Justice Kennedy’s test the controlling test, while others hold that CWA jurisdiction exists if either Justice Kennedy’s or the plurality’s test is satisfied. April 2011 Guidance Document (TWEN): the EPA and the Corps have taken the position that CWA jurisdiction will exist if either of the two tests is met. Dec. 2008 → Guidelines from EPA & Army Corp. on the Effect of Rapanos on CWA Jurisdiction Pg. 670Federal Jurisdiction Over: (1) all traditional navigable waters (TNW), (2) Wetlands adjacent to TNW, (3) Non-navigable tributaries of TNW; and (4) Navigable waters that are relatively permanent i.e. waters with tributaries that typically flow year-round or that @ least have continuous seasonal flowsFact-Specific Inquiry required to see if significant nexus test is satisfied for (a) Non-navigable tributaries that don’t have flow year-round or have at least continuous flow seasonally; (b) Wetlands adjacent to such tributaries; and (c) Wetlands adjacent to, but not directly abutting relatively permanent, non-navigable tributariesBUT Some Lower Court are the Plurality’s, Kennedy’s or both.

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Thompson

b. WHAT IS THE SCOPE OF CONSTITUTIONAL AUTHORITY TO REGULATE NAVIGABLE WATERS?- NPDES permits are granted to control the amounts of pollutants discharged from industrial and municipal facilities; the limits are based on either the pollution control technology available or ambient water quality standards 1st Ring: § 301 (a) Effluent Limitations - Prohibits “discharge of any pollutant” from point sources except in compliance

w/ the Act: § 301 effluent limitations; § 302 Water-quality related effluent limitations; § 307 Toxic & Pretreatment effluent standards; § 306 Req. for New Sources AND Everything Below

2nd Ring: § 402 establishes a comprehensive permit program to apply the Act’s effluent limitations to regulate “the discharge of any pollutant (National Pollution Discharge Elimination System (NPDES) Permits- Comprehensive permit program to apply the Act’s effluent limitations to regulate the “discharge of any pollutant.”)

3rd Ring: § 404 establishes a program to “issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters and specified disposal sites.” (1) Dredged material: Excavated or dredged from waters of the U.S. (material excavated or dredged from waters of the U.S); (2) Fill material: Used to replace an aquatic area with dry land or change the bottom elevation of a water body (material used to replace an aquatic area with dry land or change the bottom elevation of a water body);

CWA § 502(16) – - “The term “discharge” when used without qualification includes a discharge of a pollutant, and a discharge of pollutants.”-- Point source - “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged” -- Discharge - “any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft. **Don’t get confused – pollutants added to waters – addition of dredge or fill material that’s a pollutant according to §404. *You don’t have to have a point source to have jurisdiction – we aren’t regulating point sources under § 404, point sources are regulated under § 402

c. “ADDITION OF ANY POLLUTANT” - for a pollutant discharge to be under § 402 or 404, it must meet the “discharge definition i. National Mining Association (1998) –Developers figured out a way to get around the CWA requirement was to not have

“navigable waters” – so one way, (Bayview) is to eliminate vegetation, but in doing so, they could not create discharge. They could cut ditches and let the water run-off which killed the vegetation and as long as there would be no discharge during this process developers could get around what would otherwise require a § 404 permit. Corps created Tulloch Rule (1993) excavation activities producing any incidental redeposit of dredged materials “however temporary or small,” require section 404 permits when they would degrade or destroy wetlands, which essentially defined 404 discharge to include “any addition of dredged material into, including any redeposit of dredged material.” 33 CFR § 323.2(d)(1) (replacing the 1986 exclusion of “de minimis incidental soil movement occurring during normal dredging operations). CWA § 502(6) language reveals a legislative attempt to be very broad. The Court says addition cannot reasonably be said to encompass fallback materials because incidental fallback represents a net withdrawal, not an addition, thus it cannot be a discharge. You are subtracting and subtracting, as a matter of physics, means you are taking away, you couldn’t possibly be “adding.” Tulloch Rule is set aside. Majority says our holding should not be taken so broadly to think there can be no regulation of redeposit, it just cannot go this far.

1. Note: Tulloch Rule AKA Martha Stewart Rule – as you life up the dirt from the ground, some falls back and the fall back is called re-deposit. Exceptions to Tulloch Rule - development activities that aren’t destroying or degrading the wetlands, thus they don’t seem so concerned with the actual redeposit, but rather with the activities that are damaging

2. Concurrence noted what he believes is implicit in the majority: there may be a bright line concerning temporal and geographic ambiguity – if the material would otherwise fall back were moved some distance away and then moved, it might constitute an addition or if it were held for some time and then dropped back in the same spot, it might also constitute an addition

3. Note 2: excavation activities that were going on were made illegal by the Rivers and Harbors Act (says you can’t excavate in areas of waters of the U.S.) so given that why did the Court have to rely on § 404. R&H Act – navigable waters is admiralty based – navigable in fact (wet lands subject to ebb and flow of the tide) and CWA jurisdiction extends more broadly than that as we saw in Bayview (you can be adjacent to waters)

ii. “Discharge of a Pollutant”: Water Transfers and the Miccosukee Case - Deep ripping held to be a discharge subject to regulation by the CWA because it causes soil to be “wrenched up, moved around, and redeposited somewhere else”Bordon Ranch Partnership v. U.S. Army Corp of Engineers (9th Cir. 2001) – Someone had some property that would meet the definition of wetlands; they wanted to turn it into property suitable for vineyard; they went through a process to aerate the land (deep ripping); you wouldn’t need a permit to do this because it’s not adding anything – no “redeposit of

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Thompsondredged material” – argument that it is added - is the metamorphosis of disturbing soil essentially transforming the land and making it a pollutant which is then “added.” The 9th circuit accepted the metamorphosis argument – same argument that was rejected in National Mining.

iii. So. Fla. Water Management Dist. v. Miccosukee Tribe of Indians (2004) – flood control station pumped water into a reservoir, but canal water contained contaminants/pollutant. Tribe sues District saying they are adding pollutants to the reservoir and they don’t have a CWA permit for that. “Addition of pollutant source” – tribe says addition of a pollutant from any point source; District says they aren’t the original point source; they are just the conveyor. Court holds that it is plain that a point source need not be the original source of the pollutant.

- District also argues the unitary water theory – all navigable waters are one body & since they are all the same then you can’t add something to itself – no “any” in front of “navigable waters” would imply that there were separate ones, every other word is qualified by “any” (“any addition”; “any pollutant”; “any point source”), but not “any” navigable waters, just “navigable waters.” The Supreme Court ducks the unitary water theory by saying it was not raised by the Court of Appeals, but it does express some opinions with the unitary waters (1) there are other places in CWA where congress clearly treats them as separate waters and (2) EPA never argued this before – (Professor Case theory - this was an act of desperation from a late-night, drunk brief writing argument idea)

D.DEFINING “POINT SOURCES” SUBJECT TO PERMIT REQUIREMENTS (CWA § 502 (14)) - the national permitting program posed major administrative challenges for the EPA, so they limited it to point source dischargers, so they focused on major dischargers first and issued regulations exempting certain categories of point sourcesi. NRDC v. Costle (1977) – EPA’s decision to exempt certain categories of point sources was challenged. EPA argued it

was infeasible for them to deal with all of the permit applications and Congress could not have intended this. Court held that the EPA didn’t have this authority. The D.C. Circuit says the statute says what it says and you can’t just exempt based on fear of numbers. BUT the CT sanctioned the notion of having permits that impose alternative conditions and there’s nothing that says you have to do permits on individual source-by-source basis (sanctioning the idea of general permits – intended for an entire class of activity/entire industry).Difference bw exempting whole category and granting a general permit: A general permit allows the EPA to revisit it at some point down the road and adjust it. (Permits have to be renewed every five years)Congress felt some sympathy so they ADDED: “This term does not include agricultural storm water discharges and return flows from irrigated agriculture” –last sentence in point source definition was added after this case.”

ii. Plaza Health Laboratories, Inc. (1993) – A person could not be a point source for purposes of the CWA bc it is not in the text or the legislative history. Since it is not clear, the benefit of the doubt should go to criminal D under the Rule of Lenity (ambiguities in a criminal statute shall be resolved in the defendant’s favor). Villegas discarded his blood testing lab’s medical wastes in a crevice below high water mark in the Hudson, knowing the water would take them out. They wash up on the beach and are discovered by a group of 8th graders on a field trip in 1988 (beaches had to close during the hot summer and there was remarkable hysteria/fear of aids). Prosecutors attempted to show seriousness and convicted him for knowingly discharging pollutants, a felony under the CWA.Dissent: Point source is about controllability – if you can ID it and control it, then it should be regulated. Point sources classically are an organized means of channeling and conveying industrial waste in quantity to navigable waters, courts have deemed a broad range of means of depositing pollutants in the country’s navigable waters to be point sources, the CWA statute was meant to control periodic as well as continuous dischargesArgument against dissent – line drawing– throwing a candy wrapper into the water would become a felony under the CWA – this is a misdemeanor under Rivers and Harbors Act --- concern of bringing it under the CWA as a felonyProfessor Case – the state could have changed the issue – couldn’t the vials have been the point source – the vials are what’s discarded – container is included in the statute; he deliberately placed the vials in a discrete fissure – why isn’t the crevice a “discrete fissure”The point source concept is usually broad, but, as the Villegas case shows, it is not unlimited - Note 5 – 2nd circuit court held that bc liquid manure was collected by human effort and channeled through ditches that led to a stream, that was a point source. It rejected arguments that the operation involved agricultural storm water discharges exempted from the point source definition, finding that it instead involved the kind of concentrated animal feeding operation specifically listed in the point source definition.

c. TYPES OF REGULATIONS: (1) Technology-Based Effluent Limitations (limiting quantities, rates, concentrations of pollutants emitted from point sources)

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Thompson(2) Water Quality Standards (state-imposed back up) *1972 CWA shifts from WQS to technology-based effluent limitations.

1. Technology-Based Effluent Limitations – present or future environment status is not a factor: facilities are to use the “best” technology to control pollution discharges. Technological infeasibility may result in adjustments but that does not authorize the EPA to exclude relevant point sources from the permit program (NRDC v. Costle)

i. History: - EPA was required by the 1972 Act to establish health-based standards for controlling toxic pollutants (cost considerations could not be included). EPA found that this wasn’t feasible. Flanery Decree: committed the EPA to a schedule for promulgating effluent guidelines, pretreatment standards, and new source performance standards for 65 toxic pollutants and 21 industries- In July 1977, dischargers were required to employ “best practicable control technology currently available” (BPT). By July 1983, dischargers were required to employ “best available technology economically achievable for each category or class” (BAT) and new sources are required to reduce effluents to the greatest degree “achievable through application of the best available demonstrated control technology” (BADT)** Unlike BAT, BADT doesn’t consider whether the technology is economically achievable - i.e. it doesn’t matter if a new source can afford the technology, it still has to employ it. Higher standard because it doesn’t include an economic standard*EPA faced task of translating technology based standards into enforceable limits on industrial source categories

ii. Method (1) EPA gathers info on industry's practices, discharge characteristics, technologies/practices in place, and economic characteristics. (2) EPA identifies the best available technology (economically achievable for that industry) and sets regulatory requirements. (3) Standards are then incorporated into National Pollutant Discharge Elimination System (NPDES) permits issued by States and EPA regional offices.

Note: guidelines do not require facilities to install the particular technology identified by EPA; however, the regulations do require facilities to achieve the regulatory standards, which were developed based on a particular model technology.

This process has been laborious, technically complex, and marked by repeated delays and problems (missed deadlines & guidelines formed on outdated data)o §304(b) was ambiguous (“publish regulations providing guidelines for effluent limitations”) - EPA

determined it would issue industry-wide effluent limitations under § 301 without waiting to promulgate guidelines under 304(b). - Supreme Court held in DuPont v. Train that 301 limitations are to be adopted by the Administrator- they are to be based primarily on classes and categories and…they are to take the form of regulations. As a result, the imposition of nationally uniform, categorical effluent limits was deferred long beyond the initial deadlines- Section 308 gives the EPA data collection authority to assist in the development of effluent guidelines

Effluent trading: allows sources that reduce pollution below the required minimum to acquire pollution allowances that could be sold to other firms

iii. TBEL standards implemented with Industry-wide Standards - NOT Plant-by-plant because that would economically & practically infeasible for the EPA. - Industry wide effluent standards are valid under CWA IF individual plants can obtain variances (new sources may be required to modify the process itself to place pollution control mechanisms within the design of the facility). This is beneficial because standards established for individual categories containing 100+ dischargers might be inappropriate for individual plants with special circumstances- Early on, the EPA allowed individual permit applicants to request a variance for factors “fundamentally different” from those considered. The 1977 Amendments added section 301(l) which prohibited modification of any requirements applicable to toxic pollutants (requirements under 301)

iv. Chem. Manufacturers Ass’n v. NRDC (1985) – FDF variance is available, but no economic inability variance will be allowed as to toxic pollutants. The Court held that no variance would be available for any grounds that

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Thompsonwould justify statutory modification (i.e., economic and water quality factors). - In addition, the Court noted that an FDF variance “does not excuse compliance with a correct requirement, but instead represents an acknowledgment that not all relevant factors were taken into account in determining the requirement in question; if they had been properly considered, the factors would have justified a new standard and the creation of a new subcategory for the discharger in question. Court holds that the EPA was correcting a mistake (they didn’t take into consideration some relevant factors). The variance was not a modification and the justification was a subtle recognition of the extraordinarily difficult task that Congress laid on the EPA to create these technology based effluent limitations.

Professor Case: the variance allowance basically shifts the burden from the EPA to the plant. If there is something unique to the business from the industry then the business applies to the EPA on the basis of the difference. Thus the intellectual distinction between modification and variation is no distinction- After the case, Congress fixed the statute by first codifying the variance process. 1987 CWA Amendments specifically addressed the FDF variance for the first time. A new § 301 sets out permissible grounds for FDF variances for toxic pollutants.

CWA § 301(l) – [As after Chemical Mfgs. V. NRDC] – “Other than as provided in subsection (n) [FDF variance] of this section, the Administrator may not modify any requirement of this section [effluent limitations] as it applies to any specific pollutant on the toxic pollutant list under section [307 – toxic and pretreatment effluent standards] of this title.”

CWA § 301(n) - The Administrator may establish an alternative requirement that modifies the requirements of national effluent limitation guidelines or categorical pretreatment standards that would otherwise be applicable to such facility, if the owner or operator of such facility demonstrates to the satisfaction of the Administrator that – (A) The facility is fundamentally different with respect to the factors (other than cost) … considered by the Administrator in establishing such national effluent limitation guidelines or categorical pretreatment standards

Dissent: plain meaning and congressional intent were to ban all “modifications.” While EPA can revise standards, it must follow the procedure established for promulgating those standards. FDF requirement sets an individual requirement even where there may be similarly situated dischargers

v. Publicly Owned Wastewater Treatment Works (POTWs) (separate from CWA industrial point sources)- Indirect dischargers (those that discharge toxic waste into sewers) are exempt from NPDES permitting requirements and RCRA. The thought was that it would be redundant to require treatment when these waters are going to POTWs. BUT the CWA does require that these wastes are treated for pollutants not susceptible to POTWs.- The federal government sought to fix sewage disposal problems by providing federal funds for the construction of sewage treatment plants. (*now the continued expansion of sewer systems has out-placed the expansion of treatment capacities in some areas)

EPA promulgated regulations that prohibit the discharge of pollutants that might interfere with or pass through POTWs. **Illogical to put human waste into the water only to then build huge expensive plants to take it out

- Sludge: potentially hazardous byproduct of the treatment process - can no longer be dumped into the ocean; use and disposal of sludge governed by 405(d) of CWA- Limits on concentrations of heavy metals and pathogens in sludge (exception is when sludge is taken to municipal landfill)- Manner of disposal or use is governed locally as long as it doesn’t violate federal regulations

*Note state and local governments can adopt more stringent standards

Indirect Dischargers into POTWs CWA § 307(b), (c), (d), and (e) – Requires indirect discharges (that is, dischargers into sewer systems/POTWs) to comply with certain pretreatment standards to control pollutants that would interfere with the operation of POTWs or pass through POTWs and contaminate “waters of the United States” into which the POTW discharges.

2. Water Quality-Based Controls (CWA Safety Net) - 303(d) directs states to id waters with insufficient controls and calculate limits on pollutant loadings necessary waters to achieve WQS within the margin of safety & § 302 dictates that water quality-based controls should be used to prevent discharges from interfering with attainment or maintenance of desired levels of water quality

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Thompsoni. States were slow to promulgate WQS so 1987 Amendments added that states must adopt criteria for toxic

pollutants; numerical criteria must be adopted; & endorsed the use of biological assessment criteria when numerical criteria are not available. *Still, some states WQSs are far more lenient that recommended by the EPA’s criteria

ii. Water quality standards ineffective because they focused on tolerable effects rather than preventing causes; they were retained as a safety net after the CWA was enacted and trended toward TBEL

iii. Two Parts : (1) id designated uses of a water body (purposes for which each water body is to be protected i.e. drinkable, fishable, swimmable, agricultural, industrial, etc) and (2) design WQS to protect the designated use (judgments concerning degree of protection necessary). *Note, WQS doesn’t say what criteria- State standards must be reviewed and approved by the EPA – If EPA disapproves of a state standard, then it must promulgate its own water quality standard for the state

Note 4 NRDC v. EPA (1993) – court held that EPA could approve such standards so long as they were scientifically defensible nad protective of designated uses, even though they were based on assumptions different from those employed by EPA in assessing the toxicity of dioxin. Court emphasized that states have the primary goal in establishing water quality standards and that EPA’s decision to approve them should be upheld if there is a rational basis for it in the record. - EPAs tolerated risk of dioxin were much larger than the states and the Court said we are going to accept the EPA’s judgment in approving the state’s decision (probably based on subsistence fishers in low-income and minority communities)

iv. State Water Quality Certification under § 401 - How WQSs get transferred into NPDES permits(a) Compliance with applicable requirements. (1) Any applicant for a Federal license or permit to conduct any activity, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate … that any such discharge will comply with the applicable provisions of sections [301, 302, 303, 306 and 307] of this title.

Four ways in which water quality standards can affect limits established in NPDES permits: (1) WQS in downstream states may affect the terms of permits for upstream discharges in another state; (2) CWA § 304(l) program for controlling toxic “hot spots” of water pollution; (3) State water quality certification requirement under CWA § 401; and (4) CWA § 303(d) total maximum daily loadings (TMDL) program

1. Designated Uses and Anti-degradation § 303(c)(2)(A) – states may not lower existing uses and the water quality necessary for them. A state may lower the use of certain high quality water to a fishable and swimmable level if necessary to accommodate important social or economic development

2. Compliance with downstream WQS Arkansas v. Oklahoma (1992) - (defers to EPA) - OK arguing that discharges from AR wastewater treatment plant shouldn’t be permitted because they would degrade water quality in the upper Illinois River in OK in violation of OK’s water quality standards. OK’s WQS provide that “no degradation of WQS shall be allowed”. Administrative Law Judge used a de minimis standard and found that the AR permit wouldn’t have “undue impact” on OK’s WQS- AR appealed on grounds that CWA doesn’t require AR point source to comply with OK’s WQS- OK appealed on grounds that the discharge wouldn’t produce detectable violation

Court of Appeals didn’t accept either argument, relying on a different theory - statute requires that “where a proposed source would discharge effluents that would contribute to conditions currently constituting a violation of applicable WQS, such a proposed source may not be permitted”. River was already degradedThree questions raised: (1) Does the CWA require the EPA, in issuing a permit, to apply the WQS standards of downstream states? Court doesn’t address this one(2) Even if the CWA doesn’t require as much, does the EPA have the statutory authority to mandate such compliance? Statute clearly doesn’t limit EPA’s authority (this is a reasonable exercise of the Agency’s substantial statutory discretion)- NPDES permits shall not be issued “when the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States- also “the Administrator shall prescribe conditions for such permits…and such other requirements as he deems

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Thompsonappropriate...”(3) Does the CWA provide that once a body of water fails to meet WQS no discharge that yields effluent that reaches the degraded water will be permitted? Supreme Court finds nothing in the CWA to support this- CWA does have provisions designed to remedy existing water quality violations and to allocate the burden of reducing undesirable discharges between existing sources and new sources. *Ct of Appeals decision might frustrate construction of new plants

3. Individual Control Strategies for Toxic Pollutants - Trying to figure out how many of these chemicals have toxic effects (cause harm to health/death). There are so many substances out there though that we just don’t know that much about.

1972 – CWA § 101(a)(3) – national policy that the discharge of toxic pollutants in toxic amounts be prohibited- Water Quality Act of 1987 – Congress amends the CWA to add § 304(l) requiring identification of waters not expected to meet water quality standards even after implementation of technology-based controls on point sources and authorizing imposition of “Individual Control Strategies” for dischargers into those waters- Water Quality Act – expressed Congress’ discontent – this act was supposed to add some teeth to the requirement to try and control toxic pollutants required states to go out and make some lists

§ 304(l) mandated that EPA and the States develop three lists of “impaired waters”:–“long” or “(A)(ii)” list – most comprehensive and included waters impaired by both point and nonpoint sources, and both toxic and conventional pollutants–“medium” or “(A)(i)” list – a subset of the long list and included waters impaired by point and nonpoint sources of any of 126 priority toxic pollutants–“short” or “(B)” list – a subset of the medium list and included only waters impaired entirely or substantially due to point source dischargers of any of the 126 priority toxic pollutants

Some issue on whether this was a one-time requirement to go out and create those lists. The literal statute seems to imply one-time requirement. EPA says it’s a continuing requirement.

4. Compliance with minimum flow requirementsPUD No. 1 (1994) – PUD was trying to build a hydroelectric dam on a River in Wa. State. To do so, they needed Federal permit from the Fed. Energy Reg. Comm’n, which also required a permit under the CWA §401. The River was home to lots of salmon, and damming it could reduce the water flow rate to the point where the salmon would die. So, the State issued a permit, but imposed the condition that a minimum flow rate must be maintained to protect downstream fish stocks. PUD argued the State exceeded their authority - it's the Clean Water Act, not the Lots of Water Act & PUD wasn’t dumping anything.

- The EPA's conclusion that activities and not merely discharges must comply with State WQSs is a reasonable interpretation of §401 and is therefore entitled deference. Water quantity can be related to water quality because a sufficient lowering of the water quantity could destroy designated uses, which is what the Clean Water Act is designed to prevent. In this case, a salmon run was the designated use of the river, so rules that maintain the salmon run are covered. In this case, a salmon run was the designated use of the river, so rules that maintain the salmon run are covered.

Dissent the plain language of §401(a)(1) shows that the Clean Water Act was limited to pollutants, and that §401(d) should be read to be limited to applicable State laws related to discharges of pollutants.

Cross- reference D.C. Circuit case relating to the discharge and what the discharge means North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir 1997) P. 738 – Certification under 401 required for this hydropower project? The project wanted to withdraw 60 million gallons of water a day from the lake, without putting anything else in. D.C. Circuit Court said that’s not a discharge, that’s a withdrawal.Dissent argues majority is inconsistent with PUD. (Prof. Case disagrees with this inconsistency - you have to have a discharge under 401 for 401 to apply at all. So the first step asks, is there a discharge that requires a license or certification?)

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Thompsoni. Total Maximum Daily Loadings (TMDLs)

Pronsolino v. Nastri - Prof Case - only case I’m aware of that’s taken on the non-point source argument under TMDLs. There is some textual material – it’s been a statute since 1972 but states ignored it for ever. Historically the EPA had a lot of fish to fry in 1972 and they could only do so much.

Most of the states, if not all of the, have very robust TMDL programs to ID Waters, calculate total maximum daily loadings (chemical engineering process to figure out, in respect to every pollutant, that toxic pollutant that’s effecting that water body, where is it coming from)

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Thompson------------------------------------------------------------------------------------------------------------------------------------------------------------CHAPTER 5 AIR POLLUTION CONTROLI. HISTORY: Air Pollution has been one of the foremost concerns of environmental law after the industrial revolution

i. Clean Air Act of 1963 - states had primary responsibility to deal with air quality & federal role was to throw money at the states and provide some guidance. These efforts were a complete and total failure. (better than nothing approach)

ii. Air pollution has interstate dimensions with no cares to jurisdictional or state lines. Thus it became clear that Congress had to step in and take authority. The Clean Air Act Amendments of 1970 created the structure that we are now continuing to work with

1. Georgia v. Tennessee Copper Co – illustrates how virtually uncontrolled emissions from industrial facilities caused such substantial environmental damage that equitable remedies were imposed. Some air pollution problems can be addressed through litigation or local ordinances, but many facets transcend state boundaries and originate from so many sources so as to create insurmountable difficulties in proving causation and fashioning complete relief

iii. The 1970 amendments marked a significant departure from prior approaches and stamped federal regulatory policy with major features that it retains today.

iv. The 1990 amendments include an expanded deployment of incentive-based regulatory instruments, most notably the acid rain reduction program. Also recognized that end-of-the-pipe controls are inadequate to achieve NAAQS so these amendments require some nonattainment areas to participate in a clean fuelds program, use market incentives to encourage utilities to switch to low-polluting fuels, and institute programs to promote the development of low-emissions vehicles

v. Pollutants that can cause serious health problems or exacerbate existing problems remain in the atmosphere at unhealthy levels; (2) particulate matter that has proven persistent and difficult; (3) climate change being cause by emissions of carbon dioxide, methane, and other greenhouse gases

II. CLEAN AIR ACT- Sets up a system of shared responsibility for addressing the criteria pollutants.(1) EPA establishes national ambient air quality standards (NAAWS) for these pollutants; (2) State governments then decide how the numerous existing sources within their jurisdictions whose emissions contribute to the ambient levels of these pollutants ought to be controlled in order to meet those NAAQSs for their jurisdictions. - Each state submits its State Implementation Plan (SIP) to the EPA, which approves their adequacy to accomplish the statutory requirements

FOUR RING CIRCUS:Title I (Nat’l Ambient Air Quality Standards & State Implementation Plans) & Title V (permit program for major sources) o § 108 – requires EPA to id air pollutants anticipated to endanger public health or welfare and to publish air quality criteriao § 109 – requires EPA to adopt nationally uniform ambient air quality standards (NAAQSs) for criteria air pollutantso § 110 – requires states to develo and submit to EPA for approval state implementation planso § 111 – requires EPA to establish uniform national technology based standards for major new stationary sources for air

pollution – New Source Performance Standards (NSPSs)o § 112 – mandates technology-based standards to reduce listed hazardous air emissions from major sources in designated

industrial categories, with additional regulation possible if necessary to protect public health with an ample margin of safetyo Part C – specifies requirements to prevent significant deterioration of air quality (PSD) for areas with air quality that

exceeds the NAAQSso Part D – specifies requirements for areas that fail to meet the NAAQSs (nonattainment areas)

Title II (mobile source controls - primarily motor vehicles) o § 202(a)(1): The EPA shall prescribe “standards applicable to the emission of any air pollutant from any class or classes of

new motor vehicles … which in [its] judgment cause, or contribute to, air pollution, which may reasonably be anticipated to endanger public health or welfare…”

Title IV (acid rain program) - creates a system of marketable allowances for sulfur dioxide emissions from power plants and major industrial sources to reduce acide precipitation- Prof Case: Title IV has been successful and has really narrowed thinking in respect to green house gas emissions to help get our arms around a very global problem –we can do so with a cap and trade permitting program which is not always super successful, but is hopeful in global politics)Title VI (ozone hole, CFCs - chlorofluorocarbons)--------------------------------------------------------------------

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ThompsonIII. WHAT IS AN AIR POLLUTANT ?

- The CAA and common sense demands regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.” Ethyl Corp v. EPA, 541 F.2d 1, 25 (D.C. Cir. 1976) (en banc)- Air Pollutant – any physical, chemical, biological, radioactive substance or material which is emitted into or otherwise enters the ambient air as well as any precursors to the formation of any air pollutant. (Professor Case: pollutant definition doesn’t say anything about what effect the substance must have – very broad definition)- Welfare – If any such air pollutant endangers either public health or welfare, then different provisions of the Act authorize the agency to regulate that pollutant. CAA § 302(h) – all language referring to effects on welfare includes, but is not limited to . . . (GO TO SLIDE)

a. EPA’S DUTY TO REGULATEi. Massachusetts v. EPA (2007) – The Court 5-4 ruled that if, on remand, the EPA makes a finding of

endangerment (“air pollution … reasonably … anticipated to endanger public health or welfare”), the CAA requires it to regulate. Thus, “EPA can avoid taking further action only if it determines that [GHGs] do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” *Departure from the court’s normal deference to political branches on climate control issues.

(1) Court rejected the notion that an injury common to all cannot be a specific injury to any party sufficient for standing(2) The majority finds the EPA’s refusal was arbitrary and capricious since it’s conclusion was not grounded in statutory support.

Post- Mass Developments :- EPA asserted it would issue a notice of proposed rulemaking, but in March 2008, Administrator Johnson testified that a rulemaking could not begin until the EPA considered the effect of passage of an energy bill raising automobile efficiency standards. In July 2008, the EPA issued an “advance notice” (stall the issue until after the Nov. 2008 elections)- April 2009, the EPA issued a proposed finding that six GHGs – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride – contribute to air pollution that may endanger public health or welfare through the threat of climate change - On December 7, 2009, the EPA announced final finding, GHGs threaten public health and welfare of Americans. - Thus, the official position of the EPA under the CAA, that there is such an endangerment through emissions of GHGs; it’s the trigger to move forward and create rules and regulations to allow the agency to limit these emissions. **The finding does nothing more than create authority for the agency

- Note: Congress could eventually decide to pre-empt any coverage by the CAA to GHGs in favor of comprehensive legislation directly addressing issues relating to climate change. **President Obama and EPA Administrator Lisa Jackson emphasized their preference for comprehensive legislation to address this issue at the time both the proposed and final endangerment findings were issued by the EPA.

ii. EPA Tailoring Rule – the EPA got nervous (1) pragmatic- feasibility to execute an intolerable burden (OMG if we have to issue permits under PSD for every emitter under the thresholds in the CAA we are talking about 6 million permits) and (2) political – regulating six million facilities that will have political consequences- This encouraged the EPA to take things slowly with the CAA, thus on June 1, 2010 the EPA issued a Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule

- This rule took effect on January 2, 2011 and initially applied the BACT requirements of PSD only to sources emitting more than 75,000 tons of GHGs per year and significant emissions of at least one non-GHG pollutant.- On July 1, 2011, the program was expanded to include all new sources emitting more than 100,000 tons per year of GHGs under both the PSD and Title V programs.

iii. Future Regulations of GHGS by EPA- Although the agency is only requiring the largest GHG emissions sources to obtain permits to date, the EPA states that it is moving towards compliance with the CAA statutory permitting requirements (standard thresholds for PSD and Title V programs – 100/250 tons per year) w another review of the permitting requirements planned for 2016.- The EPA defends its decision to depart from the CAA text by implementing GHG emission regulations incrementally

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Thompson(tailoring) under “absurd results,” “administrative necessity,” and “one-step-at-a-time” doctrines

iv. Court challenges to EPA GHG regulations- Sept. 2010, a coalition of eight states (including Miss. and Al.), industry, and 12 House Republicans filed suit in D.C. Circuit Court seeking a stay of the EPA GHG regulations. Dec. 2010, Tex. also challenged the GHG regulations in 5th Circuit, which in Feb. 2011 transferred the case to the D.C. Circuit (responsible for hearing challenges to EPA CAA rules with national application).- The D.C. Circuit rejected requests for a stay of EPA action under the regulations pending these court challenges.- Industry and business groups and state challengers filed briefs on June 20, 2011 arguing the tailoring rule violates the CAA. The EPA filed its brief defending the rule on September 16, 2011.

v. Legislative Attacks on EPA Authority to Regulate GHGs- On March 3, 2011, identical bills were introduced in the House (H.R. 910) and Senate (S. 482) which would deny EPA authority to “promulgate any regulation concerning, take action relating to, or take into consideration the emission of a greenhouse gas due to concerns regarding possible climate change.”- The bills would overturn the GHG rules which took effect on Jan. 2 for power plants and other stationary sources and would also nullify the 2009 EPA endangerment finding on GHGs.- The House bill (H.R. 910) was passed in the House on April 7, 2011 on a vote of 255-172. The bill was received in the Senate on April 8, 2011 and referred to the Committee on Environment and Public Works.- The Senate version (S. 482) was referred to the Committee on Environment and Public Works on March 3, 2011. No action has been taken on it or H.R. 910 by the Senate committee.

vi. THAT’S WHERE THIS IS – IT’S COMPLETELY STALLED – AS OF RIGHT NOW THE EPA IS REGULATING TO SOME DEGREEE GHG EMISSIONGS UNDER …. CHALLENGES ON BOTH SIDES – STATUS QUO IS WHERE IT IS RIGHT NOW

IV. NATIONAL AMBIENT AIR QUALITY STANDARDSA. ESTABLISHING NAAQSS –basic idea behind the CAA: for the most common pollutants, the federal government will determine

national ambient air quality standards (NAAQSs) and then states will decide how to control local pollution sources so as to meet those standards- § 109 requires the 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

i. In certain instances, the EPA may be compelled to list a pollutant as a criteria pollutant and promulgate NAAQSs for that pollutant - EPA’s duty becomes nondiscretionary if the EPA makes a determination that (a) the pollutant endangers the public health or welfare; and (b) the pollutant results from numerous or diverse mobile or stationary sources

EPA reluctance is due to: (1) Enormous administrative burden such revision would generate (each state would have to revise SIP, which the EPA would have to review and approve, etc.); (2) EPA also cites scientific uncertainty

ii. Two Categories of NAAQS – the EPA is required to establish primary and secondary NAAQs for criteria pollutants Primary – protection of people and public health Secondary – everything else i.e. protection of crops, trees, deterioration of buildingsSix Criteria pollutants for which NAAQS have been issued:

1. Sulfur Dioxides : Corrosive, poisonous gases produced when fuel (such as coal or oil) containing sulfur is burned (principally by utility power plants, industrial boilers, and residential heating)

2. Nitrogen Oxides : Produced by fuel burning at very high temperatures which oxidizes nitrogen in the air (principally by vehicles and combustion plants)

3. Carbon Monoxide : A colorless, odorless, poisonous gas produced by the incomplete burning of carbon in fossil fuel combustion processes, such as internal combustion engines that drive cars, trucks, or utility & other industrial boilers

4. Particulate Matter : Solids or liquids in various sizes, including the very fine dust, soot, smoke, and droplets formed from chemical reactions produced by burning fuels such as coal, wood, or oil

5. Ground-level ozone : The primary ingredient of smog formed when nitrogen oxides and volatile organic compounds (VOCs – released by vehicles burning gasoline, petroleum refineries, chemical manufacturing plants, and other industrial facilities) chemically react in the atmosphere during periods of intense sunlight

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Thompson6. Lead : A heavy metal that can be released directly into the air as suspended particles through the burning of leaded

gasoline or by industrial sources such as lead smelters, waste incinerators, utilities, or manufacturing processes

B. RECENT DEVELOPMENTS ON NAAQSSI. In 1997, Clinton EPA adopted a ground-level ozone or smog pollution standard at 0.08 parts per million (ppm).

II. In 2008, Bush EPA revised the standard to 0.075 ppm, disregarding the EPA’s independent, expert science advisors report that the standard should be between 0.06 and 0.07 ppm to adequately protect public health

III. After these changes, lawsuits were filed saying the new standards were insufficient to protect public health. The lawsuits stayed the standard change.

iv. On January 19, 2010, the EPA published a proposed rule to tighten the primary standard in a range between 0.060 ppm and 0.070 ppm, a reduction from the 2008 standard of 0.075 ppm

v. The EPA announced a delay to consider public comment period information. Some believed this was due to political opposition & the EPA was seeking independent scientific affirmation of the need for stronger standards

vi. On Dec. 8, 2010, EPA delayed until July 2011 to consider further recommendations from the scientific advisors.vii. EPA transmitted final ozone standards to the White House on July 11, 2011 (*supposedly at 0.065 ppm).

viii. On Sept. 2, 2011, President Obama announced that the administration was dropping the reconsideration of the 2008 standards, and that the standards would be revisited in 2013 under the 5-year review schedule in the CAA

ix. Lawsuits are still pending for the 2008 standards and we are stuck with the 1997 standards -- Example of politics getting in the way— “wildly inefficient”

x. There has been a change to the Nitrogen Dioxide standards. This was an effort to deal with the problem—without changing the fundamental standard.

1. Nitrogen dioxide – On Feb. 9, 2010, the EPA published a final rule establishing the first one-hour primary air quality standard for nitrogen dioxide at 0.10 ppm. This rule is intended to address short-term exposures in high risk nitrogen oxide zones like urban communities and areas near roadways. The air monitoring network in these areas will be expanded under the new rule.

2. The annual standard for air quality regions of 0.053 ppm will not be changed.

c. HOW THE CLEAN AIR ACT IS DIFFERENT FROM THE CLEAN WATER ACT:CWA CAA

(1) States are required to establish standards for water(2) Relies on the technology based effluent standards to achieve ambient standards(3) CWA regulates hundreds of different pollutants(4) Required all emission sources to obtain a federal National Pollutant Discharge Elimination System Permit.(5) Criticized for insufficient sanctions to get compliance.

(1) EPA is required to establish standards for air(2) Relies on the NAAQSs as their first and primary solution(3) CAA regulates six major criteria pollutants; CAA § 112 creates a separate regime for hazardous/toxic air pollutants (189)*(4) Original draft had no provisions for permit programs(5) Sanctions at least give the appearance that they are striving for better achievement of the standards

**Hazardous air pollutants are regulated far more closely to the CWA approach – through technology based national emissions standards known as “maximum achievable control technology” (MACT), defined as “the maximum degree of reductions in emissions … taking into consideration the cost achievable” (analogous to BAT under CWA).

CAA § 110—requires the states to determine how to implement NAAQSs through State Implementation Plans (SIPs) SIPs must assure air quality control within the state will come in compliance with the NAAQSs by a specified date If the state fails or its plan is deemed inadequate, the EPA is required to prepare a Federal Implementation Plan (FIP)

All Air quality control regions are divided into 1 of 2 categories (1) Nonattainment areas (serious consequences) – what happens in nonattainment area – see slide(2) Prevention of Significant Deterioration (PSD) areas - designation as a PSD area requires: (1) A SIP putting controls in place ensuring that air quality is maintained; (2) Major new stationary pollution sources must comply with Best Available

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ThompsonControl Technology standards; and (3) New sources must demonstrate that added emissions will not cause PSD area to exceed NAAQS

Fundamental Weaknesses in CAA ApproachInformational Burden - Millions of potential sources of criteria pollutants both stationary and mobileScientific Uncertainty - Physical and chemical fate of pollutants after emission for a source is uncertain. When pollutants cause “adverse effects” after emission is uncertain (principal rationale used by the EPA when denying revision of NAAQS.

How do the EPA and scientists come up with it? Two levels of uncertainty: 1) the physical fate of the pollutants after they have been emitted - making decisions in CA is different from making them in Chicago (smog is the best example, because you need certain specific conditions.2) .07 or .075 ppm?? What are the adverse effects are the pollutants going to have? What sort of effects do we believe they are causing? At what level of health effect should we be focused on.

Problem Exercise: A NAAQS for CO2 - Should a national ambient air quality standard (NAAQS) be established for carbon dioxide in light of evidence that it is the most significant greenhouse gas that contributes to global warming??

I. Lead Industries Association v. EPA - Lead industry argued that they only wanted to protect the public from what was clearly harmful. The court’s response to the argument was it is a precautionary standard. The EPA isn’t required to wait for certainty. All that is required by the statutory scheme is evidence in the record which substantiates conclusions about health effects on which the standards were based.

d. REVISING NAAQS – The EPA is required to review and revise its air quality criteria and the NAAQSs at five-year intervals. CAA § 109(b)(1): authorizes the EPA to establish national ambient air quality standards and maintenance of which in the judgment of the administrator, based on the criteria established 108 and allowing an ADEQUATE MARGIN OF SAFETY, ARE REQUISITE TO PROTECT THE PUBLIC HEALTH; (basically directs the EPA to complete a thorough review of the criteria and the NAAQSs and to make such revisions ot them as may be appropriate)

I. Whitman v. American Trucking Association – Duty to review NAAQs is mandatory and nondiscretionary, the EPA cannot consider costs. Court held that the EPA was required to set standards for air quality that achieved an appropriate level of health, regardless of the cost of impelmenting the standards to affected industries. Notes after the case 572 note 7 – talks about essentially that the standard got remanded back to the circuit and analyzed under arbitrary and capricious and the D.C. circuit rejected that notion so the standard went into effectSNAPSHOT of how inefficient the system is: standard finalized by the agency reducing it from .12 ppm to .08 (1997) – takes agency another couple of years to move forward (2004) – states than have several years to decide how to move forward (2007). A decade to when it is actually being put into effect – hopefully implemented in a way to be protective of public health, note any time we make a decision to revise the standards, “this is the beast that is being released.” Note: EPA is supposed to re-evaluate standards every 5 years – SIP process is a fluid, constantly moving progression

E. STATE IMPLEMENTATION PLANS (SIPS) - § 110 requires states to determine how to achieve NAAQS through SIPs;- If SIP is not prepared OR deemed inadequate, EPA must prepare a Federal Implementation Plan (FIP) for that state; major sanctions for states not in compliance w/ the CAA.SIP Timeline: (1) NAAQS promulgated/revised; (2) State has 3 years from finalization to submit SIP to EPA; (3) EPA has 12 months to approve/disapprove it; (4) If state fails to submit SIP or SIP is deficient then there are a number of potential sanctions; and (5) If State fails to obtain approval of its SIP within 2 years after a disapproval, EPA is required to create a FIP for that StateEPA’S CRUCIAL ROLE IN REVIEWING SIP’S - ensure SIPs include measures that will in fact result in attainment & maintenance of the NAAQS. FIPs are the CAA mechanism for the EPA to step in and make all the choices normally reserved for the states that either produce inadequate SIPs or refuse to submit SIPs. “Conditional Approval” is an EPA technique to avoid writing FIPs (EPA can condition SIP approval on the requirement that the state will bring the SIP into complete compliance so long as the SIPs deficiencies are minor and corrected within one year)SANCTIONS - Applied by EPA against states under CAA – if states fail to submit satisfactory SIPs: (a) suspension of federal highway funds; (b) increasing the ratio of pollution offsets required before new pollution sources can be located w/in nonattainment areas.

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Thompson- § 179 requires EPA to impose sanctions on states that fail to rectify deficiencies in the SIP submissions within 18 months

i. Economic and Technological FeasibilityUnion Electric Company v. EPA (1976) – A source may raise the infeasibility of a requirement in conferences about compliance orders and in enforcement proceedings. Infeasibility is not a substantive defense to noncompliance, but it may be raised during the penalty stage to aid in fashioning a remedy. - Electric company argued that the EPA approved SIP should have been rejected because it was economically and technologically infeasible. The Court held that there are no statutory restraints on SIPs so long as the State’s plan will in fact result in attainment and maintenance of NAAQS, then it can implement however it chooses;

Note 1: Company subsequently obtained a variance from the state and did not have to shut down Note 3 and 4 – practical problem is not that the SIPs are overly draconian, but really the opposite that they are “rosy” scenario plans – they look awesome on paper, but they give themselves the benefit of every favorable assumption and based on computer modeling that is overly optimistic- EPA reviews SIPs to ensure they include measures that will in fact result in attainment and maintenance of the NAAQs, yet this requires the EPA to have a crystal ball. The EPA does sometimes use air quality dispersion models, but they are subject to tremendous uncertainties and not all courts accept these.Best Available Control Technology (BACT) - an emission limitation based on the maximum degree of pollution reduction, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility.” **EPA can’t tell states what the BACT has to be, but it has to be reasonable. Thus the standard of review is under a reasonableness evaluation

ii. Virginia v. EPA (exercise of EPA’s recall ability – SIP Call – recall all the plans so they can be revised – EPA can also individually do this). EPA cannot condition approval of a SIP on the state’s adopting a particular control measure which the EPA deems most desirable; The EPA can only reject a SIP on one of the grounds stated in § 110;CAA gives the states initial responsibility for determining the manner in which NAAQS are to be achieved;-- State’s power to determine which sources will be burdened by regulations and to what extent: (1) so long as the SIP will in fact result in attainment and maintenance of NAAQSs, the EPA can’t reject it based on grounds that it doesn’t like the particular manner of implementation; and (2) Under 110, EPA can’t mandate specific pollution control measures.

VI. Title V Permit Program (added to CAA in 1990 amendments)- All “major” stationary sources of criteria pollutants must obtain operating permits under Title V- Generally, any stationary source emitting 100 tons or more per year of a criteria pollutant is a “major” source- In nonattainment areas, smaller sources can be deemed “major” sources (e.g., a source emitting 10 tons of pollutants per year in an “extreme” nonattainment area for ozone is a “major” source)New Source Review- Any proposed new source of CAA criteria pollutants must comply with pollution control requirements imposed by locating in either a nonattainment area or a PSD area- New sources moving into a nonattainment area must comply with LAER (lowest achievable emission rate) standards- New sources moving into a PSD area must comply with BACT (best available control technology) standards**Modification regulations are a nightmare to figure out- we are just going to skim this and know it’s there

CAA § 173 Permit Requirement Offsets- An attempt to create some flexibility – essentially under this program a new source can be located in a non-attainment area if they (1) employ the lowest … and (2) get offset requirements(a)In general – [Title V] permits to construct and operate may be issued if –(this is the important one “MORE THAN” offset – subsection b isn’t really applicable)

(1) … the permitting agency determines that –(A) by the time the source is to commence operation, sufficient offsetting emissions reductions have been obtained [such that total emissions in the region will be decreased to more than offset the increased emissions of the new source]; or(B) in the case of a new or modified major stationary source which is located in a zone (within the nonattainment area) identified … as a zone to which economic development should be targeted, that emissions [from the source will not cause the area to exceed allowable emissions levels];

(2) The proposed source is required to comply with the lowest achievable emissions rate;(3) The owner or operator of the proposed new source has demonstrated that all major stationary sources owned or operated by such person … in such State are subject to emission limitations and are in compliance, or on a schedule for compliance, with all

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Thompsonapplicable emissions limitations and standards…;(4) The Administrator has not determined that the applicable implementation plan is not being adequately implemented for the nonattainment area…; and(5) An analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed source demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.

Offsets (1) The owner or operator of a new or modified stationary source may comply with any offset requirement in effect under this part for increased emissions of any air pollutant only by obtaining emission reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the State may allow such owner or operator … to obtain such emissions reductions in another nonattainment area if (A) the other area has an equal or higher nonattainment classification than the area in which the source is located and (B) emissions from such other area contribute to a violation of the [NAAQS] in the nonattainment area in which the source is located. ….

Offset Reduction Rations- The amount of emission reductions that must be obtained from other sources is dependent upon how severe a nonattainment zone the new source seeks to enter. For example ––For a “moderate” nonattainment zone reductions must be obtained at a 1.15 tons to 1 ton ratio–For a “serious” nonattainment, the ratio is 1.2 tons to 1 ton–For a “severe” nonattainment zone, the ratio is 1.3 tons to 1 ton

VII. Article on history of recent conflict between Texas and federal government over enforcement of air quality regulations under the CAA- Jurisdictional lines often get in the way when regulating a pollution problem that does not care about state borders. The editorial points out wind blows from the south and a lot of folks commute from De Soto County to Memphis so this ozone problem; CAA doesn’t require TN to work with Arkansas and other neighboring states and this unique geographical issue, a metropolitan issue in three states, is really a non-state issue, and the CAA doesn’t force cooperation

---------------------------------------------------------------------------------------------------------------------CHAPTER 4 WASTE MANAGEMENT AND POLLUTION PREVENTIONWASTE MANAGEMENT AND POLLUTION PROBLEM - EPA reported in 1988 that more than six billion tons of agricultural, commercial, industrial, and domestic waste was generated in the United States each year.

STATUTORY AUTHORITIES AFFECTING WASTE MANAGEMENT- Congress has long recognized that the best strategy for preventing pollution is to reduce the generation of waste while encouraging recycling. Yet environmental regulations have focused almost exclusively on waste disposal practicesNote – chart p. 340-41 there are lots more statutes than CERCLA and RCRA

--------------------------------------------------------------------------------------------------------------------I. The Resource Conservation and Recovery Act (RCRA) Regulatory Program

a. History – Until 1976, Congress had taken the same approach to waste disposal practices (like clean air and clean water). They thought they were local problems and local entities ought to deal with them. In 1976, Congress enacted RCRA as an amendment to SWDA (1965). It seemed to be a great idea at the time, but it proved to be very difficult to enact and there were a series of amendments to RCRA.

RCRA established national goals for:(1) protecting human health and the environment from the potential hazards of solid and hazardous waste disposal;(2) conserving energy and natural resources through waste recycling and recovery;(3) reducing or eliminating the amount of waste generated, including hazardous waste; and(4) ensuring that wastes are managed in an environmentally sound manner.

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RCRA: tort-based regulatory program–Focus is on present – managing current disposal behavior (provide comprehensive protection against mismanagement of hazardous wastes)–Traditional command-and-control regulatory strategy–Intent of RCRA is to prevent future CERCLA problems

CERCLA: command and control based regulation–Focus is on past – remediation of past disposal behavior–Liability statute authorizing remediation of past contamination and imposition of responsibility for clean up costsImposes strict, retroactive liability


Thompson Like Erin Brockovich – dumping waste disposal products in areas that aren’t properly lined or prepared for waste disposal

b. Structure - Cradle to crave – point of generation through transportation to disposal (final resting place)-- RCRA establishes a tracking system to follow hazardous waste from its point of generation through transportation to a facility for treatment, storage or disposal (TSD - stringently regulated to ensure that public health is not threatened by releases of hazardous wastes). -- Basically: if you don’t have a permit, you are violating the law; if you do it knowingly, you are commiting a felony

RCRA is a good plan, but it has nothing to do with all the bad disposal practices that developed for years --- nothing about remediating all of those waste disposal sins that were out there, sometimes manifesting in unusual ways – abandoned waste dumps close to schools, near homes etc so this is where CERCLA comes in

1. RCRA Actors: Three categories of actors fall within RCRA’s “cradle to grave” system for hazardous wastes:1. Generators – the entity that, figuratively speaking, gives birth to the hazardous waste in question;2. Transporters – any entity that moves a hazardous waste from the site on which it was generated; and3. TSD Facilities – the entity that receives hazardous waste for either treatment, storage or disposal purposes

and which must have a federally issued RCRA permit in order to operate.

ii. Manifest - a data sheet that identifies each shipment of hazardous waste; accompanies the waste from the generating facility to the final disposal site and allows for the “cradle to grave” tracking of the waste- It must be separately signed by the generator, the transporter, and the TSD facility at each point in the waste’s journey from the generating facility to its ultimate destination; upon receipt of the waste, a TSD facility is required to return a signed copy of the manifest to the generator; a generator that does not receive a signed copy of the manifest from the TSD facility within a certain time period is required to notify the government- Manifest system seeks to ensure that hazardous wastes actually arrive at the permitted TSD facility and are not illegally dumped elsewhere by the transporter

c. Basic RCRA framework for figuring out if RCRA applies and, if so, what part of the statute you are in1. Is it a solid waste? (jurisdictional question)

a. Yes (RCRA only applies to solid waste) (Move to Question #2) - you have to have a solid waste in order to trigger application of the statute at all

2. Is it hazardous?a. No (Subtitle D – largely non-regulatory – municipal solid waste)b. Yes (Subtitle C – stringent regulation) (Move to Question #3)

3. Who are you? Generator, Transporter, or Treatment, Storage & Disposal Facility (TSD) (RCRA Hell) – you only want to be here if you are prepared for it – don’t be here by accident

i. Solid Wastes can be solid, liquid, or gas – note congress has completely revolutionized the English language; “discarded material” would be more appropriate– that’s the key to this regulation- RCRA § 1004(27) -- “the term `solid waste means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from commercial, mining, and agricultural operations, and from community activities”o Statutory and regulatory exclusions from definition of solid waste (p. 355)

“Household wastes” are excluded – what’s the motivation to exclude it from coverage of RCRA – it’s beyond doubt that household wastes are hazardous (1) Too hard to regulate - People need to know (a) they’ll get caught and (b) there’s a punishment if not then u just rely on compliance (2) No political will/intrusiveness – it would be intrusive for the government to be able to inspect your wastes Mining wastes

ii. “Disposal” RCRA § 1004(3) –discharge, deposit, injection, dumping, spilling, leading, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.”

iii. American Mining Congress v. EPA (D.C. Cir.) (AMC) – company generated war materials and they planned to recapture, recycle, and reuse that dust, inserting it back into their production processes. The EPA was concerned with the activity and wanted to regulate it under RCRA. EPA is a fan of recycling, but they are

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Thompsonworried about the waiting period here. EPA Concerns: (1) the recycling process itself i.e. some stored materials can cause contamination problems like leaching or runoff; and (2) the recycling process actually being followed - since disposal is so highly regulated, maybe this is sham recycling, so they tried to argue that materials were solid waste unlessn directly reused as an ingredient or as an effective substitute for a commercial product or was returned as a raw material substitute to its original manufacturing (closed-loop recycling)Statutory interpretations: (1) plain language; (2) congressional intent. Held: “discarded” unambiguously expressed congressional intent that solid waste be limited to materials that are discarded by virtue of being disposed of, abandoned, or thrown away. EPA overstepped their RCRA authority. The EPA could not treat secondary materials that were being recycled and reused in an ongoing manufacturing or industrial productions process as RCRA solid wastes- “EPA need not regulate spent materials that are recycled and reused in an ongoing manufacturing or industrial process”; If Congress wanted to change RCRA to include material other than that “discarded”, it could do so.

Dissent - Waste is disposed under RCRA if it is put into contact with land or water in such a way as to pose the risks to health and environment that animated Congress to pass RCRA; expansive Bayview-style interpretationi.e. waste stored for future recycling can still cause contamination; just because the mfgr intends to recycle the material doesn’t prevent such hazards.

iv. AMC II –wastewater collected in holding ponds; EPA said those sludges are discarded so we can regulate them, but the facility objected. Court limited AMC I’s holding – those materials destined for immediate reuse “have not yet become part of the waste disposal problem”

v. American Petroleum Institute v. EPA: “Unlike the materials in question in AMC, the waste is indisputably discarded before being subject to metals reclamation.”- AMC I has been limited in application; The recycling in question must be “closed-loop” and never become “discarded” to escape RCRA regulation by the EPA.

e. Identifying Hazardous Waste i. History: Although Congress required EPA to regulate hazardous waste under C of RCRA, it didn’t specify how the agency

was to determine what wastes were hazardous.- During the first decade of RCRA implementation, EPA’s slow progress in identifying and listing hazardous wastes was criticized frequently. In 1981, EPA instead focused on studying 1100 industrial production processes to expand its category of listed wastes. In 1986 it abandoned the plan to do more studies and shifted its focus to revising its hazardous characteristics. EPA also promulgated a new more sensitive test, known as the toxicity characteristic leaching procedure (TCLP, to determine whether a solid waste contains these hazardous constituents.

ii. Hazardous Waste Treatment Council v. EPA (1988) – rejected argument that used oil should not be listed as a hazardous waste because it would discourage recycling. Despite this decision, EPA ultimately decided not to list used oil as a hazardous waste because they reasoned that gasoline-powered engine oils already are subject to regulation under subtitle C as characteristic wastes and that other oils are not hazardous with sufficient frequency to warrant listing. - EPA has struggled to develop a new hazardous waste identification rule that would tailor regulatory requirements more closely to the degree of hazard posed by a waste without creating the kind of loopholes the mixture and derived-from rules are designed to avoid.

iii. Determination if solid waste is hazardous under RCRA : (1) Review list of hazardous wastes in CFR; or (2) If not listed, determine whether the waste exhibits a hazardous characteristic either by (a) Testing the waste through procedures set forth in CFR (not required); or (b) Apply knowledge of the hazardous characteristic of the waste in light of the materials or processes used. **One problem– limite d guidance on test requirements and no guidance on using applied knowledge method

1. “Listed wastes” – if a waste is specifically listen by EPA in the CFR, then it is a hazardous waste(that’s as far as you have to go – check the list- if it’s there or not there, you are then done) like Strict Liability – if it’s on the list, no way around it, treat it that way

i. Why is listed wastes treated so absolutely? EPA says if it’s serious enough that it is on the list, we want it to be treated carefully and as a hazard at all time, we don’t want people looking for ways around it. If it’s a listed waste then at every step of the process they are going to have to carry on under the hazardous waste rules. The listed wastes are really high in one or all four characteristics

1. Mixed Rule Waste - any mixture of a listed waste with another solid waste is deemed to be a hazardous waste; This means you cannot dilute a listed waste with other non-hazardous waste to avoid classification as a hazardous waste

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Thompson2. Derived-from Rule Waste - any waste derived from the treatment storage or disposal of a listed

waste (such as the ash residue from burning or incinerating a listed waste) is deemed to be a hazardous waste

The problem with an absolutist rule like listed wastes is that it can over-regulate; the way around this (kind of missed this) but can petition the EPA to get a material off the list??

2. “Characteristic wastes” – a waste that exhibits any one of the four hazardous “characteristics” (ignitability, corrosivity, reactivity, or toxicity) as determined by testing performed by generators of solid waste. like Negligence standard – subject to burden of proof

i. Why the distinction? There’s a rulemaking process for the most serious and identified hazardous wastes, but for those not on the list, we want them to decide if it exhibits one of the four characteristics and should be treated a hazardous waste (basically – “hey we don’t know everything and some materials might not have been put on the radar yet”).

ii. The mixture waste rules and derived from waste rules do not apply to characteristic wastes. A characteristic waste is only considered hazardous so long as it continues to exhibit one of the 4 hazardous characteristics.

iii. If a waste derived from a characteristic waste no longer exhibits the hazardous characteristic, it is no longer a hazardous waste.

iv. If a characteristic waste diluted or mixed with other solid waste no longer exhibits the hazardous characteristic, it is no longer a hazardous waste.

v. Deciding if it meets the Four Characteristics: The Code puts the burden on generators of solid waste. If they recognize that they have created a solid waste (step 1), they have the burden to determine if it is a hazardous waste (step 2)

f. Household Waste Stream: “Household waste” exempted from definition of “hazardous waste”HOUSEHOLD WASTE TREATMENT PROCESS ASH(MUNICIPAL GARBAGE) (INCINERATION) (RESIDUE)

i. Waste Stream Exemption created in the 1980 Regulation Preamble (not the actual regulation) saying “residues remaining after treatment of household waste are not subject to regulation as a hazardous waste” - basically that because the EPA exempted household garbage, the waste stream (ash) is also exempted, but it was lost if anything mixed in with household waste (such as commercial or industrial waste) before treatment process.-- Burning municipal garbage for energy was a big industry, so there was a treatment process that produced ash/residue. It’s clearly generation of a waste, but hazardous? It’s not on the list, so does it demonstrate one of the four characteristics, the burden is on the generator to figure it out. Hazardous wastes costs money so the goal is to avoid it. This attempt ta evasion created a problem with testing/knowledge avenues – municipal incinerators were playing dumb, they weren’t testing and claiming ignorance that this ash was hazardous. EDF went around and started testing it and showed that this ash met the toxicity characteristic

ii. 1984 Statutory “Clarification of Household Waste Exclusion”RCRA § 3001(i) – a “facility recovering energy from the mass burning of municipal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under [subtitle C]” if the facility (1) receives and burns only household waste and nonhazardous waste from commercial and industrial sources, and (2) does not accept hazardous waste identified or listed under subtitle C, and (3) “has established contractual requirements or other appropriate notification or inspection procedures to assure that hazardous wastes are not received at or burned in such facility.”

iii. City of Chicago v. EDF (1994) – (statutory interpretation case) – EDF, after discovering ash was flunking the EPA’s toxicity test by leaching lead and cadmium in excessive levels, filed suit to require incinerators to manage the ash under RCRA. Incinators said they weren’t required under the RCRA § 3001(i) exemptionIssue: Whether, under the Hazardous and Solid Waste Amendments of 1984, the ash generated is subject to regulation as hazardous waste under Subtitle C. Court finds that it is-- Procedurally, EPA had changed its interpretation. The Administrator issued a memo saying incinerator ash was not exempt under Subtitle C under § 3001(i). Court sent 7th circuit decision back and said re-decide based on EPA’s new interpretation, but 7th circuit didn’t care and said nope it’s still not in there.

Supreme Court reviewed 7th Circuit’s reaffirmation (in light of EPA Admin’s recent memo) held that § 3001(i) did not apply to residue from incinerated household wastes

The preamble referred to waste stream exemption; the statute (RCRA 3001) says nothing about the waste stream exemption, ash, or anything. How can you have an exemption for something that is not at all

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Thompsonmentioned in the statute!? “There is no express support for petitioners’ claim of a waste-stream exemption.”

The exemption that is created is for the facility, it’s very telling that the statute specifies the facility “treating, storing, disposing of” and it makes no indication of “generating” waste. Congress had no thought whatsoever about what the facility was generating. In burning municipal garbage, we are only concerned that you won’t be treated as dealing hazardous waste in burning household garbage as long as you don’t add anything to it. BUT it doesn’t say anything about generating a hazardous waste after the burning process.

Dissent: (Prof. Case Does Not Even Understand this Argument. Probably NOT on Exam)- He does a trick here, this is kind of a statutory interpretation problem- Need to examine “waste exclusion” that the 1984 Amendment clarified as well as the ambiguity that needed clarification- Generally, EPA decides that waste is properly categorized when it first becomes waste, so even if an incinerator generates hazardous residue, it is not subject to regulation per the statute- Administrative history of the 1980 Amendments (comment): residues remaining after treatment are not subject to regulation as hazardous waste- Clarification provided was that mixing household waste with other nonhazardous waste doesn’t extinguish the household waste exclusion- Also, the relevant statutory text is not unambiguous: tension between hazardous waste generation in § 1004(6) and the household waste exclusion codified by the 1984 Amendment.

He talks about the administrative history that came w/ or was incorporated into the clarification; i.e. admits that exemption for residue/ash isn’t in the statute itself, but when regulations are clarified by statute, the statute incorporates everything about the regulation; rely on this administrative history to interpret the statutenote, the fallacy in this administrative history is that we are interpreting the statute, which illustrates congress’s intent, not the administrative history, which is basically the agency’s thoughts – that’s why you can look at legislative history

The problem w/ this is that the EPA is not a legislative body; if congress wanted to include something, it should have included in the statutory language

iv. Waste Stream Exemption for Residue is DEAD after this case - not just for household waste mixed w/ other waste. But, after this case the EPA did cut the incinerators a break by allowing fly ash and bottom ash to be tested in combination, rather than separately; Bottom ash is less toxic, so regulation of ash/residue was made less stringent by this allowance.Waste stream exemption lost (i.e. residues not excluded) if anything mixed in with household waste (such as commercial or industrial waste) before treatment process.Professor Case note: the system only works if we have an effective system of enforcement

g. Avoiding TSD Status3rd Question in the RCRA framework → Who are you? Generators & transporters don’t want to do things that will bring TSD obligations; only if you are intending to be a TSD and are charging the high rates to follow obligations of a TSD so that your customers don’t have to.

i. Generators : RCRA obligations on generator to determine if it has generated a hazardous waste;ii. Transporters: Become transporter once the waste leaves the generator and must follow rules for transporters;

Transporter can store hazardous waste on its site for up to 10 days;-- the minute it leaves a site you become a transporter – they can hold on to it, but only for 10 days-- there aren’t a lot of requirements for transporters – get it to the TSD facility and that’s pretty much all you are supposed to do – make sure it makes it where it is supposed to go

iii. Treatment, Storage or Disposal (TSD) --- RCRA Hell!!Stoll Article, p. 381 “Avoiding TSD Statues”; this is a pragmatic and helpful article because it talks about what is established as okay to do. Generators can recycle hazardous wastes in order to avoid TSD status:Two exempted recycling methods:(1) Closed-loop recycling system is exempted from RCRA; this implies immediate reinsertion of the waste into recycling process;(2) Store waste in closed containers onsite, recycling the waste prior to end of 90 days; Must be done onsite; with wastes that aren’t listed wastes, the generator can treat the waste in proper containers or tanks to avoid TSD status;

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ThompsonShip everything to CANADA!! (section 3017 or RCRA) – note 6 p. 388

note 3 page 387 – sometimes knowing the requirements and where the environmental law is, is a really difficult proposition – everything you need to know to comply isn’t necessarily easy to find

----------------------------------------------------------II. THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA)

a. CERCLA’s Basic Principles1. Primary purpose is remedial2. Two Goals: (1) Facilitating prompt and effective clean up at abandoned hazardous waste dump sites by authorizing

removal and remediation operations for hazardous substances; and (2) Assigning costs for such clean up to responsible parties through a comprehensive liability scheme

- CERCLA creates Superfund for resources to deal with those risky sites when you can’t find responsible parties to stick with the bill. It was created by a tax on chemical companies. But this tax expired in 1995 and was never reauthorized. The statute still operates as it always had, but now the funds need to come from general appropriations.

- RCRA is forward looking with eye toward present, but CERCLA creates powerful incentives for companies in present to manage waste disposal practices and think about substances and materials they use that create the waste streams they are required to deal with because no one wants to incur future CERCLA liability. CERCLA’s liability scheme is immense and powerful

3. Fundamental Differences Between CERCLA and Common Law Relaxed causation requirements – it’s an endangerment standard in CERCLA, not a causation standard;

Causation does not come into it, being designated the liable party does – we will get to this later Breadth of potentially liable persons – CERCLA casts liability net around numerous persons who would not

be held liable under common law4. Authorization to Act: key term for CERCLA purposes is “release of hazardous substances” – threat of release is

sufficient CERCLA § 104(a)(1) - EPA is authorized to act whenever: (1)”any hazardous substance is released or there

is a threat of such a release into the environment, or ([2]) there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare.”

b. CERCLA Structure1. Basic Jurisdictional elements * See §§ 104(a)(1), 106(a), 107(a)(4)

(1) a release or threatened release - Release is defined in § 101(22) – “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)….” (another example of congress dumping dictionary into statute)

-- Note there is no threshold minimum amount to constitute a release; one drop would be enough; there are restraints in pragmatism though because EPA cannot go after every puddles-- A threat of release may be established by: evidence of the presence of hazardous substances at a facility, together with an unwillingness of any part to assert control over them(2) of a hazardous substance (*CERCLA universe is way bigger so even though they have some overlap)-- Defined in § 101(14) primarily through a process of incorporation. CERCLA hazardous substances include: –pollutants designated under the CWA–any listed or characteristic hazardous waste under RCRA–pollutants under the CAA–chemical substances or mixtures under § 7 of TSCA–any substance designated as hazardous under § 102 of CERCLA (entire list at 40 CFR, part 302, table 302.4)(3) from a facility - Facility requirement may as well not be there – defined in 101(9) to include “any site or area where a hazardous substance has come to be located”another attempt to make the statute as broad as possible – we don’t want there to be any question of our ability to get at hazardous substances wherever they arewherever you go in life, that’s where you’ll be/wherever you find hazardous substances that’s a facility

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Thompson2. Exemptions to Hazardous Substances Categories

(1) Applications of pesticides registered under FIFRA (2) Federally permitted releases – discharges or releases authorized by permits under CWA, CAA or RCRA(3) New petroleum products (but not used petroleum products)

3. Liability•Jurisdictional elements (release or threatened release, hazardous substance, facility)•Federal government or other authorized party (state agency) incurred response costs because of the release or threatened release•The defendant is within one of the four classes of potentially responsible parties (PRPs) under § 107•(In a private cost-recovery action – PRPs against other PRPs for indemnity or contribution – a plaintiff must also demonstrate its response costs were consistent with the National Contingency Plan (NCP) under § 105)

Standard of Liability under CERCLA•§ 101(32) indicates that “liability” under CERCLA is to be “construed as the standard of liability which obtains under [§ 311 of the CWA – the oil spill liability program]”•Sec. 311 of CWA does not specify a standard of liability but courts had interpreted this section prior to CERCLA to require imposition of strict liability (liability without regard to culpability or fault)•CERCLA also imposes retrospective liability – liability for conduct that occurred prior to CERCLA’s enactment without limit

EPA Options for Responding to Contamination Problems Under CERCLA•EPA may investigate and clean up itself under § 104 and sue for reimbursement from PRPs under § 107•EPA may compel one or more PRPs to conduct necessary investigation or clean up by seeking a court order under § 106•EPA may issue PRPs a unilateral order requiring investigation or clean up under § 106•EPA may negotiate a settlement with some or all PRPs under which they agree to undertake any necessary response actions

c. Responsible PartiesThe four classes of PRPs under § 107 include:–Current owner or operator of the site;–Any parties who owned or operated the site at the time that hazardous substances were disposed there;–Any parties who “arranged for disposal or treatment” of any hazardous substances at the site (“generator” or “arranger” liability);–Any parties who both chose the site and transported hazardous substances to it.

Nondisclosure, the 5th category of PRP (liar liar pants on fire part of CERCLA)- § 101(35)(C) creates a “fifth category” of PRP under CERCLA – if a party obtains actual knowledge of a release while it owns property and subsequently sells or transfers ownership of the property to another without disclosing that knowledge, that party is treated as a PRP and no third party defenses are available to it.

i. Three defenses set forth in § 107(b): even though I’m a PRP I should be exempted from liabilityAct of God – 107(b)(1)i.e. Tornado comes through and upsets hazardous tanks – most courts would say not an act of god because tornados are foreseeable, thus the narrow construction doesn’t allow much of a defenseAct of War – 107(b)(2) – doesn’t get anyone very far since we don’t have many wars --- think of 9/11 though – we have said that’s an act of war and lots of contaminations were released, but EPA did not try and impose any CERCLA liabilityThird-party defense – 107(b)(3) - “Traditional” third-party defense or Innocent purchaser defenseTraditional Third Party Defense

i. The third-party cannot be:–either an employee or agent of defendant, or–“one whose act or omission occurs in connection with a contractual relationship, either directly or indirectly, with defendant”

ii. Additionally, the defendant must establish:–that she exercised due care with respect to the hazardous substances concerned, and–Took all reasonable precautions against foreseeable acts or omissions of any such third party

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Thompsoniii. Because of the contractual relationship, if you had purchased the property from someone who had

caused it then you lost the ability to use a third party defense. This led to the creation of the Innocent Purchaser Defense

Innocent purchaser defense: § 101(35)(A)(B) establish the elements:–At the time of acquisition of the property, the defendant “did not know and had no reason to know” of the hazardous substances–To demonstrate this, the defendant must have undertaken “all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice” at the time–Defendant must meet other requirements of third-party defense (i.e., “due care” and “adequate precautions”)-- All Appropriate Inquiry- The EPA published a final rule in 2005 establishing standards and practices to satisfy the “good commercial or customary practice” requirement. At a minimum, a prospective purchaser of commercial property should have a “Phase 1” site assessment/environmental audit pursuant to American Society for Testing and Materials (ASTM) standards in order to utilize an “innocent purchaser” defense.- Phase 1 is essentially a walk around; inspector reviews the records of the establishment and operations

1. OWNERS:i. NY v. Shore Realty Corp (1985) - D had petitioned NY board for a waiver; he bought it without the waiver

and was sued to initiate a CERCLA clean up and pay What are the defenses:- 3rd party defense – only works if third party is one who dumped the hazardous substances on your property while you owned it; if it happened before you owned it, then it’s not a third party defense for you- he tries to get the court to read causation into the statute, but the court says we cannot do that

a. Note 1 (p. 406) - Creates a loophole for people to pollute and then sale and diffuse all liability and kick windfall to seller because they end of with a clean up and no liability and devises an incentive to collude- This method helps catch pollution early and provides incentives to deal with it sooner rather than later (1) creates incentives for seller to deal with the problem and clean it up; (2) incentives for purchasers to research the land/investigate before purchasing

b. CERCLA is about shifting risk and liability to those people that have relationship with property and contamination; it might be unfair that EPA can go with current owner and stop there, but CERCLA mitigates the unfairness of this by allowing other people in “to share the misery”

c. Note 7 (p. 408) – problem with people who own the property between two categories – owner or operator and parties who owned or operated the site at the time that hazardous substances were disposed thereOwner 1 (owned the property at the time hazardous substances were dumped) –responsible under category 2Owner 2 (owed after with no new hazardous dumps) – no responsibilityOwner 3 – responsible under category 1attempt to make interim owners liable – distinction between active and passive interim ownersif you were passive, even if the problem got worse – you aren’t responsiblebut if you actively did something and the problem got worse – you are responsiblePoint of innocent purchaser defense – note??

2. OPERATORS - The primary issue in evaluating whether an entity should be assigned “operator” status under sec. 107 is the extent to which it actually controls the operations that result in the hazardous substance release or threatened release that triggers CERCLA liability in the first instance. Note, **It’s possible for two entities to be a PRP under first or second category

i. FMC v. US Dep’t of Commerce (1994) - Shows definition and application of factors of how someone came in and was running the show – deemed to be an operator of a facility it didn’t own (government came in during WWII and operated rayon manufacturing facility)Government exercised “substantial control” and was thus “operator” of facility where it ––required company to manufacture rayon to assist war effort;–Maintained significant control over production through regulations, on-site inspectors, and possibility of seizure;–Built and controlled plants;

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Thompson–Supplied machinery and equipment for manufacturing; andControlled product marketing and price

ii. United States v. Bestfoods (1998) - site of a chemical manufacturing plant was polluted over many years. During much of the time, the companies running the plant were wholly owned subsidiaries. CPC is parent company of Ott II (chemical manufacturing plant) and Bestfoods purchased Ott II from CPC prior to initiation of CERCLA clean up.-- Court defines Operator - …”an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA’s concern with environmental contamination, an operator must manage, direct or conduct operations specifically related to pollution; that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.”Two ways to get at a parent corporation: (1) indirect/derivative liability – basically, if we can pierce the veil- establish for fraud intensive purposes that there aren’t two separate companies then you can get to the parent. “a parent co may be held liable for a subsidiary’s conduct when the corporate veil may be pierced (which happens when the corporate form would be misused to accomplish wrongful purposes; and (2) Direct Liability – parent corporation can incur directly liability for its own actions in operating a facility owned by its subsidiary

Issue: May a parent corporation that actively participated in, and exercised control over, the operations of a subsidiary, without more, be held liable under CERCLA Section 107(a)(2) as an operator of a polluting facility owned or operated by the subsidiary?

Rule: 6th Circuit correctly held the only way the parent is liable is if you can pierce the corporate veil. -- CERCLA liability can turn on operation as well as ownership and nothing bars parent corp. from directly liability for its own operating actions. Any person who operates a polluting facility is directly liable, the difficulty comes in defining actions sufficient to constitute direct parental operation

Ways to conclude parent company liability:When the parent is (1) sole operator, or (2) operates the facility alongside of its subsidiary (joint venture),(3) When a dual officer of the parent and subsidiary departs so far from the norms of parental influence exercised through dual office holding as to serve the parent, even when ostensibly acting on behalf of the subsidiary in operating the facility; or (4) When an agent of the parent with no hat to wear but the parent’s hat might manage or direct activities at the subsidiary’s facility

Holding: A corporate parent that actively participated in, and exercised control over, the operations of the facility itself may be held directly liable in its own right as an operator of the facility. 6th circuit applied actual control test to see if parent actually operated subsidiary business; this test fuses direct and indirect liability bc it focuses on the corporations’ relationship instead of parent’s interaction with facility (source of any direct liability). Sp Ct concluded that the question is not whether the parent operates the subsidiary, but rather whether it operates the facility, and that operation is evidenced by participation in the activities of the facility, not the subsidiary (the parent corporation’s role as director is not alone sufficient to expose the parent corp. to liability for subsidiary’s actions). The appropriate test should be participation-and-control

Take home point: basic corporate rules are not surpassed by CERCLA – if there is fraud you can be reached with liability and if you are involved as an operator you may be liable in your own right dirctly

Note 2 p. 417: ability to have expert testimony to help you as an attorney “speak the language”; to establish that a parent has departed from norms of standard corporate relationships you would rely on expert witnesses to determine what the normalcy standard is

3. ARRANGERS (AKA GENERATORS) – one area where CERCLA is far more expansive than equivalent Tort law areasi. Elements to impose liability on generator (generator is not in statute, but courts routinely call it this)

That the relevant generator arranged for the disposal or treatment of hazardous substances,At a facility which now contains hazardous substances of a type similar to those sent by the generator,That there has been a release or threatened release of hazardous substances at the site,That has caused the occurrence of response costs.

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ThompsonPolicy justification – arrangers will be more careful – strong incentives to be careful in selecting who are you doing business with/who will dispose of your materials (solvent, stability, credible)

ii. Disposal (“arranged for disposal or treatment”)CERCLA § 101(29) – “The term `disposal’ means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such … may enter the environment or be emitted into the air or discharged into the waters, including ground waters.”

iii. United States v. Aceto (1989) (superseded) – representative of cases stretching the definition of generator liability–companies send raw materials; waste stream was a foreseeable by product of this product and you knew there would be a need to get rid of the hazardous byproducts, so that knowledge makes you an arranger for disposal of hazardous substancesTwo Justifications: (1) you controlled what Aceto was going to do; they are making it based on your materials and your specifications, you give them their marching orders; and (2) this is an independent contractor, but one dealing with a dangerous activity and because of that u can hide behind your indepdnent contractor

iv. Burlington Northern v. United States (2009) – how expansive is liability–“Traditional” Arranger – entity that transacts directly with another for the specific purpose of disposing of a hazardous substance–“Broader Category” of Arranger – disposal of a hazardous substance was not the direct purpose of a transaction, but was a “foreseeable byproduct” of the transaction-- lower court ruled similar to Aceto case – waste disposal problem was foreseeable given what Shell knew about operations and should be liable. Sp Ct reversed bc mere knowledge that a hazardous substance is being disposed, that’s not your intention, and unless you intend there be a disposal, you haven’t arranged for it and without intention we can’t find that Shell qualifies as an arranger - J. Ginsburg in dissent (aceto rationale)

4. STRICT AND JOINT AND SEVERAL LIABILITYa. POSSIBILITIES

- STRICT LIABILITY - CERCLA does not expressly state that responsible parties are subject to strict liability, but the statute is nonetheless uniformly construed to create a strict liability standard. Thus, the government is relieved from any need to prove that hazardous substances were released as a result of negligence or that a PRP’s conduct was intentional or unreasonable.- JOINT AND SEVERAL LIABILITY - CERCLA also contains no references to joint and several liability, but has nonetheless been interpreted to allow for, but not require, imposition of joint and several liability (meaning that a plaintiff may sue any one or all of the joint and several defendants, at the plaintiff’s option). The courts have established a federally created uniform rule of decision for establishing, according to common law principles, whether the imposition of joint and several liability is appropriate on a case-by-case basis.- APPORTIONMENT

i. Restatement (2d) of Torts, § 433A(1)Damages for harm are to be apportioned among two or more causes where: (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm.

Sub-section (a) - apportion damage that happened through multiple tortfeasers by distinct harms. I.E. car accident – car hit one side and broke leg, anther car hit another side and broke arm, each car is only liable for harm. Sub-section (b) there must be a reasonable justification to divide the harm and treat it as divisbleand if it doesn’t meet (1) sub-section a or b then it is indivisible under (2)

(2) Damages for any other harm cannot be apportioned among two or more causes.

ii. Burden of proof- The burden of proof as to whether a harm is divisible (and thus apportionment possible) or indivisible (and thus apportionment not possible) is on the defendant.- Damages will be apportioned only if the defendant can demonstrate the harm is divisible. If this burden is not met, the harm is considered indivisible and joint and several liability will be imposed

iii. Burlington Northern & Santa Fe v. U.S. (2009) - §433A(1)(b) – is there a reasonable basis for apportionment? This case gives hope and ammunition to PRPs to argue that the concept of establishing a reasonable basis for apportionment is really a broader universe than the lower courts had previously indicated- District Court found that the contamination caused a single harm but concluded that the harm was divisible and therefore capable of apportionment. Court of Appeals agreed there was a single harm capable of being divisible,

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Thompsonbut found a lack of sufficient data to establish the precise proportion of contamination that occurred.- District Court calculated the RRs liability: 19% surface area; owned property for 13 years - 45% of time; hazardous substance released on B&B property 10x greater; and only 2 RR chemicals contributed to the contamination -2/3 of the overall site contamination re quiring remediationTheir Formula: .19 x .45 x. 66 (2/3) and rounded up to 6% then added calculation error of 50% (1/2 of 6 is 3) 9% liability --problem this is kind of like multiplying apples, oranges, and pinneapplesProblems with formula: (1) D did not meet their burden of proof – “not all harms are capable of apportionment, however, and CERCLA Ds seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists noted in J. Ginsburg’s dissent – why did district court embark on this “heroic effort” – it should be indivisible if the parties did not embrace their burden(2) 50% error – they are immediately assuming they were wrong and if there was a 50% rate of error shouldn’t it be a range, 3-9% this is so imprecise and acknowledges imprecision on face of analysis(3) What does the fact that they own about 20% of the property have to do with the contamination? No evidence to how this would affect releases; it’s a way to distinguish RRs from everyone else, but does the distinction matter to the ultimate question?(4) 2/3 contamination doesn’t have strong support in the record, but any error was found harmless in light of the 50% margin of error

**Prof Case finds trial court compassionate to be doing this processHolding: Upholds district court’s apportionment. The facts contained in the record reasonably supported the apportionment of liability. 2/3 analysis is less supported but the 50% margin of error made it harmless. Dissent: Court should not have pursued the matter sua sponte; the burden of proof is on defendant to prove divisibility and they have done nothing, why not just find them jointly and severably liable for everything; and because of this “heroic effort” the government therefore was not able to respond and rebut the facts. Note: Not all harms are capable of apportionment, and CERCLA defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists. Note 1: what impact is J&S liability likely to have on parties propensity to settle – first served get the best deal, quicker you get to us and cut your deal the more generous our settlement offer is going to be- Once you settle your liability has been apportioned and people cannot seek more from you later

B. MITIGATION OF J&S LIABILITYi. De minimis settlements under CERCLA § 122(g): - PRPs are provided a statutory cause of action for

contribution against other PRPs under CERCLA § 113(f) **before 113 there was considered an implied right of contribution, but once 113 was added the implied right kind of went away- The EPA has a “thumb-screw rule” by which the first person to settle gets the best number, and the next gets a higher number, and those that hold on the longest get the worst (highest) settlements- Smaller, earlier contributors pay a premium to settle over what their true cost of contribution would be

ii. Contribution Actions CERCLA § 113(f) – complimentary remedies that PRPs can avail themselves ofContribution - CERCLA § 113(f)(1) – “Any person may seek contribution from any other person who is liable or potentially liable under section [107(a)], during or following any civil action under section [106 or 107]. … In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section [106 or 107].”

Court said no the implied right of contribution is gone, the only implied right of contribution is 113 and this added sentence didn’t save that; Prof Case says that conclusion renders that sentence pretty much meaningless (saving implied right of contribution that had been read into the statute before 113) – it doesn’t really make much sense

PRPs’ Right to Recover Response Costs From Other PRPs - CERCLA § 107(a)(4)(B) – “Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) … [PRPs] shall be liable for … any other necessary costs of response incurred by any other person consistent with the national contingency plan.”

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Thompson1. Provides statutory cause of action for contribution against other PRPs2. Provides Rights to recover response costs from other PRPs

a. Cooper Industries v. Aviall - Party can only bring a § 113 contribution action after it has first been sued under § 106 or § 107; i.e. a party can’t voluntarily clean up a contamination and then seek contribution under § 113 for the costs associated with the cleanup.Reason → § 113 says that a contribution action may be brought “during or after any civil action under § 106 or 107”; Rule also applies to settlements that occur prior to institution of any § 106 or 107 action.- “Orphan shares”: the share of pollution from parties not part of the suit are apportioned among known partiesAviall could have sued under 107 for cost recovery –diff type of action but would essentially get them to the same place – no real reason why they didn’t, but they didn’tThis case left open whether PRPs have rights under 107(a)(4)(B) – court answered this in Atlantic Research Corp in the affirmative and said yes “PRPs” are “any other person”

3. Previously Settled Parties & Contributions Actions - § 113(f) cannot be instituted against a party who has already settled; settling party’s liability is completely extinguished for both (1) Contribution actions AND (2) for future cleanup costs.

4. Private Party Rights to Action Under § 107- Private party as a plaintiff for costs associated with cleanup- NOT a contribution action but an original action for cleanup costs;- U.S. v. Atlantic Research Corp. - Held that yes, a private party can bring a § 107 action;§ 107 states - [PRPs] shall be liable for … any other necessary costs of response incurred by any other person consistent with the national contingency plan.” Doesn’t just say costs incurred by the government.

5. Factors for Allocation In Contribution Actions under CERCLAa. U.S. v. Vertac Chemical Corp (1999): Considered equitable factors to apportion J & S Liability;b. Gore Factors – When Gore was a senator he set forth a bill that didn’t pass, but the Gore Factors

from the bill have become almost a common law standard – this is a starting place of factors – the list is not exhaustive or exclusive- the primary emphasis is placed on the harm each party causes the environment and care on the part of the parties”;1. Ability of parties to demonstrate that their contribution can be distinguished from others2. The amount of hazardous substance involved- Case: must prove amount you contributed is smaller than other; court uses this factor the most.3. The degree of toxicity of the hazardous substance involved,4. The degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous substance,5. The degree of care exercised by the parties with respect to the hazardous substances concerned, taking into account the characteristics of such hazardous substances (the more careful you are the better you look in terms of allocation – if you were intentional or reckless that’s bad – none of this is relevant to liability you are responsible regardless but it does matter in terms of degree of contribution) 6. The degree of cooperation by the parties with federal, state, or local officials to prevent any harm to the public health or the environment

-- remember those who have settled are out of the equation, but for those that haven’t settled the court takes 100% of what is left and divides it up

7th is orphan share – the share of responsibility for people we can’t get to – they were involved, but for whatever reason (insolvent; absent) they aren’t present to be included – so the orphan share is split up among the six tortfeasers in accordance with their present share

c. EPA’S RESPONSES- § 104 – allowed to expend taxpayer money to respond to releases/threatened releases assuming that the national contingency plan procedural and substantive rules concerning hwo the EPA is allowed to respond

i. Removal Actions (short-term necessary fix) you don’t need to be on national contingency plan for EPA to go in and take Removal Action - Typically short-term response actions to address releases or threatened releases requiring prompt response- Removal actions are classified as: (1) emergency; (2) time-critical; and (3) non-time critical

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Thompsonii. Remedial Actions (long-term clean up)

- Usually more long-term response action than a removal action- Intended to permanently and significantly reduce the risks associated with releases or threatened releases of hazardous substances that are serious but lack the time-criticality of a removal action

iii. National Contingency Plan – Administrative action requiring notice and comment rulemaking to make this decision•Extensive cleanup measures (“remedial measures”) may only be undertaken if site qualifies for listing on the National Priority List (NPL)(1) First Step - “Preliminary Assessment and Site Investigation” (PA/SI) – site evaluated for NPL placement by use of the Hazard Ranking System and whether short term removal action or longer term remedial action should be undertaken it has to be on national priority list to be eligible for superfund dollars (no real superfund anymore – it works the same, but there’s not a pot of money that’s available to be tapped into – we must now get general appropriations to spend this money which is much harder to do with congress, especially in tight budget times)(2) “Remedial Investigation and Feasibility Study” (RI/FS) – assess site conditions and evaluate alternatives to the extent necessary to select a remedy (heart of CERCLA remedy-selection process – goal is to gather enough data to characterize status of site to evaluate choices – in this sense it is kind of like NEPA)(3) Issuance of proposed plan(4) Provide opportunity for public comment(5) Issuance of Record of Decision (ROD)

d. SCOPE OF CLEAN UP - CERCLA § 121 establishes 5 requirements for remedial actions:(1) Must attain a degree of cleanup assuring protection of human health and environment (threshold criteria) [contemplates that cleanup may not be 100%] --- KIDS EAT DIRT(2) Hazardous substances remaining after cleanup must meet all “applicable” and/or “relevant and appropriate” requirements under federal and state law (ARAs) (threshold criteria)(3) Technological feasibility – must utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable (balancing criteria)(4) Economic feasibility – must provide for cost-effective response, taking into account total long and short term costs of such actions (balancing criteria). Note - for Gov’t will have very different ideas about what is economically feasible than will the responsible party who will actually have to pay for it. For this reason, it is really best just to start cleaning a contamination up prior to the government getting involved. **When government is in charge, cost-effective response is going to cost 3x more than it should, most CERCLA lawyers tell clients clean it up then give government the bill(5) Must be in accordance with the NCP to the extent practicable (modifying criteria)

Superfund? Currently there is no superfund, because there is no money. Congress will have to allocate money for there to once again be a superfund; there was previously a tax which filled the superfund.

---------------------------------------------------------------------------------------------------------------------------------------CHAPTER 9: ENDANGERED SPECIES ACT (ESA) – RATIONALE FOR PRESERVING BIODIVERSITY - MOST COMPREHENSIVE LEGISLATION FOR ENDANGERED SPECIES IN THE WORLD; WHEN IT APPLIES IT IS THE MOST POWERFUL ENVIRONEMNTAL STATUTEI. WHY SHOULD WE PRESERVE BIODIVERSITY

ESA § 2 (A)(3) – “The Congress finds and declares that – … these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people….”

A. E. O. WILSON, BIOPHILIA 1. AESTHETIC – is the world not a much cooler place with polar bears

BUT like our case later today – who gets hype about killing flies there can be a shortcoming in this argument for some species and in some cases, aesthetic notions can lower willingness to invest resources -**remember back to dolphin PR in save the dolphins (not the tuna) efforts

2. UTILITARIAN (ECONOMICS) – diversity of species is an important resource (although highly under-utilized – i.e. Myers estaimated that we ustilize 7,000 kinds of plants for food, yet 75,000 exist that are edible and even superior to the crop plants in use) (A) Untapped potential – we may be losing wonderful opportunities that we aren’t aware of; there is a potential benefit/value to humans that we don’t know of yet-- It is estimated that the world contins 13-14 million species, but only 1.75 million have ever been described--EX: Taxol is a rare plant that waas discovered to treat breast and ovarian cancer – the drug is made from material found in the bark and needles of the rare Pacific Yew Tree(B) Law of unintended consequences (Jenga Blocks) – you don’t understand it well enough to see how it fits in

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Thompson(some reflection of the precautionary principle – since we don’t know it’s better to presume the effect would be bad)(C) Money from species – tourism, hunting, fishing, etc.

3. MORAL/ETHICAL - Protect endangered species because it is the right thing to do - allowing species to become extinct is wrong; possibly rooted in religious views – god gave man plants/animals and charged man with caring for the earth

B. PURPOSE OF ENDANGERED SPECIES ACT: § 2(B) – “The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species….”--Dual purpose: (1) Protect the species; and (2) Ecosystems/habitats that they rely on – habitat part makes the ESA a land-use regulation tool-- this is what makes the statute so controversial – not just protecting the species, but the ecosystems that they use which is an intrusion of land-use regulation (most endangered species are on private land and it leads the ESA to regulate what private people can do on their lands)

II. THE ACT Definition of Endangered Species - ESA § 3(6) Any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man.”-- Basically we can kill mosquitoes – along with ticks and cockroaches – some species we are willing to work to protect and others not so much-- in general, threatened species have been extended the same protections accorded species listed as endangered

Gateway through which a species must pass in order to be protected - ESA § 4: If a species is not “listed” pursuant to the requirements set forth in Section 4, the ESA does not apply.Who: Listing decisions are made either by the Secretary of Commerce or the Secretary of the Interior Listing Process: Administrative rule making process (public comment, notice, etc.), so there is incentive for the agencies not to make these determinations (because of the accompanying hassle)BUT § 4(b)(3) allows citizens to petition to force a listing determination.*Fish & Wildlife Service (FWS) administer ESA for species under jurisd. of Sec / Interior & National Marine Fisheries Service (NMFS)→ ESA → Sec of Commerce

Review of Federal Actions - ESA § 7 – requires all federal agencies to carry out programs to conserve endangered and threatened species Similar to NEPA; Section 7 addresses federal action and provides that the actions of federal agencies cannot “jeopardize” the continued existence of any endangered or threatened species or result in the destruction or adverse modification of such species’ critical habitatsPrescribes steps Fed. Agencies must take to ensure actions don’t jeopardize species- Consultation → Issue finding - If finding of jeopardy or adversely affect- Sec. suggest “reasonable & prudent alternatives”- Potential Actions after finding of jeopardy- Terminate the Action; Implement the Proposed Alternative; Seek exemption

Unlawful to “take” any endangered species - much broader than § 7 because it applies to public and private actorsESA § 9- prohibits sale, import, export, or transport of any species listed as endangered“Take” is defined very broad - Section 3(19) to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.” (note, includes attempt)-- If you have a dog chasing an endangered species around the yard that is harassment, but what if the dog is not very good at it, has the intent but is not very good, attempted harassment is still a “taking”- Harm is a broader concept

A. WHEN IT APPLIES IT IS THE MOST POWERFUL ENVIRONEMNTAL STATUTEi. TVA v. Hill (1978) (HUGE CASE & Prof. Case Likes It!!) - Dam construction started; project was halted temporarily

in 1972 when Enviro Defense Fund obtained an injunction requiring an EIS under NEPA and in 1973 the injunction was lifted, but by that time the ESA was passed and law students at TN petitioned to get snail darter on endangered species actThis case is about § 7 jeopardy provision – the dam’s action is going to jeopardize continued existence of snail darter

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Thompsonwhich is now listed under § 4 as an endangered species- TVA argues that act shouldn’t apply bc dam construction started prior to ESA’s passage;Court rejects this argument – Construction doesn’t trigger the statute, but rather the turning the dam, which will take place after the act was passed, thus jeopardy will occur well after the Act’s enactment

- The Act doesn’t give the court the authority to weigh benefits of protection against the utility of the proposed “taking” in order to determine if species should be protected; The court said that even if they could partake in that balancing, Congress said biodiversity “literally incalculable” so even $100 million investment in the dam wouldn’t be enough

1. Note 1 – balancing is repudiated – Congress’s mandate is to provide absolute protection and that precludes any sort of Court balancing

2. Note 3 (remember Stryker’s Bay) – statute is not particularly ambiguous – after oral arguments a 5-4 against snail darter became a 6-3 in favor

3. Notes 4, 5, and 6 – tell the story after TVA v. Hill -- Congress amended the act to include the God Squad – collection of agency heads that can evaluate exemption requests (this is used sparingly). Committee is authorized to grant an exemption if it determines that: (1) there are no reasonable and prudent alternatives to the federal action; (2) the action is in the public interest ona regional or national basis; and (3) the benefits of the action clearly outweigh the benefits of alternatives that do not jeopardize preservation of the species. - TVA was the first company that petitioned for an exemption, but the exemption was rejected because the dam itself had no particular need or demand, thus did not warrant an exemption.

4. Prof Case – if story would have been about farmland and farmers instead of this quirky, weird endangered fish the case would have probably received a different public perception

5. Note 7 - In 1980 congress exempted dam from ESA –it got turned on and its in operation now --- attempts were made to relocate the species and they were found to live in a new area

III. FEDERAL AUTHORITY – ESA IS VULNERALBE TO A COMMERCE CLAUSE ARGUMENT a. Congress’s Commerce Clause Authority for Regulation: Was ESA a proper use of CC authority?

i. Lopez (1995) – state couldn’t show that possession of a gun near a school would have a substantial effect on interstate commerce. Court held that Congress has the authority under the Commerce Clause to regulate three areas: (1) channels of interest commerce, (2) instrumentalities of interstate commerce or persons and things in interstate commerce, and (3) activities that have a substantial affect on interstate commerce

ii. Nat’l Ass’n of Home Builders v. Babbitt (1997) - Dehli Sands flower-loving fly lived only in a small area of California; its habitat did not cross State boundaries; the Fish and Wildlife Service (FWS) determined that the fly was an endangered species, and its habitat was a critical habitat; hospital had worked out a deal with FWS, but San Bernadino then tried to redesign a highway to improve access to the hospital. FWS determined that this was constituted a taking of the fly, in violation of Endangered Species Act §9(a).- Trial Court found FWS had authority to regulate the fly because botanists traveled across State lines to visit the fly's habitat, the fly was involved in interstate commerce, and the Commerce Clause applied.- Appellate Court affirmed, but for different reasons - the fly is involved in a 'channel of interstate commerce' bc the prohibition against takings of an endangered species is necessary to enable the gov. to control the transport of the endangered species in interstate commerce. Citing Heart of Atlanta Motel (1964) - if interstate commerce feels the pinch, it does not matter how local the operation which applied the squeeze. ESA in general can be construed as 'substantially affecting interstate commerce' because of the importance of the continuing availability of a wide variety of species to interstate commerce. "ESA substantially affects interstate commerce: (1) provision prevents destruction of biodiversity and thereby protects current and future interstate commerce that relies upon it & (2) provision controls adverse effects of interstate competition."Attempted arguments:(1) Use of channels of interstate commerce BUT intrastate activity and the fly is not being transported anywhere(2) Instrumentalities of interstate commerce BUT again there’s no movement here(3) Utilitarian argument – potential value of this fly is an option value – don’t know what the actual value is, we know it’s greater than zero BUT greater than zero does not mean it has a “substantial” effect – we need to show in the here and now there is a substantial effectJudge Henderson → ESA protects the fly’s habitat, not just the species. **Remember the dual purpose; if we focus on protecting not only the species but also the habitat (pretty prime real estate) that may be where you can find your effect on interstate commerce

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Thompson The substantial effect on commerce can be found in the regulation of land use - i.e. construction of the hospital will have economic effects on interstate commerce; i.e.- protection has impact on land development, land development has a substantial interstate impact.

iii. Morrison (2000) – same Lopez 5-4 majority. Congress’s commerce power is far broader when economic activity is regulated but, you can’t just say something is economic activity when it is not, i.e. it’s economic just because it has some affect on economic activity;•Although there is no “categorical rule against aggregating the effects of any noneconomic activity” in order to justify federal regulation under the commerce power, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”

iv. Gibbs v. Babbitt (4th Cir): Supreme Court denied cert - FWS extended “takings” prohibition to cover experimental red wolf populations. Group of farmers & ranchers challenged authority of Fed. Gov’t to protect red wolves on private land1st Question: How is this case reconcilable w/ Morrison? i.e How is activity economic?-- “Takings” themselves would be economic activity, so regulation of such would be a regulation of activity - thus Morrison is not a problem; Commercially valuable livestock & crops @ issue → So economic - - This is actually “reverse economic activity.” Taking them protects property that is economically valuable.2nd Question: Is Lopez is satisfied?: (Is the effect substantial?): Tourism - people cross state lines to hear and see the wolves; Scientific research - doesn’t really explain this; Possibility of a renewed pelt industry in the future - Scientific research and pelt industry seem like pretty weak arguments - it seems probable that the court was just trying to add stuff to bolster its tourism argument (spaghetti approach - throw stuff against the wall and hope some of it sticks); Interstate Markets for Agriculture Products & Livestock

1. Morrison- dealt with an economic activity; Gibbs ruled wolves are economic activities because (1) tourism, (2) research, (3) possibility of fur pelts, and (4) negative impact agricultural products and lifestyle. Possible arg. people traveling to see these rare species – using interstate highways and hotels

2. Note 4: 3. Note 9: Gonzales v. Raich – this case has made it far less likely for ESA to face a problem; Medical marijuana

case. Regulating intrastate activities that do not themselves substantially affect interstate commerce may be necessary if the failure to do so would leave a gaping hole in a larger, comprehensive regulatory scheme that does regulate interstate commerce. Cf. sec. 9 of ESA – even if some aspects of 9 are getting at some sections that don’t affect interstate commerce they are part of a larger scheme (i.e. largely getting at trade)

-------------------------------------------------In analyzing a case, to see if it exceeds authority delegated by Congress:Lopez (1995) – state couldn’t show that possession of a gun near a school would have a substantial effect on interstate commerce. Court held that Congress has the authority under the Commerce Clause to regulate three areas: (1) channels of interest commerce, (2) instrumentalities of interstate commerce or persons and things in interstate commerce, and (3) activities that have a substantial effect on interstate commerce (preponderance of the evidence – usually needs a quantity - it cannot just be an effect, it needs to be substantial). *Only need to show that one is applicable

1. WHICH SPECIES ARE PROTECTED § 4 - gateway of ESA through which an “endangered” or “threatened” species must pass in order to be protected. If a species is not “listed” pursuant to the requirements set forth in Section 4, the ESA does not apply.- The act provides powerful protections to species, but only those species that have been listed as endangered or threatened by the Secretary of the Interior

a. LISTING PROCESS:•Secretary of the Interior designates the Fish and Wildlife Service (F&WS) to make Sec. 4 listing decisions•Secretary of Commerce designates the National Marine Fisheries Service (NMFS) to make Sec. 4 listing decisions•The ESA requires the Secretary (through its designee) to act on a citizen petition to list a particular species under the Administrative Procedures Act•The Secretary has 90 days to decide whether a citizen petition makes a substantial case for listing a particular species•The Secretary has a year to decide whether to proceed with a listing•The Secretary can postpone action upon certification that the listing cannot be timely processed because of the press of other pending listings•These duties and deadlines can be enforced by citizen suit

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Thompsoni. N. Spotted Owl Case – refused to list the owl as endangered because of lobbying pressure that critical habitats will subsume

too much property and this property will affect logging, which was a major area activity. Fed. Courts overturned their decision as arbitrary and capricious

ii. As of today the number of listed species are 1,990 and of that 1,193 were animalsListings increased under every president since Ford, but drastically declined under George W. Bush. Reaga n32 per year, George HW Bush 59 per year, Clinton 65 per year, George W. Bush 8 per year; appear to have increased under Obama – 99 new listings, 51 of which are animal since June of 2009

b. AFTER LISTED, THEN MUST ANALYZE CRITICAL HABITAT DESIGNATIONS- Listing decisions trigger requirement to designate critical habitat and they are necessary to afford listed species the protections against federal actions that jeopardize them, and against private or public actions that “take” them.•When a species is proposed for listing as endangered or threatened under the ESA, the agency must consider whether there are areas of habitat essential to the species’ conservation•“Critical habitat” is defined in ESA § 3(5) as specific geographical areas essential for the conservation of threatened or endangered species and that may require special management and protection (including areas not currently occupied by the species but that will be needed for its recovery).

i. N Spotted Owl v. Hodel (1988) – another lawsuit forced the habitat designation – allocating 7 million acres which greatly affected the logging industry

ii. Recent numbers on critical habitat designations: As of May 2000, only 150 critical habitat designations for 1,231 species; by June 2003, less than 400 critical habitat designations had been made; As of Aug 2004, critical habitat designations had been made for only 36% of species; then Bush Admin suspended new designation of critical habitat in May 2003; they are once again being made under Obama admin; As of May 2009, 523 total critical habitat designations had been made, As of Nov. 2011, F&W lists 610 total species including plants with critical habitat designations. This is 30.6% of all listed species

iii. Why the Slow Pace? F&WS explanation: (1) Backlog of listing and listing is more important; (2) we aren’t convinced that designated habitats do much good anyway (but they do not provide any statistics or basis for this). •Why hasn't the Service designated critical habitat for more species?After a Congressional moratorium on listing new species ended in 1996, the Service faced a huge backlog of species needing to be proposed for listing as threatened or endangered. For this reason, a relatively low priority has been assigned to designating critical habitat because the Service believes that a more effective use of limited staff and funding has been to place imperiled species on the List of Endangered and Threatened Species.•Additionally, the critical habitat designation usually affords little extra protection to most species, and in some cases it can result in harm to the species. This harm may be due to negative public sentiment to the designation, to inaccuracies in the initial area designated, and to the fact that there is often a misconception among other Federal agencies that if an area is outside of the designated critical habitat area, then it is of no value to the species.

iv. De-listing decisions – goal of the act is to eventually get species off the list not by going extinct obviously, but because they’ve recovered. Recently American eagles were de-listed, certain gray wolf species. De-listing decision is like the listing decision in reverse.

v. §7 and §9 still apply for those listed species that do not have designated critical habitats

2. REVIEW OF FEDERAL ACTIONS § 7 - “Each Federal agency shall … insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined … to be critical…. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.”

-- Jeopardy: an action would “jeopardize” a species if it “reasonably would be expected to reduce the reproduction, numbers, or distribution of a listed species to such an extent as to appreciably reduce the likelihood of the survival and recovery of that species in the wild.”

a. THREE STEP PROCESS for determining if an action is likely to jeopardize a species: Step One - The agency proposing to act must inquire of the reviewing agency (F&WS or NMFS) to determine whether any threatened or endangered species are in the area of the proposed federal action. Step Two - If so, the agency proposing to act must prepare a biological assessment to determine whether any such species is “likely to be affected” by the action. [This biological assessment can be included in an EA or EIS under NEPA.]Step Three - If the biological assessment determines a species is “likely to be affected,” the agency proposing the action must formally consult with the reviewing agency (FWS or NMFS); The reviewing agency must produce a biological opinion on

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Thompsonwhether the proposed action will jeopardize the species or destroy or adversely modify critical habitat. -- If a finding of “jeopardy” is made, the action cannot go forward unless the reviewing agency can suggest an alternative that avoids the ESA violations.-- If a finding of “no jeopardy” is made, the action can go forward but the reviewing agency may still require measures to minimize any impact (mitigation of harm to the species);

i. Thomas v. Peterson (1985) - Forest Service argues that missing Step 1 was a de minimus violation; court says you missed step 1 AND step 2 (if you knew there were endangered species you should have proceeded to step 2. Missing step 2 cannot be a de minimus violation because then you never get to Step 3. Step 3 is the important part. Attempts to say we rigidly enforce procedural requirements of NEPA, but that’s because there’s no substantive provisions and ESA has substantive provisions so we can enforce the procedural requirements less stringently. The court says that it would cut the other way, if there are substantive provisions then we should enforce procedural requirements more stringently.

Note 1: asks several questions that are intended to compare ESA § 7 to NEPA processSimilarities: Proposed federal action requires review and information gathering Both assess the impact Both processes produce similar results: EA and biological opinion

- Peterson quote: •“The procedural requirements of the ESA are analogous to those of NEPA: under NEPA, agencies are required to evaluate the environmental impacts of federal projects “significantly affecting the quality of the human environment”; under the ESA, agencies are required to assess the effect on endangered species of projects in areas where such species may be present. A failure to prepare a biological assessment is comparable to a failure to prepare an environmental impact statement….” Prof Case doesn’t agree with the last sentence – if you do ESA asking if there’s a significant impact then that leads to more substantive analysis – biological assessment relates to environmental assessment, and . . .

Differences: ESA leads to substantive outcomes, if there is jeopardy then you cannot do it; NEPA we identify significant

environmental impact, but it’s your call; NEPA doesn’t stop you Agency who does ESA review is not agency in control of the process like NEPA - less objective & under NEPA,

agency proposing the action is the one doing the assessment ESA is a superior review processNote 2: Secretary of Interior, who is responsible for protecting freshwater and terrestrial species, has delegated his responsibilities under ESA to FWSNote 3: 1993 article analyzes opinions & concludes that the FWS reviews aren’t very rigorous and maybe we don’t have as independent a review as we think we do. Regardless of right or wrong, just note there’s some questioning on how rigorous the review is.

ii. Nat’l Ass’n of Home Builder v. Defenders of Wildlife (2007) – CWA and ESA conflict – both statutes appear mandatory (“shall” language). Issue: Does the transfer of EPA authority to administer a state’s NPDES permit program require consideration of the potential “indirect impacts,” caused by the issuance of individual permits by the state, under ESA § 7(a)(2) consultation requirement; or must the EPA only consider the nine specified criteria under CWA 402(b)? In short, whether § 7(a)(2) operates as a 10th criteria under CWA 402(b)

Chevron Step 2: EPA regulations interpreted as only applying to discretionary federal actionWhere the agency action is mandated, such as action like NPDES permitting transfer authority, § 7(a)(2)’s no-jeopardy duty does NOT attach§ 7(a)(2)’s duty only attached for discretionary agency action - Ex. TVA v. Hill dam-building was discretionary- If you say they have to think of § 7 that would be a 10th criteria and you can’t do that. Prof Case says this is a completely defensible position. - In most situations there won’t be a problem/conflict and when there is there should be a joint analysis; prof. case finds this to be kind of a close decision. The bottom line is that the majority determines is tha t§ 7 could be a problem but it doesn’t affect the CWA because it would basically write something into CWA that’s not there.

Steven’s Dissent - argues that the majority does not give full effect to §7 and just limits its reach, which is inconsistent with both the text and history of §402.03 and the ESA itself. - Intended effect of §7 should follow TVA v. Hill which should give endangered species priority over missions of

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Thompsonfederal agencies.- 2 ways to give CWA and ESA full effect without privileging one statue over the other: (1) majority was too quick to say that ESA provided a 10th requirement. Even in the face of conflict between the ESA and another federal statute, the ESA nonetheless encourages working out a reasonable alternative that would allow an agency to move forward while still not violating §7. Here, the alternatives process would develop a substitute option for the NPDES transfer program to still take place as required by §402b of the CWA to still honor §7 of the ESA. (2) Even after EPA has transferred NPDES permitting authority to a State, the agency continues to oversee the State’s permitting program. The EPA can require a state to enter into a Memorandum of Agreement (MOA) before the transfer that would require States to abide by the ESA when issuing pollution permits.

Carson-Truckee Case - § 7 (a)(2) is not the only § 7 section there is take a look at § 7 (a)(1) – Ps wanted sec of interior to sell them water from a reservoir, but sec says there are endangered species that depend on that water and this wouldn’t jeopardize them, but it would hurt us in our efforts to recover them. Court upholds secretary’s decision – affirmative obligation to promote species’ recovery.

iii. Thomas v. Peterson: Ds failed to inquire with reviewing agency.Ps: can’t determine likelihood of threat without meeting procedural requirementsDs: no need for strict adherence to procedures.Court: stricter substantive provisions require strict procedural compliance; Can’t get to substantive requirements without first meeting procedural requirements

iv. NEPA & ESA § 7 Similarities: (1) Proposed federal action requires review and information gathering; (2) Both assess the impact; (3) Both processes produce similar results: EA and biological opinionDifferences: (1) Agency who does ESA review is not agency in control of the process like NEPA where agency proposing action is the reviewing agency -less objective. Under NEPA the agency may proceed even if finding ga significant impact, whereas under ESA the action cannot proceed if jeopardy is found. Thus ESA requires substantive obligations **ESA is a superior review process

3. ESA § 9 “Takings” -Applies to both Fed. action & Private persons;(a) Generally (1) …with respect to any endangered species of fish or wildlife listed pursuant to section [4] of this title it is unlawful for any person subject to the jurisdiction of the United States to –

(A) import any such species into, or export any such species from the United States;(B) take any such species within the United States or the territorial seas of the United States;(C) take any such species upon the high seas;(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C);(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity, any such species;(F) sell or offer for sale in interstate or foreign commerce any such species; or(G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section [4] of this title….

i. Breadth of § 9 comes in w/ the broad definition of “take” - ESA § 3(19) – “The term `take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

ii. Public & Private Land§ 9 applies on either. p 990 - - Influences the breadth

iii. “Harm” Definition under § 9 “take” - Secretary of the Interior Regs. define “harm” - “an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.”

iv. Palila cases: p.988 - Good debate about how far this concept can be taken;- Dist. Ct. in Palila determined that harm included preventing the recovery of the endangered bird;- In Padila II, the 9th Cir. said that it didn’t reach that issue because the habitat destruction in question would result in extinction, not just retardation of recovery;

v. “Incidental” takings: ESA § 10(a) “The Secretary may permit, under such terms and conditions as he shall prescribe – … any taking otherwise prohibited

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Thompsonby section [9](a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”Habitat Conservation Plan (HCP) - Permitee must prepare and follow a HCP to minimize the impact of the taking & assures that it “will not appreciably reduce the likelihood of the survival & recovery of the species in the wildPassed in recognition of the fact that almost any action could be determined to be an incidental taking;

vi. Babbitt v. Sweet Home Chapter of Communities - Complaint alleged that harm was interpreted too broadly to mean interfering with the species activity by the agency; D.C. Circuit held that the regulatory interpretation went too far → harm should at least be construed to mean direct physical harm; USSC overruled D.C. Circuit, upholding the regulation:Reasons – Chevron Step Two:

1. If “harm” didn’t include direct harm AND indirect harm, there would be no need for the statutory provision of a process for permitting of incidental takings; (§ 10)

2. “Broad purpose” of the ESA - purpose is to protect endangered species; Also, TVA v. Hill previously recognized that the ESA protected habitats and ecosystems; protection of habitats is fundamentally a prevention of indirect harm to the species - thus, the Court had already upheld defining “harm” as including indirect harm;

3. Dictionary definition doesn’t limit “harm” to only direct harm; If dictionary definition doesn’t limit, why should it be assumed that Congress intended to limit the definition.

4. Problem then is determining the consequences of conclusion that indirect harm is included in definition of “harm” - how far is this going to go; (Direct v. Indirect Harm sufficient)O’Connor and Scalia disagree about this;Scalia: If harm is read to include this type of harm, there is rarely going to be activity which won’t harm an endangered species in some way; - No causation requirement - only cause in fact is required; so, it is possible that liability could extend way back to some small action which ended up harming a population of species in the future; - Case - Basic conceptions of Strict Liability have always incorporated an element of “foreseeability” “Scope of Risk” Case likes this test better for proximate causation over the “remoteness” test.O’Connor: Harm requires actual injury or death to the species; Can be directly caused or indirectly caused, but it must eventually lead to extinction; There is still proximate cause requirement - injury caused by action must within the scope of the risk created by actor’s conduct; Even strict liability requires proximate causation - think about the classic Mink farming case from first year torts;

vii. Gov’t Burden of Proof for “Harm” → Note 3 p. 999 Habitat modification will lead to actual injury or death to the species - i.e. Justice O’Connor’s view. Probably have to incorporate proximate cause and foreseeability inot the analysis to try to determine where the line is drawn.

ENVIRONMENTAL ENFORCEMENT Survey – 2/3 of companies surveyed admitted their companies recently violated environmental laws - maybe cause the

laws are complex (companies might not understand) and voluminous (companies might not know) or they don’t perceive a high risk of getting caught or if caught, not a very high penalty.

Enforcement Efforts Ex: 4 speeding tickets Prof Case changed his behavior – didn’t slow down, just avoided that road

A. Self-Auditing/Reporting (need to create incentives to for people to voluntarily comply w/ environmental laws): In response to concerns that self-audits could generate info. that would make it easier to prosecute companies, several states have enacted laws making the results of such audits privileged information:- Some state have even given blanket immunity (from penalties and fines - not costs of cleanup and other obligations) for violators who self-report violations; - EPA seriously disapproves of blanket immunity; May allow culpable people to just violate w/out repercussion, until they think they are going to get caught - at that point they can just self-report and avoid fines and penalties

a. EPA’s Incentives: Reduced civil and criminal penalties for violations discovered through regular environmental audits if self-reported and promptly corrected & greater benefits for discovering violations through environmental audits or other system procedures- Encourages companies to make environmental audits a regular part of operations;- Discourages companies from disclosing violations only after they believe they are about to be discovered

i. Gravity-based penalties - punitive, over and beyond the economic benefit realized by the company via non-compliance

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Thompson- For violations discovered through systematic means are reduced by 100%- For violations discovered through other, non-systematic means are reduced only 75%- Criminal penalties are eligible for waiver if violations are discovered either through systematic or non-systematic means (i.e. regardless of how the violation was found).§d3 prompt disclosure ( used to you only had ten days) now the definition of prompt disclosure is 21 days –u don’t want ot report a compliance problem to reg. authorities too quickly bc you need to consult w attorneys on the best way to tell them (maybe correct them before you report it)

b. EPA policy: compliance incentives for small businesses (100 or fewer employees) - small businesses are often affected disproportionately by Env. Regs., so the EPA will forgo all penalties – including recovery of the economic benefit of violations – for small businesses that make “good faith” effort to comply either through environmental self-audits or receiving on-site compliance assistance

c. EPA policies only cover voluntary discovery; excludes violations identified through legally required monitoring;i. Violations reported prior to “imminent discovery of the violation by a regulatory agency” are not given

benefit of the policy;ii. Also, violations which cause actual harm to the environment or endangerment to human health do not receive

the benefit.d. Note 1:e. Note 2: Exxon valdez qualified for reduced penalties – all kinds of reasons why they wouldn’t – given sudden events

discovery was relatively imminent; also §d(8) – if no harm then you don’t get any benefit from the policy (**Remember when we regulated enviro conduct through tort, injury was required; but under regulatory system – injury is not part of it, non-compliance is failure to meet regulation and all you have to show is obligation applied and it wasn’t met, you don’t have to show it actually harmed the environment

B. Enforcement Authorities:a. Sierra Club v. Cedar Point Oil: (5th Cir.) - the statutes contain maximum penalty provisions, but these aren’t the

same as what is enforced by the district courts- CWA § 309(d) requires that courts consider the following factors in determining civil penalties for violations:(1) seriousness; (2) economic benefit; (3) violator’s history of such violations; (4) whether the violator made good faith efforts to comply; (5) the economic impact of the penalty on the violator; and (6) requirements for justice.

So first calculation is that of the maximum penalty; “First, calculate the maximum penalty that could be assessed against the violator. Using that maximum as a starting point, the court then determines if the penalty should be reduced from the maximum by reference to the statutory factors.”- Court then looks to the factors to determine if the penalty should be reduced from the maximum; - In this case, the maximum was 809 days of unlawful discharge TIMES $25,000 per day maximum fine = maximum penalty of $20,225,000;- Court then went on to the factors to see how this max. figure should be reduced: Moderately serious; economic benefit of $186K; Violators history of such violations: should imply whether the violator is a reoccurring violator; Good faith efforts to comply: → NOEconomic impact of the penalty on violator – Intended to ask what penalty can be imposed w/out putting the company out of business while deterring it from repeat violations; district court just says that they can afford it the penalty, but fails to determine what size penalty is needed to deter future violations and sufficiently punish the violator;

5th circuit → No Abuse of Discretion by Dist. Ct. This is really a bad result; no real analysis of the factors and the factors actually seem to go against the violator, but the district court didn’t give any weight to the factors;**Note that this company actually comes out better in this case than if it had self-reported the violation.

b. Federal/State Enforcement Harmon Industries: “Overfiling” IssueRCRA Delegation/Authorization of state Program:- § 6926(b) – if a State has been authorized by EPA “to administer and enforce a hazardous waste program”, the “State is authorized to carry out such program in lieu of the Federal program in such State and to issue and enforce permits under [RCRA]”;- § 6926(d) – “any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter”;

Issue: whether the EPA has the authority to “overfile”, which is a policy that they have always had; Overfilling implies

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Thompsonthe EPA taking enforcement action on its own when it does not believe that a state has adequately addressed certain violations, even where the state has an authorized state program;

RCRA’s federal enforcement provisions: § 6928(a)(1) – “Except as provided in paragraph (2), whenever … the [EPA] determines that any person has violated or is in violation of any requirement of this subchapter, the [EPA] may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the [EPA] may commence a civil action in the … district in which the violation occurred for appropriate relief….”RCRA § 6929(a)(2) – “In the case of a violation of any requirement of [RCRA] where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 6926 …, the [EPA] shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section.”

RCRA’s provisions for refusal of authorization of withdrawal of authorization:§ 6926(b) – authorizes EPA to reject application from State to administer and enforce RCRA if determined that the State program “does not provide adequate enforcement of compliance”§ 6926(e) – allows EPA to withdraw authorization of State if it “is not administering and enforcing a program authorized under this section in accordance with the requirements of this section”

8th Circuit’s holding in Harmon: §§ 6926 & 6928 when read together mean the following:- An authorized State has the primary enforcement authority for RCRA violations in that State;- If the State’s authority to administer and enforce RCRA is rescinded by EPA, then the State cannot act and EPA can;- If the EPA has given notice to an authorized State under § 6928(a)(2), and the State fails to initiate any enforcement action, EPA can then institute its own enforcement action.;

State program, under EPA authorization, supplants federal administration authority, which includes enforcement; Plain meaning of statute implies that EPA can’t also enforce RCRA in a state which has been authorized; if the EPA doesn’t think a state is doing enough or is going to do enough, it can refuse authorization or withdraw authorization, respectively;

What’s the problem w/ this result? The state can pretty much just hold the EPA hostage - how long does the EPA have to wait on the state?

10th Circuit rejects Harmon’s interpretation in every aspect - EPA has the authority to overfile under RCRA; No other circuit has answers this question.

Harmon result doesn’t apply to CAA: 42 U.S.C. § 7413(e) – “in determining the amount of any penalty to be assessed under this section …, the court [] shall take into consideration … payment by the violator of penalties previously assessed for the same violation”. The statutory language directly indicates that EPA has the authority to overfile.

C. Criminal Enforcement: (this is where the serious deterrence is supposed to be)**Tension: criminal law is traditional and long-established – mens rea (intent) what is and is not criminal and culpable intent and usually specific intent is required, but that could make enforcement very difficult - -- big questions on allowing relaxed standards for environmental enforcement

a. Weitzenhoff (1994) (not every circuit follows Weizenhoff – general intent is not always good enough) - Sludge discharge from holding tanks into ocean to bypass the effluent sampler. The managers get caught and are criminally charged § 309(d) of the CWA for knowingly violating the act; get sentenced to prison.

Their argument: what is knowingly violate mean? (Case: “They knew what they were doing – they didn’t rob the bank accidentally, so to speak”). They say they knew they were polluting, but they didn’t know they were polluting in excess of their permit.

Government: don’t have to know you violated the permit, only have to know that you took violative actions

Issue: specific criminal intent v. general criminal intentCourt concluded that the prosecution only has to prove general intent BECAUSE: policy – these are under the public welfare offense doctrine (kind of like SL)– supreme court says these present such a great risk to public welfare that the court will presume knowledge of those legal requirements bc of being engaged in this dangerous area quoting us v international minerals – obnoxious waste materials are involved – outcome is so deleterious that

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Thompsonanyone involved must be presumed to know the outcome p. 1044

5 judges write dissenting from the order rejecting the suggestion for rehearing en banc - concern about making innocent conduct criminal now - making felons out of people with innocent mindsets.- Why dispense with mens rea? Remove reasonable doubts from mind. Don’t have to demonstrate that they

knew EXACTLY what the permit level was. That would give a good defense attorney room to work. *malum prohibitum: wrong because it is against the law. Wrong because a statute makes it so vs. malum in se: inherently, morally wrong; people know they are wrong.

- **There are risks of going way too far and this is why we have specific intent statutes (it shouldn’t be easy to put someone in jail)

- Note 4: p. 1050. 5th circuit case –distinguished Weitzenhoff - D thought he was discharging water instead of gasoline. Didn’t have to prove he knew he was discharging gasoline, but just that he was actually discharging gasoline (general intent – D was intentionally engaged in conduct, but not that he knew the conduct was a violation of the law). HOWEVER, mistake of fact was a valid defense, if provable. i.e. DUI – not a defense to say “I thought I was okay” – your defense could be the machine wasn’t calibrated but not that you didn’t think you were drunk

- Note 5: general electric v. EPA – another help to D – DC circuit held D must have fair warning of interpretation – if the law was vague or unclear and didn’t have fair warning of what it does or doesn’t prohibit that’s a defense

- Note 6: who really knows requirements – the managers – they know bad things are happening, but don’t know the details, so in a specific intent environment they need actual knowledge of permit limits, not impossible, but it’s going to be harder and the jury could be confused

- Note 7- Note 9: S.C. declined to grant cert on Weitzenhoff and the note discusses second circuit case with same result –

Sp ct hasn’t taken up the issue of general intent mens rea requirements in environmental cases- Note 1: 1044 – 10 the circuit said authority === split bw 8th and 10th but supreme court hasn’t resolved i

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Documents

mississippilawjournal.orgmississippilawjournal.org/.../07/Enviro-Case-KT.docx · Web viewEconomists recognized a direct correlation bw release of info ... Means a concise public