Environmental Law Outline

Part 1: Introduction

I. Background a. Environmentalism- view that unrestrained modification of natural systems through resource

exploitation and development and the unchecked application of technology has substantial, accelerating and potentially adverse consequences for humankind

i. Society should value ecosystems intrinsically (for their own sake) or for the beneficial services that they provide to humans

ii. Environmentalism encourages the weighing of resource demands against the ability of ecosystems to withstand pressures of use and development

b. Environmental Law: Body of law that seeks to reduce the risk of harm to help the environment. An effort to address risk in light of the uncertainty that surrounds existence, scope or causes of the risks

c. Sax Views of Property Rights: i. Transformative economy perspective- property as existing to be modified and reworked for

human benefitii. Ecological perspective- land and nature are already at work, performing important services

d. Historical Arc of Environmental Lawi. Wilderness and Natural Resource Values: reconciling reckless individualism, exploitation of

resources, then New England transcendentalists reinvented natureii. Conservation and Preservation Movements. Split in Hetch Hetchy dam being built

1. Preservation - Preserve areas of public lands to remain wilderness (Muir) 2. Conservation - progressive effort to reconcile democratic and scientific values

compatible with social Darwinism (Gifford Pinchot) e. Modern Environmental Era

i. Pre-1968: Technological development and progress is always beneficial1. Overlooking long-term environmental repercussions of activities 2. Lack of information on the impacts of development 3. Nature is to be exploited- no intrinsic value

ii. Late 1960s: Growth of suburbs in post WWII suburbia 1. No environmental laws before 1968, growth of synthetic chemicals2. Scientific advancement in understanding impacts of development

iii. 1968-1973: Pollution control technology, NEPA, CAA, CWA1. Democratic Senate, Nixon, competition to be more “green”

iv. 1973-1980: Growth of TSCA to respond to increase in cancer risks 1. Santa Barbra Oil spill in 1969, 2. Availability of new scientific information led to CERCLA, RCRA, SDWA,

development of environmental lawsv. 1980-1988: Environmental bipartisanship began to decrease

1. Increase in globalization, disputes over global commonsvi. 1988-Present: Little environmental innovation

1. Narrowing reach of Oil Pollution Act, CWA2. Court decisions limiting federal regulatory power, CERCLA amendments limiting

liability 3. Industry opposition to regulation (but not subsidies), disconnect between

environmentalism and rationality and our technology-based civilization

II. Economic Analysis a. Goals of Environmental Laws:

i. Harmful conduct that creates no liability for the agent of harm will be produced in excessii. Encourage cost-internalization: People who cause environmental harm are responsible for the

costs associated with that iii. Promote Sustainable Resource Development- Resources society uses shouldn’t deplete natural

resources (clean air and water) so that they will be unavailable in the future

iv. Be Efficient: Achieve a policy goal at the most efficient and effective way possible- efficient pursuit of environmental perspectives

b. Economics can: (1) Explain why harms occur, (2) Justify government intervention when free market won’t produce efficient results, (3) Helps identify the optimal methods for preventing environmental harm

1. Externalities are pervasive and so government intervention is necessary to prevent these externalities

c. Economists Perspectives: i. Tragedy of the Commons- Garrett Hardin

1. Problem of externalities without constraints 2. Difficulty in assigning property rights to air and water

ii. Invisible Hand- Adam Smith’s - What is the optimum population?1. How to solve: Privatize OR Make people liable in damages for the harm that they cause

either in common law or in tort (nuisance) 2. If costs are internalized through damage actions, people will make decisions in

alignment with society’s interests by taking steps to avoid costs of harm on others iii. Government v. Administration- William Ophlus

1. How do you regulate temperance? Complexity of regulating protection mechanisms between competing powers (state/federal/local, courts/legislature/agencies)

2. Small locally autonomous self-governing communities rooted in the land- federal government should only be required for few, clearly defined purposes

iv. Problem of Social Cost - Coase1. Unavailability Perfect Information about market choices

a. So how can we get the information needed for economic models designed to prevent pollution?

b. Could adopt programs that require disclosure (consumer protection to ensure informed choices)

2. High Transaction Costs related to good allocation a. Increases with more involved partiesb. Mancur Olson- high costs of collective action c. Transaction costs will prevent an efficient negotiation of demands, especially if

there are multiple parties involved d. Lack of incentives to disclose information needed to find the optimal solution

(law could require some disclosure) 3. Externalities- Prevent free market from working

a. Negative externality- Burdens imposed on others, cost- avoided by not having to internalize the costs of reducing pollution (doesn’t consider costs of emissions when considering how to price)

i. Human made, un-bargained for negative consequence borne by someone other than the person producing the harm

b. If the price reflects accurately the price of the good- then know the opportunity costs of the resources used to make the good, so we can better make informed decisions

c. Too simplistic to make a regulation that makes people internalize costs- negative externalities are reciprocal, not unilateral

d. Competition between incompatible use of same resource i.

d. Cost Benefit Analysis (page 218-223) i. Almost no EPA regulations mandate use of cost-benefit analysis

1. CBA have been imposed on agencies through executive ordersii. Economics criticizes whether society will benefit or be harmed by regulation- what is the optimal

level of regulation?1. Rational choice is impossible without a full understanding of the consequences of a

decision

iii. Assumptions: (1) You can identify and valuate social benefits (deaths averted and environmental degradation avoided) (2) identify and price the costs (opportunity costs and transaction costs), (3) predict quantitatively the net posture of the activity (net increase in social utility)

1. Some prohibit EPA from using CBA in making regulatory decisionsiv. Criticisms: (1) Cost estimation is very difficult and frequently inaccurate-

1. Big problem with the regulatory agencies relying on regulated communities to give information about costs (industry’s estimates are biased- would always guess too high)

2. What are people’s “willingness to pay” for certain items? v. (2) Difficulty in valuing benefits too- hard to quantify value of future benefits

1. Finding a value of human lives (old v. young people? Disabled?) 2. Discounting of future benefits against environmental protection

a. Better off saving 1 person today than regulating and saving 1 billion people 500 years from now

vi. (3) CBA ignores distributional consequences- should focus on equity as well as efficiency- CBA ignores environmental justice issues

1. OMB estimated that EPA’s regulations cost around $16B but benefited 44 to 233B (reduction in asthma due to improved air)

III. Environmental Law & Ethics a. Issues in Environmental Law: Not clear how imposing limits on areas that have the potential to pollute

will help people (do protections help people or bugs?) i. Not clear what are the causes of adverse environmental affects

ii. Environmental protection can’t be achieved without significant costs iii. Powerful industry groups mostly impacted iv. Some people benefit/are harmed more than othersv. Restrict how private property owners operate

vi. Concerned about the opportunity costs of regulating vii. Do environmental goals conflict with other social goals- energy independence (do we know

enough about trade offs) b. Aldo Leopold- “A thing is right when it tends to preserve the integrity, stability and beauty of the biotic

community. It is wrong when it tends otherwise”c. Land Ethic Theory: Community with interdependent parts, eco-centric viewpoint

i. Responsibilities extend to the protection of resources for future gen’sii. No right to destroy species to satisfy our own consumptive need- moral obligation to protect

rather than destroy environment iii. Leopold encouraged police power to protect environmental resources

d. Green Property Theory: Incorporate the principles of stewardship into the individualistic liberal theories of property

i. Should there be a duty imposed on current generations to protect future generations’ access to resources?

ii. Issues with environmental law and regulation- private property challenges under takings or nuisance weren’t successful

e. Science Magazine: Nature is never in a state of equilibriumi. Allows policy-makers to ID environmental degradation (but not causes)

IV. Common Law a. Statutory/regulatory law has replaced common law in the environmental field

i. Most federal statutes preserve common law remedies, most statutes do NOT create a right to damages created by environmental harm

b. Native Village of Kivalina v. ExxonMobil Corp., 2012 WL 4215921 (9th Cir 9/21/12)i. Village sued utilities and oil companies for contribution to their tribe’s loss of land due to rising

sea levelsii. Lower court said political question, no standing, 9th circuit affirmed

1. Federal common law can apply to trans-boundary public nuisance suits

c. Why to Preserve Common Law Remedies:

i. (1) Without common law, no monetary remedy to be compensated for damages caused by environmental pollution

ii. (2) Common law compensates people for harms that takes place in complying with traditional regulatory approaches

iii. (3) Gov’t agencies aren’t always diligent in enforcing pollution control laws d. Tort Law: Shifts losses from deserving plaintiffs to culpable defendants

i. Elements : Different depending on cause of action, but have to prove (1) liability, (2) causation, and (3) damage/injury.

1. Other needs: duty, near foreseeability, or strict liability ii. Toxic Torts : Current science may not be able to explain derivation of a certain injury (like

unknowns related to cancer) 1. Issues with chemical latency period, many sources of carcinogen exposure

e. Negligence: Most common environmental tort cause of actioni. (1) If harm P suffered arose from an accident where one can make a reasonable accident that

arose from D’s carelessness ii. (2) Remedies sought are only available in a negligence action

iii. (3) Defendant’s insurance covers harms caused by negligent conduct, but not intentional – if they are otherwise judgment proof, could still sue and get $

iv. Elements : Cause in fact, Duty of care, Breach of duty, Proximate cause, and Damage1. Difficult to prove breach of duty- especially if complying with permit

f. Public Nuisance- Good choice if accumulation of injuries by multiple plaintiffs are significant enough to have significant damages

i. Elements : Unreasonable interference with rights common to the general public (health, safety and convenience)

1. Usually filed by government entities (on their own behalf, or behalf of their constituents), but sometimes private individuals can if they have standing (damaged in a unique way besides injury suffered by the public at large- like injury to real property)

2. RST Torts 821(c): Need special injury to get damages for public nuisance cause of action

3. Missouri v. Illinois: Reversed the flow of Chicago river to shift pollution from Lake Michigan to Mississippi watershed, downstream communities sued

a. Multiple sources of pollution- how to prove causation? b. Court found for Illinois- limits of common law of nuisance to deal with diffuse

injuries and risks4. Georgia v. Tennessee Cooper: Wanted to enjoin defendant from discharging noxious

gas over plaintiff’s land – destroying forests and cropsa. Public has rights in access to healthy air and uncontaminated land b. Damages to these resources caused by the D’s air pollution triggered liability-

different rom Missouri v. Illinois because could actually prove what caused damage to forests and orchards (acid rain)

g. Private Nuisance- Limits damage actions to those who suffer harm of a different kind from that suffered by other members of the public

i. Elements: Nontrespassory invasion of another’s interest in the use and enjoyment of land (must be unreasonable and cause substantial interference)

1. When a citizen’s property has been injured by another’s pollution or environmental degradation, private nuisance is a good cause of action (might be limited- can’t sue for aesthetic harm)

ii. RST 821(b): Unreasonable interference if it (1) significantly interferes with the public health, safety or peace, public comfort or convenience or (2) whether the conduct is proscribed by law

1. An interference w/ the use and enjoyment of land is unreasonable if (1) gravity of the harm outweighs the utility of the act’s conduct (826a) OR

2. (2) The harm resulting from the invasion is severe and greater than the other should be required to bear without compensation, but only if the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible (829A – stick D w/ liability if D can pay)

3. Court can impose conditional injunction until factory pays “permanent damages”iii. Definition and Elements:

1. Intentional –D had knowledge or reasonably could have known injury would occura. P has suffered substantial and unreasonable injury to self or propertyb. D’s conduct was a factual cause of that injuryc. D knew or should have known that its conduct was substantially certain to

occur to harm someone like P2. Unintentional – Negligent or Reckless P has to show injury

a. D’s conduct was a factual cause of that injuryb. D’s conduct was unreasonable b/c it breached a duty of care owed to P

iv. Walsh v. Town of Stonington WPCA: Mere fact that an activity is lawful doesn’t shield D from liability if the pursuit of the lawful activity causes harm

1. D claimed that social value is more important than harm, but court refuted b/c there are other factors taken into utility, including mitigating opportunities (utility of activity reduced by the fact that factory is producing noise, smoke and odors without compensating neighbors)

2. Rule: Duty of every person to make a reasonable use of his own property so as not to unnecessarily damage his neighbor

3. Test: Reasonableness of the use of the property in the particular locality under the circumstances

a. Weighing process involving a comparative evaluation of conflicting interests in various situations according to objective legal standards

4. If harm had to outweigh benefit, it would be impossible for Ps to recover for harm – don’t want to concentrate harm on Ps for whole society

v. Petsey v. Cushman: Conflict between neighbors and dairy farm creating offensive odors1. Look at conduct for unintentional and look at injury for intentional nuisance.2. Test: (1) invasion of P’s use and enjoyment of land, (2) D’s conduct was the proximate

cause of the invasion, (3) invasion was either intentional and unreasonable or unintentional and D’s conduct was negligent or reckless 4 RST 2d

3. Look at whether D’s conduct unreasonably interfered, instead of whether D’s conduct was in and of itself unreasonable

4. Bottom line – whether the harm is greater then what P should have to bear, given all of the circumstances, without being compensated

vi. SCOTUS reversed Petsey in American Electric Power Company v. Connecticut 1. Adoption of congress by CAA displaced relevant nuisance law the P was relying on-

FEDERAL STATUTORY PREEMPTION a. Don’t know if CAA preempts state common law nuisance liability

vii. New Rule: Determine need for producer of harm to decide if injunction is property, using the same analysis of determining liability

1. BUT some jurisdictions only apply 826a2. Threshold approach (third approach - majority) , used by SCOTUS– P’s harm is more

than an average person in P’s circumstances w/o being compensatedh. Anticipatory (Private) Nuisance

i. Very high burden – Ps can prevail only if they can show that the harm is almost certain to occuri. Trespass Claims: Traditionally, required physical invasion. In many jurisdictions, strict liability tort.

i. Now : Need intent, foreseeability, and unreasonableness, merging toward private nuisance. ii. Used to not be able to get trespass for air pollution because not “tangible” but not followed as

much today j. Strict Liability Claims: Some states confine more narrowly – require a foreseeability element

i. Rylands – abnormally dangerous uses of land1. RST – ultra hazardous activities (narrower than English courts)

V. Available Common Law Remedies a. Free market environmentalists say no regulation- allow the free market to do it

i. Shouldn’t have regulations, because that disrupts common law remedies

b. Type of common law to be applied determines extent to which Federal statutes replace common law remedies

c. Type of remedy asserted isn’t relevant to the applicability of displacement of common law by federal statute

i. Rule : Preemption derives from supremacy clause 1. Most regulations have a “savings clause” to preserve common law claims2. Federal clean water act displaced federal nuisance (Milwaukee v. Illinois)

ii. No viable federal law tort claims from air or hazardous waste disputes iii. Better for courts to look at state (instead of federal) common law remedies iv. Even though statute allows some activity doesn’t mean victims can’t have a remedy- like Western

Petroleum and Petseyd. International Paper Company v. Ouellette: Discharging pollutants into a river – sued under VT law

i. Rule : CWA preempts state common law- federal legislation was intended to occupy the field, lesser role for states that share interstate waterways

1. State only has an advisory role in regulating pollution that originates beyond its borders 2. Affected state does NOT have the authority to block the issuance of the permit if its

dissatisfied with the other state’s standardsii. Reasoning : CWA statute was unclear about continuing viability of receiving state common law

1. But the state law that frustrates the objectives of the federal law is preempted – allowing states to impose separate discharge standards would interfere with purpose of Congress’ regulation

iii. If state law is enforceable, then an injunction would disrupt that balance, and frustrate the purpose of the CWA BUT permit doesn’t shield holders from common law challenges for nuisance and other causes of action – forcing someone abide by more strict standards doesn’t frustrate balance

1. Don’t want to let Vermont to do indirectly what it can’t do directlya. Indirect- common law injunctionb. Direct- Forcing NY company to get a VT permit to pollute

iv. Holding : Common law of receiving state was preempted by the Clean Water Act if enforcing against an out of state source (VT nuisance law inapplicable to NY polluter)

1. Is plaintiff here without remedy? NO! Plaintiff can sue in NY State Court, Federal District Ct. in NY, Federal District Ct. in Vermont (as long as they apply NY state law)

v. Glicksman: P would probably not be in worse position in terms of NY nuisance lawvi. Goal: Promote efficiency and predictability so that NY polluter can rely on the validity of its

permit, and not worry about common law actions

VI. Public Trust Doctrine a. Derived from English common law decisions that saw navigable waters as “held in trust” by the

government to protect the public rights of fishing and recreationi. SCOTUS recognized in Illinois Central

1. Enjoyed state legislature from conveying underwater land on Chicago’s waterfront to a railroad – sale of land violates public trust

ii. Inherent limit on state’s from acting in a manner contrary to the interests of the people 1. Light v. US: Congress should determine how the public trust is administered, but

prevents states from selling public trust rights b. Way to protect natural resources against environmental degradation

i. But trust is limited- only covers government entities (useless if activity causing environmental degradation is being conducted by private entities

ii. Cases that recognize public trust doctrine historically related to protection of navigable waters (does it extend to other sources?)

c. Joe Sachs- Decisions about all publically held resources (not just navigable waters) have important long-term consequences that legislative decisions to sever them from the public trust should only be made after full legislative consideration of the consequences

d. Other views: Public trust doctrine should be substantive, not procedurali. Government should prefer environmental protection over developmental use of resources

whenever there is a conflict

e. National Audubon Society v. Superior Court of Alpine Countyi. Audubon enjoined further diversions of water claiming it violated the public trust doctrine

1. Holding: Public trust applies to the states navigable waters, including tributaries that fed Mono Lake, and the public land underneath the flowing water- found for Audubon Society

2. Remanded back to State Water board without a specific mandate to find specific levels, but just to – procedural view (Sachs)

3. State has an affirmative duty to “take the trust into account” in the planning and allocation of water resources- procedural view

4. BUT state “must preserve uses” – more substantive viewa. Duty to protect public trust when feasible – substantive

f. Uses: How do you know when a use violates the public trust doctrine?i. Better to use the procedural element, leave it to the political process to find what substantive

result best protects the public interest g. Public Trust and Climate Change:

i. Argues that the court should recognize the “atmospheric trust” doctrine – court should hold local, state and federal government accountable for reducing emissions that damage atmosphere

ii. Fiduciary obligation to protect atmospheric resources so that they remain available for future generations

VII. Risk Assessment a. Environmental Risk: The probability that a particular activity will cause harm to health or the

environment multiplied by the severity of the harm if the occurs (Risk = Probability x Severity) i. Experts measure by HAZARD FACTOR: expected annual mortality,

ii. Lay people measure by OUTRAGE FACTORS (751): Does it more commonly happen to poor people? Children or old people? Is the risk voluntary or not? Preventable or not? Reversible or not? Diffuse or concentrated? Chronic or catastrophic?

b. Uncertainties: (1) Link between activities and a set of harm identifiedi. Has harm occurred? Where? Why?

ii. (2) Uncertainty about the existence/scope/cause of c. Risk Assessment: Which harms are worthy of a societal response? {WHAT}

i. Risk assessment question- Is a risk is serious enough to warrant action?1. (1) Identify the hazard, (2) Exposure assessment, (3) Dose response assessment, (4) Risk

characterization 2. Functions: (1) Screening mechanism by helping to guide regulators in making decisions

on which substances and activities merit regulation- what deserves attention, (2) Prioritizing mechanism by helping decide which risks demand attention first

3. Issues: Can have false positives (think its risky and its not) or false negatives (think it’s not risky and it is)

4. Comparative Risk Assessment: Compare risks to decide which ones to address now and which ones to defer

ii. Regulatory issues: (1) What criteria should the agency vested with responsibility to implement the statute apply in deciding whether to regulate a particular activity (what threshold of risk triggers agency responsibility?

iii. Trigger: A trigger is the factual finding or evidence that is necessary to trigger an agency’s authority to act or a regulated entity’s compliance responsibility (i.e., guides agency risk assessment)

1. Types of Triggersa. No threshold triggers

i. In essence, the legislature has already made an implicit determination that a harm exists that requires regulation

ii. Nothing else has to happens once law is passed, EPA does not have to make a finding (i.e. past ozone laws)

b. Risk-based Triggers : Allows government action only upon a finding that risk has passed a certain statutory threshold

i. Any risk, Significant Risk, Unreasonable Riskd. Risk Management: Process of deciding what to do about assessed risk(s) {HOW}

i. Designing a response to a risk-creating activity 1. Either Economic/Market based, or Technology Based, or Ambient Quality based

ii. Subjective, public policy problem determined on human values iii. But now- should look at assessment and management as one step

1. Lay people pay taxes, but experts have more information2. Lay people don’t know about big problems or repercussions, lack information about the

comparative severity of risk (market failure) 3. But experts may not share social norms

iv. Regulatory Issues: (2) Once the agency has decided to regulate a risk, what standards should it use to choose the appropriate method and extent of regulation?

e. Goals: Objective, technical determination to find the threat or riski. Eliminating false positives- Higher standard before regulating

1. Set a high standard of proof (beyond a reasonable doubt) before you can regulate ii. Eliminating false negatives- better to regulate unnecessarily, than it is to fail to regulate, and later

find out we should have1. Low trigger for an agency’s authority to regulate, distribute burden of proof for agency’s

justification to regulate (industry, scientists can rebut) f. Approaches: Better to regulate unnecessarily (safe than sorry) than fail to regulate and face a serious

risk later (precautionary principle)i. Book: Should adopt rules that favor eliminating false negatives

1. Environmental risks involve a great deal of uncertainty, placing burden of proving need to regulate on those who favor regulation will create

2. Cost of not regulating are catastrophic even if the costs are high, irreversible harms, but adverse consequences of unnecessary regulation are just spending too much money (less bothersome)

3. People who create risks have better exposure to the political decision-makers than those who suffer the risks

ii. Paige Approach- Even if they don’t create risk, might create unintended harms (reducing income if employer has to spend a lot of money to comply, so fires some people, snowballs into a bad economy)

iii. Risk-Risk Analysis- Risks unintentionally created by regulation have the capacity to outweigh the risks that the regulation was intended to dissipate

1. But is this just an argument for anti-environmentalists? 2. Ex: CFC’s and Ozone- If they can’t use CFC’s, maybe use another chemical that is even

worse than the original one but the harms are latent g. Issues in Risk Assessment & Management

i. Ignorance of Mechanism - Don’t know the interrelation of generation, transmission and responses- uncertainty associated with management decision-making

ii. Potential for Catastrophic Costs - High stakes gambles, uncertainty about potential consequences in both the short and the long term

iii. Relatively Modest Benefit - Ex: CFC’s- benefit is a finer spray, cost is ozone iv. Low Subjective Probability of Catastrophic Outcome - Benefits may outweigh costs because

likelihood of catastrophic outcome is considerably less than favorable outcome 1. “Zero-Infinity Dilemma”- Basically no probability of a virtually infinite catastrophe

v. Internal Transfer of Benefits - People who benefit from product within marketvi. External Transfer of Costs - Adverse impacts usually borne by people who didn’t experience the

benefit vii. Collective Risk - Borne by many people simultaneously

1. Environmental transfer usually diffuses effects- some people can cope better than others (insurance, liability law, compensation)

viii. Latency - Delay between initiation of a hazard and the manifestation of its effect

ix. Irreversibility - Even if reversal is possible, might take too long to be practicable, like plutonium (half life of 24,000 years)

h. Historical Risk Management:i. Regulation in Early 1970s: More isn’t always better

1. (Breyer): Public environmental risk assessments are irrational and inefficient -regulation focuses on the wrong risks

2. Issues: Too many costs to get too few benefits- agencies rarely pick least-costly means of regulation- lack rational agenda selection mechanism- agencies use different methods to assess risks and ignore effect of one medium upon another

3. Solution: Get a multi-disciplinary board of experts 4. Criticisms: Julette & Creer: Regulatory procedures that allow for public participation in

risk assessment process- ultimately reflect value judgments which are policy decisions which should be made by public in a democratic society

i. Modern Comparative Risk Analysis:i. Comparative Risk Analysis (CRA): Scientists determine which environmental risks are most

serious, assign priorities to be efficient with limited resources ii. Criticisms: Too many unknowns

1. (1) Assumes that a great deal is known about the relationship between risk factors and human disease and risk assessment methods have a high degree of quantitative validity- which they do not

2. (2) Over-use of overly-conservative assumptions generate regulation and unwarranted public concern AND protection of specific vulnerable groups

3. (3) Legislation requiring CRA inhibits development of a more accurate risk assessment technique

4. (4) Issues with valuation of $7.25 million as regulatory expenditure for each death (based on lost income)

5. (5) Aggregates risk and ignores equitable considerations- downplays society’s distaste for risks that affect poor, children, future gen’s

a. Can’t avoid, and exacerbates EJ problems, distribution impact6. (6) Creates “false choices” and we should instead come up with solutions that eliminate

all risks instead of focusing on trade offs between identifiable risks iii. Breyer: Advocated creation of a centralized administrative groups whose function is the

rationalization of the process by which environmental risks are targeted- have all risks prioritized in one area

Part 2: Regulatory Designs and Environmental PolicyI. Regulatory Design of Environmental Law

a. Common Statutory Elements of Environmental Elementsi. Environmental protection goals

ii. Rejection of exclusive reliance on common law remediesiii. Avert risk rather than just react to harmiv. Rely on administrative agencies for statutory implementation

b. Environmental Protection Goals: i. (1) Protect the public health

ii. (2) Protect natural ecosystems of their components/ clean environmentiii. (3) Compensate adversely affected persons

1. Fairness/ remedying adverse damagesiv. (4) Force consideration of adverse environmental effects

1. (NEPA Statute)

c. (1) PERFORMANCE/HEALTH/RISK/ABMIENT QUALITY BASED STANDARDS i. Achieve standard (x lb/day) using any method

ii. Economists prefer this method over design standards iii. Ex: CAA- Get the ambient environment to a certain level - NAAQS

iv. Under this approach, agencies determine a level of environmental quality it is trying to achieve.

d. (2) TECHNOLOGY/DESIGN STANDARDS – Use this specific technology to get to x result i. Inefficient to have design standard if there is a cheaper design that has the same result so

performance standards should always be used ii. Agencies adopt rules that regulated entities adopt a level of performance that is technologically

feasible for that source (a mandate that regulated entities do the best they can)1. If everyone does their best, we’ll end up with a level that everyone will find acceptable.

iii. Ex: CWAiv.

e. (3) ECONOIMC INCENTIVE/MARKET BASED STANDARDS – d i. Incentives to “internalize” otherwise externalized harms

ii. Ex: Emissions Trading: Market-based approach to environmental regulation- allocates right to pollute among all substance emitters

f. (4) LIABILITY BASED STANDARD i. Ex: CERCLA

g. (5) INFORMATION BASED STANDARDi. The government agencies force entities to think about and disclose possible adverse environmental

consequencesii. Ex: NEPA- know what the results of your actions will be

h. ALTERNATIVES:i. Open-ended Balancing/ Constrained Balancing

1. Embrace a health or environmental goal but require consideration of regulatory repercussions like cost, economic impact, based on time frame and what is technologically feasible

2. This type allows agencies to consider a variety of approaches. ii. Cost-Benefit Balancing

1. Designed to achieve economically efficient control of environmental harms

i. Pollution Control- Reduce the use of common resources (air, water) as sinks for waste disposali. Usually applies to industries whose activities generate pollution (but government is also huge

polluter- DOD, DOE)j. Natural Resource Management- Ensure the protection of biodiversity and ecosystem integrity and

promotion of sustainable development (both government and private actors involved)i. Involves (1) government agencies, (2) public interest groups (role to play when government fails

to abide by its statutory responsibilities), (3) Courts have to oversee compliance with law

II. Constitutional & Federalism Issues a. Constitutionally Rooted Environmental Claims

i. Ways to protect environment with a constitutional basis? 1. Most of the Federal Laws carve out a significant role for state governments2. Sovereign immunity: can potentially immunize states from monetary liabilities (from the

10th and 11th amendments) ii. Constitution is primarily a charter of negative rights, rather than of affirmative government duties

and individual entitlements to government actioniii. Could argue that even if constitution doesn’t explicitly show a right to environmental quality,

courts should imply it under the 5th, 14th, or 9th amendment1. 9th Amendment: Right to a clean and healthy environment?

iv. Courts – no willingness to recognize an implied right to environmental quality1. State constitutions may provide such a right, but otherwise need a federal constitutional

amendment: Constitution of PA says people have the right to clean air, pure water and to the preservation of the environment

2. BUT: Montana Environmental v. DEQ: Validated right to clean water

b. Why is Federal Action Best?i. Centralization: A need for uniform standards justifies strong federal presence in environmental

policy – uniform standards reduce transaction costs for regulated entities (esp. for those who manufacture goods distributed nationally)

1. Minimizes transaction costs and compliance costs2. Ex: CAFE emission standards adopted at the federal level

a. Industry often lobbies congress to adopt uniform federal regulation as long as it preempts state controls (adds certainty to market)

ii. Control interstate externalities 1. Little incentives at the state level to control interstate pollution2. Less biased than the individual states, more uniformity3. We want to control interstate externalities4. Dormant Commerce Clause/Commerce Clause considerations

iii. Achieve economies of scale, Benefits of resource pooling 1. States may not have the capacity to undertake the scientific studies to create a pollution

control regimea. Federal government has more resources to provide a foundation for effective

regulation2. Federal gov’t can better withstand the pressures from large corporations than are

state/local governments3. Centralize federal research data- more efficient because eliminates need for overlapping

research efforts 4. Government develops expertise in research methods

iv. Desire to avoid a “race to the bottom” 1. Glicksman thinks that it is real- supported by legislative history

a. Most environmental, economic and legislative officials polled believe that the concern over industry relocation impacts environmental decision-making

2. Strong national interest in not allowing industry to “forum shop”, without federal policy, states have a bidding war to attract industry by lowering environmental standards

3. Federal government can prevent by adopting minimum uniform standards that states cannot go below (and allowed to adopt more stringent standards)

4. Want to promote competition and create choices between living in states with high or low environmental quality

a. But can people actually move? Equity issues. 5. BUT disabling states from the race to the bottom in environmental areas, states might try

and go as low as they can in other areas not constrained by federal regulation a. Glicksman: Shifts race to the other course

v. Avoid NIMBY-ism 1. May have prohibition on nuclear energy growth, so no state ends up accepting it, and shut

down whole industries with nowhere to go 2. Ex: Nuclear waste disposal issue – only 3 operational LLW disposal sites across the

country, ongoing Yucca Mountain disputes vi. Process-Based Justifications

1. Federal law will likely be more balanced between environmental protection and industrial growth

2. Better ability for industry to lobby federal government, and state governments are more likely to cave to special interests groups

3. If environmental regulation was done at the state level, with NGO’s advocating for more protection, too few resources to lobby all 50 states- but federal government regulation allows concentrating of NGO resources in one lobbying arena

c. When Would State Action be Best?i. Decentralization : Decision-making at the state and local level can better reflect geographical

variations in preferences1. Dis-Economies of scale- regulator won’t be sensitive to smaller scale variations

2. Competition between states might lead to more efficient delivery of government services (or a race to the bottom?)

ii. Afford greater citizen access and input to government 1. Actually affected citizens are more likely to participate in state and local government

discussion than federal government decision-making process iii. States are more familiar with local needs

1. States might be more receptive to their citizens because they are closer to the harms iv. States can adapt regulation more easily to local conditions

1. States do take measures to protect environment, many states are taking the lead in environmental protection

v. States can and do Protect the Environment 1. Not always a race to the bottom, sometimes race to top – CA GHG reg’s

vi. Respond to local constituents who value the environment 1. More politically accountable to their citizens

vii. Attract new residents who value the environment 1. Good tourism, attract people who value those protections

viii. Qualify for Federal Resources 1. Incentives from the federal government to set higher standards

ix. Restore Useless property to Productive Use 1. Brownfield redevelopment, environmental cleanup might facilitate business development

x. Minimize intrusive federal regulation 1. Businesses are likely to push for state regulation in place of federal regulation if state

regulation is less intrusive 2. State regulators might be willing to give waivers or deadline extension than federal

regulators xi. Create a System More Likely to Protect Local Industry

1. States are laboratories for federal government i. Take credit for something federal government would do anyway

1. Makes the states look good by being ahead of the curve in adopting regulations, when they know federal regulating is coming anyway

d. Sources of Constitutional Authority to Enact Federal Environmental Protectioni. Constitutional Theories

1. What are the limits on that authority and where do they come from?2. (1) Federal Government has Enumerated/Limited Powers

a. No inherent federal powers- power has to come from an explicit delegated power in the Constitution

b. Ask: Constitutionality of a federal statute determined by finding source of enumerated power (like Commerce Clause)

i. If there is a supportive enumerated power constitutional and no 10th amendment violation

c. Political process provides enough protection against federal intrusion on state authority- can elect different people to the House and the Senate (no judicial process needed)

d. Glicksman: Probably best supported by text of constitutioni. Can’t violate the 10th amendment IF it’s enumerated to the federal

government, because then not left to states?3. (2) Federal Government Can’t Intrude Upon State Sovereignty

a. Ask: Is the statute supported by an enumerated power?i. If yes, does the statute infringe upon core state sovereignty?

ii. If either question is no, then it’s unconstitutional b. Just because Congress acts pursuant to an explicit delegated power, doesn’t

necessarily mean that the statue is constitutional (might still violate 10 th amendment if it encroaches upon state sovereignty impermissibly)

c. Glicksman: NY v. US uses Model 2 for take-title part

ii. Limits on State/Local Power: 1. Supremacy Clause: 2. Commerce Clause: Allows federal regulation of activities that impact IC3. Property Clause: Allowed to enact rules and regulation to property owned by federal

government (public lands and resources)4. Treaty Clause: Used to adopt legislation that implements treaties with foreign nations

that are designed to protect migratory birds iii. 14 th Amendment: Equal Protection

1. Section 5: If purpose of legislation is to prevent discrimination 2. Ex: Environmental Justice legislation

e. Want to Ensure Preservation of State Rights: Limitations on Federal Powersi. Ex: Takings Clause, 10th Amendment

ii. Reasons behind SCOTUS’ reluctance to add environmental protection1. SC’s redrawing of federalism drawing has implication for extent of federal environmental

powers under statutory law 2. Environmental protection clashes with property entitlements- regulatory takings claims

iii. Constitution defines the jurisdiction of the federal courts to hear disputes – standing, case/controviv. Constitution recognizes individual rights upon which environmental law may not infringe

1. Due process (5th amendment), takings clauses (14th amendment)

III. Federal Commerce Power a. Commerce Clause : Allows federal regulation of activities that impact IC

i. Article I, S. 8, cl. 3: Federal authority can “regulate commerce . . . among the several states” ii. Straight commerce clause challenges aren’t likely to succeed, no successful challenge on

commerce clause grounds1. Federalism concerns might induce courts to interpret the scope of the statute narrowly2. Maybe Congress should have amended the statute to indicate a clear statement

iii. Wickard v. Filburn (1942): Agriculture set national quota for wheat, penalty on who grew more1. RULE: Congress can regulate trivial local, intrastate activities that have an aggregate

effect on interstate commerce via the commerce power, even if the effect is indirect (could regulate his production because cumulatively home-grown wheat had a substantial effect on IC)

2. Cumulative Effects Doctrine: Activity, looked at cumulatively across the country, has to have a substantial effect on commerce to be regulated

iv. US v. Morrison (2000): Violence Against Women Act unconstitutional (5-4 decision) 1. RULE: Congress had no authority under the CC or §5 of 14th amendment to enact this

legislation. Regulation should be left to the States, because there is an insufficient showing of the affectation doctrine. Also, insufficient findings.

v. US v. Lopez (1995): Gun Free School Zones Act was unconstitutional (5-4 decision) 1. Rehnquist: Congress can regulate three types of activities:

a. (1) Regulate use of the channels of IC- (shipments)b. (2) Can regulate and protect instrumentalities of IC- (railroads)c. (3) Regulate those activities that substantially affect IC (Lopez, Morrison)

2. Since having a gun near school didn’t substantially affect interstate commerce, the Act was unconstitutional –no jurisdictional nexus (nexus too tangential)

b. Gibbs v. Babbit: (2000): Challenged FWS’s ability to protect the red wolf under the ESA1. Red wolves wandered from protected areas onto farms2. FWS extended taking prohibition to red wolf population, but relaxed regulation on

private lands 3. Mann shot wolf on his property, FWS charged, lower ct found guilty4. S. 1538(a)(1) makes it unlawful to “take” any endangered species (harm, harass, pursue,

etc.)

5. S. 1539(a)(1)(a) allows FWS to permit a taking otherwise prohibited for scientific purposes or to enhance propagation/survival of species

ii. Issue: Is the anti-taking regulation applied to red wolves on private land within Congress’ power under the Commerce Clause?

iii. Rule: If the regulation is part of a comprehensive federal program, whose effectiveness could be undercut by preventing regulation of purely intrastate activities, that intrastate activity can be regulated under the CC.

iv. Reasoning: UPHELD because protection implicated a variety of commercial activities and were an integral part of an overall program to conserve valuable wildlife resources that were important to the welfare of the nation as a whole

1. Lopez and Morrison held that commerce clause has “outer limits”2. Don’t want to extend the power to effects on interstate commerce that are so remote they

“obliterate distinction between national and local”3. Need a connection to economic or commercial activity (like Wickard but not Morrison)

which here is tourism, scientific research, pelts 4. Substantial economic impact on IC – success of many commercial enterprises depends on

some regulation of activity on private land 5. Activity doesn’t involve an area of traditional state sovereignty – no intrusion on state

police power (SC has recognized Congress’ power to regulate private activities to conserve species and protect the environment) but legislative deference to policy issues

6. SC has recognized need for federal regulation to prevent a race to the bottom, and to preserve environmental resources

v. Holding: Yes. Taking of red wolves implicates a variety of commercial activities and is closely connected to several interstate markets

vi. Dissent (Luttig): Killing of red wolves is not an economic activity, and if it was, it doesn’t have a substantial effect on interstate commerce

1. Political process should be the safeguard against federal encroachment upon the states c. Notes: Is it better for the courts to look at activities in the aggregate or as part of a comprehensive

scheme of regulation or individually? 1. Why did it matter that scientific/tourism was directed to National Parks (public land), but

regulation was taking place on private land- natural behavior of wolves to roam, so private activity impacts Parks

ii. One of primary bases for normative justification of federal regulation is to prevent a race to the bottom – SC points out that if there was no minimum standard for species protection, states would battle on who could lower standards to allow more wolf killing

1. Earlier regulation only applied to federal lands, but didn’t work, so expanded to apply to private lands as well

2. Respondents argued that management is traditionally a state not federal management, (but in recent times, more of a federal job to preserve species) but Court said that this is a mischaracterization of traditional state control

iii. Page 102: Court confirmed that aggregation allowed in Wickard is appropriate iv. Aggregation of local activities is appropriate if failure to regulate the class of activities would

undercut the regulation of the interstate market in the commodity involved

d. SWANCC & Rapanos: Group of cases in which the Court tried to invalidate based on exceeding the scope of authority that Congress wanted to delegate to the Agency

e. SWANCC v. USACOE : Challenge to regulation of isolated waters because of the Migratory Bird Rulei. Issue: Can ACOE regulate non-navigable, isolated intrastate waters?

ii. Rule: Clear statement rule: Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, the Court expects a clear indication that Congress intended that result

1. Where an otherwise acceptable construction of a statute would raise serious constitutional issues the court will construe the statute to avoid such problems unless such construction is plainly contrary to Congress’ intent (rule of statutory interpretation)

iii. Reasoning (Rehnquist): An agency can’t interpret a statute in a way that goes beyond Congress’ constitutional power to grant

1. Prudential reasons prevent Court from addressing constitutional issues unnecessarily, but Court wouldn’t let an agency interpret a statute in a way that pushes the boundaries of congressional authority

a. Might inhibit state’s traditional and primary power to regulate land and water (but, like in Gibbs- land use argument isn’t always dispositive)

2. Regulation of this land use would intrude on states’ traditional function to plan the development and use of land and water resources

3. Court wanted to recognize, preserve and protect the primary responsibility of states to plan the development and use of land and water resources – statute thus tried to avoid the federalism and constitutional questions – rejected administrative deference appeal

iv. Holding: No. Doing so would go against the intent of Congress - §404 not intended to cover an abandoned sand and gravel pit. EPA’s Migratory Bird Rule can’t regulate intrastate waters

f. Rapanos v. US : Challenge to CWA’s ablity to regulate isolated wetlands1. Rapanos wanted to fill some of his land to build a mall

ii. Issue: Is the Corps’ interpretation of “significant nexus” to “waters of the US” correct? iii. Rule: There must be a clear and manifest statement from congress to authorize an unprecedented

intrusion into traditional state authority1. Court construed “navigable waters” as “waters of the US”

iv. Reasoning: Corps’ interpretation is too ambiguous- don’t want an expansive interpretation that would impinge upon states’ traditional power over land and water

1. Plurality (Scalia): Lacked jurisdiction over those attenuated wetlands because no clear statement from congress for the fringe use of authority of the Act – outer limits of Congress’ scope, and absent a clear statement that Congress wanted to press the envelope so far, avoid that question by not interpreting it that way

2. Plurality opinion: Five justices agreed to void rulings against the plaintiffs, who wanted to fill their wetlands to build a shopping mall and condos, the court was split over further details

3. Four conservative justices argued in favor of a more restrictive reading of the term "navigable waters" than the four more liberal justices. 

v. Holding: No. “Waters of the US” does not apply to ephemeral streams vi. Concurring (Kennedy): Plurality’s interpretation doesn’t fit the avoidance concerns used in

SWANCC 1. Court didn’t provide sufficient justification for protecting these wetlands, but would have

used a test to decide if a wetland/pond is included as “waters of the US” is more expansive

2. Scalia’s test was over/under inclusive (under because couldn’t regulate wetlands whose protection didn’t provide any federalism questions) (over because under Scalia’s test, could regulate other parcels whose regulation presents significant federalism questions)

vii. Notes: Difference in opinion of how law seen- does it reduce pollution, or change the way that states zone?

1. Practical implications for wetland protection schemes 2. SWANCC removed many wetlands from federal protection 3. Rapanos plurality would have removed CWA protection from many wetlands and

intermittent rivers and streams

IV. Dormant Commerce Clause Limitations on State Regulation a. Dormant Commerce Clause : Article I, §8, gave Congress the power to regulate IC, so this implies a

negative, a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against IC

i. If a court finds that a state policy creates an undue burden on IC, invalidated

b. Article I granting Congress power to regulate IC doesn’t preclude state regulation that affects IC, but federal law is supreme. Even tho Congress could regulate in areas where it has chosen not to, doesn’t mean that states are foreclosed from regulating those areas if the subject matter is amenable. (Cooley)

i. Types of limitations that violate the Dormant Commerce Clause :1. (1) Laws Limiting Access to In-State Resources (City of PA v. NJ) 2. (2) Laws Limiting Out-of State Access to Local Markets (Granhold v. Heald) 3. (3) Laws Requiring Use of Local Businesses (Cooley v. Board, Pike)

c. (1) Discriminatory/Protectionist Purpose : Per Se Invalid i. Virtually per se invalid: Prevented out of state businesses from establishing waste processing

facilities in those two counties1. All solid waste had to be sent to the facility being operated by the Authority

ii. A facially neutral law can be discriminatory if there is proof of a discriminatory purpose1. BUT sometimes, proof of discriminatory impact even with evidence of a protectionist

purpose was insufficient to find discriminatory legislation (Haulers)iii. Baldwin- invalid (Act set minimum price for both in and out of state to help keep price high)

1. The states’ police power does not extend to regulations enacted for the protectionist purpose of ensuring the economic security of local milk producers

iv. City of Philly- invalid: (1978) (NJ statute prohibited importing outside waste) 1. This could have been per se discriminatory, or discriminatory means- used means2. A virtually per se rule of invalidity applies to state or local laws that discriminate against

IC- they are valid only if the adopting state or locality can show that it had no other means to advance a legitimate local purpose

3. Under the CC states can’t enact this kind of patent discriminatory regulation – imposes the burden on conserving waste on non-residents

4. A state cannot enact a law to slow or stop the flow of commerce within its boarders for protectionist reasons- patriarchal legislation is constitutionally invalid – states can’t give their citizens a preferential treatment to a natural resource within their boarder.

5. Rehnquist (dissent): Could use state quarantine law- diseased goods?

d. (2) Discriminatory Means : Strict scrutiny of local purpose and showing of lack of non-discriminatory alternatives

i. Proof of discriminatory impact is sufficient for a facially neutral law to be deemed discriminatory (Carbone).

ii. Where a law is discriminatory on its face, the state must show that the law both serves a legitimate local purpose and that the purpose cannot be achieve by available nondiscriminatory means. (Maine)

iii. Discriminatory laws will be invalidated UNLESS they are necessary to achieve an important government purpose (Barnwell)

iv. Carbone- invalid (94): (required waste to be processed in 1 facility before leaving) 1. Created a monopoly instead of allowing free flow of commerce– ordinance denies the

haulers of Clarkstown access to out-of-state businesses that charge lower tipping fee than those in-state

2. SC invalided because affects the IC of waste entering and leaving the city (Haulers cited) 3. Doesn’t matter that it’s not the waste but the processing that burdened IC 4. Drove up the costs of waste generated outside of town, barred all but one facility 5. RULE: Even though the immediate effect was only local, because it incidentally affected

interstate commerce, the state law was invalid as burdening IC. 6. Local governments may not use their regulatory power to favor local enterprise by

prohibiting patronage of out-of-state competitors or their facilities7. Strict scrutiny test: discriminatory means & less discriminatory alternatives available

a. Viewed processing facility as privately operated (but gov’t would take over) 8. Souter/Rehnquist/Blackmun: Wanted to apply the Pike balancing test because ordinance

was free from discriminatory purpose, burdens fell under local residents not IC a. Even though the immediate effect was only local, because it incidentally

affected interstate commerce, the state law was invalid as burdening IC

b. Drove up the costs of waste generated outside of town, barred all but one facility

c. Doesn’t matter that it’s not the waste but the processing that burdened IC d. Local governments may not use their regulatory power to favor local enterprise

by prohibiting patronage of out-of-state competitors or their facilitiese. Viewed processing facility as privately operated

v. Maine v. Taylor- upheld: No less-discriminatory method to address the threat to Maine’s fishers, other than to prohibit the importation of out-of-state fish

1. Maine may regulate matters of legitimate public concern even though IC may be affected. vi. Hughes v. OK- invalid: Act prohibited transporting of minnows outside state to conserve minnow

population1. Need strict scrutiny of legitimate local purpose in passing the law (discriminatory means

here, and less- discriminatory alternatives were available to help envir. without burdening non-residents)

2. No prevention of in-state fishermen from using all minnows- law could still upset balance {Laws that conserve natural resources for state residents violate the CC}

e. (3) Even-Handed Regulation: Upheld unless burden on IC is excessive in relation to local benefit i. In weighing the burdens on IC against benefits of the law, Court considers whether the state could

achieve the benefits in a manner less burdensome on commerce1. Discriminatory only in that it has incidental discriminatory effects on IC2. Laws that favor local governments may achieve legitimate goals that are unrelated to

economic protectionism (flow control ordinance allowed county to achieve waste management policies while allowing costs to generate it to be allocated among waste generators) (Haulers)

ii. Strong presumption against discriminatory laws that burden IC-upheld only if it is proved that the law is necessary to achieve an important government purpose

iii. Test : If state law is an even-handed regulation, is it (1) pursuant to a legitimate state objective AND (2), does the state interest in the regulation outweigh the adverse effect on IC? (Pike)

1. Regulation upheld unless burden on IC is excessive in relation to local benefit (regulates in/out of state same - Haulers) PIKE balancing test (like Raymond)

iv. United Haulers- upheld (‘07) (law required trash haulers to deliver waste to a certain facility) 1. Haulers wanted strict scrutiny of laws passed under the police power – but Court said no!2. Flow control ordinance required trash haulers to deliver waste to a certain facility

a. Authority would collect tipping fees to cover operating costb. County thought that private citizens weren’t sending trash to new facilities

because of high tipping fees, they would go to private places, and then couldn’t pay for the site construction

3. Roberts: Disposing of trash is a historically government activity 4. Laws that favor the government in traditional government area - but treat private

businesses the same – DO NOT discriminate against interstate commerce for purposes of the CC – Any incidental burden ordinances have on IC is outweighed by the benefits conferred on citizens of the counties

5. Rule: States laws that benefit a public facility don’t discriminate against IC under the CC, as long as they treat all private companies the same.

a. Court will uphold these types of ordinances as any incidental burden on IC doesn’t outweigh local benefits

b. BUT different from Carbone, the waste facility here wasn’t contracted out- it was a government operation, not a private company

6. Political process issue: Want to ensure political accountability, people hurt by the tax are the taxpayers, so residents of counties could vote county chairman out – but the elected chairmen came up with this option, Court should defer to them

7. Scalia (concurring): Doesn’t agree with Pike balancing test- too much interference with the legislative process

a. Stare Decisis- Doesn’t believe in DCC jurisprudence, regarded test as an

unjustified judicial invention, but we have to adhere to line of decisionsb. Only will strike down when local law facially discriminates (Philly v. NJ) OR

when the Pike case is indistinguishable from case reviewed 8. Thomas (concurring): Constitution vests decision between free market and economic

protectionism to Congress – DCC turns on policy considerations, and Court has no role in regulating policy {changed his vote from Carbone}

9. Alito (dissenting): Thinks distinction between public and private is illusorya. Court shouldn’t recognize an exception for discriminatory legislation when it

favors a state-owned entity (Carbone should be binding) b. No basis for Court’s finding that discrimination in favor of an in-state gov’t

facility is likely to serve “legitimate goals unrelated to protectionism” c. Market participant doctrine- states can’t discriminate against interstate

commerce unless they are acting solely as market participants, but they don’t follow rule here (but even if they had used this, should have lost because only applies to state or local gov’ts acting as market participants, but they weren’t here because counties were both market participants and regulators)

v. Pike v. Bruce Church- invalid (Package AZ cantaloupes at closer CA packaging site)1. Even though a legitimate state interest, burden on commerce created is per se illegal 2. Not protecting health/safety of AZ residents, but still a legitimate state interest3. If a legitimate local interest is found, the question becomes one of degree. The extent that

the burden will be tolerated depends on the nature of the local interest involved, and on whether it could be promoted with a lesser impact on IC

4. Suspicious of state statutes requiring businesses operations to be preformed in the home State that could more efficiently be preformed elsewhere

5. Test : Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on IC are only incidental, will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the local benefits

V. Securing State Cooperationa. 10th Amendment: Reserves to the states and the people powers not explicitly reserved to the federal

government, or prohibited to the states in the Constitution i. 2 Models of 10 th Amendment Analysis:

1. (1) Determine Constitutionality of Statute, by inquiring if it is within delegated powera. Model 1 : Statute is valid because commerce clause allows regulationb. If Yes: Constitutional No issue of 10th amendment

i. Deference to Legislature: Idea is that legislature is made up of different states, who would not have voted for something if they disagreed

c. If No: Unconstitutional2. (2) Determine Constitutionality of Statute, by inquiring if it is within delegated power

a. Model 2 : Does it improperly commandeer duties traditionally left to the states? b. If Yes: Does the statute infringe on traditional state sovereignty, and 10th

amendment?i. If Yes Unconstitutional

ii. Court has more exacting scrutiny, and is not as deferentialb. New York v. US: Disposal sites that were operating were running out of room

1. Not fair for 3 states to hold all of nuclear waste generated, Congress adopted the Low Level Waste Policy Amendments Act of 1985

2. Monetary Based Incentive- (1) If a state has not done what it’s supposed to do (make progress toward a certain disposal site by statutory guidelines) then a disposer will be charged more

a. Existing sites are allowed to impose surcharges on waste generated in a state that didn’t meet its statutory obligations – money collected given to states that do what they are supposed to do

3. Access Based Incentive - (2) If States didn’t make progress by certain dates, subject to reduced access to disposal sites

a. Additionally charged twice the original surcharge4. Property/title Based Incentive - (3) States that failed to account for all waste generated

by 1996 were required to take title to the waste, liable for damages incurred by waste generator/owner

5. Do the three incentives amount to impermissible commandeering of state functions and thus violate the 10th amendment?

ii. Rule: Congress may not simply commandeer the legislative process of the states by directly compelling them to enact and enforce a federal regulatory program

1. While congress has substantial power under the Constitution to encourage states to provide for the disposal of the radioactive waste generated within their borders, doesn’t confer upon congress the ability to compel the states to do so

iii. Reasoning: Under the Supremacy Clause congress could have preempted state radioactive waste regulation, but can’t regulate in the way it did

1. Congress could have preempted state regulatory power of LLW under the Supremacy Clause, but they left some state authority in place

2. 10th amendment prevents federal government from commandeering state activity (can’t force states to do something to help achieve federal goals)

a. Prohibit federal government from requiring states to govern according to federal instructions (impermissible commandeering)

b. Worried about accountability issues if federal government requires states to do something – who is responsible for success or failure? Who should they vote out? State or Fed?

3. Inventive Provisions were Constitutional: Uses Model 1: Only looks at whether set of incentives are supported by an affirmative constitutional grant of power to Congress

a. Congress can: (1) attach conditions on the receipt of federal funds as long as the conditions bear some relationship to the purpose of federal spending (Spending Power)

b. Congress can: (2) Let states choose between regulating that activity according to federal standards or have the state law preempted by federal regulation (Commerce Clause)

c. Power to impose surcharges is supported by Congress’ interstate commerce authority (DCC)

d. Collection of surcharges by DOE Secretary is supported by CC and Power to Tax, and redistribution of tax is a legitimate exercise of the spending power

i. South Dakota v. Dole: Congress can condition access to federal funds – conditions have to bear a reasonable relationship to the spending power

ii. Here- conditions to build a new disposal site, and reason for the adoption of the statute in the first place

iv. Holding: Because access incentive provisions represented an appropriate CC authority, didn’t intrude upon sovereignty of 10th Amendment

a. BUT take-title provisions were not authorized under an enumerated poweri. Violated 10th amendment, so had to use the second model (page 117)

b. Didn’t leave the states any choice – could choose between options, but limited to federally mandated options – crossed from encouragement to coercion

2. Congress can’t impel states to enact or administer federal regulatory program, without giving the states the choice to avoid complying with the federal regulatory program in a way that avoids the state from incurring any adverse consequences (to the states as opposed to private residents/industries)

c. Post New York: i. Overall 10th amendment has not played a large role in environmental law

ii. Accorn v. Edwards, 81 F.3d 1387 (5th Cir. 1996) (where unconstitutional to force states to clean lead from drinking water, or face penalties for not doing so).

iii. Printz v. US:1. Extended New York, to disallow commandeering of state officials

iv. Reno v. Condon:

1. Banning state from doing something is not a commandeering…not forcing state to do anything

2. Has consistently been allowed throughout jurisprudence d. PG&E v. California Energy Research:

i. Field-based: SCOTUS found that the Atomic Energy Act DOES NOT occupy the field of nuclear power plant construction

1. Regulation of nuclear plant construction IF the regulation is directed at safety concerns ii. Conflict-based: No conflict between CA and federal regulation

1. If NRE adopted guidelines on how nuclear plants operate (taking into consideration all concerns) and states adopted their own guidelines, would be inconsistent BUT that’s not what they did

2. Federal statute didn’t seek to promote nuclear power “at all costs” in the AEA statute regardless of economic impact- no conflict

VI. Power Allocation: Savings Clause, Delegated Programs and Preemptiona. Savings Clause (Page 124): Fed environmental laws generally don’t displace state law

i. Usually a statute with a savings clause would also have a preemptive provision (so a statute can be preemptive even with a savings clause)

ii. CWA: Most savings clauses §1251(g) and 13701. Discuss in the declaration of goals and policy the legislative intent to have states

administer permitting and granting programs, and federal government to help with research, technical services and funding

2. CLEAR intent not to displace state riparian law “authority of each state . . . shall not be superseded, abrogated or otherwise impaired”

b. Delegated Programs: States can retain or assume responsibility for implementing or enforcing federal programs (broad delegation of federal regulatory obligations to states

1. Use as an example of Cooperative Federalismii. Clean Water Act: Presumption for federal government, but states can pass laws and make other

commitments to establish that they are qualified to assume permit and implementation and enforcement roles

iii. Governor and state Attorney General submits plan to EPA administrator, describing how their program conforms to federal requirements (doesn’t have to be exact)

iv. Clean Air Act: State Implementation Plan provisions – show how states can implement their own plans BUT only federal regulators or a court can make a state lose their power once they’ve been allowed to implement a program

v. Many delegated programs are linked to monetary incentives (enticement for state participation as allowed under NY v. US under conditional federal spending power)

c. Preempting Clauses and Regulatory Actioni. (1) Field Preemption: Occurs when federal legislation in a particular area is so pervasive that

Congress could not have intended to permit any supplemental state or local regulation, whether that regulation is more or less stringent than the federal legislation

1. How to define the “field” as occupied, whether the state law is within/out of that fieldii. (2) Conflict Preemption: State or local regulation conflicts with federal law if it is impossible to

comply with both federal and state law, even if federal law doesn’t entirely occupy the “field”1. State or local regulation also conflicts with federal law if its implementation is

inconsistent with the objectives of federal legislation – state law is an obstacle to accomplishment and execution of the full purposes and objectives of Congress

2. Purpose-based : What is the federal goal- is the state law consistent or inconsistent? iii. (3) Express Preemption: Usually occurs when federal law imposes a design element or calls for

major design investments in an industry (Café?) 1. Helps provide stability and a fixed regulatory target

d. Examples : Recent case law supports a more expansive preemptive interpretation of federal law- usually under the “obstacle” preemption theory

i. Usually find state hazardous waste laws preempted under CERCLA1. Helps ensure uniformity in liability for waste owners

ii. CAA prevents state attempts to inhibit permit trading (conflict preemption) 1. SC found that Congress has directly addressed the issue of GHG’s so CAA replaces

federal common law on this issueiii. Building Efficiency: Even though land use is a traditional state function, efforts to increase energy

efficiency is preempted as conflicting with Energy Policy and Conservation Act’s (EPCA) express preemption provision

iv. Car Standards: NYC couldn’t impose MPG requirements on cabs because EPCA preempts state fuel economy standards (but some states have allowed)

1. Crosby v. NFTC: Congress has the power to preempt state law, but a finding of preemption doesn’t require an explicit legislative statement of such interest

2. Wyeth v. Levine: Preemptive effect of federal drug label approval and state common law failure-to-warn tort law

a. Reaffirmed need to have either strong statement from congress intending preemptive effect, proof that state law is an obstacle to federal ends

b. Just because FDA interpreted the statute to have federal law preempting state law, that agency interpretation didn’t “merit deference”

Part 3: Administrative Law Issues I. Introduction

a. Administrative law is concerned with (1) roles of three branches of the government (2) procedures followed by the executive or independent agencies to which legislative and non-article III judicial authority has been delegated

i. People who don’t like environmental agency decisions usually look to the courts to try and solve their problems, but judicial assistance is only available if litigants have access to the courts!

ii. Judicial review usually doesn’t limit agency discretion and congress can limit an agency’s discretion allowed through statute (hearings to oversee, power of the purse)

b. Predominant Issues of Federal Administrative Lawi. (1) What is the proper role of each of the three branches of government in the administrative law

process1. Congress can use hearings to control, power of the purse, amend statute to narrow

agency’s authority (confirming 2. President can control by appointing people, removing people, write executive orders and

make clearance requirementsa. EO’s require agencies to consider certain factors/satisfy requirements before

making decisions/rules, and clear certain actions with WH before they go into effect

b. EO 12866: Require agencies to do a CBA before ruling, and make sure that ruling is consistent with OMB

c. Legal implications: Does it violate separation of powers by imposing agency obligations that are inconsistent with the organic statutes issued by the legislature?

d. E.O. 13566 : Before an agency can adopt substantive requirements, think about whether the goals seeking to accomplish can be achieved using alternative mechanisms (warnings or disclosure requirements) than substantive regulations – do away with burdensome regulations

e. Page 217 : Review of environmental regulations by OMB creates bias against environmental regulation – based on implicit belief that agencies always overregulate, but that’s not the case (dates back to Reagan’s administration)

3. Courts can review the validity of the decisions made by agencies (judicial oversight), court can invalidate agency decisions by finding them unconstitutional,

ii. (2) What procedures must agencies follow when they adopt implement and enforce administrative law

1. Could claim that the agency acted ultra vieres- outside of their delegated authority (SWANCC- ACOE acted outside of the scope of their authority by regulating wetlands simply because they formed resting grounds for migratory birds)

c. Process for those Affected by Agency Decisionsi. Due Process: Want to foster consistency and legitimacy in agency decisions- providing

opportunities for public “participation” in decision-making process ii. Organic Statute: CAA – sets up procedures for regulating air pollutants

1. Explicitly say that its provisions override provisions of the APA you otherwise used. Grounds for Judicial Invalidation of Agency Decisions

i. Decision was substantively unconstitutional ii. Decision was beyond the scope of the agency’s statutory authority (ultra vires) because agency

misinterpreted scope of its authority1. Courts supposed to make sure agencies don’t deviate from legislative mandates, and

avoid accountability iii. Agency acted without providing an adequate explanationiv. Agency failed to follow proper procedures (statutory procedures or constitutionally required

procedures)

II. Access to the Courts – Constitutional Standing a. Standing- whether petitioners have such a personal stake in the outcome of the controversy as to assure

that concrete adverseness (Baker v. Carr) – in Mass v. EPAb. Constitutional Requirements

i. Injury in fact (remember geographic nexus test from Lujan I, temporal nexus under Lujan II, injury to P not injury to environment - Laidlaw)

ii. Causation (even if just a contributing factor enough under mass v. epa) iii. Redressability (incremental improvement is enough under mass v epa)

c. Statutory Requirements i. Zone of interest test

ii. Requirements set forth/waived in other applicable legislation d. Prudential Requirements

i. Third party standing restrictionsii. Bar on assertion of mere generalized grievances

e. Modern Standing: Under both constitutional Article III and statutory standing under the APA (§702), a plaintiff suing a federal agency must show:

1. The challenged action has caused injury in fact to the P AND the injury is “arguably within the zone of interests to be protected or regulated” by the statute that was allegedly violated by the defendant

ii. Legislative judgments about statutory goals and means receive substantial deference by courts under the more limited/deferential judicial standing role created more recently

iii. Many groups use a procedural injury claim (failure to engage in sufficient public outreach, failure to conduct an EIS)

iv. Scalia: Stated that standing requirement excludes form the courts those interests that are likely to lose/have lost in the political process

1. Executive non-implementation of statutes is part of a well-functioning democratic process

v. Without access to the courts, can’t use the courts to help promote legitimacy and accountability 1. Third parties seeking judicial review of agency decisions must have standing - more

difficult when it’s a private interest groupvi. Citizen Suit Provisions : Congress has created a pathway for private individuals, groups to sue

agencies and regulated entities 1. Agencies have developmental missions (ACOE, USFS)2. Some agencies were created to protect environment

vii. Original Standing : Had to be protecting a legally protected interest given by common law doctrine, statute or constitution

1. But no constitutional or statutory right to a clean environment, have to show trespass or nuisance under common law

2. Before APA, legal right/private right was needed before judicial intervention was appropriate, but then Congress created statutory rights

3. Function of standing has shifted – now a separation of powers doctrine designed to prevent aggrandizement of judicial power at the expense of the legislative and executive branch

a. Can Congress create injury in fact where none existed before?i. Scalia in Lujan v. DOW would say no

ii. Breyer in FEC v. Akins would say yes viii. Associational Standing : Association may sue on behalf of its members if: (1) the members have

standing to sue in their own right, (2) the interests of the association seeks to protect are germane to the association’s purposes, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit

ix. Goal of standing : To ensure that litigants are truly adverse and thus likely to present the case effectively and that those most directly concerned are able to litigate the issues in a case (pg. 162)

1. Court wants to make sure that dispute sought to be adjudicated will be presented in a n adversary context and in a form historically viewed as capable of judicial resolution – whether party invoking federal jurisdiction has a personal stake in the outcome of the case (Flast v. Cohen)

f. Sierra Club v. Morton: Tried to block Disney building of ski resort in Californiai. Issue: (1) Whether plaintiff’s alleging harm to a non-economic interest could meet the §702

standard AND (2) whether an injury that is widely shared can show an injury in fact ii. SC found NO STANDING- their members weren’t aggrieved, no showing that sierra club’s

members used the area that would be developed – only a general interest in conservation of natural parks – no actual use of the area at issue

1. Sierra Club amended their complaint, had affidavits from people who hiked there, Disney eventually withdrew its proposal

iii. Sierra Club had more relaxed third party standing standardsg. SCRAP: Student group challenged rate increase by ICC because it would damage recycling efforts, hurt

Washington area natural resources i. Issue: Connection between agency action complained of (increase in rates charged by RR for

shipping recycled materials), and harm (environmental degradation in Washington) 1. Far less direct and perceptible injury in SCRAP than Sierra Club

ii. SCOTUS found that plaintiff’s DID HAVE standing to sue1. Standing is not to be denied simply because the injury is widely shared 2. Pleadings alleged facts sufficient to show standing, and if the RR believed the allegations

in the pleading were untrue, should have asked for more specific statement, or moved for SMJ

iii. Established precedent (until Lujan) to give citizen groups access to courts to enforce federal environmental legislation

h. Lujan v. National Wildlife Federation (1990): Alleged violation of NEPA in BLM’s land withdrawal review program

i. Scalia: SCOTUS found NO STANDING – Didn’t survive SMJ motion because pleadings didn’t have enough specificity about what portions of immense federal land they were being deprived of AND wasn’t a final agency action under §704

1. No overall program that qualifies as a final agency action – case by case basis, and can’t make up a program and base your challenge on that

2. If plaintiff’s aren’t happy with how BLM is managing public lands, should go to Congress

ii. And APA didn’t apply because land withdrawal review program wasn’t an “agency action” or a “final action”

iii. Rule: A plaintiff with an appropriate personal connection to a specific geographic areas should have standing to contest environmental violations involving final agency actions in that area

1. Lacking a geographical nexus or geographical proximity test between a particular resource allegedly injured and the agency’s decision and the areas of land used by the P’s and its members

i. Lujan v. Defenders of Wildlife (): (Challenged DOI rule interpreting ESA to only apply domestically)i. Said that their members were injured by potentially not being able to see certain animals after

international projects destroy their habitats. ii. RULE: To be heard, Article III standing requires that:

1. P must have (1) suffered an injury in fact, which is concrete and particularized and actual or imminent (not conjectural or hypothetical)

2. (2) must be a causal connection between injury and the conduct complained of3. AND (3) must be likely that the injury will be redressed by a favorable decision. 4. Must establish some temporal nexus or temporal proximity between the alleged adverse

consequences of the agency’s actions and the members’ imminent use of the resources adversely affected

iii. Scalia: NO STANDING – no proof of actual injury, and no redressability, and difficulty in proving causation (insufficient Article III standing C&C)

1. When the plaintiff is not the object of the government action or inaction, standing isn’t precluded, but is substantially more difficult to establish

iv. Party invoking federal jurisdiction bears the burden of establishing the elementsv. Injury : Recognizes aesthetic injury sufficient for standing

1. But here- too attenuated, no plans to visit sites again – plans aren’t enough to support finding of actual/ imminent injury

2. Past visits don’t matter- only what is happening now, in imminent future3. P can rely on a procedural requirement ONLY IF the violation (lack of consultation under

1536(a)(2)) is proved/alleged to impair a separate concrete interest 4. Animal Nexus Approach- Anyone who is concerned about their welfare or who has

standing (need factual not theoretical showing of perceptible harm)5. Ecosystem Nexus Theory- Being part of an ecosystem means you have standing- even if

you don’t live in that ecosystem, they’re intertwined (no- too attenuated) vi. Redressability : District Court ordering the Secretary wouldn’t actually provide relief for the

endangered species, as the agencies wouldn’t have to follow his orders (agencies funding the parties aren’t parties in the case)

vii. This doesn’t align with Lujan v National Wildlife Federation case requiring environmental damage in the area of the challenged activity, not somewhere in the vicinity of it

1. But can’t use traditional causation and redressability because would never win in alleged procedural injury cases

2. But didn’t help the P’s here because the causation and redressability were linked to the substantive harms alleged – not procedural issues

viii. Separation of Powers: Congress can’t give just anyone a right to sue - is executive not judicial right to make sure the laws are faithfully executed

1. Generalized political grievances do not meet the Article III Case or Controversy requirement (Marbury v. Madison- province of the court is solely to decide on the rights of individuals)

2. To allow Congress to give a private right of action in the courts against an executive officers’ compliance with the law would be to take away responsibility of the executive to “take care that the laws be faithfully executed” and vest that responsibility in the court system

ix. Kennedy/Souter (concurring): Court’s holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III

x. Stevens (concurring): Agree in judgment, but thinks P has standing to sue xi. Blackmun/O’Connor dissent: Enough evidence for trial on whether D was injured- let jury

decide, just because you can’t show the exact place where a species is killed doesn’t mean you can’t show injury- “ecosystem nexus” argument works

j. FOE v. Laidlaw: Even though D has changed its conduct and complied with NPDES permit demands, it was free to resume the behavior once the case was dismissed

i. Laidlaw had been in “substantial compliance” – Laidlaw said FOE lacked a claim for injunctive relief because mercury discharges, lacked standing to demand civil penalties (redressability)

ii. Ginsburg: The polluter still retained its license to operate such a factory, and could reopen similar operations elsewhere if not deterred by the fine sought

1. Don’t look at the injury to the environment, but the plaintiff2. They were being deprived of access of the resource

iii. RULE: Defendant has the “formidable burden” of showing that it is absolutely clear that the allegedly wrongful behavior couldn’t reasonably be expected to reoccur – then is moot- could change management, new practices, etc.

iv. Standing because these people lived by river, knowing pollutants were put in the water, injured their way of life- Injury was the perception that river was polluted - not the actual pollution (aesthetic and economic injury counts)

v. Redressable because civil penalty payments to US were still enough of a deterrent to make the factory stop polluting, and injury to P would stop

k. Notes : Difference between Laidlaw and Defenders of Wildlifei. Have to demonstrate standing separately for an injunction and civil penalties

ii. Maybe more direct connection between the injuryiii. Not really an issue- congress specifically authorized those private AG’siv. Laidlaw- lived near the streams, had a more historical connection with the landv. Defenders of Wildlife- more hypothetical that they would travel back to those places

l. Friends of the Earth v. Gaston Copper Recycling: Discussed reasonableness of fear of adverse consequences of exposure to pollution

i. 4th Circuit held that person had standing to sue because their property adjoined a lake where the factory was emitting pollutants

ii. Rule: Threats or increased risk constitutes cognizable harm- don’t need increased proof of harm- CWA violation is enough

m. NRDC v. EPA: DC Circuit held that NRDC’s embers had sufficient standing to challenge and EPA regulation exempting methyl bromide from CAA

i. Increases in risk are sufficient to confer standing- environmental and health injuries are often “purely probabilistic”

ii. BUT courts usually have to show a “substantial probability” that they will be injured (1:200,000 chance of non-fatal skin cancer was enough)

iii. Other cases have shied away from statistical evidence if there is better proof available, and may require more strict imminence requirement

n. Summers v. Earth Island: SCOTUS found that environmental groups lacked standing to challenge USFS exempting of salvage timber sales from public notice

i. Still have to use “imminent harm” standard, not “realistic threat in reasonably near future”o. Causation and Redressability :

i. CWA allows payment of civil penalties exclusively to the governmentii. But still would be a deterrent of future violations if penalties are enough

iii. API v. EPA: No standing because group failed to establish substantial probability that shipments to landfills near members properties had unleaded gas sediment or a link between deposits and specific harms alleged

p. Challenges to Rulemaking: Mass v. EPA:i. §202 of CAA said that EPA can regulate motor vehicles which release GHG’s

1. Congress amended to say “which may reasonably be anticipated to endanger the public health or welfare”

2. 19 states petitioned EPA to regulate, EPA denied rulemaking petition saying CAA didn’t allow EPA to address climate change and that even if it could, it would be unwise to do so at the time

ii. Stephens: Massachusetts has standing under Article III to challenge EPA’s requirement of federal regulation of GHG emissions under the CAA.

1. Article III limits federal jurisdiction to cases and controversies confining reviewability to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process (Flast v. Cohen)

2. Parens patriae- Mass’ desire to protect its territorial integrity from adverse effects of sea level rise is sufficient to give standing

iii. Congress gave states a right to sue the government under the CAA for withholding action unlawfully- to protect their sovereign interests

iv. Injury: Massachusetts would be harmed by global warming because it has a large coastal property- rising sea levels would harm them

1. Just because injury is widespread doesn’t lessen its protection 2. Land is underwater- sufficiently concrete and imminent

v. Causation: EPA recognizes a connection between GHG and global warmingvi. Redressability: Just because EPA can’t stop global warming, doesn’t mean that they can’t take

steps to try and slow or reduce itvii. RULE: If there is sufficient proof of injury in fact, causation and redressability, then the

petitioner has standing to bring a constitutional claim. viii. Roberts/Scalia/Thomas/Alito dissenting: The challenges are “nonjusticiable,” redress of these

grievances are ‘the function of Congress and Chief Executive,’ not federal courts, redress wouldn’t help petitioners specifically, but all of humanity

1. States failed to meet any of the Article III fact- injury is not particularized, actual or imminent,

a. No causation because car-made GHG is a small part of total global emissions, and no redressability because don’t know whether regulations would be enough to slow CC sufficiently – this is a return to SCRAP

ix. Notes : More of a functional rationale- wanted to get people who were actually impacted to be in front of the court

x. Procedural injury: Deprivation of an appropriate resolution for petition for rulemaking (Article III)- way of proving injury in fact if substantive injury is weaker

xi. Scalia in footnote of DOW: Procedural injury has different/lesser rigor because procedure doesn’t dictate substance (would be impossible to get standing if you only had a procedural injury)

III. Access to the Courts – Prudential Standinga. Even if the plaintiff meets the Article III standing requirements, statute under which plaintiff is suing

might impose additional prudential requirements b. Prudential: Requirements that derive from judicial conceptions of self-restraintc. Plaintiffs suing in federal court must meet “prudential limitations” on standing created by the courts:d. Prudential Requirements (waivable by Congress)

i. (1) Can’t present a generalized grievance shared in substantially equal measure by all or large group of citizens

1. BUT CFC pollution isn’t a generalized grievance because SCOTUS rejected that “injury to all is injury to none”

ii. (2) Plaintiff must assert his or her own legal rights and interests and not those of a third party e. Statutory Requirements (waivable by Congress)

i. (3) Plaintiff’s alleged injury must be within the zone of interest protected or regulated by constitutional or statutory provision in question

1. Derives from APA §702: person who suffered a legal wrong, or person “adversely affected or aggrieved” by an agency action, within the meaning of a relevant statute

a. Zone of interest test applies to claims based on substantive statutes (ex: ESA)f. Bennett v. Spear: Irrigation issue- FWS said have to keep water table above a certain level – ranchers

denied any adverse effects to the endangered fish so said table limitation was wrongi. Use of water for commercial/aesthetic purposes would be damaged if FWS kept minimum levels

1. (ESA has a broad citizen suit provision)2. Court found that this was legislative intent to repeal the zone of interest normally limiting

standing3. Scalia: The purpose of the environmental legislation encourages enforcement by “private

AG’s” a. Glicksman thinks Scalia is being hypocritical between his statement in Laidlaw

that “allowing private AG’s is endangering article III” or something

4. Holding: SCOTUS found standing. Scope of statutory Z of I must be assessed by reference to the particular provision whose violation forms the basis for the complaint (data, enforcement, etc.) page 178

a. But ESA doesn’t allow citizen suits under the “no jeopardy” provision5. SO violation of §1630(a)(2) had to be brought under APA §702

a. Scalia found that P’s were within §1536(a)(2) because section requires agencies in deciding whether actions would jeopardize species, must rely on best scientific and commercial data available

b. Purpose of provision is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing environmental objectives

6. Violation of §1540(g)(i) could be under ESAg. Laidlaw: Obviously within the “zone of interest” of the CWA because saying that this person

discharged beyond their permit, damaging wateri. Zone of interest may also be of an economic interest

ii. Nothing in Article III prevents claims being brought on behalf of animals, but nothing in most environmental statutes authorizes it

h. Monsanto v. Geertson Seed: SCOTUS found that farmers alleging NEPA violations fell within statutes zone of interests even though they sought to avoid economic harms, because they ALSO sought to prevent significant environmental harms from the use of GMO’s

IV. Access to Courts – Timing Issuesa. Other doctrines can defeat judicial review besides standing- usually require deference to the agency

decision-making i. Only takes one threshold justiciability doctrine method to throw case out, but people usually

plead in the alternative ii. Most successful are 701(a)(2), then statute of limitations, then ripeness, then jurisdiction, then

exhaustion then mootness, standing and finality b. Finality : Based on §404 of the APA

i. Produced an action by which rights or obligations have been determined, or from which legal consequences flow

ii. Ex: Sackett v. EPA: Owners of property violated CWA by placing fill material without an ACOE permit – found that it was a final agency act

iii. APA §704: “Agency action made reviewable by statue and final agency action for which there is no adequate remedy in a court are subject to judicial review”

iv. Exceptions: §701(a): (1) when statues preclude judicial review, or (2) agency action is committed to agency discretion by law

c. Exhaustion of Administrative Remedies : Can dismiss on jurisdictional grounds if P hasn’t pursued all remedies available in administrative process of agency whose decision is being challenged

i. Based on §704 of APA ii. Defense to judicial review when agency hasn’t had an opportunity to consider the plaintiff’s

claim for reliefiii. Allows agency to perform functions within its “special competence” like fact-finding,

interpretations of technical matters, and disputes of agency regulations iv. Court can’t dismiss for exhaustion under APA unless statute or agency regulations mandate

exhaustion as a prerequisite to judicial review 1. Or sometimes can’t raise a new claim not raised in the agency proceeding

v. Don’t apply exhaustion doctrine when agency acts in excess of delegated powers, when remedies are inadequate, when it would be “futile” to require litigants to pursue them, or when it is a purely legal question

vi. Works when (1) statute explicitly provides, or (2) agency regulation requires appeal of case within agency before appealing to Article III court, stayed the effect of x pending the resolution of the administrative appeal

d. Primary Jurisdiction : Courts can defer ruling on an issue until the agency whose action is being challenged has the opportunity to provide its input through some kind of administrative decision

i. Defense of primary jurisdiction arises when court has original jurisdiction of a claim requiring resolution of issues within an agency

ii. If a court recognizes an agency’s primary jurisdiction, suspends judicial process until agency resolves the issue

iii. Usually depends on technicality of problem and agency’s expertiseiv. Need for uniformity in regulatory legislation is also influentialv. Explicit statutory rights of action precludes application of primary jurisdiction defense in some

situations e. Ripeness : Courts defer ruling on matters brought before them prematurely

i. Consider: (1) whether delayed review would create hardship to the plaintiffs, (2) whether judicial intervention now would inappropriately interfere with further administrative action, (3) whether the court would benefit from further factual development of the issues by the agency before the case goes to court (similar to exhaustion/primary jurisdiction)

ii. Ripeness doctrine intend to prevent judicial consideration before agency makes the decision that creates the “case or controversy”

iii. No reason to deny pre-enforcement judicial review if the agency has issued a final ruling but hasn’t begun an enforcement action (Abbott Laboratories)

1. Usually a court can hear pre-enforcement review if the agency’s position is fully crystalized and issues are purely legal

iv. Ripeness issues when plaintiff’s challenge agency policies that provide the basis for agency actions but don’t challenge a specific decision

f. APA Review:i. §702: Allows a person adversely affected or aggrieved by agency action to seek judicial review

ii. §704: Makes final agency action reviewableiii. §551(13): Agency action includes “failure to act”iv. §706(1): Federal courts can compel agency action unlawfully withheld or unreasonably delayed v. Overton Park: No evidence that Congress sought to prohibit judicial review and decision was not

committed to agency discretion because had specific challenged law to applyvi. Block v. Community: Presumption of judicial review can be overcome whenever the

congressional intent to preclude review is fairly discernible in the statutory scheme g. Congressional preclusion of review is rare in environmental statutes

i. Exception: High Country Citizens Alliance v. Clark- General Mining Law precluded person w/o a property interest from challenging validity of a mineral patent

1. BUT just because there is agency discretion in the decision, doesn’t mean the second exception is automatically triggered

2. Still apply APA §706(2)(a): arbitrary/capricious/etc.3. Little difficulty in getting the court a proper “law to apply”

ii. Courts are more likely to invoke 701(a)(2) to preclude review if a litigant challenges an agency decision not to enforce a statute or regulation (Heckler v. Chaney)

1. Courts shouldn’t interfere with core function of executive branch unless congress explicitly authorizes the court to do so

iii. Difference between denial of a petition for rulemaking and agency’s decision not to initiate an enforcement action (Heckler v. Chaney v. Mass v. EPA)

h. Norton v. Southern Utah Wilderness Alliance:i. Facts: Federal Land Policy and Management Act delegates to BLM authority to manage public

lands1. Agency has to balance competing land interests (wilderness, timber, grazing, trails)2. Congress designated wilderness study areas – secretary can’t impair their suitability for

wilderness (“BLM shall manage wilderness areas”)ii. Issue: Whether authority of a federal court under the APA §706(1) to “compel agency action

unlawfully withheld or unreasonably delayed” extends to BLM’s stewardship of public land. iii. Rule: The only agency action that can be compelled under the APA is action legally required

1. A §706(1) claim only succeeds as viable if asserting that an agency failed to take a (1) discrete agency action that (2) it is legally required to take

a. §551 makes failure to act is a failure to take a discrete agency action

b. Legally required provision is from the 706(1) finding courts can compel agency unlawfully withheld

c. Maybe the legally required bit wouldn’t extend to ‘unreasonably delayed’ bit iv. Reasoning: Failure to act is not the same as a denialv. Scalia: Under APA §702 authorizes suit (standing) for any person adversely affected or aggrieved

by agency action, AND §704 – if no other statue provides a private right of action, the action must be “final” agency action

1. Five categories of agency action aren’t defined, but denial thereof/ equivalent thereof must be denial of an equivalent agency action

vi. Ejusdem Generis: (“Of the same kind”) Attribute the last item (“failure to act”) as sharing the same characteristics as the things previously stated

1. BLM is given great discretion in how to manage lands without impairing ability to be preserved as wilderness

2. First Claim : Discretionary decision – could regulate ATV’s within the statute so didn’t violate their legally required decision – not mandatory in the manner in which it achieves preservation of wilderness study area

a. Statute doesn’t mandate exclusion of all ATV’s in wilderness to protect those areas

3. Second Claim : Land use plan is a general set of priorities, that guide action, but don’t prescribe - not a binding agency requirement

a. Allowing interference with enforcement of plan terms would lead to interference with BLM’s own ordering of priorities

vii. Holding: Goal: Protect agencies from undue judicial interference with their lawful discretion, avoid judicial entanglement in abstract policy disagreements that courts lack expertise and information to resolve

1. No major ongoing federal action that could require NEPA analysisviii. Notes: Glicksman thinks that BLM and USFS land use plans should provide a basis for judicial

review requiring the agency to explain seeming departures from plan provisions 1. But if we allow judicial review of enforceability of land use plans, might adopt plans so

vague and general they’re meaningless 2. But doesn’t the holding create the same incentive for vagueness?

a. Would avoid any specific words- then court would find no discrete agency action, and nothing legally binding

b. Only time you’re required to do supplemental EIS is for a major agency action or ongoing agency action which wasn’t present here in the action challenged (adoption of the land use plan- plan was adopted, not ongoing)

3. What if the land use plans said “must” or “shall”? Not sure – even if the statute makes binding commitment (“shall not allow more than 1 atv race a year”), judicial review is only “perhaps” available (doesn’t necessarily meet the legally required test)

ix. §706(1): Litigants compel agency action that is unlawfully or unreasonably withheldx. §706(2): Cause of action to challenge agency action

1. Does Norton impact 706(1) AND (2)? YES- If discrete action under 706(1), then also applies to (2)- because still a discrete action

2. Legally required aspect does NOT apply for (2) though

V. Congressional & Presidential Control of Agency Decision-Makinga. Congressional Control of Administrative Environmental Decision-making

i. Appointment and removal power – limit president’s ability to remove those implementing policies the way Congress likes

1. Congress CANNOT impose its own selections on the president 2. Congress has more authority to limits presidential removal of executive officials, but

can’t do it if it interferes with core functions of executive branch (Free Enterprise) ii. Appropriations process – can put riders, or reward with more money

b. Executive Control of Administrative Decision-makingi. President can influence agency decisions by removing high-level agency appointees

ii. But ability to dictate substantive decisions entrusted to agencies is limitediii. Can require officials to clear it with political’s first (OIRA/OMB)

1. Clinton’s EO 12866 required agencies to conduct a CBA, unless statute requires otherwise (CAA?)

iv. Comments: Professor Shapiro- effectiveness of regulatory policy deteriorated from presidential and legislative oversight – impaired political accountability and doesn’t take advantage of agency expertise/experience (page 217)

1. May have also resulted in delays in rulemaking, pressure to weaken environmental regulation and reduced transparency and ability for public to influence regulatory decisions (political abuse?)

2. Congress has delegated rulemaking function to a specific agency, but then the executive branch tries to influence the decision

3. Some courts have found that OB lacks power to delay issuance of EPA regulations beyond congressionally established deadlines to complete an executive-branch-dictated review process (EDF v. Thomas)

v. APA tries to ban informal means of pressuring agency decision makers 1. Ban on ex parte communications between “interested persons” and agency officials

engaged in adjudication 2. Portland Audubon v, Endangered Species Committee: Congress’ important objective in

restricting ex parte contacts outweighed any de minimus influence on presidential power

VI. Standards of Judicial Reviewa. Types of Reviewable Administrative Action

i. Procedural rules governing agency decision making may derive from statute agency implements, the APA, the due process clause or agency regulations

1. How closely is it scrutinized? Depends on procedural aspects of agency action, and the nature of the issue being challenged

b. Informal Rulemaking : (5 USC §553: Rulemaking)i. Agency decisions regulating protection of health, safety and environment is usually legislative

1. Historically, required a more trial-like record until Vermont Yankee which prohibited courts from adding to the procedures specified in the APA, but doesn’t prevent congress from adding procedures into substantive legislation, or agency adding own requirements

ii. Selection and implementation of more statute-like policies 1. Step 1: Provide notice about what they want regulatees to do2. Step 2: Formal commenting/public meetings then responses

iii. US v. Florida: Agency does not have to hold an on-the-record trial type hearing before issuing a rule under a statute that requires the decision to be made “after hearing”

1. Basically conducing legislative-type judgment if it’s a proceeding for the purpose of promulgating policy-type rules or standards (like Bi-Metallic v. State Board)

2. Proceedings designed to adjudicate disputed facts in particular cases was more adjudication- more worried about due process (like in Londoner v. Denver)

c. Statutory Interpretation – Chevron & Overton Park i. Different standard of review when litigant asserts that an agency misinterpreted its enabling

legislation (law) than if it claims it improperly implemented a statute (policy) ii. Udall v. Tallman: Agency interpretations of their own regulations should be accorded greater

judicial deferenceiii. Chevron v. NRDC: Company sought to shut down one factory producing 50 tons/year and

changing other factory to make it larger. It was unclear if single factory was stationary source, or if both are single stationary source. If net change is 0, is there an increase in emissions requiring a permit?

1. Issue: Are judges (despite Marbury v. Madison and §702) willing to defer to an agency’s interpretation of their organic statute?

2. Rule: A court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency

a. If Congress has explicitly left a gap for an agency to fill, is an express delegation of authority to the agency to create that provision

b. Given controlling weight unless they are arbitrary and capricious or manifestly contrary to the statute

3. Reasoning: Look in statute’s context to see if congress has addressed the issue4. Step 1 : Has congress directly spoken to the precise question at issue? Is it clear or

ambiguous on the issue? a. If Congress’ intent is clear- court and agency must defer to that b. Don’t give agency any discretion- bound by what statute says

5. Step 2 : If Congress hasn’t addressed the question at issue, and the statute is silent or ambiguous on that issue, ask if the agency’s interpretation is based on a permissible construction of the statute

a. Power of an agency to administer a program requires formulating policies and gaps left by congress

b. Even if it’s not one the court would construct itself have to defer to the statue (not A&C or manifestly contrary to the statute)?

6. Holding: EPA can make cost-benefit analysis in determining control of cooling water under CWA 316(b)

a. Congress often allows agency to interpret an act, agency has expertise in an area, and federal courts are not democratically accountable (agency officials are appointed, but they are appointed by elected officials)

iv. Scope and Impact of Chevron Doctrine1. Glicksman: Degree of deference afforded an agency’s statutory interpretation should

depend on (1) whether the interpretation is made pursuant to a congressional delegation of lawmaking authority (Chevron/Mead), (2) whether the agency is applying special expertise (Skidmore), (3) whether the interpretation is consistent with larger public norms including constitutional values (Gonzales)

2. Degree of deference given to an agency differs depending on whether interpretation arises in adjudication, policy statements or rulemaking

a. Supreme Court has been reluctant to interpret step 2 in ways that present federalism questions (SWANCC)

3. Gap-filling measures might intrude upon legislative powers if too broad (delegation doc) 4. Prof. Stewart: Want agencies to be shielded from conflicts between antagonistic groups-

don’t want agencies to be so susceptible to political influencea. If agency is forced to consider public interest, more like legislature and have to

make decisions with regard to public discretion. v. US v. Mead Corp: Administrative implementation of a particular statutory provision qualifies for

Chevron deference when it appears that: (pg 192) 1. Congress delegated authority to the agency to make rules with the effect of law (e.g.,

guidance document not a rule); and 2. Judicial deference may still be appropriate depending on degree of agency’s care,

consistency, formality, relative expertness, persuasiveness of agency’s position 3. Under this test, internal agency guidance documents do not qualify as rules that carry the

force of law and are therefore not entitled to Chevron deference.vi. Barnhart v. Walton: Agency’s longstanding interpretation reached through less formal means

than notice and comment doesn’t automatically deprive it of the judicial deference otherwise due1. Deference to be given depends on interpretive method used by the agency: Consider the

nature of legal question, expertise of agency, importance of question to administration of statue, careful consideration agency has given it, etc. (page 192)

vii. Notes : More of a continuum of deference regimes applied which is very fact-dependent, more of an ad-hoc judicial reasoning

1. Since Chevron, EPA loses 60% of time on Step 1, and most of the time on Step 2 (even more in the 00s than in 90s; 93-95%)

2. Studies - strong relationship b/t justices’ ideological predispositions and the probability they will validate determinations, so Chevron may not have disciplining effect

d. Overton Park (1971) page 193i. Facts: Secretary proposed 6-lane highway through Overton Park (cut off zoo, use 26 acres) and

made announcement without a statement of factual findingii. Issue: Was the Secretary of Transportation required to make independent findings or could he

rely on the Memphis City Council’s opinion? iii. Reasoning: Marshall- §707 of APA provides that action of each authority of the government is

subject to judicial review except where there is a statutory prohibition on review1. No indication that Congress didn’t want judicial review and no legislative intent to

restrict access to judicial review 2. There is “law to apply” and so exemption for action “committed to agency discretion” is

inapplicable iv. §4(f) and §138 were clear of baring federal funds for highways through parksv. Standard of Review: §707 of APA determines Standard of Review: arbitrary, capricious, abuse of

discretion or otherwise not in accordance with the law, OR if the action failed to meet statutory, procedural or constitutional requirements

1. Substantial Evidence- Used when agency action is taken pursuant to rulemaking provision of APA, or based on public adjudicatory hearing

a. Not applicable here because not rulemaking, hearing2. De Novo- Authorized if (1) action is adjudicatory in nature and agency fact-finding

procedures were inadequate, (2) independent judicial fact-finding when issues that were not before the agency are raised in a proceeding to enforce non-adjudicatory agency action

vi. Secretary’s decision is entitled to a “presumption of regularity” 1. (1) Decide whether Sec acted within the scope of his authority

a. Congress only set out a small range of choices – could the Sec have reasonably believed there were no other choices?

2. (2) Decide whether the Secretary’s choice was “arbitrary and capricious, abuse of discretion otherwise not in accordance with law

a. Was the decision based on all relevant factors, was there a clear error of judgment?

3. (3) Did the Sec’s action followed the necessary procedural requirements?a. Failure of Secretary to make formal findings and state his reasons for allowing

highway to be built through the park b. BUT absence of findings doesn’t require case be remanded- no requirement of

formal findingsvii. Holding: Ps are entitled to judicial review where there is no indication Congress sought to

prohibit review and no showing of clear and convincing leg intent to restrict access to review, and action was not committed to agency discretion

viii. Reasoning : 702 applies when action is adjudicatory and inadequate; 706(2)(E) sufficient evidence test doesn’t apply b/c not a formal rulemaking (doesn’t say “on the record after opportunity for agency hearing”); 706(2)(A) arbitrary and capricious DOES APPLY

ix. Black/Brennan (dissent): Should be their duty to remand the case to the Secretary so that he can hear the case

e. Motor Vehicle Mfrs. Ass’n v State Farm (1983) – Rescission of safety standards was A&C and Court should use a different standard for rescission than decision not to adopt a rule because there is a presumption that congressional policies will best be served by rule

i. Did the agency:1. Rely on factors which Congress intended that it not consider2. Entirely fail to consider an important aspect of the problem3. Offer an explanation that runs counter to the evidence before it4. Reach a decision that is so implausible that it could not be ascribed to a difference in

view or the product of the agency’s expertise

Part 4: NEPA

I. Introductiona. Enacted in 1969 during the “Environmental Decade” – called the “environmental magna carta”

i. Created the CEQ – responsible for instructing agencies on how to comply with NEPA b. Some support it- widely copied statues around the world ever adopted

i. Some think it retards economic development, slows industry c. Objectives: (1) Force government to fully consider environmental impacts, (2) Force government

decision makers to disclose to the public what they found out d. Considerations: Only applies to federal agencies (not private, not usually state/local)

i. §102(2)(C): NEPA requires only the consideration of environmental values in environmental decision-making

1. Wanted to limit program or mission-oriented agencies whose whole mandates were just to build things at the expense of the environment

e. Legislative History: House passed the bill without requiring a detailed statement requirement, Senate reconciled by asking agencies to follow the procedure “to the fullest extent possible”

1. Other alternatives proposed- page 232f. Methods: §4332(2) imposes requirements on agencies

i. (C)- Core of statute: requires agencies to prepare EA’s or EIS’ that contain what the statute requires the agencies to consider

ii. (E)- Obligation to consider alternatives iii. Established CEQ as an advisory group – but agencies follow their guidelines, and courts follow

that interpretation – page 234

II. Threshold Issues a. Threshold: Step 1 : Should an EIS be prepared? (figure on page 238)

i. Ways to comply (1) Categorical Exclusion, (2) EA (then FONSI or EIS), (3) EISb. Process 1: Categorical Exclusions (CATX)

i. Actions that do not individually or cumulatively have a significant effect on the environment (§1509.4 requires any agency that creates a CAEX if because of extraordinary circumstances an action that otherwise is covered by a CAEX may have an effect on the environment)

1. CEQ wants agencies to provide minimal documentation, but many agencies provide a lot just to CYA (courts review under A&C)

2. Sometimes statutes say that it’ll be a rebuttable CATX (EPAct) 3. NEPA DOES NOT apply if agency’s action is non-discretionary/ministerial4. Inaction- No opinion where federal action occurs just by failing to prevent other party’s

action from occurring (DOW v. Andrus)a. NEPA DOES NOT apply to an agency’s neglect of its statutory duties when it is

other than a deliberate decision not to act (Norton v. Southern Utah Wilderness)ii. Does the proposal qualify for the CATX described in the regulations, were the CAEX’s properly

established- or do they actually impact environment? 1. Test : (1) Did the agency properly create the CATX in question? 2. (2) Even if it did, does the action in question fit within the scope of the categorical

exclusion3. (3) Even if it does, were there extraordinary circumstances that preclude reliance on the

CATX? iii. Statutory Impossibility: Look at §104- NEPA isn’t to affect the specific statutory obligations of

federal agencies 1. Ex: Calvert Cliffs: Can consider stricter controls than those required by law 2. Flint Ridge: Direct Conflict - HUD 30 day turnaround – but impossible to draft,

comment EIS in 30 daysa. Rule: Other substantive statutes trump NEPA b. Compliance with NEPA is excused when there is a statutory conflict with the

agency’s authorizing legislation that prohibits or renders compliance impossible

iv. Functional Equivalent: Courts have found exception if agency actions protect rather than harm the environment, with or without explicit exemption (EPA) page 264

1. Catron County v. FWS: County challenged protested FWS decision to designate certain lands as critical habitat for minnow

2. Rule: If the organic statute requires consideration of environmental consequences, unnecessary to force agencies to duplicate an EIS

3. Functional Equivalents Exemption: Ex: §4(f) of Dept of Transportation- has to consider alternatives, impact of proposed development; EPA doesn’t have to prepare an EIS when it decides to register a new pesticide because FIFRA requires considerations of adverse impacts on public health and environment

4. Holding: The functional equivalent exception doesn’t apply herea. Agency says ESA is an environmental protection statute, so should be exempted

from an EIS, but court rejected because there isn’t complete overlap of considerations (ESA has to take into account economic and other relevant impacts” which is different than straight environmental impacts)

b. BUT- Court finds that NEPA applies to every action that significantly affects the environment whether its positive or negative

5. Critical habitat designation can adversely affect environment – just because Secretary thinks that designation is beneficial is immaterial to his responsibility under NEPA

6. Don’t want courts to be arbiter of NEPA – want agencies to make informed decisions 7. Statutory Conflict allowed if the court finds: (1) An unavoidable conflict between the two

statutes that renders compliance with both impossible, or (2) duplicative procedural requirements between statues that essentially constitute functional equivalents rendering compliance with both superfluous

v. Emergencies (judge-made discerning of congressional intent)1. Emphasize a need to act quickly (40 CFR 51506.11)

vi. National security (judge-made discerning of congressional intent)1. If disclosure requires agency to threaten national security – catholic action on page 2652. FOIA applies to NEPA, but classified matters exempt from disclosure under FOIA –

Navy could either admit or deny that it was storing nuclear weapons, so court couldn’t determine if NEPA was violated

vii. Enforcement decisions (judge-made discerning of congressional intent)viii. Nondiscretionary agency decisions (judge discerning congressional intent)

1. If there is a non-discretionary duty then congress has specified what the agency I supposed to do, so no point in NEPA analysis

2. Even if EIS was done, then couldn’t make a different decision3. Makes sense for the first part, BUT disclosure part of NEPA would still be met even if

the agency can’t change their result 4. SO: Courts should be wary to except even if acting pursuant to a non-discretionary

statutory mandate ix. Specific Congressional exemptions (appropriations riders) (Statutory)

1. Sometimes “fast track” but really becomes CATX2. Requests for appropriations are exempt from NEPA – redundant

c. Process 2: EA, or EIS or PEISi. EA : Brief discussions of need for proposed action, alternatives to proposed action, environmental

impacts of proposed action, alternatives, list of agencies and people consulted (concise public document), whether EIS is needed

1. FONSI briefly presents the reasons an EIS isn’t neededii. EIS : Detailed statement of the expected adverse consequences of an action, resource commitments

involved, and alternatives to it 1. Where environmental effects of a proposed action are highly uncertain or involve unique

or unknown risks, an agency must prepare an EIS iii. NEPA requires preparation of an EIS only if agency’s proposing to take a major federal action that

significantly affects the human environment

1. 42 USC §4332(2)(C): Congress authorizes that to the fullest extent possible:2. All agencies of the Federal government shall: 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

d. MAJOR :i. Depends on amount of money involved in implementing action, magnitude of environmental

effects action would have, scope and duration of planning process for the project, ii. §1508.18: CEQ finds that “major” has no independent meaning, just reinforces “significantly”

1. If it has a significant affect on the human environment, it’ll be a major action, so most courts look at them jointly

e. FEDERAL :i. Ex: Federal permit for a project in wetlands, adoption of official policies, projects funded by

federal assistance, adoption of formal plans which guide alternative uses of federal resources, adoption of programs to implement a specific policy, allocating agency resources, actions approved by permit, etc. (40 CFR 1508.18(b))

ii. Ocean Advocates: BP cruise ship, proposed docking station 1. Rule: Federal agency decisions on projects carried out by private entities fall within

NEPA as “federal actions” if there is the necessary federal nexus2. Reasoning: To trigger NEPA requirement, P doesn’t need to show that significant effects

will occur, but raising substantial questions about whether a project ma have is sufficientiii. Slater: (CB 243) Test: Action is Federal if the federal agency has sufficient responsibility and

control to influence the outcome of the private portions of the project 1. Look at authorizing legislation- can FERC condition approval across the river on the

utility taking mitigation actions to prohibit impairment of bird habitat iv. Winnebago (242) : Power line cuts over river, through forest and forest has ESA habitat

1. Test : Not a Federal action because court rejected the but-for test, federal approval wouldn’t have had major environmental effects

a. Said Federal action is inconsequential of environmental effects b. Could argue that the government knows allowing this to happen, and the agency

knew or should have known that giving permit would result in adverse effects of cutting down trees and habitat destruction

c. But-for the approval, no habitat damage so a major federal action – CIRCUIT SPLIT on this issue

f. ACTION : i. Refusal to act isn’t enough, have to be required to do it under a statute (DC circuit)

1. Page 244: failure to act is not enough if all that is involved is an agency’s failure of an agency to prevent a non-federal party from acting

ii. Case: Sierra Club alleges NEPA violation- commerce should have prepared EIS before allowing state’s salmon harvesting

iii. Seen in Norton- ATV’s on BLM lands – choice of agency inaction can still be action1. §701 authorizes suit to challenge action unlawfully withheld2. §551(13) action includes a failure to act

iv. CEQ regs: §1508.18: 1. Actions include the circumstance where the responsible officials failed to act, and that

failure to act is reviewed under APA or other applicable law (CEQ incorporates definition of APA “action)

g. SIGNIFICANTLY AFFECTING : i. Sierra Club v. Peterson: If any “significant environmental impact might result from the proposed

agency action, then an EIS must be prepared” ii. Ocean Advocates: BP cruise ship, proposed docking station

1. Reasoning: To trigger NEPA requirement, P doesn’t need to show that significant effects will occur, but raising substantial questions about whether a project may have is sufficient

2. But agency lost because agency didn’t take a “hard look” at what BP asserted, court should have taken a closer look at why they were building the docks- ignored evidence that BP’s own experts thought the new dock would increase the amount of tanker traffic in the sound

a. No reason to not conduct an EIS- too many uncertainties, relying too much on BP, not enough on independent analysis

b. Didn’t look at possibility of increased tanker traffic which would prob occur, because BP said it wouldn’t – lies

iii. Substantial Possibility : EIS must be prepared if substantial questions are raised as to whether a project may cause significant degradation of some human environmental factor (9th circuit)

iv. Controversial Actions : CEQ regulations require consideration of the intensity and severity of environmental impacts when agencies make a significance decision

1. Look at controversy when deciding significance – but dispute as to whether “controversial” means people oppose it, or difference in opinion as to what it will involve (opposition isn’t enough?)

v. Scope : Might not have to look at GHG if too tenuous, but Center for Biological Diversity v. NHTSA allowed it- about Café standards

vi. Causal Connection : Must be causally related to physical impact1. Metropolitan Edison v. PANE: Psychological harm isn’t enough to qualify as an affect

on the “human environment,” and even if it did, the causal link between restarting the reactor and the health problems is too tenuous to prepare the obligation to prepare an EIS

a. Fear of risk, did not qualify as effect on human environment, because the connection from physical impact to the impact on people psychological harm was too tenuous and not causally related enough

b. Alleged adverse affect on the environment was the fear the residents had if the reactor were allowed to restart

2. Difference from Ocean Advocatesa. Expansion of the dock more tankers increased risk of spills, so close causal

chain of inferences to impact on human environment

vii. CEQ in §1508.27 specifies factors that must be evaluated to determine ‘significance’ 1. Context Factors : Looks at the Scope of the Action

a. The significance must be analyzed in context of the actioni. A smaller action evaluated in smaller locality

ii. If setting is larger, may need to consider significance to whole worldiii. Short and long term effects are relevant in context

2. Intensity Factors : The severity of the impact, should evaluate:a. (1) Beneficial and Adverse effects

i. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial

b. (2) Degree to which proposed action affects public health & safety c. (3) Unique characteristics to geography, proximity to historic, cultural

resources…park landsi. Whether a project would affect significant scientific, cultural or historic

resources – also important cultural thingsd. 4. Degree to which effects the quality of the human environment are likely to be

controversial i. If there is a physical impact to environment, consider the economic and social

impact1. Deals with urban environment, noise, traffic, etc…

e. (5) Degree to which effects on human environment will be highly uncertaini. Worried about unique or unknown facts - the more uncertain the risks, the

more likely EIS is needed because if there is a unique risk, need EIS to figure out what the risk is

1. Uncertainty is significant, because we want to force agencies to think of potential consequences

2. If it is uncertain, the potential is that it is significant, and forcing them to consider it allows reduction of uncertainty and potential significant impact

3. Nat’l Parks v. Babbitt: Agency was uncertain about environmental impact of increase in ships in bay. Court held that an EIS is mandated whenever uncertainty may be resolved by further collection of data

a. Uncertainty is a reason to prepare an EIS, not avoid itf. (6) Degree to which action establishes a precedent for future actions which may

have significant affects g. (7) Degree to which action is related to other actions with cumulatively significant

impactsi. Significance cannot be avoided by terming an action temporary or by breaking

it down into small component parts.h. (8) Degree to which action may cause loss or destruction of significant scientific,

cultural, or historical resourcesi. (9) Degree to which the action may adversely affect species listed under the ESA

or species listed as dangerousi. EP Info Center v. USFS: Look to the effect on the species, not individual

members of the species 1. If the species deemed unaffected, even though 1 or 2 may be, this

seems to suffice as non-significant h. HUMAN ENVIRONMENT :

i. Includes natural environment in which people live, work and playii. Human environment includes natural parks, but what about social and economic impacts?

iii. 40 CFR §1508.14- Definition includes natural and physical environment and the relationship of people with that environment

III. NEPA Issues a. Sufficiency of an EIS/EA :

i. What must an EIS include under §4332(2)(C)?1. CEQ Implementing Regulations 1502.14: Requires a comparison of environmental

effects of the principal proposal and alternatives 2. Even though NEPA’s procedures may affect substantive decisions, NEPA does not

mandate particular results, simply describes the processii. Dual functions: (1) consider the environmental consequences of their proposals, (2) disclose the

considerations of those considerations to the public and president1. Courts CANNOT reverse agency decisions just because EIS shows that the alternative

that is chosen creates unnecessary environmental damage 2. Litigant CAN convince a court that the agency’s decision is A&C and reversible under

§706(2)(A) but only prevails if litigant attacks it as a violation of the substantive statute that authorizes the agency action

iii. When agency prepares EIS, must follow requirements under §102(2)(C)1. Test: Is the statement likely to further the basic goal of NEPA to promote more

environmentally enlightened decisions? 2. Litigation: Plaintiffs either state that an EIS should have been prepared, and if one was

prepared, claim that it is inadequate 3. Want to convince a court that agency’s compliance with NEPA violated one of the two

NEPA goals (consideration and disclosure) 4. Normally remands to prepare an EIS instead of an EA, or to amend the EIS – questions

about whether pending project should be enjoined iv. PROCEDURAL: Duty to prepare an impact statement is a procedural duty – look at whether

statement contains a reasoned analysis on which people will base their decisions – that’s whether it’s “adequate” or not

1. Silver v. Min: Page 296- Must enable agency to disclose results of the consideration process, and if not, vulnerable to reversal

2. Overton Park: Defined A&C- Courts have to ask whether agency acted w/in the scope of its authority and normally substantive statues don’t impose environmental constraints on decision-making, so difficult

a. So need to argue a procedural defect – if CEQ regulations require circulation of DEIS to other agencies, and public comment before FEIS, then justifies issuance of an injunction – stop project until it complies with NEPA requirements

3. Commenting: NEPA has minimum statutory requirements for public participation, require public notice and comment (CEQ has more requirements)

v. SUBSTANTIVE: Agency’s responsibility to change proposal because of an unsatisfactory impact statement is substantive

1. Sylva v. Linn: (1) EIS should allow court to determine if agency made a good faith effort to take environmental values into account, must provide an environmental full disclosure to public, (2) can’t contain vague, general conclusory reasoning, (3) EIS must ensure integrity of decision-making process- don’t allow criticisms to be swept under rug

2. Purpose and Need: Agency can’t define action objectives so unreasonably narrowly that only one alternative would accomplish goal, making an EIS is a “foreordained formality” – but can’t be so broad that any alternatives would meet the goals. Citizens Against Burlington (CB 280)

3. EIS purpose was to facilitate cargo shipping to that specific location BUT if the scope was to “increase shipment capacity to the region” then the airport 15 miles away would have been a good alternative

b. Scope of EIS : i. CEQ requires consideration in the same impact statement of connected, cumulative or similar

actions (40 CFR §1508.25)ii. Connected Actions: closely related, and therefore should be discussed in the same EIS: if “(1) they

automatically trigger other actions which may require an EIS, cannot, or (2) will not proceed unless other actions are taken previously or simultaneously (but-for causation), or (3) are interdependent parts of a larger action and depend on the larger action for their justification”

1. Thomas v. Peterson: pg 294 – only reason to build the road is to get the timber, so couldn’t separate the road from the timber harvest

iii. Cumulative Actions: Those which when viewed with other proposed actions, have cumulatively significant impacts, and should therefore be discussed in the same impact statement

1. Agency decisions to issue FONSI only occurs because of a lack of past, present, reasonably foreseeable future action

2. Courts have struggled in determining whether agency discusses cumulative sufficiently 3. 1508.25(c/3):

iv. Similar Actions: 1508.25(3): Less regimented whether agencies have to discuss similar actions- should do so when it’s the best way to analyze

1. Difference: Cumulative actions (occur sequentially in time) v. connected actions (at the same time but connected)

v. Cumulative Impacts: More than the effects of the proposal that’s presented – need to consider cumulative effects of main proposal and other past/present/reasonably foreseeable future actions (CEQ Reg’s: 1508.7)

1. Comes up when (1) agency failed to consider cumulative impacts when it concluded that the proposal wouldn’t have significant adverse effects, so need EA not EIS, (2) challenge EIS done

2. Grand Canyon Trust v. FAA: City wanted to construct a replacement airport near Zion National Park. Trust challenged, saying EA was inadequate under 102(2)(C) because they didn’t look at the cumulative impact on natural quiet of Zion National park, and only looked at incremental impact

a. Issue: Was FAA required in the EA to address more than the incremental impact of the replacement airport compared to the old airport?

b. Rule: Cumulative Impact Analysis must identify: (1) area in which effects of proposed project will be felt, (2) impacts that are expected in that area from the proposed project, (3) other actions, past, present and proposed and reasonably foreseeable that have or are expected to have impacts in that area, (4) impacts or expected impacts from these actions, (5) overall impact that can be expected if the individual impacts are allowed to accumulate

c. Reasoning: The agency’s EA must give a realistic evaluation of the total impacts and can’t isolate a proposed project in a vacuumi. FAA found that noise would increase even if replacement airport isn’t

constructed because of more flight traffic ii. Said replacement airport has little contribution to the cumulative number of

flights over the National Parkiii. FAA was aware that Zion National Park was a high priority for minimal noise

impacts to preserve natural quiet d. Holding: Yes. The FAA’s EA failed to address the total noise impacts that will

result form the replacement airport so they must conduct a cumulative analysis i. FAA was not in a position to determine whether the additional noise projected

to come from the airport expansion would cause a significant environmental impact on the Park, so need an EIS

ii. Should have looked at it from background noise levels, instead of incremental impact of new flights from this proposal

e. Notes: Segmentation problem makes agencies look at related projects in a single impact statement, cumulative impact makes EA/EIS discuss impacts of other actions because they add to the impacts of that considered project i. But maybe should only look at incremental ones because that’s the proposal

they can’t influence the other impacts – is penalizing later developers – and would be duplicative if looking at other projects where an EIS was already done

3. Scope of Cumulative Impact : page 314a. Use the “rule of reason” test from Kern v. BLM – need some quantified or detailed

information, not general statement about possible effects unless that kind of information can’t be provided i. Must be timely- defer to agency on what is reasonably foreseeable

b. Types of Cumulative Impact1. Nonadjacent but similar – 2. Nonadjacent but dissimilar – 3. Adjacent – 4. Subsequent –

c. Don’t need “crystal ball gazing” but if there is a way to meaningfully assess the future impacts, then required to do so

d. Proposal Problem: Do agencies have to consider impacts from projects still in the planning stage, without a “final proposal”?

e. CEQ Regulations: Cumulative effects can aggravate uncertainty analysis, but where substantial uncertainty exists, management provisions for flexible implementation can be incorporated into the selected alternative

c. Discussion of Alternatives :i. CEQ Regulations state that:

1. An EIS must include a no-action alternative (1508.25(b)) 2. Agencies must include discussion of purpose and need for the proposal- helps frame the

argument- are there other ways to accomplish the same goal with less-damaging effects? (1502.13)

a. Purpose and need sets the bounds of relevant alternatives

ii. If the point of NEPA is to ensure informed decision-making, then allowing narrow scope of EIS, and requiring agencies to only include alternatives in EIS that are within their jurisdiction will lead to incomplete consideration of question

1. But agencies might construe the purpose and need section so narrowly that there aren’t any other alternatives – narrowing the statement will narrow the number of alternatives that have to be considered (Citizens Against Burlington)

a. Agency can’t define objectives of its action unreasonably narrowly so that only one alternative would accomplish the goal, and choice already picked – defeats NEPA purpose

iii. 1502.14(c) requires a discussion of reasonable alternatives – what about if they are outside of the scope of the agency’s jurisdiction?

1. Scope of agency’s substantive jurisdiction doesn’t matter because NEPA is a procedural statute, not substantive – so agency’s consideration of alternatives shouldn’t be constrained by their jurisdiction because that’s not relevant to the purpose of NEPA

iv. Alternatives requirement at the heart of NEPA process – independently consider alternatives – study, develop, describe appropriate alternatives to recommended courses of action

1. Courts usually accept agency’s decisions limiting range of alternatives under a feasibility test if they appear sufficiently comprehensive and no reason to attempt to eliminate alternatives that are good options (281)

v. Vermont Yankee v. NRDC: Was the AEC required to examine energy conservation in the EIS as an alternative to building a nuclear power plant?

1. Rule: Agencies do NOT have to affirmatively find out information about alternatives – energy conservation alternative didn’t have to be addressed because the interveners didn’t raise their objection with sufficient support and precision

2. Holding: No. Agencies aren’t required to look at agency conservation, and semi-scolded the people who intervened- should have had more meaningful involvement instead of trying to delay this process

3. Reasoning: An EIS must be more than an exercise in frivolous boilerplate, so concept of alternatives must be bounded by some notion of feasibility

a. Agency doesn’t have to consider every alternative conceivable (look at considerations of time/resources)

4. Interveners had to meet a threshold level of materiality before they can present them to the agency – they have to participate in the administrative process to allow agencies to consider the alternatives

5. Not A&C- the role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one

a. Notes: This holding occurred when there were energy volume discounts, so court didn’t recognize value of energy conservationi. Morton- Agencies had affirmative duty to seek out alternatives, Yankee- they

only had to look at what presented, burden was on opponents vi. Primary Alternative: An action other than the one the agency has proposed that would substitute

for the proposed action and accomplish the agency’s goals in a different manner 1. Here, either increase supply (build reactor) or reduce demand (conserve)

vii. Secondary Alternative: An action that retains the agency’s proposal but modifies it to reduce the adverse environmental effects

1. Would be like building the reactor, but mitigating impacts somehow2. Usually easier for a litigant to rely on agency’s failure to discuss a secondary alternative

than a primary viii. Common for an agency to state “we considered the proposed action, a no-action alternative,

considered 6 other alternatives, but we quickly dismissed 2-4 alternatives as non-viable, and then focused on 5-7” or something

1. NRDC v. Morton: Court of appeals expansively interpreted alternatives requirement – when proposed action is integral plan to broad problem, range of alternatives is broad – reasonable available rule

d. Standard of Judicial Review : Can a court enjoin an agency for not preparing an EIS?i. NEPA does not expressly provide for judicial review – but federal courts have assumed major

enforcement power1. No judicial review provisions in NEPA organic statute – no COA to seek review of

alleged non-compliance (have to go through 702/4 of APA) ii. Government wins ~ 60% NEPA cases – if an agency conducts a comprehensive study and

considers all environmental impacts, court will normally uphold an EAiii. Applying the A&C test, courts applied factors that emerged from Overton Park, did the agency

consider relevant facts, are its findings plausible in light of the evidence before it? 1. But courts have to take “a hard look” to make sure agencies complied with obligations

a. If purely legal, courts might apply less deferential test 2. Marsh v. Oregon Natural Resources: Arbitrary and capricious – standard

a. Similar to Overton Park- judicial review must be searching and careful, but standard of review is narrow (page 154)

iv. Calvert Cliffs: Skelly Wright: DC Circuit held that courts can have oversight over NEPA1. Holding: Rejected government’s claim that obligations on agencies are so vague that a

court can’t review – there is law to apply so no exception under APA 7012. Courts cannot force agencies to select a less environmentally damaging alternative than

the one agencies chose– have to think and disclose, but that’s it a. Mandate to stop doing an environmentally destructive action will have to come

from some other statute – NEPA is just process oriented b. Court found that NEPA created an independent evaluation beyond other statues

(here CWA- but congress overruled this in later CWA language)3. Notes : Agency’s compliance with NEPA is judicially reviewable even if its actions under

its enabling legislation may be committed to agency discretion v. Ocean Advocates: When expert opinions are not unanimous, courts are deferential to the agency

1. Test : To determine when significant affects exist: agencies should conclude that there are significant effects if: there is substantial possibility/questions of whether question has significant effects

e. Remedies : Judicial intervention to ensure compliance with NEPA usually solved with a court-ordered injunction – preserve status quo

i. Balance equities- need to show (1) probable success on merits, (2) irreparable injury, (3) injunction is in the public interest

1. Sometimes a “NEPA injunction” doesn’t require this balancing ii. Injunction : Harm to agency, harm to plaintiffs if agency not subject to an injunction, how public

interest will be affected 1. Winter (CB page 297): Made it easier to deny preliminary and permanent injunctions –

raise threshold for showing that P’s will show suffering of irreparable injury absent injunctive relief – deny that presumptively appropriate remedy is an injunction

2. In most cases, courts never get to issue of whether permanent injunction is warranted

a. Mitigation : Issue over whether an agency has adequately mitigated the significant environmental impacts it discussed in its impact statement i. Mitigation measures: During an EA, agencies will include the mitigation measures of their action

(CB page 225)1. This may reduce a significant effect, into simply an effect

ii. Agencies justify decisions not to prepare EIS by claiming that if a proposed project/federal action otherwise would have significant effects, mitigation measures that reduce effects below the “significant” threshold

1. Allows agency to justify not doing a full inquiry into possible effectsiii. CEQ allows mitigated FONSI only if the mitigation measures relied on are enforceable, but courts

haven’t found all measures actually enforceable 1. Listing of mitigation measures without any analytical data isn’t enough

iv. Shouldn’t commit to those mitigation measures if they have insufficient resources to implement the measures or insufficient authority to enforce

1. CEQ has allowed but: Only if mitigation techniques are legally enforceable a. Some Courts : Have accepted mitigated findings, even though they are not, under

NEPA, enforceable b. Other Courts: Have invalidated decision to FONSI, because mitigated FONSI

mitigation efforts were simply too general v. Robertson v. Methow Valley (page 317): Challenged issuance of permit to allow “recreation” in

national parks. Evaluated numerous alternatives from no-action to huge resort, and looked at impact on surrounding communities – study included mitigation measures that were ‘conceptual’ and would be further specified during implementation stages

1. Issue: Does NEPA require agencies to include full mitigation plan? 2. Rule: NEPA requires that mitigation be discussed in sufficient detail to ensure that

consequences have been evaluated, but doesn’t require that a mitigation plan be formulated and adopted

3. Reasoning: Purpose of EIS is to give impacted communities notice of expected consequences and opportunity to plan and implement timely corrective measures

a. §102 of the Act has action-forcing procedures b. 40 USC §43332(C)(ii): agency must prepare detailed statement of “any adverse

environmental effects which cannot be avoided should the proposal be implemented” so assuming some mitigation

c. Omitting reasonable mitigation measures undermines action forcing function of NEPA, and CEQ’s implementing regulations (§1508.25) requires mitigation measures in defining the scope of the EIS

4. Holding: No. NEPA doesn’t require a detailed, fully developed plan detailing what steps will be taken to mitigate adverse environmental impacts

a. It is inconsistent with NEPA’s reliance on procedural mechanisms if you demand mitigation plan before an agency can act

b. Discussion of mitigation measures promotes dual functions of NEPA BUT NEPA doesn’t require that the agency take steps to mitigate adverse consequences (even if explained in EIS- no substantive content), then NEPA doesn’t require agencies to include detailed explanation of specific measures agency commits to take to mitigate

5. Notes : Robinson implied in an obligation to consider mitigation measures, but no obligation to formulate and adopt them

a. Ok even if you discuss mitigation measures, but don't know if they will be successful (Laguna Greenbelt)

b. BUT broad generalizations referring to mitigation measures doesn’t satisfy the “hard look” required (Cuddy Mountain - CB page 323)

vi. Obligation to Discuss Mitigation :1. 4332(2)(C)(ii): NEPA requires identification of adverse effects that cannot be avoided in the

proposed project proceeds2. 1508.25(b)(3): Requires discussion of mitigation measures in agency drafting the scope of

the EIS a. 1502.14(f)- requires agencies to include in the EIS the mitigation measures not

already included in analysis of the principal proposal or the alternatives ID’d by the agency

b. 1502.16(h)- Discussion of means to mitigate adverse environmental consequences as part of discussion of environmental effects of proposal

c. 1505.2(c)- ROD accompanying EIS must state whether practicable means to avoid or minimize environmental harm from proposal have been adopted and explain why or why not

3. Even if it issues a FONSI because it says “when implementing these mitigation measures there is no negative impact” but then it doesn’t implement them, can’t sue because not substantive – but could maybe require a supplemental EIS/EA

f. Segmentation Issues :i. Agency that wants to issue a FONSI for an impactful project can do so by breaking down a large

project into several smaller components, and having each segment be analyzed independently and finding that each proposal won’t have

1. But effects of each discrete project is sufficiently low that it’s below the threshold level of significance to prepare an EIS

2. Even if agency does prepare an EIS, question of scope of that impact statement – if they want to minimize scope, carve large projects into smaller chunks

a. “Segmentation Problem” where either version (segmenting to avoid EIS, or segmenting into discrete components so discussion of cumulative effects is minimized), but this frustrates NEPA’s goals/ purpose

ii. Florida Keys: Group challenged validity of the EIS by saying that bridge replacement and road safety should be discussed in one EIS instead of segmented

1. Reasoning: FHWS was justified in looking at bridge replacement alone, and assessment of safety improvements not meant to be together

a. Agency argued that the road safety improvements covered by a categorical exclusion so exempt from NEPA – court agreed

b. Doesn’t make sense because CAEX’s are really specific – so if you know enough details to make sure it’s a CAEX, then wouldn’t be too speculative to make an EIS – but the court didn’t agree

2. Bridge has independent utility – needed replacement regardless of what the other action is, AND bridge has a logical ending point

3. Test : (1) Does the project have some independent utility- action will happen regardless of other acts? (2) If the agency proceeds with this project, is this going to be an irreversible commitment to take other actions in the future?

4. Rule: Whether a decision-maker is committed to a future course of action depends on whether the project irretrievably commits more public funding to other, future projects

5. Holding: No- the FHWA was allowed to segment the project as the project was just in planning stage, so didn’t trigger any irretrievable commitments

a. Why no 1509.25(a)(2) cumulative impact analysis? Effect from future projects would be too speculative – too broad, premature to require consideration of the effects of activities whose parameters aren’t fully known

g. Programmatic EIS i. Under 4332(2)(C) – was there a proposal? Might require a PEIS if several proposed actions are

pending at the same timeii. Practical considerations of feasibility might necessitate restricting the scope of the comprehensive

statement iii. Kleppe v. Sierra Club – PEIS: SC brought suit against Interior for issuance of approval of mining

permits on Federal land (large % coal reserves on federal land)1. Government had prepared a Northern Great Plains Resources Program study to assess the

social, economic and environmental impacts from resource development in this area a. Programmatic Coal EIS – impact of coal in the US, and agency said would

prepare additional EIS’ to lease individual tracts of Federal landb. SCOTUS reversed – court of appeals, no regional development plan was

presented, and can’t use a balancing test for when NEPA applies2. Issue: Was the agency required to conduct a programmatic EIS for the coal area?3. Rule: When several proposals for coal-related action that will have cumulative or

synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together

a. Agency must have a final statement ready at the time at which it makes a recommendation or report on a proposal for federal action

4. Reasoning: Contemplation of a project and resulting study don’t result in a proposal for federal action, so balancing test would result in too many EIS’

a. Contemplation of an action is not sufficient to require an impact statement, and there is no impact statement in the record to review, that wasn’t the challenge brought before the SC

b. Comprehensive EIS might be required during the development of a proposal submitted by private parties

5. Whether a comprehensive statement is necessary depends on: extent of the interrelationship among proposed actions and practical considerations of feasibility

6. Holding: No. Choice not to conduct a programmatic EIS before issuing individual permits was NOT arbitrary. No proposal for region-wide action was presented to the agency.

a. Cumulative environmental impacts are what require a comprehensive EIS, but the extent of these factors and the geographic scope is a task assigned to the special competency of the appropriate agencies

iv. Impact of Kleppe on the segmentation doctrine is unclear- only states that when multiple individual permits are received, don’t necessarily need a PEIS

1. 42 USC 61.071- most useful principles for defining the scope of comprehensive environmental statements were precedent-setting effect, interdependence, cumulative characteristics of impact, and availability of information

a. CEQ: 1508.23: Proposal occurs when- (1) an agency subject to the Act has a goal and (2) agency is actively preparing to make a decision on one or more alternative means of accomplishing that goal, (2) the effects can be meaningfully evaluated,

b. AND A proposal may exist in fact as well as by agency declaration that one exists.i. Different because SCOTUS says proposal only exists when the agency says it

exists ii. Policy : Don’t want agency to waste its time to engage in such speculative

analysis that it’s not meaningful, but also don’t want agencies to delay preparing an EIS until the agency ahs already committed so much to the plan that the EIS is a whitewashing of a decision already made instead of an inquiry into other alternatives

v. Glicksman : Kleppe allows agencies great leeway in deciding when a formal proposal occurs, court directed lower court to give significant deterrence to agency about when there is/isn’t a proposal

vi. Fragmentation : Is there a legitimate reason to break up the project into smaller increments, or are they violating NEPA by avoiding assessing cumulative impacts of the project going forward?

vii. Technology : Statements on technological development programs should be prepared before the program has reached a stage of investment or commitment to implementation likely to determine subsequent developments or restrict later alternatives §1502.4(c)(3) – page 292

viii. Avoidance : Decision not to require impact statement at the planning stage might result in agencies avoiding impact statement preparation until they know their plans enough to formulate them in program form – so might limit alternatives

1. Might confine impact statement requirement to incremental project decisions rather than agency planning programs

2. The less articulation of planning an agency undertakes, the less environmental planning it can be compelled to perform

ix. Distinguish Kleppe : In NRDC v. Hodel: Said if the program contains specific plans for regional development, then the individual projects by the federal government and industry are interrelated and form an integrated plan

x. Tiering : Site-specific impact statement should refer back to applicable discussions contained in the program impact statement

1. When an EIS or EA is prepared on an action included within the program statement, later statement or EA need only summarize issues discussed in the broader statement and incorporate discussions form the broader statement by reference 40 CFR §1502.20

a. (1508.28- Defines teiring)2. Might actually minimize the amount of work the agency has to do in the long run- less

duplicative/redundant

3. Conducts programmatic EIS, then later, only have to make a smaller EA later on with consequences not covered in the PEIS

4. BUT problems because if you only have to do an EA later, may avoid including more information that has come up since the PEIS- might miss some effects that were too speculative then, but are known now

h. Supplemental Impact Statements : (Page 324) 1502.9(c)i. Requires agencies to supplement if (1) agency makes a substantial change in a proposed action

that’s relevant to its environmental impacts, OR (2) ii. Norton v. South Utah Wilderness Alliance

1. Sometimes, “supplemental impact statement” is requireda. Only when “there is remaining Major federal agency action” left

2. If agency is in continued action, with remaining action left Supplement3. Here court said that, the Plan is a proposed action- Not an action yet…so no need to

supplement

Part 5: ESA

I. Biodiversity Conservation Introductiona. Biggest issue is degradation of habitat and ecosystems (land development, timber harvesting, road

building, mining, grazing, dam construction, water withdrawal, introduction of exotic species into new environments, etc.)

b. Categories of concern: (1) utilitarian reasons to worry about species extinction, and (2) philosophical and moral reasons to be concerned

c. Objectives of Environmental Law : (1) prevent pollution, (2) conserve biodiversity i. Protecting biodiversity is preserving species richness, either ex situ (zoo) or in situ (natural habitat)

ii. 1990: Endangered Species Act1. 15 USC §1531(b): Means by which the ecosystems depend may be conserved - take steps

to achieve purposes to protect species, d. Doremus: Patching the Ark :

i. Utilitarian Reasons: Direct and indirect usefulness of biological resources1. Crops we domesticate, genetic traits, medical drugs (penicillin) 2. Need connection with living things for mental and physical health 3. Ecosystem services like flood and climate control, soil generation, purification which are

currently beyond technological capacity a. Healthiest ecosystems have the greatest biodiversity concentrations- more species,

can adapt better to changes4. Species are the canaries in the coal mines –warning that there is something wrong with the

ecosystem in which it lives ii. Esthetic Basis: Importance of national parks, bird watching, etc.

1. Certain species have cultural or historic value 2. Earth is not given by parents, loaned by children – sustainability issues

iii. Ethical Basis: Aldo Leopold advocated for an ecological conscience1. Man is responsible for the health of the land – intrinsic value of nature 2. Is it immoral to use up all resources to satisfy our needs? 3. Extinction of species is a non-renewable resource

e. Production of Ecosystem Services :i. Difficult to put a monetary value on services – then include in EIS, or forest service plans

1. British study – globally worth about $5T/yr in their undisturbed state ii. Then markets can be created for these services to release exploitation pressure

iii. Monetary values are “stronger” than spiritual or aesthetic values, but harder to connect service providers to beneficiaries – transaction costs plus issues of whether service is actually being provided, and capacity of the ecosystem

II. The Endangered Species Act a. Primarily focused on prevention of individual species extinction, but utilizes habitat reserves – private

and public land (under FWS within DOI and NMFS in Commerce)i. National Marine Fisheries Service has same statutory duty as FWS just with ocean and fisheries

1. “Charismatic mega fauna” (statute is ridiculed for attempting to protect species that have no apparent utilitarian use/impact)

b. Listing of Species : Pub L. §4 (USC §1533)i. Endangered: §1532- In danger of extinction throughout all or a significant portion of their range

ii. Threatened: Species likely to become endangered within foreseeable future

iii. Question: Isn’t commercial data economic information? Why does the ESA use economic information for “best commercial information data available” §1536(a)(2)

1. Bennett v. Spear: Prudential standing, Scalia interpreted it as wanting to prevent uneconomic regulation by overly zealous regulators – commercial data is indicative of Congress’ thought that economic information is relevant

a. BUT legislative history shows otherwise – commercial data in that provision is minor- reference was to the request of the fur industry (wanted scientific data by industry sources) commercial wasn’t an alternative to scientific data (just the effect of commercial trade on a species)

2. Bottom Line: Economic impact is irrelevant to species listingiv. §3(5) limits extent of land that can be designated as “critical habitat” to specific areas within the

geographical area occupied by the species at the time listed 1. BUT shall not include entire geographical area occupied by species

v. DOW v. Norton: DOI Can’t categorically withdraw a listing for an endangered species at risk on both private and public land because sufficient public land is available for its survival

1. Has to articulate reasoning for finding that lost/threatened portions of species’ range are insignificant before deciding now to list species

vi. Arizona Cattle Growers v. Saazar: DOI listed Mexican spotted owl as threatened, designated 8.6 million acres as critical habitat. Cattle growers sued saying FWS didn’t account for economic impacts of the critical habitat designation

1. Issue: What role does economic impact analysis play in the designation of critical habitat under §1533?

2. Rule: An agency cannot take into consideration the economic impacts of listing the species during its analysis of the costs of designating its habitat

3. Holding: Agency doesn’t have to look at econ in listing, but has to in designating habitat a. Agency can use the “baseline” approach – no sense to do a CBA if the analysis

looks at costs that will exist regardless of decision (would make the costs unnecessarily high)

b. Economic analysis of critical habitat designation is not intended to incorporate burdens imposed by the listing of the species

c. No concern that FWS will treat economic analysis as procedural formality because then it would be violating its duty

4. Reasoning: Decision to list species is made w/o reference to economic effects BUT decision to designate critical habitat can look at economic impact

a. §1533(b)(1)(A): Based solely on best scientific and commercial data available (prohibit FWS/NMFS from considering economic impact at the listing stage)

i. So this sets the scope of the “no jeopardy” provisionsb. §1533(b)(2) – Secretary shall designate critical habitat on basis of best scientific

data available AND take into consideration economic impact and national security i. Secretary may exclude an area if the benefits of exclusion outweigh the

benefits of inclusion (exclude if economic burden > habitat benefits unless the lack of designation results in extinction of species)

c. CBA designed to ID cost and benefits looking at the world at thee time the action is going to be taken (listing happened before- so don’t include)

5. Baseline Approach: Incorporate economic impacts of protecting owl that resulted from the species listing (regardless of designation) into the “baseline”

a. Listing of species has some adverse economic impact, then additional economic impact from designating (because triggers consultation, and creates alternatives /modifications that will be followed)

6. Co-extensive approach: Agency ignores protection of a species that results from listing in considering whether to designate – any economic burden in designating must be counted in economic analysis even if burden already imposed through listing

vii. Notes : Treat economic impact exclusively as listing of the species1. Timber sale prohibited because of listing (jeopardizes existence of species) but designating

habitat prohibited timber sale tooa. If all impacts have been caused by listing, no additional incremental impact

attributable to designating habitat 2. Baseline Approach: SO designation has “no adverse economic impact”

viii. Gifford Pinchot & Cape Hatteras: 1. FWS in its regulations defined “adverse modification of critical habitat” based on no

jeopardy provision, the same way it defined “jeopardy”a. Jeopardy appreciably reduces likelihood of survival and recovery b. Destruction of adverse modification diminishes value of critical habitat for both

survival and recovery of a listed species 2. Holding: Court invalidated critical habitat designation definition

a. Some actions interfere with recovery (keep status quo but don’t make things worse), but that aren’t bad enough to make the species extinct

b. Because it says “both survival and recovery,” you read recovery out of the action – if you threaten its survival, you obviously threaten its recovery

c. Court says you can’t treat those two terms the same way i. Look at §1553(5): Habitat essential to the conservation of the species

(conservation meaning use of methods/procedures necessary to bring species to point at which protection is no longer necessary {under §1553(3)} – which means species recovered basically

d. Statute’s mandate under 1536(a)(2) that don’t just threaten revival, but hinder recovery – agency can’t forget about dual mandate

ix. New Mexico Cattle Growers (10th Circuit)1. Would have had to use the economic impact of listing AND adverse economic impact of

designation (10th Circuit) 2. 10th Circuit court said: Renders economic analysis of designating critical habitat virtually

worthless if nothing beyond economic impact that was caused by listing 3. FWS must consider the impact when designating critical habitat even if all the impact was

already caused by the listing x. Notes : If projects impact may influence habitat of listed species, has to engage in consultation

process – but FWS can determine whether pursuit of project would be likely to destroy or adversely affect a critical habitat

1. Issues a quasi-FONSI – either it’s likely or not likely to jeopardize, then has “reasonably prudent alternatives” for acting agency to pursue goal in a way that doesn’t violate §1536(a)(2)

2. Nothing requires agency to adopt those alternatives, but if an agency ignores those alternatives in a biological opinion, Court basically says it violates ESA

3. Consultation process usually results in modifications to proposal, usually causes adverse economic impacts by restricting otherwise unlimited economic development

xi. Homebuilders Association v. USFWS (9th Circuit)1. In designating critical habitat, FWS doesn’t have to determine time when protection under

ESA won’t be necessary

2. No way to know exactly when recovery will occur, but need criteria for when a species will be conserved under 1533(f) recovery plan

a. Recovery plans aren’t binding- informational onlyxii. Issues in Designation:

1. 1533(b)(2): How will including critical habitat make species survival worse? a. So some people might find out where the critical habitat is, and then go find the

species, or people whose land its on, would develop land asap2. Functional Equivalents Approach: Designation of critical habitat serves a minimal

additional function separate from species listing because the effects of designation are mainly a subset of effects of listing

a. Project modifications will likely flow from the listing of species (consultations), but no additional modifications are likely to come from the habitat designation

b. The 5th and 9th circuits rejected “functional equivalents” test – consultation required under §7a only if a species’ survival was at stake, not just when recovery of a listed species is at stake

c. FWS can resolve questions of scientific uncertainty with same margin of safety accorded EPA in setting pollution control standards

c. Taking Prohibition : §1538/9: Prevents taking of species listed by FWS as endangered (prohibition to government agencies and private entities like landowners

i. Section 7- prohibits Federal government from taking an endangered speciesii. Section 9- prohibits “any person”

1. No Taking – Must show no imminent actual injury to species or habitata. For harm, one-time instances are not enough.  Neither is numerical probability or

scientific data – Need an actual injury.iii. 16 U.S.C. § 1538(a)(1)(B) – “Except as provided in §§ 1535(g)(2) and 1539 of this title, with

respect to any endangered species of fish or wildlife listed pursuant to § 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to . . . take any such endangered species of fish or wildlife within the United States or the territorial sea of the United States.”

1. Bars only taking of endangered fish or wildlife, not threatened fish or wildlife.  But FWS is going to exercise its discretion to apply the provision to threatened species

2. Applies to federal agencies and private individuals (unlike § 1536, which applies only to federal agencies).

3. Unlike no-jeopardy provision, this covers private people acting on their own private property.

iv. Exceptions : Momentum to broaden exceptions – they are over and under inclusive1. (1) Those permitted by “God Squad” or (2) Incidental takings under §1539

a. 16 U.S.C. § 1539(a)(1)(B) – “The Secretary may permit, under such terms and conditions as he shall prescribe . . . any taking otherwise prohibited by section 1538(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.”

b. Purpose of land development is not to kill species.  If taking provision required a direct application of force, it never would be invoked.  People usually do not go into the woods and kill endangered species.  Reading the taking provision as requiring direct application of force would render it superfluous.

c. Incidental take permit need not specify number of animals killed that will amount to take.  Ecological conditions could be used if no such numerical value could be practically obtained.  Arizona Cattle Growers

2. God committee has only granted exceptions in few circumstances a. High ranking officials from government agencies b. Can’t grant an incidental takings if it “depreciably reduce likelihood of survival

and recovery of species” v. Penalties : Violators are subject to real criminal penalties, e.g., 1 year in prison

vi. Definitions :

1. “Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. (16 USC §1532(19))

2. “Harm” means an act that actually kills or injured 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 shelter. (50 CFR §17.3)

3. “Harass” means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, not are not limited to, breeding, feeding, or shelter. (50 CFR §17.3)

vii. Babbitt v. Sweet Home Chapter: DOI issued a statement saying interpreting “harm” to include habitat modification and degradation (previously just hunting)

1. SCOTUS reversed – habitat modification is a legitimate interpretation of the word “harm” under Chevron – have to defer to agency

2. Issue: Did the secretary exceed his authority under the Act by promulgating the regulation defining the statute’s prohibition on takings to include “significant habitat modification or degradation where it actually kills or injures wildlife?

3. Holding: No. The “§ 9 prohibition on takings, which Congress defined to include "harm," places on respondents a duty to avoid harm that habitat alteration will cause the birds unless respondents first obtain a permit pursuant to § 10.”

a. Stevens: Ordinary meaning of “harm” under §9(a)(1)(B) would include damage to habitat that hurts endangered animals

b. Broad purpose/intent of ESA was to give broad protection to endangered species- supports the Secretary’s decision to extend protection against activities that cause the precise harms Congress enacted that statute to avoid

c. Congress in 1982 authorized Secretary to issue permits for takings that §1539(a)(1)(B) would otherwise prohibit, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, strongly suggests that Congress understood that section to prohibit indirect AND deliberate takings.

4. Rejected argument that “the Secretary's only means of forestalling that grave result [harm caused by habitat alteration]--even when the actor knows it is certain to occur--is to use his § 5 authority to purchase the lands on which the survival of the species depends.”

5. O’Connor (concurring): No indication that in enacting [§ 1538(a)(1)], Congress intended to dispense with ordinary principles of proximate causation.”

a. This allows the takings prohibition to apply in circumstances such as, “the landowner who drains a pond on his property, killing endangered fish in the process.”

6. Scalia (dissenting): Failure to act never can qualify as a taking.a. It may qualify as a taking though. Some argue that a preexisting duty to act is a

prerequisite. This is what the government argued in its amicus brief in Babbitt. b. Glicksman has a hard time imagining where this preexisting duty would come

from, but it might come from the affirmative conservation duty, i.e., agency violates duty by failing to adopt a conservation program.

viii. Notes : What questions does this case leave open?1. Court doesn’t say whether statutory definition of “take” compels something. It’s possible

the agency wanted “take” to be narrower.2. It’s not clear whether an action must already have caused species death or habitat

modification. Court indicates there must be actual death or harm already occurred. 3. Yes, reasonably certain threats of imminent harm can amount to a taking.  Marbled

Murrelet.  See conflicting case law on pp. 375–76.  But see American Bald Eagle – “courts have granted injunctive relief only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species.”

4. Arizona Cattle Growers (9th Circuit): FWS may use ecological conditions rather than numbers to define the trigger for exceeding the taking authorized by an incidental take statement – only if no numerical taking value can be established

d. No Jeopardy Provision : Pub. L. §7, USC §1536(a) and §1537i. Prevents agencies from taking actions that jeopardize species or that adversely affect or destroy the

critical habitat of such species 1. Affirmative Conservation Duty: §7(a)(1) requires agencies to conserve listed species

(affirmative conservation duty) is separate from duty to avoid jeopardy or adverse impacts ii. NEPA §4332(2)(c): Only applies to federal agencies

iii. But §1536(a) applies to public and private –substantive iv. If there is a potential action that might impact species, have to consult with FWS or NMFS to see if

agency’s proposed action would jeopardize speciesv. TVA v. Hill: TVA started building the Tellico dam on the little Tennessee river for hydroelectric

power generation 1. Issue: Is completing the dam a violation of the ESA? Is an injunction an appropriate

remedy if there is a violation? 2. Holding: Yes. Completion of the dam would violate ESA, so an injunction is proper as

congressional intent was clear to preserve species whatever the costa. Agency has mandate to protect jeopardized species b. Decision to list or not is reviewable – based on scientific record- so courts only

intervene if agency departs from scientific mandate or required statutory procedure

3. Reasoning: Under 16 USC §1533(a)(1) the Secretary of Interior is given exclusive authority to determine whether a species is “endangered” or threatened, and under §1533(d), congress allows Secretary to issue regulation to provide for the conservation of such species

4. ESA Violation : §7 of ESA has plain language to ensure that actions funded don’t jeopardize continued existence of endangered species or result in habitat destruction (doesn’t identify any clear exception)

5. Congressional intent to afford endangered species highest priorities, so doesn’t matter that funding has been appropriated

a. Just because money already appropriated, doesn’t repeal Act i. No congressional intent to use a CBA

ii. SCOTUS disfavors “implied” repeals of statutes iii. Especially in appropriations bills - aren’t supposed to have substantive

content- not meant to change substantive laws 6. No CBA required under the statute so costs are irrelevant- Congress gave broad discretion

to “conserve” using any methods7. Only qualification was “insofar as is practicable and consistent with their primary

purposes,” but clear intent to halt trend toward species extinction, whatever the cost (even if stopping ongoing projects)

8. Remedy : TVA said equitable remedies are discretionary, so balancing of equities and hardships is appropriate – Court disagreed

9. Congress’ intent was clear, court can’t substitute in its own judgment vi. Notes : Howard Baker added a rider to the appropriations bill exempting the Tellico Dam from the

ESA, Carter signed it – didn’t want to be ridiculed

vii. National Association of Home Builders v. Defenders of Wildlife: Involves §402(b) of the CWA 1. EPA transfers NPDES authority to a state if 9 criteria have been met2. ESA requires consultation if federal action don’t jeopardize continued existence of

endangered/threatened species {§1536(a)(2)}a. Thought maybe indirect harm on species because ESA doesn’t apply to state

agencies, so RPA was to ask state agencies to take indirect impact on species into consideration in permitting

3. Issue: Is ESA §7(a)(2) a 10th criteria to giving states NPDES jurisdiction under the CWA? Does the ESA §7 apply to non-discretionary agency action?

4. Holding: ESA does NOT require the EPA to apply additional criteria when evaluating pollution control jurisdiction transfer to a state under the CWA

5. Reasoning: Transfer is non-discretionary if criteria are present (state agency has the requisite authority to administer the NPDES program)

6. Alito: Repeals by implication are not favored - Won’t presume that later statute repeals earlier statute unless congressional intent is “clear and manifest”

a. Adding 10th criteria would repeal CWA §403 – 9 criteria are not a minimum, but a statutory requirement (which was met here)

b. FWS implemented regulation saying §7 applies when there is any agency discretion – doesn’t repeal nondiscretionary mandates

7. This interpretation is reasonable in light of statute’s text so it’s entitled to deference under Chevron (if an agency is required to do something, lacks power to insure that such action won’t jeopardize species)

a. Step 2 of chevron- two statutes are ambiguous, so court reviewing agency’s decision has to give deference to it unless that interpretation is A&C

b. Comports with TVA v. Hill because that was a discretionary action, and here the delegation to the state isn’t a discretionary action

8. Ways to Reconcile Acts: Implicitly amends or repeals earlier statute, and so ESA trumps CWA and requires consideration of impact on listed species even though CWA doesn’t

9. Stevens/Souter/Ginsburg/Breyer (dissenting): Court should try to give full effect to both competing statutory mandates

a. Majority improperly paraphrased no jeopardy provision because regulation says “only discretionary actions,” but ESA doesn’t say that

b. Majority changed regulation by adding “only” to “discretionary actions” because statute doesn’t differentiate between them and regulation didn’t say it didn’t apply to non-discretionary actions

c. Nobody argued that statue didn’t apply to discretionary actions, what’s the point of adopting regulation that states the obvious?

d. Could reconcile by saying a RPA is transferring only upon finding no jeopardizing of species OR could ask for a “god committee” exception

i. Use MOA to set up enforcement 10. Notes : FWS says that emission of GHG from federal action doesn’t rigger §7(a) issues

because too attenuated- don’t know what impact on species is a. Agency’s substantive protection duties under §7(A) is satisfied through procedural

obligation to consult with FWS e. Standard of Review :

i. Standard of Review : Biological opinions are subject to judicial review under Arbitrary and Capricious standard (page 367)

1. Other : Habitat Proxies: Test for whether they work is if it “reasonably ensures” that he proxy results mirror reality

Part 5: Clean Air ActI. Introduction

a. Impetus: Donora Smog- 1948: Lots of air pollution in a short period of time could killb. Goal: Clean up dirty air to an acceptable level and to maintain high air quality where it still exists

§101(b)(1) i. Declaration of Purposes : §7401(b)(1): Protect and enhance quality of nation’s air resources so as

to promote public health and welfare and the productive capacity of the population (well people > sick people)

ii. How Created : §7409: Creates authority in the EPA to adopt the NAAQSiii. (1) Served as a model for other federal environmental programs, (2) relies on a variety of

regulatory techniques (ambient, performance, design standards), (3) first federal pollution control

statute to use economic incentive-based approaches, (4) evolution of environmental regulatory program as it adapts to previously unknown environmental risks and implementation challenges (how to address urban pollution?), (5) regulation whose implementation required deciding how to provide equitable treatment to sources that contribute, (6) environmental federalism issues (which level of government should be responsible for formulating policies?), (7) air pollution raises trans-boundary issues

c. Asia has worst air pollution today (China & Russia) d. Approach: Relies on ambient and technology-based based approach to risk management with federal

standard setting and state implementation i. CAA- began with ambient quality, moved more toward technology-based

e. Pollution Sources:i. Undesirable airborne gasses or particles

1. Many air pollutants only hurt health or the environment under certain conditions – maybe only hurt people in certain areas nearby power plants

2. Primary Pollutants- Directly emitted as a result of human activities 3. Secondary Pollutants- Form when human emissions combine with naturally occurring

atmospheric gasses/ water vapor and each other with sunlight 4. Control secondary pollutants through regulating primary pollutants

ii. Sometimes natural (hydrocarbons and hydrogen sulfide from when organic material decompose/volcanoes)

iii. Carbon Monoxide - (CO) fossil fuels don’t burn completely – collect in city streets iv. Nitrogen Oxides - (NOx) form when air is heated like car engines – lung kidney impairmentv. Hydrocarbon Compounds- gaseous or particulate form created when carbon-bearing substances

are burned1. Home fireplaces, asphalt, and vehicle emissions

vi. Ozone - (O3) - Photochemical Oxidants- precursor pollutants like HC’s and NOx react with each other in the atmosphere (produce smog)

1. Have to lower NOx, HC and sulfur dioxide emissions to control2. Makes plants lose leaves early, short term exposure harmful to humans

vii. Lead - (Pb) forms in atmosphere as a aerosol or dust – used to be in gasoline 1. Can accelerate the aging process, hyperactivity in kids

viii. Sulfur Oxides - (SOx) forms when coal and oil are burned – bad for asthmatics ix. Particulate Matter - Total Suspended Particulates- collection of particles like soil, soot, metals,

chemical compounds mixed in the atmosphere 1. Aerosols (smaller particles) present more risks than bigger ones- they can get into your lungs

and be carcinogenic (Asia has biggest problems)2. Can spray sites with water, trap particles emitting plants

f. Regulation of Air Pollution: i. Documenting Health Effects : Frequent and long term exposures- hard to identify what exactly

caused a harm seen later on (latency period) 1. Many things that could cause a heart attack/pneumonia

ii. Emission Sources1. Change in percentage that comes from vehicles and industry2. Remove lead in gasoline, but metal smelters keep emitting 3. Less per vehicle, but more miles per trip, and vehicles overall (and globally) 4. Air Improvement : Between 1980 and 2008, huge decreases in criteria pollutants

iii. Economic Impact 1. Most agree that benefits outweigh costs, but controversy over how much2. Burdens and benefits are unequally distributed among emitters and receptors3. Poor benefit more than the rich – but some ozone exposure falls on lower classes

II. Regulatory Approachesa. Ambient Air Quality Based Standard Provisions- Specify maximum pollutant concentrations deemed

to be safe for exposure over various time periods

i. No limits on actual sources – need to be combined with measures limiting individual source emissions (§108 and §109 entitle EPA to set NAAQS after scientific information gathered)

1. Have to set primary standards to protect human health with an “adequate margin of safety” and secondary standards to protect environmental values (aesthetics, animal and plant life, property)

ii. Standards set for six criteria pollutants – emphasize attainment of these ambient standards 1. States select and implement combination of emission limitations on stationary and mobile

sources to ensure they meet ambient standards 2. Adopt separate State Implementation Plan (SIP) for each criteria pollutant

iii. National Ambient Air Quality Standards (NAAQS): 1. Purpose : (b)(1): Primary standards are designed to protect the public health to an adequate

margin of safetya. Need to know if a violation occurs, can offset it, buffer zone to make sure public

health is still protected if problem occursb. Need buffer in case we were wrong about the level of safety needed, so better to be

lower (prevent false negatives) c. (b)(2) Secondary standards- level of health requisite to protect the public welfare

i. Welfare: Term defined broadly to include (not limited to) effects on soils, water, crops, vegetation, man made materials (like buildings), animals, wildlife, weather, visibility, climate, damage to deterioration of property, hazards of transportation, economic values, personal wellbeing, etc. under §7602(h)

2. Authority : §7408(a)(1): Trigger authority to adopt NAAQSa. Six criteria pollutants- air quality criteria are scientific documents reflecting latest

knowledge of identifiable adverse health effects caused by that pollutant in the air (why dangerous, how dangerous?)

i. Hydrocarbons and Ozone (count separate or together?) ii. Six criteria pollutants, then specific provisions to protect ozone layer, prevent

acid rainiii. Why those six? 7408(a)(1)- criteria if its emissions, in EPA’s judgment, (1)

Cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, (2) there are numerous or diverse mobile or stationary sources, and (3) for which air quality criteria have not been issued before CAA enacted, but for which Administrator plans to adopt a standard

b. Then within certain statutory period, set standards for each pollutant, then review and comment on primary and secondary standards

i. Same standards often used to protect public health and public welfare iv. National Uniform New Source Performance Standards (NPS)- Require application of best

system of emission reduction (looking at cost)

b. Step 1. Under §108, What substances get Air Quality Criteria, and NAAQS : i. Determine maximum permissible concentration of pollution in environmental medium (air) needed

to achieve environmental protection goal (GOAL)ii. §108 (a)(1): To create NAAQS for primary and secondary, the EPA Administrator shall make a

list, and periodically revise it, for each pollutant:1. (A) The emissions of which, in his judgment, cause or contribute to air pollution which

may reasonably be anticipated to endanger public health or welfare and2. (B) The presence of which in ambient air results from numerous or diverse mobile

(car) or stationary sources (plant).3. §108 and §109 entitle EPA to set NAAQS after scientific information gathered)4. Have to set primary standards to protect human health with an “adequate margin of safety”

and secondary standards to protect environmental values (aesthetics, animal and plant life, property)

iii. §108 (a)(2): Within 1 year of substance being on list, EPA must issue “air quality criteria”

1. Air Quality Criteria accurately reflect latest scientific knowledge useful in indicating the kind/ extent of effects on public health and welfare from presence in ambient air

2. Air Quality Criteria: Is simply scientific data, that tells about the effects of exposure at various levels we are exposed to it

iv. National Emission Standards for Hazardous Air Pollutants (NESHAP)- 1. First EPA had to issue standards for pollutants at a level that would provide an “ample

margin of safety to protect the public health – only a few substances originally listed, but changed in 1990 amendments

2. 189 hazardous air pollutants then listed §112(b)(1) a. EPA has to determine which source categories pose a threat of adverse human

health or environmental effects through their emissions of a listed pollutant and establish standards for each category §112(c)(2)

i. EPA sets primary standards for more than one pollutant – might measure it on an hourly basis then separate standard for pollutant measured on average annually

ii. Maybe ok to have violation for an hour, but not for a year- want to prevent acute levels of exposure (dual standards prevent acute risks and long-term, chronic risks)

3. EPA issues first round of controls that require maximum degree of reduction that EPA decides is achievable §112(d)

a. New source standards more stringent than existing sources – then Congress can legislate to lower if risks still to high or EPA can regulate

b. EPA has to do a second round to provide an ample margin of safety to protect public health or prevent adverse environmental effects

i. Round two if round 2 doesn’t reduce lifetime excess cancer risk to the most exposed individual to less than 1:1M §112(f)(2)(A)

v. NRDC v. Train : Citizen suit brought to compel EPA to place lead on the list of air pollutants under §108(a)(1) {7604}. EPA Argues that 108 (a) 1 a, and b are met…but says it must also meet c, which says “which are planned” and that it had no plans to list lead.

1. EPA said first requirement for triggering was satisfied- lead emissions contributed to air pollution which reasonably could be found to endanger public health/welfare, second because all cars have lead in gasoline- so numerous mobile sources

a. EPA said they don’t have the third – no lead air criteria before 1970, but EPA said they did not plan to issue air quality criteria – were going to control it another way – by controlling it at the source (in gasoline) under §7545 emissions program

2. Rule: Congress didn’t mean to allow EPA to decide what pollutants are listed as criteria pollutants– Congress didn’t intend to give them such discretion

a. Once a pollutant has been listed under §108(a)(1), §§109 and 110 of the Act are automatically invoked.

b. 7545(c) and 7409(b) were complementary, has to list under 7408(a)(1) and regulate under 7409(b) – EPA “shall publish a list”

3. (1) The EPA has a mandatory duty to list a pollutant, if §108(a)(1) a and b are met a. A & B are only test – C, was not meant to be part of the test, but to deal with past

issue has no substantive effectb. EPA has no discretion, once A & B are met

4. 2. If this duty was discretionary, it would be Contrary to Congress’s Intent: a. Congress intended 109 and 110, which automatically turn on if 108 met, to regulate

the NAAQS, because states were dragging their feet originallyi. If EPA had discretion, it could delay regulating forever

b. Even if EPA is regulating lead under §7545 Fuel Program, that will make it easier for states to comply with their State implementation programs

c. Step 2. Establishing the §109 National Ambient Air Quality Standard:

i. Calculate maximum aggregate emissions level in particular area that won’t result in excessive pollution concentrations (ALLOWABLE POLLUTION TO ACHIEVE GOAL)

ii. §109(a): The administrator shall publish an NAAQS for each listed criteria pollutant in §108iii. §109(b) 1: After a reasonable time for Notice and Comment

1. NAAQS shall be standards, in the judgment of the administrator, based on criteria allowing an adequate margin of safety, and a level to protect the public health

2. EPA is supposed to, under §109, issue both for primary and secondary standards a. Consider Uncertainty of Harm, Size of effected population, Severity of effectb. Risk Assessment used to manage

iv. Lead Industries Association v. EPA : Plaintiff said EPA in error for refusing to consider the issues of economic and technological feasibility in determining what was an “adequate margin of safety” in setting the air quality standards for lead

a. (1) Economic and Technologic effects in promulgation of ambient air quality standards under Section 109 play no part in EPA Consideration

i. In other portions of statute, it specifically states these 2 factors, but doesn’t here

ii. The legislative history shows that the concern was health, and subordinated all other concerns

iii. But, specifically left out because they should not be considered iv. §109 considers only 2 factors Public Health and Welfare

b. (2) Adequate Margin of Safety Consideration is EPA’s discretioni. The Goal of NAAQS is to protect from adverse health effects

ii. It is preventative in nature, and precautionary—preventing before occursiii. Because of scientific uncertainty, Congress intended to err on the side of

caution, in a false positive approach, to prevent…that’s the point of the Margin of Safety

iv. Without certainty then, Congress wanted to regulate and gave EPA discretionv. The EPA, in §109 (b) 1 has “judgment of administrator” to determine what

level is ok1. Pursuant to §109, EPA has authority to regulate risk of adverse

health effects of pollution2. It performs a Scientific Assessment, looking at severity and

vi. So harm does not have to be ‘clear’ and EPA has discretion to set the level and margin of safety

1. If EPA waited until something was clearly harmful…would negate congress’s preventative intention

vii. “Margin of Safety” is a buffer…that EPA, has discretion to tack on1. A cushion to attempt to be as precautionary as possible…lower then

standard you already thought was acceptablec. (3) Courts are Deferential to EPA’s evaluation of Evidence

i. “All that is required is evidence on record which substantiates conclusion about health effects on which decision made”

ii. Subclinical effects (Those seen in laboratory, but not in a face to face doctor visit, which are clinical) are indicative of health effects, and can be used—even CDC uses

d. (4) Congress delegated authority to determine how to create Margin of Safety as long as not abused (cooperative federalism in delegation)

i. While the statute seems to elude to 1 Margin of safety, the complexity of determining a level may allow EPA to adopt margin of safety on many different factors, in addition to the final number

ii. Note: Scientists have argued the a margin of safety is erroneous—the only real way to assure, due to the uncertainty contained in science, is to prohibit or ban a substance—level of 0

2. The CAA statute permits consideration of economic impact at various stages of the implementation of the standards

3. Court sustained the “preventive or precautionary nature” of the Clean Air Act’s mandate to establish ambient quality standards – rejected a need for increased levels of certainty of harm in setting standards

4. If you can’t identify a safe exposure point, how do you find an adequate margin of safety? Congress has abandoned margin of safety requirement for many carcinogens, but not for criteria pollutants

5. Lead in 1978- was 1.5 micrograms/m3, then changed to .15 microgram/m3a. DC Circuit upheld in Associated Battery v. EPA b. Maybe no safe level of lead in the air – so shows wisdom of requiring a margin of

safety and don’t want false negatives

d. Step 3. §110: The State Implementation Plan: i. After determining in the aggregate what level is ok, divide up aggregate emission level and cap

each polluter’s lawful emissions among pollutant emitters (DIVIDE UP)1. 7407(a): Primary responsibility of the states to come up with a blueprint for achieving

NAAQS within their borders (by adopting SIP’s under §7410(a)(2) has what’s required)2. Each State shall have the primary responsibility for assuring air quality within the entire

geographic area comprising such State by submitting an implementation plan which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State.” CAA § 107(a), 42 U.S.C. § 7407(a) (VA v. EPA)

ii. Once an NAAQS has been determined by EPA (§108, 109), States have the primary responsibility for designing and implementing plans to achieve that NAAQS

1. While EPA, pursuant to §108 and 109 lists and sets the Ambient Goal, large discretion is given to states to come up with a plan that largely works for them and their local needs

2. States have the primary responsibility for designing and implementing plans to achieve ambient standards under §107(a) and §110(a)(2)

a. State has to decide which industry/plants will have to bear burden of bringing state into compliance with NAAQS

b. Once approved by EPA, SIP’s enforceable by both state and federal authorities §113i. SIP and PSD apply to each SIP-controlled pollutant individually

ii. Sub-SIP divides zones of US into PSD and nonattainment areas on a pollutant by pollutant basis

iii. Once approved by the EPA, state SIPs are enforceable by the state or Federal authorities 1. A separate SIP must be created for each Criteria Pollutant (6)2. §107 (a) “Each state shall have primary responsibility for assuring air quality…by

submitting an implementation plan for State, that species the manner in which primary and secondary NAAQS will be achieved and maintained”

3. Cooperative Federalism: a. Pursuant to the 10th amendment, the court has allowed the federal government to

give state choice 1. Preemption of state standards or 2. To follow federal standardsb. Here, Government has lead Role but state has role too…too much to do for just

the federal government, so enlists aid of states4. However—CAA is not completely Cooperative Federalism

a. 1977/1990 Amendmentsi. These sets of amendments significantly reduced the discretion states had in

how they could control emissions in their SIP—primarily because the NAAQS had not been met by the deadline

ii. States had been dragging their feet, due to the fact that implementing these standards may infringe on valuable industry to the State

b. Also, Congress Always Retained ability to Control: i. In the following programs, Congress retained control, vicariously through

EPA, and did not enlist the efforts of the statesii. §111: New Source Emissions Standards

1. EPA may set its own national uniform emissions standards for new stationary sources

2. New stationary sources controlled by EPA under §7411iii. §112: Hazardous Pollutant Standards

1. A different Regulatory Program2. Congress may list pollutants3. Uses technology based approach

iv. §202 (§7521) Emissions Standards for new Motor Vehicles1. EPA has authority to adopt new emissions standards2. Statute prohibits more stringent standards than EPA (except CA) 3. Best tool for reducing emissions has been authorizing DOT to issue

CAFÉ standards5. State Implementation Plan

a. (1) §110 a (1) ‘Each State, after NAAQS created, and after notice and public hearing (procedure), must adopt an SIP for primary and secondary standards

i. Deadline: within 3 years of NAAQS creation (or shorter)1. To avoid states dragging their feet2. They do not want to issue an SIP that restricts industry in their

state…so pressure on them is needed to gain compliance (Pressure also exerted through sanctions infra)

b. (2) §110(a)(2) §A-M The substantive requirements i. §7410(a)(2), SIP has to have “enforceable emission limitations” as necessary

or appropriate (about 13 substantive requirements)1. A: Enforceable emissions limits, permits, etc…2. C: Regulate of modification of existing, and construction of new

stationary source to assure that NAAQS are achieved6. EPA’s Role:

a. States required to submit for EPA review, if it meets all (a)(2) checks, then EPA “shall” approve SIP’s under §7410(k), or can deny it or seek revision

b. §110 (k) 3 Full and Partial Approval:i. “EPA shall approve if it meets all the applicable requirements”

1. Once the state has complied with §110 (a) 2 A-M, EPA must approve the plan

c. §110 (k) 4: Conditional Approvald. §110 (k) 5: Call for SIP Revision

i. When EPA finds SIP is substantially inadequate, the EPA requires it to revise plan ‘as necessary to correct such inadequacies”

ii. Virginia v. EPA (infra)iv. State’s Point of View in creating its own program:

1. In determining how to divide up the aggregated level of NAAQS, how does a state go about doing so How does it divide up among polluters?

2. Historical Use : For a particular source, choose a baseline year, measure off of thata. Depending on meeting NAAQS, adjust the level up or down

3. Economic View : Based on the economic benefits of industries, allow more or less a. States could divide based upon economic importance of a specific industry to that

state’s economyb. For instance, if 1 industry is particularly beneficial, let them pollute more, while a

less economically beneficial industry must pollute far less4. Technological Feasibility: Mandate according to a Technological Approach

a. What technology is capable of, force industry to use it i. Industry with best technologyFor use, to pollute least

5. Auction : Auction off the right to pollutea. Those with biggest need, and ability to use will pay the highest

v. Virginia v. EPA: EPA issued a final rule to reduce ozone pollution in the northeastern US

1. Wanted states to adopt California’s vehicle emissions program. EPA rejected each of the 12 states’ SIP’s as “inadequate” – thought a regional control was needed because ozone moves

2. Rule: EPA can say that the plan is inadequate, but they can’t tell the state how to fix it-can’t condition the approval of Virginia’s plan on the adoption of CA’s LEV program.

a. Act expressly gave the states initial responsibility for determining the manner in which air quality standards were to be achieved. Section 107(a)

b. 1977 amendments didn’t modify the “division of responsibilities” Train had discerned in the Act. Later 1990 amendments didn’t either

3. Section 110 does NOT give EPA this ability to set methods to reach the standards however they want- the 1990 amendments did not alter the division of responsibilities between EPA and the states in the section 110 process

4. Amendments allow EPA to correct as needed, but that is a limit- can only correct the portion of the plans that prevent it from complying – can only make state to revise portions necessary to achieve NAAQS

a. Can’t require more dramatic revision if less drastic means of revisions are available that would bring SIP into compliance with statute

b. No legislative history, or other interpretations to support EPA’s proposal, and their decision isn’t entitled to deference

5. Notes: Not like Chevron- didn’t defer to agency’s decisions a. Wanted to avoid federalism concerns- expansive interpretation of dredge and fill permits

would impinge upon federalism issues

e. Step 4: Corrections & Enforcement Actions i. Judicial Review: Under §307 of EPA- federal courts of appeals

1. §7\307(d) establishes procedures for EPA rulemaking that supplant APA ii. Enforcement: §113 allows federal government to seek civil or criminal penalties for statutory or

regulator violations1. §304 allows citizen suits (“any person”) if federal government or states don’t enforce –

against emitters who are violating or against EPA to perform non-discretionary duties 2. §303- EPA can issue an administrative order or sue in federal district court to abate a

dangerous condition- imminent and substantial endangerment to the health of personsiii. New York v. Riley: Challenged EPA’s decision not to regulate incineration of lead-acid batteries

1. Issue: Is EPA required to explain its decision not to regulate the incineration? 2. Holding: Yes. EPA cannot claim to have been unaware of the possibility of a less restrictive

rule as at least one commenter suggested a “best efforts” or “reasonable efforts” standard – so should have adopted partial ban.

3. Rule: EPA has the authority to deviate from a proposed rule as long as its final rule represents a “logical outgrowth” of the proposal.

4. Reasoning: §11 of the CAA (42 U.S.C. § 7411) allows EPA to regulate municipal waste incinerators

a. § 7411(a)(1): EPA has labeled its goal in setting a standard of performance as selection of the “best demonstrated technology”

b. EPA said that lead battery burning created a significant source of lead air pollution, but (1) commenters said couldn’t get 100% compliance, (2) already regulated under RCRA, and (3) considering regulating under TSCA

c. Mere existence of other statutory authority which might undergird EPA's final stance is insufficient to justify the omission of the battery ban

d. Remanded to explain why ban on battery burning isn’t a Best Demonstrated Technology (BDT)

iv. What if NAAQS Are Not Met?v. When NAAQS not met §7501 Non-Attainment Provisions:

1. In this scenario, the NAAQS has been created (Goal, with margin of safety), and States have created their SIP to meet that goal However, we have not met NAAQS yet

2. Note: You can be in attainment or PSD for one criteria pollutant, and in non-attainment for another

3. Nonattainment Areas- Statute requires existing sources to install reasonably available control technology (RACT) under §172(c)(1)

vi. Many areas of the country still hadn’t achieved NAAQS by 1990, Congress removed state’s discretion in crafting controls

1. Congress left this to EPA- if states were allowed to determine best technology for new sources as a way to attract new industry- would wind up with little meaningful control of new sources

2. There is a strong national interest in not encouraging industries to go forum shopping, seeking to locate new plants in areas which allow the greatest pollution.

3. Commerce Clause justification for environmental protection – agencies have authority to regulate this type of pollution

a. Ex: Hodel v. Virginia Surface Mining: Need national mining standards to encourage uniformity and make sure IC won’t be used to undermine the ability of the several States to improve and maintain adequate standards

vii. §172(c) set out RACT requirements, state with SIP in a nonattainment area has to require a permit for a new or modified major stationary source

1. New plant has to use the “lowest achievable emissions rate” (LAER) for that facility a. Then if the SIP doesn’t have room for those extra emissions from the new plants,

plant has to buy emission allowances from other plants to offset new emissions form the proposed facility – page 408

2. 1977 amendments prevented federal regulation of indirect sources that attract vehicles (shopping centers, sports arenas, airports), but 1990 amendments realized that mobile sources need regulation to achieve NAAQS (traffic control allowed)

3. §113 (§7413): If you don’t attain standards, withhold federal funds (highway, or air pollution planning grants under the Spending Power)

viii. Sierra Club v. EPA: Maryland, VA and DC did not submit their attainment demonstration and other plan provisions for the D.C. area until 1997- 1998, lacked statutory requirements, and didn’t say they would meet ozone level by 1999 deadline, asked for a 6 year extension

1. Issue: Was EPA authorized to give conditional approvals of SIP’s whose plans didn’t meet the attainment standards?

2. Holding: No. EPA conceded at oral argument, the agency's position is that it may grant conditional approval on nothing more than the States' promise to do next year what the Clean Air Act requires them to have already done – this is not allowed

a. If an area fails to attain the NAAQS by the applicable deadline, EPA must reclassify it to a higher classification. Id. § 7511(b)(2)

b. But the states’ “commitment letter” still didn’t specify how they would reach the target levels

i. DC’s commitment to cure the deficiencies in its plan didn’t meet CAA requirements – 7510(k)(4) says EPA can approve a plan’s revision based on a commitment of the state to adopt specific enforceable measures later (not more than 1 year later), but

c. Here, the agency has accepted as sufficient a commitment to adopt what it concedes are unspecified measures

d. The purpose of the conditional approval provision is not to permit states more time to identify control measures, but rather to give EPA the opportunity to determine whether a SIP, “although not approvable in its present form, can be made so by adopting specific EPA-required changes within the prescribed conditional period.”

ix. What if the SIP is Not Adequate?1. “Non-Attainment” First created in 1977 Amendments due to the fact that many States had

failed to meet the deadline of NAAQS set in the original Clean Air Acta. “Nonattainment area means for any air pollutant, an area not meeting §107 (d) (7407

(d))— “an area that does not meet, or that contributes to ambient air quality in

nearby area that does not meet, the NAAQS for primary or secondary standards of a pollutant”

2. Step 1: EPA authority to adopt a federal implementation plan if state submits an insufficient plan (§7410(c) gives EPA that power)

a. 7410(k)(3): Full and Partial Approval - Gives EPA authority to reject a plan that doesn’t meet requirements of 7410(a)(2)

b. §7410(c)(1): The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator

i. (A): finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or

ii. (B): Disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.

c. If a state fails to submit an SIP, or adequately revise iti. 1. Prohibited from Federal funds for highway, if non-attainment--§110 (m),

§176 (c) (example of spending power limit within allowable scope of 10th amendment)

ii. State SIP must be amended to begin to come into compliance towards NAAQS (§7502 or §172)

3. Does EPA have authority to make state revise the plan that they think is inadequate (after original approval)? Yes under 7410(a)(2)(H)(ii) – all SIP’s have to include provisions for revision of the plan whenever EPA finds that the plan is substantially inadequate to attain NAAQS or otherwise comply with provisions of the statute

4. Step 2: §7410(c)(1): Federal Implementation Plana. Does EPA have authority to adopt a plan for a state if the state doesn’t adopt one

that is sufficient? Yes- §7410(c) EPA can adopt a Federal Implementation Plan IF i. (1) The state doesn’t submit a plan at all by the statutory deadline OR (2)

state submitted a plan that EPA determined didn’t conform to §110 (a) 2 A-M – but EPA has to provide notice and give opportunity to revise before EPA adopts a federal plan for the state (so state gets a chance to revise their SIP before FIP)

ii. Does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section

III. Technology Based Standard Provisions- Technology-based uniform national emissions standards specify pollution control performance levelsa. Technology-based uniform national emission standards specify performance levels expected from

different pollution sourcesb. Technology-based standards for vehicle emissions – deadlines extended, but EPA can periodically

revise standards that cause or contribute to air pollution that “might reasonably be anticipated to endanger public health or welfare” §202(a)(1)

1. First time benzene and formaldehyde regulated §202(l) 2. States (except CA) can’t set standards different than federal standards

c. What to do in Non-Attainment Areas i. CAA wasn’t working, So in 1990, extended yet again for compliance with NAAQS, for ozone,

created more detailed requirements, less discretion given to states about how to adopt – very specific remediation requirements that had to be done by 2010

ii. The ones that were most out of control had longest deadlines, but most stringent controls to get there – EPA could impose penalties on states

1. So instead in the 1977 amendments they instead made states revise SIP’s over and above 7410(a)(2)

iii. The degree of nonattainment is classified as marginal, moderate, serious, severe, or extreme. CAA § 181(a), 42 U.S.C. § 7511(a)

1. Not only minimum requirements of 7410(a)(10) but also 7502(c) which imposed technology-based standards

2. §7502/§172: For Existing Sources (Plants):a. (c)(1): Non-Attainment Control Provision: Plan will implement all reasonably

available control technology for existing sources i. Note: Congress, in creating the Non-attainment provisions, moved from

Ambient risk management approach to a technology based approachb. (c)(6): Other Measures: Such plan provisions shall include enforceable emission

limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission), as well as schedules and timetables for compliance, as may be necessary or appropriate

i. Note: Again, the use of deadlines that are enforceable to avoid state feet dragging

c. (c)(2): Plan must require reasonably further progressi. §750(1): Reasonably Further Progress defined as “such annual incremental

reductions in emissions as may reasonably be required by EPA to ensure compliance by the applicant by the standard date”

1. The Goal, being, to annually decrease the emissions to move towards an NAAQS

ii. Congress may mandate more specific reduction: 1. In §7511 (c)(2)(B), for instance, congress requires a specific annual

% be met—they set the increment for the state for Ozone

3. For New Sources (Plants) New Source Review (NSR) a. What if industry wants to make a new plant, or modify plant that emits the same

criteria pollutant already putting location in non-attainment?i. Mechanism for allowing new sources to go into operation while not causing

further degradation of bad air quality – known as “new source review” - requires that stationary sources get a permit when first built or subsequently modified, if located in (1) non-attainment areas, or (2) PSD areas

b. §7411: Authorizes EPA to establish national uniform technology based standards for categories of new source pollutants

i. BUT EPA has control over certain – vehicles, emissions of hazardous wastes, emissions from stationary sources – technology controls that apply uniformly to stationary source

c. (1) APPLIES TO: § 172 (c)(5): Every new or modified major stationary source in a non-attainment area (complying with §173)

i. 7602(j) of statute defines “major” as one that emits or has potential to emit 100 tons or more of any air pollutant

ii. Major Stationary Source (§302 J): 1. Any stationary facility or source, which emits or has the potential to

emit 100 tons/year of any air pollutant 2. §169 (1): “Major emitting facility” is any stationary source capable

of emitting 100 tons of pollutant per yeariii. Modified (§111 (4))

1. Defined in §7501(4) cross referencing §7411(a)(4)2. Modification = (1) physical change or change in the method of

operation of an existing stationary source, (2) which results in an increase in amount of any air emissions (or emissions of something not previously emitted) by that source or permits emission of air pollutant not previously emitted (See Chevron)

3. Compare emissions projected after change to what the emissions are now

iv. Stationary Source (§111 (3)): 1. Any building, structure, facility, or installation, which emits or may

emit any air pollutant.d. (2) REQUIRES: A Permit (§7503(a)(2)): To get a non-attainment area permit, have

to demonstrate ability to comply with stringent new technology-based emission controls (which are outlined in §7503(a)(2)) lowest achievable emission rate

i. “By the time the source is to start operation” it must comply with the Lowest Achievable emissions rate

1. §7501 (3): “Lowest Achievable Emissions Rate” is: the best that technology allows you to do

a. Emissions that are the most stringent limitation in the SIP of any state in country for that source OR the most stringent emission limit achieved in practice by that type of source

b. Note: The permit program uses a technology based risk management approach to achieve the NAAQS level

e. Once a permit is granted to a new, or modified source:i. You are now allowing further pollution to be emitted into a non-attainment

area, which is by definition above the NAAQS allowedii. In a non-attainment area, we must have reasonably further progress, which

is an annual incremental reduction in emissions to reach NAAQS (§172 (c)(2))

f. If the permit is issued, aggregate emissions must actually be lower after issuance of the permit than they were before the permit - §7503(a)(1)(A)

i. §173: (a)(1)(A): By the time the source starts, it must be offset by emissions reductions so that the total allowable emissions from existing sources added to proposed source will be sufficiently less then total emission from existing sources prior to the application for a permit

1. (b) Any emissions reductions must be federally enforceable before permit granted

a. Must show that new plant, or its modification will be more then offset by a decrease in emissions elsewhere in the nonattainment area

i. You must close one of your other plantsb. Or You must convince another industrial party to close

theirs, and have them agree to be legally enforced against if they fail to meet

i. Do so by paying the other partyii. $ received for him must be > cost to decrease

emissions and any loss in production due to it4. NY v. EPA: EPA improperly excluded sources from keeping records of emissions after the

change occurred (413 F. 3d. 3 (DC Cir 2005)) a. No way for EPA to verify accuracy of certification – facilities were excused from

keeping records – EPA didn’t have a way to check on accuracy of the industry’s estimates- court found that was A&C

d. Step 5: Prevention of Significant Deterioration (PSD) i. Process: §165 (7475)

1. 1. Permit Required for all new major stationary sources or modified sources in a PSD area

a. §169 (1): “Major emitting facility” is any stationary source capable of emitting 100 tons of pollutant per year

b. §111 (a) 4: “Modification” means any physical change in or change in the method of operation of a stationary source which increases the amount of any air pollutant emitted…

ii. History : Sierra Club sued EPA saying that they had to “protect” and “enhance” air resources 1. Federal district court agreed- nondiscretionary duty to prevent all but non-significant

deterioration of existing high air quality 2. 1977 Congress codified DC District court decision in §7470 7479

iii. Policy : Didn’t want clean states to use air as a bargaining tool to attract industries who emitted a lot, don’t know enough about adverse impacts, maybe need that clean air to protect others downwind (visibility protected separately)

1. Academy of Science: Good air quality is deemed to be of national importancea. Class 1: National parks- small allowable increment of deterioration

i. Can’t be reclassified pg 499b. Class 2: Can upgrade from Class 2 to Class 1c. Class 3: Rare to downgrade – so no real Class 3

2. AQCR can be a PSD area for one or more pollutants even though it’s a non-attainment area for another type of pollutant

3. §163- What is a significant increment depends on exact location of the proposed facility a. EPA ID’s a baseline for purposes of comparison, allow plants to determine

“current” emissions using 2 most recent years, but then allowed to use any 2 year block over 10 year period – can pick the 2 year emissions where they were highest (NGO’s didn’t like that)

iv. Requirements : If within one of the “class” areas, you can’t get a permit if emissions will cause or contribute to violation of NAAQS or isn’t within the PSD permit

1. Permit has to comply with BACT (defined in §7479(3))2. Requirements for PSD permit under 7475(a)(1)3. Alabama Power: A major source located in nonattainment area isn’t subject to PSD review

even if emissions form the source adversely affect air quality, unless the affected PSD are and the source are in different states

v. Exceptions: Routine maintenance, repair of the facility 1. EPA expanded definition of “routine maintenance” to include anything that costs less than

25% of the cost of replacing the entire unit being maintained, even if it results in an increase in emissions

2. Old – average annual emissions pre and post change3. New – measure whether emissions has occurred based on average hourly emissions (not

annual) a. Environmental Defense v. Duke (page 472)- Court struck down change as

inconsistent with statute and EPA’s prior reading of own regulation b. Attempt to decrease regulatory review of new source permits met with mixed review

from the courtse. Generally : New Source Review is broken down into 2 parts—1 part being used in nonattainment (infra),

and the other part being used in Prevention of Significant Deterioration1. Process: §165 (7475)

f. (1) Permit Required for all new major stationary sources or modified sourcesi. (a)(1): A permit must be issued for a major proposed emitting facility

ii. (a)(3): The owner or operator of the proposed facility must show that emissions from proposed facility will not cause or contribute to air pollution in excess of:

a. 1. Maximum allowable increase in increment allowed i. Depending on what Class area is

b. 2. NAAQSi. In This scenario, a new source permit being issued, with the allowable

increment based on the class may not take it above the NAAQS…into non-attainment

ii. So, if allowable increment would take you above NAAQS, permit will not allow you to have all of the increment, but will stop your allowed emissions prior to NAAQS

c. 3. Any other emission or performance standard iii. (a)(4): Proposed facility uses “Best Available Control Technology”

a. §169:i. Taking into account energy, economic impacts and costs, and environmental

factors, it is the emissions limit that is determined achievable, through available methods

b. Note:i. Another use of technology based risk management technique

ii. A Performance Standard, not a design standard—so level of emissions set, but industry is free to choose its own method/ type of technology, so long as this level is met!

iii. LAER is seen as > BACT, and this makes sense in that the more strict emissions technology is used in non-attainment areas

g.

h. Visibility:i. Visibility Protection

1. §169A of the Act established a national goal of preventing future impairment of visibility in class I areas AND remedying existing impairment from man-made pollutants

2. So SIP’s in those areas have to be revised for: (1) best available retrofit technology (BART), (2) adopt measures to supplement new source review programs for visibility issues, (3) identify and evaluate long-term strategies for achieving national goal

a. BART looks at cost of compliance, energy and environmental impact of retrofit, remaining life of facility, degree in visibility improvement from technology use (if over 15 years old, grandfathered)

ii. AQRV: Air Quality Related Values1. Federal land managers in a Class I area have affirmative responsibility to protect AWRV’s –

including regulation of major sources 2. Even if proposed new source doesn’t exceed incremental pollutant emissions, manager

doesn’t have to approve it if they think it will have adverse consequences for AWRV’s on federal land in question

3. BUT even if they do exceed limits, manager can still approve it if thy won’t have adverse consequences for AQRV’s in the area

Part 6: The Clean Water Act

I. Introductiona. Statutory Basis: 33 USC §1251

i. §1365(e): Nothing shall restrict any right which a person may have under a statute or common law to seek enforcement of any other relief

ii. §1370: Nothing shall preclude or deny the right of any State to adopt or enforce any standard of pollutants or any requirement respecting control of pollution

iii. Alder : CWA is one of the more successful environmental statutes – pg 5461. NPDES succeeded in reducing point source polluting –restoring nation’s waters – by

1990 93% of major industrial facilities were in compliance b. Goals: (§1251(a)(1) to restore and maintain the chemical, physical and biological integrity of the

Nation’s waters, (2) that the discharge of pollutants into the navigable waters be eliminated by 1985 is the goal of the statute- ecosystem-based goal, broadly defined terms)

1. (a) 1 Broad Goal: “Eliminate discharge of pollutants into Navigable Waters”

2. (a) 2 Interim Goal: “To provide water quality which protects the propagation of fish, shellfish, and wildlife, and provides for recreation in and on the water”

ii. §1251(a)(2)- wherever attainable, (statute’s “fishable, swimmable” goal) iii. Congress wanted to achieve national and interim goals through creation of technology-based

effluent limitation standards iv. Original goal of no pollution discharges changed to calibrating discharges in waterv. Supplemented existing standards with a two-tiered system of higher technology based effluent

limitation standards c. Approach: CWA- began with technology-based, moved more toward ambient quality

i. Water pollution wasn’t less of a problem in 1972 than it was in next amendments, but was a growing problem, so congress tried something different- hybrid of technology and ambient approach

1. Under 1948 statute- water bodies couldn’t exceed certain standards, but to prosecute, had to prove that excess concentration of pollutant was caused by a specific upstream discharge – very difficult, so only one successful prosecution

2. SO amended it – if it’s technology based – don’t have to prove causal links in setting or enforcing the standards (standards set by assessing what pollution control is achievable in an industry given pollution control technologies available in that industry

d. Limitations & Challenges:i. Scope: CWA regulates (1) industrial facilities that discharge directly into a water body, swage

treatment plants (POTW’s), (2) CWA treats new and existing industrial discharges differently, (3) pollutants are divided into conventional (biodegradable), toxic, non-conventional (but still nontoxic) and heat

ii. Limited Data Available on water quality statewide (only 30% of waters included in survey) (but maybe non-monitored waters are assumed to be the cleanest?)

1. EPA’s draft National Lakes Assessment in December 2009 was the first survey of condition of US lakes/ponds/reservoirs

iii. Cost/Benefit Analysis: Study by Davies & Mazurek thought that the benefits didn’t exceed the costs, but should continue because uncertainties and estimates may have been off

1. But improving the number of people with access to advanced wastewater treatment 2. Vulnerability through water infrastructure to terrorism, national security concerns

iv. High Standards: Smart to use an unenforceable and unachievable goal? 1. Might set high goals so even if you miss them, still progress- hold regulators’ feet to the

fire BUT might ultimately delay resolution of problem – nobody thinks its possible v. Pollutant Discharges: Under, 33 USC §1311(a): The discharge of any pollutant by any person

shall be unlawful 1. Except under certain exceptions (qualified prohibition) 2. Person under §1362(5) means an individual, corporation, association or State 3. Discharge of a pollutant under §1362(12) means any (1) addition of any (2) pollutant into

(3) navigable waters, (4) from any point source 4. Pollutant: Defined under §502(6) broadly

a. Sierra Club v. Cedar Point: list of substances in definition of pollutant isn’t exclusive – just because not listed, not dispositive that it isn’t a pollutant

b. Romero-Barcelo- courts are empowered to make independent determinations that a substance is or is not a pollutant

c. Hammersly v. Taylor: mussel shells and byproducts aren’t pollutants because they’re the natural biological process, nto waste product of human process

5. NPDES and Other Laws : NPDES permit might exempt a discharged from other obligations under other environmental laws (like RCRA)

a. RCRA exempts under §1004(27) discharges regulated under the CWAb. CERCLA exempts under §107(j) liability for federally permitted releases

e. Permit Application Process:i. General Permits: General permits cover multiple facilities within a specific category for a

specific period of time (not over 5 years)

1. EPA issues a N&C for general permit, then dischargers must submit a Notice of Intent to be covered (page 587)

2. EPA takes position that aerial application of pesticides don’t require CWA permit because the spraying of pesticides from planes doesn’t qualify as point-source AND aerial application isn’t triggered because pesticides aren’t pollutants (National Cotton Council)

a. More efficient to use a general permit for pesticides – otherwise too many things to regulate

3. EPA proposed issuance of general permit for pesticide applications – using suggestion of Court from South Florida District case

a. Not found to be a “pollutant” because not a waste- has some beneficial use (but really just strong agriculture lobby)

4. Glicksman thinks that kinds of provisions will be adopted and Congress will reverse the decision of National Cotton Council – no permits needed

5. EPA’s draft general permit won’t be available for application of pesticides to a water body that’s impaired by that pesticide, requires consultation with FWS for impact it might have on ESA, but ok to use to control weeds, insects, invasive species (page 588)

II. Point Source Discharges – National Pollutant Discharge Elimination System (NPDES)a. Regulated under NPDES – states can administer if they meet criteria

i. EPA’s designated technology based regulations form a regulatory floor that must be incorporated into all NPDES permits

ii. Point-source CWA regulation uses technology standards AND water-quality standards 1. Used technology-based in amendments because of failure of ambient-based approach

before 1972 (use water-quality standards as a safety net when technology fails)iii. Sources that discharge from an identifiable conveyance (pipe)

1. Defined under 1362(14)- discernible, confined and discrete conveyance from which pollutants may be discharged

2. NPDES permits establish effluent limitations a discharger must meet and deadline for meeting them (mostly municipal sewage treatment plants, and industrial discharges)

a. Note: Court rejected EA’s interpretation that natural runoff from a silvicultural operation doesn’t qualify as a point source – regardless of whether it’s channeled through a confined, discrete conveyance

iv. Direct: Direct industrial discharges at a minimum use “best practicable control technology available (BPT) – extended deadlines which originally demanded compliance by 1977

1. Conventional (use BCT- best conventional pollutant control technology) non-conventional (use BAT), toxic pollutants (use BAT)

2. Some pipes funnel pollutants into the river directlya. Controls are quantified in “effluent limitations” and statute authorizes EPA to

issue permits for pollutant direct discharges (NPDES)b. EPA approves of a state’s application to implement NPDES program within its

borders- National Home Builders Case i. §7416 of CAA allows to adopt more stringent controls, so same thing

under §1370 of CWAv. Indirect: But some industries send their wastes to publically owned treatment works (POTW) or

sewage treatment plant 1. Indirect industrial discharges might have to ‘pre-treat’ before sending to POTW

b. Issues In Establishing Effluent Limitations: Establishing effluent limitations is extremely difficult and involves considerable judgment by the agency

1. Difficulty in relying on the regulated industry for data on available technologies because they will be inherently biased

2. Difficult in deciding what is technically feasible with the cost considerations – usually impossible to quantify the environmental benefits of mandated effluent limitations

3. Limitations established through notice and comment rulemaking usually challenged on procedural, ultra vires or A&C grounds because fail to consider relevant data, but EPA doesn’t have resources to get all data

ii. EPA can correctly limit range of plants to more technologically advanced ones because legislative history wanted a survey of “average of the best existing performance” (page 610)

1. Agency can also use a technology not used yet in any plant, but higher burden of proof to show that it’s available and economical

iii. EPA can require some requirements to be implemented on a case by case basis based on climate topography, etc.

1. Variances help keep flexibility in otherwise rigid regulatory scheme 2. BUT can’t give variances on toxic pollutants under §307(a)(1)

iv. Know that discharge in excess of amount specified in a NPDES permit is a violation, and so susceptible to enforcement actions BUT

1. If group is complying with the NPDES permit, then shield from litigation 2. Even includes permits to which no limits exist in the permit, but which were ID’d during

the permitting process (§402(k)’s permit shield provision) 3. §1342(k): Compliance with permit issued shall be deemed compliance with all the

enforcement provisions – if you have a permit and you’re complying with it, have a defense under an EPA or private citizen suit

c. Under §1311(b)- has substantive requirements for existing point source discharges – to carry objective of CWA, point sources can achieve certain limitations

i. Similar to “reasonably further progress” of CAA 1. EXCEPT for a toxic pollutant injurious to human health

d. Permit Process:i. §1311(a) Permit: “Except as in compliance with…1342 (NPEDS Program) and 1344 (Dredge and

Fill Program)…, the discharge of any pollutant by any person is unlawful”1. §1344(a)- ACOE may issue permits for discharge of dredged or fill material into

navigable waters a. §404- regulates permitting limitations on activities involving “dredging” and

“filling” of wetlands and navigable waters 2. §402- Regulates discharges of pollutants into waters of the US – depends on

jurisdictional boundaries of permitting program ii. Groundwater: Federal courts are split on whether discharges into aquifers that are connected to

jurisdictional surface streams require a NPDES permit1. Hypo: Dumping into an underground aquifer- is that subject to 1311(a) NPDES permit?

Depends on if groundwater depends on “waters of the US” a. Question about whether only surface or groundwater is included – those aquifers

might empty into a navigable water b. Circuits are split – some think that no groundwater can qualify as a “waters of

the US” so no permit requirediii. New Point Sources- More efficient to build technology into new sources, than existing

1. Requirements under 1316iv. POTW’s – require controls through secondary treatment

1. Only one level of control for POTW’s (no phase 2) v. Indirect dischargers- 1317(d), 1317(b)(1)- want pre-treatment before going to POTW

1. Don’t want all costs on public utilities instead of industries, some toxic wastes aren’t amenable to address some toxic pollutants

2. So some prohibited discharges, and some categorical pre-treatment vi. Bio-Solids Disposal- 1345(a), permits with conditions based on BMP’s

1. Permits with conditions based on best management practices

III. Step 1: Need To Get A Permit If It Is A: a. “Discharge”

i. South Florida Water Management v. Miccosukee Tribe : Tribe brought suit saying the Water Management District needed a permit under the NPDES1. USACOE built levees canals to prevent flooding. Tribe wanted to enjoin operation of S-9 and

the conveyance of water from C-11 to WCA-3a. Nobody disputed that phosphorous was a pollutant, or that it was a navigable waters,

or that it was a point source 2. Issue: Is the operation of the S-9 pump an addition of pollutants into navigable waters of the

US under the CWA?3. Holding: Need further factual development on whether the two bodies of water are actually

separate, remanded to determine “unitary waters” argument, BUT Court found that NPDES covers point sources that don’t generate pollutant themselves

4. Reasoning: A point source need not be the original source of the pollutant; it need only convey the pollutant to “navigable waters,” which are, in turn, defined as “the waters of the US.” § 1362(7)- congress intended for NPDES to apply to municipal wwtp’s

a. SO NPDES covers point sources that don’t generate pollutant themselvesb. Court finds the definition of point-source includes “conveyance” and not just

origination of the pollutants c. No EPA doc’s to support unitary waters approach, so doesn’t deserve any Chevron

distinction (maybe deserves Skidmore deference), also high compliance costs doesn’t mean that Congress intended an exemption – EPA can issue a general permit for some activities

d. Court needs more information about whether the bodies are distinct – need further factual development on remand

e. If two volumes of water are simply two parts of the same water body, don’t need a permit for pumping water from one into the other- because not an “addition of pollutants”

ii. Notes : EPA issued a rule in 2008 defining an exemption for activities that convey waters of the US without subjecting transferred water to intervening industrial, municipal or commercial use – if water not being used, no permit needed for transfer

1. Friends of Everglade v. South FL Water District: 11th Circuit under Chevron deferred to EPA’s reasonable interpretation of the statute- water transfers don’t require a NPDES permit

2. Second Circuit found in Catskill Mountains (586 note 3) that a permit is required for transfers of water from one body of water to another (rejected unitary waters approach proffered by gov’t) – but this was before EPA promulgated new rules

3. Bush administration said that transfers that don’t involve industrial, municipal, or commercial use are exempt from CWA prohibition on discharge

iii. §1362 (12): A “Discharge of a Pollutant is” (4 elements) a. (1) Any Addition, (2) Of any Pollutant {§1362 (6) - An extremely broad statute in

definition of just what may be pollutant}, (3) Into Navigable Waters {§1362 (7) which means “the waters of the United States…”}, (4) From any Point Source {§1362 (14) - “means any discernible, confined and discrete conveyance…from which pollutants are discharged”}

b. “of Pollutants”: i. §1362 (6) Definition is extremely Broad

1. Sierra Club v. Cedar Point Oil: a. Held that the list was not exclusiveb. Court may find a particular substance is in fact a pollutant

2. Weinberger v. Romero-Burcelo: a. Unexploded military bombs were pollutants

3. Ass’n to Protect Hammersley v. Taylor: a. Muscle Shells, that were added to water, were not pollutant because they were

naturally occurring and no the “waste product of transforming human process”4. Fairhurst v. Hagener:

a. Using pesticide that complied with FIFRA, to rid river of a non-native trout species was not a pollutant

b. No NPEDS Permit required c. EPA subsequently excluded pesticide use from NPDES permit

c. “Into Navigable Waters”: i. Defined under §502(7) as “waters of the US” – issue over what Congress intended to be included

in this scopeii. Constitutional Power to Regulate

1. Federal environmental regulation has to be grounded in an enumerated power 2. Commerce clause is easiest place – Article 1, §83. Wickard v. Filburn: Upheld regulation of intrastate activities that cumulatively had a

substantial effect on IC BUT that was struck down in US v. Lopez iii. Statutory Boundaries on Regulation

1. Whether Congress has exercised full extent of its regulatory power over water under the Commerce Clause

iv. US v. Riverside Bayview Homes : Defendant wanted to fill in part of his 80 acres of land to build a housing development, wetlands were adjacent to waters of the US – Corps said need a permit

1. In 1975: Corps issued a regulation redefining “waters of the US’ not as just navigable waters but also tributaries of such waters, interstate waters and their tributaries and non-navigable intrastate waters whose use or misuse could affect IC”

2. Issue: Does the ACOE have authority under the CWA to require landowners to obtain permits before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries?

3. Holding: Yes. Corps’ interpretation that adjacent wetlands are inseparably bound up with the waters of the US is reasonable. Congress didn’t intend to confine itself to only those navigable waters used for transport of goods or people.

4. Rule: Government does have the power to control intrastate wetlands as waters of the US5. Reasoning: Regulatory definition of adjacent wetlands covers the property here

a. Under §301 and §502 of the Act, any discharge of dredged or fill materials into navigable waters is forbidden unless you have a permit

b. White: Regulation extends Corps authority under §404 to all wetlands adjacent to navigable or interstate waters and their tributaries

c. Then look at definition of wetlands under 33 CFR §323.2(c) i. Neither the imposition of the permit requirement itself nor the denial of

a permit would constitute taking6. Noted inherent difficulty in distinguishing between where the waters stop and the land

begins – wetlands are difficult – requiring that specific distinction ignores scientific reality- Corps has better expertise to decide

7. Required a permit because (1) included vegetation that only exists in saturated wetlands, (2) and is adjacent to an otherwise covered navigable water because wetlands extends to Black Cree, which is a navigable waterway

8. Reasonable interpretation of the statue is entitled to judicial deference, supported by legislative history and statute’s underlying policies

v. SWANCC v. USACOE : ACOE interpreted §404(a) to include authority over an abandoned sand and gravel pit which is habitat for migratory birds

1. Corps required a 404 permit under (b) of the Migratory Bird Rule (121 species observed at the site) – needed a dredge and fill permit. Wouldn’t issue a permit because pits were “waters of the US” – Corps said statute is ambiguous, so under Chevron step II,

2. Issue: Did Congress intend for §404(a) to be extended to these types of water bodies, and if so, is its regulation consistent with the Commerce Clause?

3. Holding: No. Congress did not intend such expansive authority to be given to the Corps, and so doesn’t address the Commerce Clause issue. Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will

construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress

4. Reasoning: First time addressing discharges of fill material into wetlands not adjacent to bodies of open water (different than Riverside Bayview). Congressional acquiescence showed congress intended to regulate wetlands that were inseparable from waters of the US- necessary to protect water quality and ecosystems of those navigable waters.

a. Rehnquist: Significant nexus between the wetlands and the navigable waters formed their opinion in approving Corps’ authority in Riverside Bayview

b. Chevron deference is not appropriate – prudential desire not to needlessly reach constitutional issues (creating an exception to Chevron’s step 2’s deference requirement), but also think that statue is on its face un-ambiguous so doesn’t need to give Corps any deference

5. Rule: Congress’ definitional use of “waters of the US” does not constitute a basis for reading the term “navigable waters” out of the statute. Where an agency interprets a statute invoking the outer limits of Congress’ power we expect a clear indication from Congress to do so (thus Chevron is not appropriate)

a. Rehnquist: In Riverview Bayview, also addressed this question, but looked to Congressional intent to cover adjacent wetlands

b. There is no clear statement form congress authorizing the extension of Congressional power to cover such a broad area

c. Would impinge upon state’s traditional power to regulate land and water use, and congress specifically wanted to “recognize, preserve and protect primary responsibilities and rights of the states”

d. Don’t want to read “navigable waters” out of the statute – to be subject to statute’s jurisdiction, body of water/wetland still has to have some nexus with waters regarded as traditionally navigable

6. Stevens (dissent): Clear case of environmental regulation, not land use regulation, so federalism concerns aren’t relevant

vi. Rapanos v. US : Corps currently interprets “waters of the US” to include traditional interstate navigable waters, and all interstate waters including interstate wetlands, and then tributaries of such waters, wetlands adjacent to such waters, and other waters, the use of or destruction of which could affect interstate or foreign commerce 33 CFR §3282. Case looks at 4 wetlands which are near ditches which empty into navigable waters (like

twice removed from navigable waters) 3. Issue: (1) Is a drainage ditch that empties into another ditch a “waters of the US”? (2) Does

the Cops have authority to require a permit for the dredging and filling of wetlands adjacent to tributaries to tributaries of navigable waters?

4. Holding: (1) No. Court’s expansive interpretation of the “waters of the US” is not a permissible construction of the statue. (2) Need factual development to decide if ditches or drains near each wetland war “waters” and have permanent flow- if they are, if wetlands are adjacent t these waters (possessing a continuous surface connection)

5. Rule: “Waters of the US” doesn’t include channels through which water flows intermittently or ephemerally or channels that periodically provide drainage for rainfall

6. Reasoning: “Navigable” is not devoid of significance, but navigable waters is interpreted broadly (waters of the US and navigable waters are NOT the same)

7. Scalia: Looked at how navigable a water has to be to be a “waters of the US”a. Riverside Bayview interpreted it to be broader than traditional, but navigable isn’t

devoid of significance b. Corps is stretching the term “waters of the US” too broadly- should only be used to

include permanent, standing or flowing bodies of water- not ephemeral flows of water – only covers WATER, not LAND

i. Glicksman thinks that ignores fine line between wetland/water and rejects Riverside Bayview

c. Such expansive jurisdiction would impinge upon state’s traditional land use regulation –“quintessential state and local power”

i. Without clear indication that Congress wanted to intrude upon such traditional state power, won’t read it in, and not clear enough

d. Corps only has jurisdiction over wetlands that have a continuous surface connection with that water- hard to decide where the “water” ends and “wetland” begins – shows his deference to Riverside Bayview

8. Roberts (concurring): Decision today is another defeat to the agency’s repeated attempt to overly-broadly define scope of Corps’ jurisdiction

a. Wishes a court could have a majority opinion on what is the reach of the CWA – lower courts don’t have enough direction to be consistent

9. Kennedy (concurring): SWANCC said that “navigable waters” under the Act must have a significant nexus” to waters that are or were navigable in fact’

a. Agreed with Scalia that should be remanded, but didn’t join Scalia’s substantive analysis – just concurred in the result

b. Test : Should follow SWANCC - Corps must establish a significant nexus on a case by case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries

i. Generally a case-by-case inquiry- look at whether the wetlands significant affect the chemical, physical and biological integrity of traditionally navigable waters – is so, significant nexus exists

1. Look at §1251 statement of overriding purposeii. If wetlands’ effects on water quality are speculative/insubstantial, fall

outside of the zone fairly encompassed by statutory term “navigable” iii. Holding of Riverside Bayview: Wetlands adjacent to navigable waters are

categorically qualified under significant nexus test iv. Wetlands adjacent to major tributaries of traditionally navigable waters

might alsoc. Plurality would allow Corps and EPA jurisdiction over “relatively permanent,

standing or flowing bodies of water including seasonal rivers (carry water continuously expect during dry months) but not intermittent or ephemeral streams

d. Plurality asserts that wetlands fall within the Act only if they bear a continuous surface connection to bodies that are waters of the US in their won right (permanent standing water or continuous flow)

10. Stevens/Souter/Ginsburg/Breyer (dissenting): Corps’ decision to treat adjacent wetlands as encompassed within the term “waters of the US” is an example of the executive’s reasonable interpretation (deserves Chevron deference)

a. Riverside Bayview didn’t imply that approval of “adjacent” wetlands was contingent upon “adjacent” meaning a continuous surface connection

i. Riverside is controlling- no requirement of continuous surface connection (adjacent tributaries and wetlands are categorically covered by term “waters of the US”)

b. SWANCC didn’t address wetlands – different than Riverside Bayview because those mini-ponds didn’t have any “significant nexus” to traditionally navigable waters

c. Riverside said that jurisdiction doesn’t depend on a wetland-by-wetland inquiry- just look at significant nexus to watershed’s water quality – if a wetland isn’t significantly intertwined with ecosystem of adjacent waterway then Corps can allow development by issuing a permit

d. Unlike SWANCC, wetlands adjacent to navigable water has cumulative effect on downstream water flow – gives limited connection to traditionally navigable water that statute requires

vii. Constitutional Issues: Clear statement rule/constitutional avoidance from Chapter 2 – don’t want judicial body to overturn decision of elected representative (federalism constitutional questions- federal intrusion on scope of state sovereignty)

a. Whenever federal environmental regulations begin to look like federal land use regulations, federal issues are raised

2. Argument to not require “navigable” in statute- maybe look at 1251 of the statute- Congress’ intent to protect the biological integrity of the system

viii. Circuit Split: Circuits split on how to apply Rapanos – 7, 9, 11th circuits applied Kennedy test1. 1, 8 circuits held that there is CWA jurisdiction “wherever Kennedy or the plurality test is

met, 5, 6th circuits “finessed the issue” a. Kennedy’s vote controlling because it was the 5th vote that required the remand b. OR Stevens- that there is jurisdiction over wetlands under §404 if they meet

either Scalia’s test or Kennedy’s test c. 4 dissenters would have agreed that there was jurisdiction under either of

plurality’s test – under either Scalia or Kennedy- wetlands covered by CWA jurisdiction

d. The majority of circuits use the either/or test

IV. Step 2: Once deemed applicable under §1342, 1311 (a), must comply with §1311 (b) Effluent Limitations a. Once you meet the criteria of §1311(a), you must have a NPDES permit to discharge. 1342, the NPDES

permit program if you comply with the requirements of 1311…etc...b. §1311(a) Permit: “Except as in compliance with…1342 (NPEDS Program) and 1344 (Dredge and Fill

Program)…, the discharge of any pollutant by any person is unlawful”

i. DuPont v. Train : Does EPA have authority under §301 of CWA to issue industry-wide regulations limiting discharges from existing plants?

1. Dupont upholds EPA’s discretion to promulgate uniform national effluent standardsa. Industry thought that any regulations under 1311(b) are not enforceable

2. Individually enforceable obligation is when a permit enforcer decides what the appropriate limit is for that specific point source- can’t incorporate by reference (they thought states would issue permit, they would be friendlier)

a. Court found that CWA doesn’t explicitly address which reading is correct3. Holding: EPA has the authority to issue uniform industry-wide limitations that bind all

permittees. Congress wanted to achieve uniformity in technology-based applications, so easier to achieve uniformity in having industry-wide specifications instead of on a case-by-case basis

a. SCOTUS said EPA was NOT REQUIRED to make variances available for new sources (unlike for existing sources) – statute prohibited

4. Reasoning: Court finds that statute focuses on characteristics of the category or class instead of the characteristics of individual point sources

a. Under §301 use regulations to establish 1983 limitations for “categories and classes” of point source

b. But nothing different under §304 in setting 1977 limitations – should both be set by EPA, not the industry – EPA required to “specify factors to be taken into account” to determine control methods

c. So agree with EPA’s interpretation – statute never said individually, talked about categories and classes

i. Allowed variances under 1311(b)(1) but not under 1316, but Glicksman thinks that’s a stupid distinction

ii. 1. Phase 1 = §1 (Circa 1977): §1311 (b)(1) (A-C) – PERFORMANCE STANDARD 1. Requires BPT (Best Practicable Control Technology Currently Available) as defined by

the administrator under 1314(b) – FDF variances 2. Imposed as of July 1, 1977 and applies to existing point sources, applies to technology in

that industry 3. All point sources have to comply with EPA’s requirements in regulations that apply to a

specific category of sources (ex: inorganic chemical manufacturers)a. THEN when an individual manufacturer came to apply, have to put those

numbers in permit application

b. Statute doesn’t dictate a specific technology – just because it’s designated a specific technology as the best practicable, if they can find more efficient ways of reaching the target, then they can

c. §1311 is NOT a DESIGN SPECIFICATION – s a PERFORMANCE STANDRD)

4. Who Complies : All Point Sources are required to Meet Phase 1 a. Regardless of Pollutant type or point sourceb. *Remember, that industry effluent limits differ, however

5. Technology Level Required: a. (A) Best Practicable Control Technology currently available (“BPT”) + b. (C) Any more stringent level required by states

i. A. Because EPA isn’t regulating enough or ii. B. To meet that States Water Quality Standards

c. OR §1314 (b)(1)(B): “Factors relating to assessment…”1. EPA looks to “the average of the best performers in the

industry”2. Cost benefit Analysis: “Consideration of the total cost of

technology in relation to effluent reduction benefits” So Phase 1 requires a CBA

ii. Judged by: “Average of the Best Plants in a Particular Industry”d. If they simply haven’t regulated a particular industry yet:

i. 1311 (a), by definition says you cannot pollutant, butii. §1342 (a): says that “EPA may issue a permit according to 1311, or

prior to taking of necessary implementing actions relating, conditions as the administrator determines necessary to carry out the provisions of the chapter

1. So EPA is allowed to craft individualized effluent technology limits – using their “Best Professional judgment”

a. In the absence of industry wide regulations, EPA is to give permit “with conditions as EPA shall deem necessary” 1342 (a)

2. Note: This is why industry argued in Dupont to have all permits be case by case evaluation

6. The Process : EPA regulates categories, within industrya. For instance, all energy companies that come in for an NPDES permit are

required to use the BPT level from that industry…regardless of what effluent isi. EPA looks at the industrial category, and puts that into your permit

b. Note: Again, the CWA only mandates performance standards…not design standards… Industry with permit does not need to utilize or install that specific technology…Point source only needs to meet that level of effluent emission!! No matter what technology chosen

iii. Phase 2 = § 2 (1311 (b) 2 (A-F)): PERFORMANCE STANDARD 1. Generally : Based on what pollutant you discharge, phase 2 regulates each differently as

described belowa. Each of these is designed to be an incremental step beyond Phase 1 BPT in an

effort to move towards the goal of CWAi. Note that the title of each pollutant isn’t exactly relevant—but it conveys

the desire to get better and bettere. Factors to Consider : 1314(b)(4)(B): Compare environmental benefits from the cost

to implement technologyi. Toxics : only look at cost, not in relation to bens

ii. Conventional : reduction in pollutants from POTW with similar cost in reduction from industrial point-sources (easy to compare – don’t impose

greater burden on industry than we impose on local governments because both address conventional pollutants)

iii. Association of Pacific Fishing v. EPA : Fish canners opposed designation into one sub-category. Challenged industries would have to screen effluent before discharging it into receiving waters

1. Issue: Was the Agency A&C for basing its 1983 technology regulation on a single study?

2. Holding: EPA’s data base was sufficient to show that the technology required to meet the 1983 limitations is “available,” and agency wasn’t arbitrary in concluding that the technology unit (DAF) Could be installed without additional land acquisitions

3. Reasoning: Even though there was only one salmon study, other fish studies were used – EPA isn’t required to show that all technology models could meet limitations, but just that the best existing technology unit can meet the limitation

a. Could even look at another study in another industry as long as the technology is transferrable – like tuna studies to salmon studies

4. EPA must consider economic consequences of 1983 regulations 5. Statutory construction shows that congress didn’t want EPA to

engage in a marginal cost-benefit analysis 6. Look at reasonableness of setting standards against the goal of

eliminating pollutants into navigable waters by 19857. Test: (1) Did the agency consider the cost of technology along

with other statutory factors, and (2) was their conclusion reasonable?

a. Cost to implement is between 1-2% of sales from the factory – not prohibitively expensive

8. BUT when a significant amount of land is required for implementation of the regulation, the Agency must take land availability or cost into consideration before it can make a reasoned determination that the regulation is economically feasible

2. Compliance Based on Pollutant Type: a. Conventional Pollutant (§1314 (b)(4(A)) - Best Conventional Pollution

Technology BCTi. Generally thought of as Biodegradable

1. 1. Conventional pollutants are not considered as bad as Toxic or the uncertain non-toxic/non-conventional ones

2. So, Congress did not want to create as big an increment that exists between BPT and BAT to regulate “Conventional Pollutants”

b. Toxic Pollutants (§1311(b)(2)(C, D)) – Best Available Technology BAT i. Those not biodegradable, that create a risk of substantial human health

impairment 1. “Factors relating to the assessment…include cost”

a. No Cost Benefit Analysis is requiredb. Note: This, from a policy standpoint, makes sense

c. Non-Toxic/Non-Conventional (§1311 (b)(2)(F)) – Best Available Technology BAT

i. All pollutants other then Toxic or Conventional

V. Variances – Differences from What is Otherwise Required

a. Available adjustments: EPA created FDF variances before the DuPont case, but stamped approval of the FDF variances at phase 1

1. Available Adjustments: toxic (FDF, 1311(k)), conventional, (FDF,1311(k)), non-toxic/non-conventional (FDF, 13111(c)- can issue modifications based on affordability in certain circumstances, like requirement that more lenient phase II requirements are still “reasonable further progress” to elimination, (g)- water quality modification, even if allowing more discharge, won’t cause any adverse impact to the water body, so to require more than that is unnecessary, OR (k)- maybe avoid phase 2 if spending money on R&D?

a. Fundamentally different factor variance: variance from regulatory effluent limitations that otherwise apply to that industry

i. Certain plants can come in and say that something is different fundamentally different with respect to a relevant factor (factors that EPA is applying in imposing BAT and BPT controls)

ii. Costs of operating technology, but pre-existing commitments are NOT relevant of why it can’t comply with regulatory requirements

b. 1311(l): Highlights provisions allowing variances b. Analysis of new source variance is flawed because “standard” doesn’t mean absolute prohibition on

discharge – not consistent with the rest of the statute1. Statute allows EPA to set standard of performance, so if a standard meant zero discharge,

it would have said it – not consistent with the rest of the statute if using the cannon ii. But in Chemical Manufacturers (SCOTUS)- statute allows indirect discharges to allow variances

or modifications from pre-treatment standards under 1317(b) – so “standards” isn’t inconsistent with the availability of variances

iii. AND looking at §1326 (Thermal Discharges) 1. Congress didn’t intend to distinguish between use of “limitations” and “standards”

because in §1326 it refers to 1311 limitations as “standards” refers to both 1311 and 1316 as the same

2. Use of the word “location” makes individual analysis necessary so maybe variances would be allowed

iv. Plus allowed variance under 1311, but under 1311(b)(2)(A), still said the goal was to move “toward the national goal of eliminating the discharge of all pollutants”

v. No connection between applying standards to all point sources, and allowing variances – applies to all under 1311(e), but allows variances, but shouldn’t be different under 1316(e) even thought it says “any operator of any new source” which is seemingly absolute

vi. Glicksman says court allows for modifications at phase 2 under 1311(b) but says nothing about modifications for phase 1

1. So mere failure to provide for a variance in the statute shouldn’t preclude EPA from allowing variances – Court itself authorized it to provide it in Phase 1 without statutory detail

VI. Non-Point Source Discharges – Ambient Quality Backup Plan a. Agriculture, mining, forestry, anything without a pipe – dispersed sources of pollution (runoff)

1. Maybe in 1972 Congress didn’t understand the source of the problem, but legislative history shows that Congress knew

ii. Really not regulated well - More difficult to regulate because require changes in land use1. Hard to regulate – costly to remedy (politically difficult to impose costly requirements on

farmers- agriculture lobby is strong) iii. Usually managed through state-run planning – reluctance to interfere with land use controls –

potential federalism issue b. Congress required water quality standards to ensure that water quality is adequate for the pollution

protection from what is being dischargedi. What if technology based mechanisms don’t give the necessary level of protection?

ii. Was too hard to enforce previously because of the imprecision of effects of effluents in most waters (water quality standards don’t translate to defendable effluent limitations)

c. CWA §303(d) focuses on ambient water quality standards – heart of the pre-1972 federal regulatory program

i. Under CWA §301, states first have to establish ambient standards in their jurisdiction1. TMDL program is intended to identify NPS pollutants as a source of impairment (states

can delegate a portion of TMDL’s to NPS) 2. TMDL should provide “reasonable assurances” that NPS control measures will achieve

expected load reductions for TMDL to be approvable (EPA guidelines)

d. Step 1: Establish Designated Uses for Water Bodies i. Is it for public water supply, fish and wildlife, agricultural, industrial, etc.

1. Once established as x, EPA prohibits state from downgrading designation unless designated use is no longer attainable (but state has discretion to first designate)

ii. States can designate multiple uses, and can establish higher quality use than what is in place currently (taking into consideration downstream states)

1. s

e. Step 2: State Establish “water quality criteria” to protect designated uses under §131.11(a)(1) i. Look at Blue Book or Red Book for recommended quality criteria for certain pollutants (under

1314(a)- if deviating, need a really good reason- burden of proof on state who deviates from EPA’s stringent levels)

1. 1313(c)(2)(A) – sometimes “no toxic pollutants in toxic amounts,” because of unknowns, or giving states flexibility to regulate

ii. What is maximum concentration of pollutant, while still making it safe for whatever use it’s designated for?

1. Adopt water quality criteria for each water body segment consistent with the applicable designated use (by the state with EPA guidance)

f. Step 3: Apply EPA’s Non-Degradation Policy i. §1313(d)(4)(B)- reference to pre-existing policy on anti-degradation which Congress basically

codified 1. Very similar to CAA PSD – divides onto three tier’s, but switched 1-3 2. Anti Degradation : Used to ensure that existing water quality is maintained and protected

a. Protect water before it’s degraded so it can be available (other tools are really ex-post instead of ex-ante- wait until it’s degraded then protect it)

b. Tier 1: Minimum water quality standards for all of a state’s waters – existing in-stream water uses to protect existing uses

i. Can be degraded only if the degradation preserves the attainability of fishable swimmable water quality

c. Tier 2: Required when quality of waters exceed levels necessary to support propagation of fish or wildlife and recreation in the water

i. State can allow lower water quality if it’s necessary to “accommodate important economic or social development” but still have to use highest regulation of new and existing point sources and reasonable BMP’s for non-point sources

d. Tier 3: Where high quality waters are a national resource (state park) then water shall be maintained and protected

i. Protected by an un-rebuttable presumption that existing water quality must be maintained

g. Step 4: States establishes water quality standards for bodies within its jurisdiction and submits proposed standards to EPA

i. TMDLS calculate assimilative capacity of a certain water body – how much of a specific pollutant can be discharged in the aggregate in a particular body of water without exceeding maximum

concentration level in the water quality criteria or precluding water to be used for its designated use

1. Under §301(b)(1)(C), NPDES permits have to specify limits that will meet water quality standards in the state

2. TMDL’s are one way of accomplishing the CWA’s goal of restoring and protecting nation’s waters (used in the 1972 version, but poorly implemented until more recently)

3. TMDL’s for every water body that’s not meeting water quality standards despite compliance by point sources with technology based controls

ii. Elements : TMDL’s were intended to be used where technological standards weren’t stringent enough to implement applicable water quality standards

1. (1) §303(d) obligates states to ID and develop a priority ranking of waters where effluent limitations aren’t strong enough to meet water quality standard – these “impaired” streams are the 303(d) waters

2. (2) Then set TMDL’s for specified pollutants in these waters – taking into account seasonal variations and uncertainties in data

3. (3) The government must allocate the TMDL among the various sources iii. 1313(d)(1)(c) – each state establishes a TMDL for pollutants for each EPA pollutant, and taking

into consideration uncertainties about relationship between pollutants and water quality 1. Whole reason to shift from water quality to technology – don’t know enough about links

between discharges and water quality iv. EPA can disprove a TMDL if it doesn’t adequately provide for state’s water quality standards v. EPA can accept or reject if they are “not consistent with the CWA”

1. 1313(c)(2) - All standards submitted to EPA for review every 3 years and make available to the public

2. 1313(c)(3)- EPA can reject, and (4) if the state doesn’t fix it, EPA can adopt a water quality standard for the state

3. §1313(c)(4)(B)- EPA can override state by changing effluent limits in NPDES permits when a source interferes with water quality §1312

vi. After approval of TMDL, then allocate discharges for each source adding pollutants to the water 1. “WLA” waste load allocation – amount that can be contributed by point sources

dischargesvii. Pronsolino v. Nastri : EPA rejected California’s 303(d) list because it didn’t include over a dozen

rivers which didn’t meet water quality standards set by the state1. Most of those rivers not listed were impaired by NPS pollution 2. CA didn’t amend its list, EPA, under 303(d)(2) established its own list, which CA

adopted, but CA didn’t create TMDL’s for the new bodies added by EPA, so EPA agreed to do so by consent decree

3. Issue: What type of waters must a state include in its §303(d) list? And does §303(d) cover waters impaired solely by non-point sources?

4. Holding: A state’s §303(d) list should include all impaired waters, including those waters impaired by NPS – EPA did not exceed its statutory authority in IDing the Garcia river under §303(d)(1)(A) even though the river is polluted only by NPS

a. If body of water is impaired, doesn’t matter where the impairment comes from, can be NPS or PS or combination – regardless, state has to establish a 1313 TMDL for that body of water

5. Reasoning: Nothing under statute appears why amount of either point source loads or non point source loads can’t be zero

6. Purpose of water quality standard is to provide federally approved goals to be achieved by state controls AND federal strategies other than P.S. technology based limitations

a. Still need a TMDL if technology limitations, effluent limitations (including prohibitions) and other control mechanisms (BMP’s) aren’t enough to implement water quality standards

b. Pronsolinos believe that the CWA differentiates between regulatory schemes applicable to PS and NPS (court rejects)

i. Sometimes they’re differentiated, but not generally throughout the statute, and not explicitly in this area we’re concerned about

ii. AND explicit listing language under §303 requires waters to be listed if they’re impaired by either PS or NPS or both

7. Federalism Issues: Pronsolino’s think federalism issues raised if EPA is requiring regulation of NPS pollutants, because that’s virtually a zoning land management issue

a. Court rejects – TMDL’s don’ specify what particular parcels of land need to have certain discharge limitations- state implements and monitors TMDL’s

8. Rule: EPA’s regulations for the §303(d) lists and TMDL’s apply whether water body receives pollution from point sources or NPS’s or a combination of the two

a. States must implement TMDL’s only to the extent that they seek to avoid losing federal grant money for 1319 NPS management programs

b. The statute requires calculating TMDL’s for impaired water bodies, allows EPA to establish if state fails, but statute doesn’t mandate implementation of TMDL’s by the state, and doesn’t give EPA authority to implement TMDL that EPA establishes for the state

c. But EPA can veto (§1342(d)(2,4)) individual proposed permits under delegated NPDES permitting authority if the “permit is outside the requirements of the CWA”

viii. Federal Certification : §1341- Any applicant for a federal license or permit that may result in a discharge into waters of the us, provide to the federal permitting agency a certification from the state (where discharge originates) that discharge is permitted under §1313

1. So state can prevent EPA from issuing a permit under 1342 if it’s not willing to certify that discharges in compliance with EPA permit will ensure compliance with state water quality standards – flip of veto power

2. State can use authority under 1341 instead of 1342 – cheaper because only certifying or not – or states can qualify “if you do x and z”

3. Usually use a consent decree to resolve TMDL-litigation (pg 637)

ix. Notes : §1370: Retention of State Authoritya. Retains all state’s rights, except that a state may not go below what is mandatedb. May exceed, or require more stringent limitations however

2. §1313: Water Quality Standards a. States are required to adopt water quality standardsb. EPA may adopt its own standards, for State standards that are inadequate

3. EPA may enforce its own issued permits and state issued permits 4. §1251 (b): Police of CWA and Congress to recognize preserve and protect primary

responsibilities of States….

Part 7: Criticisms & Alternatives to Traditional Regulation

I. Introductiona. Responses: Ambient quality based, harm based, technology based, market based, liability based

approachi. None are perfect- each has its own pro/cons, most statutes combine approaches or change

over time to adopt to changing issues b. Ambient Quality Based Approach:

i. Step 1 : To implement an ambient quality based approach, have to identify goal1. Harm based or ambient quality based approaches are designed to protect a specific

resource, but to what extent? Absolute reduction is rarely desirable, not feasible 2. Not all pollution is harmful – should minimize harmful component of pollution

ii. Step 2 : Have to identify steps to reach that goal 1. Which sectors will be targeted?

iii. Step 3 : Identify which specific pollution sources will be impacted

1. What plants? What is their new emission level? iv. Ambient quality allows ID-ing of level of quality and target that as end result of regulatory

efforts BUT difficult to find sufficient cause and effect, lack of scientific certainty c. Technology Based Approach:

i. Technology controls are one of the most important tools in regulatory “toolbox”II. Command & Control/ Traditional Regulatory Approaches

a. Ambient quality and technology-based approaches (under CAA and CWA) b. Glicksman doesn’t like phrase “command and control” (use “traditional regulation”)

i. Probably have greater, more fair, consistency in the treatment of regulated entities 1. Not like Ackrin and Stewart who favor individualized regulation – would be different

for each person who applied for a permit2. Do treat industries alike, but under CAA – do make geographic differences if it’s in a

non-attainment or attainment or PSD areaa. Non-attainment areas – more rigorous regulation b. More regulation for impaired waterways – then have TMDL’sc. So some individually crafted limits where appropriate

ii. DuPont- congress’ intent that regulated polluters be treated to uniform standards 1. Want to avoid “Race to the Bottom” before federal pollution control statutes, which

would probably occur if differences were made geographically

c. Criticisms : Regulation isn’t sufficiently tied to the use of CBAi. (1) Society shouldn’t impose regulation that impose more costs than receive benefits

1. Environmental regulation is not well suited to CBA because difficult to quantify benefits ii. (2) Inefficient - Traditional regulation typically takes the form of uniform standards applied to all

industry (misallocate requirements)1. Benefit: Imposed immediate, readily enforceable federal controls on a relatively few

widespread pollutants, while avoiding widespread industrial shutdowns2. Ex: 1311 and 1316 technology effluent limitations – not individualized enough so could

actually be getting more benefits 3. Some regulated sources have lower compliance costs than other sources engaged in the

same activity a. Efficient regulation of environmental quality would allow discharges to take

advantage of assimilative capacity of the rivers. Should look at geographic differences for more individualized regulation

4. Can achieve greater environmental protection – just allocate differently based on the impact they’re having on those specific water bodies

5. Rebut: Inefficient because we don’t have the technology to do this, and would end up over-polluting – use precautionary principle

iii. (3) Environmental regulation creates perverse incentives - Imposes more stringent regulations on new sources than existing sources

1. Delay in investment in new technologies because not approved yet so less people invest because of uncertainties

2. Disproportionately burdens less productive/profitable industriesa. Profitable industries can “afford” more stringent controls so they comparatively

don’t have to work as hard to be clean3. Uniform technology determinations impose massive information-gathering burdens on

administrators,a. Easier for companies to fight and litigate than to comply

4. Makes EPA only want to go through rulemaking process as few times as possible – don’t regulate as many pollutants as they should

d. Professor Latin – “Ideal v. Real Efficiency” i. Environmental regulation (and also OSHA-type regulation) impose billions of dollars in annual

compliance costs on society and also entail significant indirect costs including decreases in productivity, technological innovation, and market competition

ii. BUT they have greatly improved the environment since their inception in the 1970s

1. High transaction costs (rulemaking, litigation, information gathering to set standards), lack of perfect information

2. Many pushes to reform environmental regulatory approaches are advocates of less environmental regulation in disguise

iii. Those who encourage regulatory reform sometimes have objectives that they don’t acknowledge or disclose – when they say “reform” really mean “deregulate”

1. Attack approach as a means of ensuring no regulation iv. The most “efficient” strategies in theory will frequently be the least effective in practice.v. Problems With Uniform Regulations

1. Uniform standards do not reflect the opportunity costs of environmental protection2. They disregard the individual circumstances of diverse conflicts3. They do not achieve environmental protection on a “lowest-cost” basis4. They fail to provide adequate incentives for improved performance

vi. Benefits of Uniform Regulations1. Decreased information collection and evaluation costs, greater consistency and

predictability of results, greater accessibility of decisions to public scrutiny and participation, increased likelihood that regulations will withstand judicial review, reduced opportunities for manipulative behavior by agencies in response to political or bureaucratic pressures, reduced opportunities for obstructive behavior by regulated parties, and decreased likelihood of social dislocation and “forum shopping” resulting from competitive disadvantages between geographical regions or between firms in regulated industries

i. Information accumulation is less under traditional regulation than under the individualized source approach the critics advocate

1. Don’t have to study the variances – just look at technology in a broad scaleii. PLUS Congress explicitly moved away from water quality based and moved toward

technology based controls - science wasn’t there to be able to draw definitive links between impact on receiving water quality

2. Too hard to know what individualized permits should be – don’t have the science to confidently predict impact

vii. Solutions: Environmental controls should be tailored to particularized ecological and economic circumstances, regulatory benefits weighed against the costs of environmental protection, and increased reliance placed on economic incentive mechanisms, such as taxes on environmentally destructive activities or transferable pollution rights

II. Alternatives to Traditional Regulatory Approaches a. Cap and Trade : Glicksman

i. Those who sell allowances usually have lower pollution reduction costs than those who buy – so the aggregate level of control is achieved at a lower total cost than if there are uniform emission caps on each facility

ii. Theory is that you just have to provide incentives so that rational people will induce it to act in ways that produce desired result – just have to decide what incentives are appropriate, and then put them in place

1. (1) Pollution taxes or fees (economists like this) a. Increase efficiency of environmental protection effortsb. If you can reduce your own operations more cheaply than the tax, the marginal

cost of reduction is the tax or fee – good!c. Implementation costs (information collection) is cheaper to operate a tax system

than under a traditional regulatory approach – no detailed technical studies of polluting industries to decide what best technology is, and no need to establish regulatory limits – just set up tax for all industries

d. Step 1: How high does the tax have to be to reach the goal? i. Research to predict how people respond to taxes

1. But different people respond differently based on their ability to pay – income in jurisdiction?

2. Expensive to collect information PLUS they have to count number of bags from each house then charge each house – enforce system

ii. Like 5 cent tax on bags – enough? But at some point, people might max out ability to reduce garbage, so tax is too high – too burdensome

e. Implementation difficulties are part of reason federal government hasn’t adopted a tax as replacement for traditional regulatory management – too politically sensitive?

f. But carbon tax might be best way to reduce GHG emissions 2. (2) Refund schemes: Ex: Encourage people to recycle by paying 5 cents per bottle3. (3) Subsidies: Ex: PTC subsidies until they’re competitive4. (4) Emissions trading: Is this more successful than traditional regulatory approaches?

a. Yes- but still not likely to replace traditional approachb. Federal and state regulators use this trading to supplement instead of replace

traditional approaches c. Use reduction in admissions below some cap to avoid regulatory obligations or

engage in otherwise prohibited activities (sell difference between what you emit and what you were allowed to emit)

d. Congress sets limit on allowable limits of pollutant, then allocates to potential sources of pollution – individual limits for each regulatory sources (like states in TMDL)

i. Here’s the cap – now use it all or reduce and sell ii. Then allowable limits decline over time – less to sell off

e. Ex: Carbon cap and trade – exact opposite than/alternative or supplement to traditional approaches

f. Ex: CAA provisions – merge traditional and economic incentive based approaches

g. Downsides: Frequent confusion about its role but developed by economists and conservative politicians

b. Market/Incentive Based : Malloy i. Command and Control- Government relies upon the negative incentives of civil and criminal

penalties to motivate individuals or organizations to comply with those obligations1. Nobody can pollute without getting permission to do so, and won’t get permission to

protect health and environment – so then you have a right to pollute once you get a permit

a. But taxes- they can pollute as much as they want as long as they can pay for it –weird to give people unlimited right to pollute

2. BUT traditional regulatory approach creates fewer transaction costs than market- based approach – fewer implementation and administration costs

ii. Incentive Based- Use desire to have more profit spur environmental protection1. Polluters with the lowest cost of controlling pollution made the highest levels of

production, those with high control costs won’t reduce pollution2. Reductions at a lower aggregate cost than under other regulatory approaches

iii. Different based on how people make decisions – litigation adverse or profit focused? (Is profit goal a tool or an obstacle- they do whatever they have to in order to make money, or they will do whatever they can do make money?)

iv. But which is better to encourage innovation? Probably incentive-based?c. Pollution Trading and EJ : Drury

i. Pollution trading successful for reduction in air quality ii. Problems because frequently the cheapest way to do business is in the low-income and minority

areas – EJ issues, creates pollution hot spotsiii. Hot Spots: Emissions trading in Los Angeles has led to concentrated toxic air emission hot-spots that

have shackled low-income and minority communities with the region's air pollution.

1. Scrap old cars instead of reducing their pollution – so older, high pollution factories still operate and damage these areas and give those worst factories a free ride from reducing emissions

2. Cars create diffuse pollution – factories are concentrated sources iv. Rule: Regulators should take EJ issues into concern in setting standards as well as creating trading

programsv. Incentive to Cheat: Pollution trading programs create stronger incentives to manipulate the numbers

and cheat, because credits that are fraudulently created are still worth money1. Can’t rely on self-reporting for industry cap and trade

a. Some companies just re-sold cars – didn’t destroy them2. Oil companies under-reported their oil tanker emissions by factors between 10 and 1000

– so purchase less emission credits3. Run the risk of “phantom reductions” in air emissions − reductions that exist on paper

only.a. Ex: After RECLAIM program, industrial NOx emissions have declined by at

most three percent, while allowable emissions have been reduced on paper by about thirty percent.

4. Shouldn’t allocate based on historical pollution – rewards those who have been bad in the past by giving them more credits

d. Prof. Amy Sinden - Taxing is a more efficient way of achieving environmental protection goals than regulation

i. Should use a tax for the amount of harm created by each unit of pollution, then would internalize the pollution externality and then would have the most efficient pollution emission levels

ii. Problems: Supporters underestimate the difficulties inherent in estimating risks and benefits.1. Delay in assessing tax levels would create too much pollution until appropriate taxes are

established e. Professor David - Economic argument in favor of emissions trading

i. In a trading program, those facing high marginal control costs can avoid those costs by paying facility operators facing lower marginal control costs to make extra reductions in their stead. These trades will tend to shift reductions to facilities with relatively low marginal control costs, thereby providing equal net environmental benefits at lower cost.

f. Shapiro & Glicksman - Risk Regulation at Riski. Test: How do you accommodate conflicting values??

ii. Just because regulated entities may abuse the discretion to use emissions trading as a means of regulatory compliance is not a sufficient basis to condemn the entire technique

iii. Also, maybe “clean air cannot be bought and sold” – potential irreconcilability of environmental goals and economic tools

iv. Cass Sunstein advocated letting agencies use incentive-based regulatory mechanisms if they were more cost effective

1. Then said they have to have greater C<B ratio2. But currently agencies combine uniform regulatory and market based approaches in

their regulation – working fine! 3. Plus, empirical support for the proposition that incentive-based techniques yield lower

cost regulation in most cases does not exist.4. Daniel Farber raised concerns about actual implementation of incentive-based programs

– equity and enforcement problems, create barriers to entry by new firms, unduly favor some firms in the initial allocation of permits

5. Incentive-based programs don’t fit in every situationa. Depends on the type of pollution, harm caused, available control technologies,

number, type and location of polluters, and the type of market failure.”6. Costs should be evaluated at a combination of the “production” costs (such as capital,

training, and operation and maintenance costs), “implementation costs” (such as measurement and enforcement costs), and “public finance” impacts.

a. Incentive-based programs usually have lower production costs, but higher implementation costs which might negate any difference

i. Maybe best is still a combination of the two? Set trading floors and ceilings so you can’t go beyond a certain level?

g. Incentive Mechanisms Under the CAA :i. Netting – (Introduced in Chevron case). Existing source doesn’t have to comply with permit program

for modifications if they compensate for an increase in emissions by reducing emissions elsewhere within the source

1. Like the “bubble” concept – Chevron allowed EPA’s view that bubble concept was an appropriate way to escape non-attainment area permit program regulation

ii. Offsetting – (§173(a)(1)(A)) used in CARE case). Requires new or modified major stationary sources to extract from existing source enforceable emission reductions that more than offset increased emissions attributable to the permitted source

1. Downfall- Emission control is more expensive to retrofit than to build – don’t want to discourage building new plants

iii. Credit Banking – (Creating, certifying and storing emission reduction credits). Bank purchases offsets and holds them until an applicant needs them – used under Tier rules for sulfur reduction in gasoline under §211(c)

iv. Cap and Trade – (Emission Budget System – overall cap under a regulatory program). Emissions then apportioned to sources that can later be used or sold.

1. Used in EPA’s acid rain program 2. Benefits- Potentially more efficient, easier to debate overall level where pollution

should be than what technology is best3. Downfalls- long start up periods because have to find baseline emission levels, size of

cap, allocation of allowances a. Potential creation of EJ polluting “hot spots” if there isn’t adequate public input

on what overall max levels should be4. Best fit for easily measured pollutants from uniform industrial sectors with small

number of sources 5. Critiques- Potentially subordinate environmental quality objectives to the pursuit of

economic efficiency a. Bubble approach encourages the continuation of old plants instead of building

new ones (which are more efficient and more productive) h. Benefits of Admission Trading : (at 487)

i. Greater Choice – Has the potential to create more economically efficient control of pollution than traditional regulatory systems

1. Theoretically plant managers will reduce pollution to the lowest marginal emissions control costs

2. Traditional regulatory approaches miss “cheap” emission controls by better sources and impose higher costs on smaller group of sources

3. Government has lack of information on cost-effective control options- no incentives to be forthcoming in a command and control model

i. Acid Rain Trading i. Allowances allowed 1 ton SO2 per year

1. Wrote specific credits into the statute – any utility that emitted in excess of this would be subject to penalties

a. Penalty then required reduction for whatever amount they were over last year (if emitted 105 instead of 100, have 95 next year)

2. Reduction below this level can be sold – incentives to do so if income from the sale of allowances is greater than marginal cost of reducing emissions

3. Incentive for dirty factories to buy if the price of the allowance is cheaper than the marginal cost of reducing their emissions

4. Also NGO’s can purchase SO2 allowances so less overall emissions ii. Utilities have reduced aggregate emissions of SO2 to the statutory requirement

1. Probably have done so at a lower cost than was predicted

2. Reduced acidification of lakes in the north-eastern US but that hasn’t happened to the extent expected BUT big public health benefits

a. Less PM 2.5 emissions (inhalation issues) 3. But RR rate deregulation might be responsible for the compliance costs – RR transport

goods a. Cheaper to get low sulfur coal (easier to ship it now, cheaper to get it from WY

and MT than to use dirty east coast coal) 4. Strongest proponents of cap and trade were Reagan and H.W. Bush – but now it’s

demonized by conservative politicians iii. Emissions Trading – theoretically more efficient than traditional regulation

1. Low cost controls over-control, while those with high control costs under-control, and buy

2. Aggregate cap reduced over time – accompany efficiency gains with increasing environmental benefits

3. Downfalls: (1) Toxic hot-spots from concentrated geographicallya. All the buyers in close proximity, all the sellers in another area b. Car scrappers – high polluting cars were diffuse, but factories are concentrated

i. Sometimes have more localized regulation – different in non-attainment areas – geographic cap in that area

c. Can maybe change regulation to reduce geographic impactsd. (2) Accounting & Reporting – have to figure out how much pollution is

currently emitted i. Miss-estimation of baseline emissions make things worse

ii. But sometimes only “paper” reductions, not real reduction in emissions – illusory (like car scrapping)

iii. If you have to sell credits for a certain amount, might have a margin of safety to know that some credits are illegitimate – require reduction below allowances generated (so reduce 120 lbs for 5 credits for 20 lb emissions)

e. (3) Political Issues: Manipulation of energy supplies by CA energy marketers who were trying to create shortages and increase prices

i. But then first casualty is the NOX emissions trading scheme – easier to suspend operation than to dismantle a traditional regulatory program – they’re the first to go (no N&C)

ii. Small firms go out of business if it’s expensive – anti-trust issues because then bigger firms survive

f. (4) Constitutional Amendment Issues: Regulated entities might say regulations are a takings issues under the 5th Amendment (constitutional issues)

1. Or deprivation of liberty or propertyii. Different issues than amendments

g. (5) Moral issue: Rights to pollute in the form of allowances – as opposed to under the CWA, its prohibited without a permit

i. Permit as a matter of government discretion, no right to it

4. Applicability: Easy to arrange electric utilities burning coal, didn’t have to use a new language for an allowance trade

a. More difficult for carbon/GHG – different sources, much greater transaction costs

b. Maybe make seller contribute to a fund (transaction tax) then fund used to compensate those who live in EJ neighborhoods adversely affected by hot spots

a. But that might not fix problem – irreversible health harm, decline in quality of life, death, reduced capacity?