Chapter 52 – Environmental Regulation

Administrative Agencies

The Federal Trade Commission Act and Consumer Protection Laws

Antitrust: The Sherman Act

The Clayton Act, The Robinson-Patman Act, and

Antitrust Exemptions and Immunities

Employment Law

Environmental Regulation

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Environmental Regulation

Every human has a fundamental right to an environment of quality that permits a life of dignity and well-being.

United Nations Conference on the Human Environment

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Learning Objectives

v The development of environmental regulation

v Air pollution regulationv Water pollution regulationv Waste disposal regulation

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Overview

v The U.S. Environmental Protection Agency (EPA) was created in 1970 to protect human health and the environment

v Human health and our environment are protected by:v Regulatory law (stick)v Market incentives (carrot)v Voluntary Measures (carrot)

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The Subject of the Laws . . .

Health & Safety

Sewage Treatment Plant ↑

Warning Sign →

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Environmental Damage

Strip Mine ↑

Clearcut →


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Conservation Efforts

Illegal Wildlife Products ↑

Protecting Ridley Turtle eggs →


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Pollution

Industrial Air Pollution ↑

Seabird Killed in Oil Spill →


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Definition of Pollution

v Pollution is any substance in the environment that endangers human welfare

v Toxic substances in pollutants linked to:

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v Carcinogenesis

v Mutagenesis

v Teratogenesis

v Behavior disordersBald eagle faced extinction due to

mutagenic effect of DDT

Sources of Environmental Law

v Principal sources of environmental law:v Civil (Common Law) Actionsv Federal Regulationv State, Tribal, and Municipal Regulationv International Treaties and Conventions

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Civil Action for Nuisance

v One of the oldest lawsuits to remedy environmental harm is nuisance

v A person may be liable for nuisance if they use property in a manner that interferes unreasonably with another’s rights to use or enjoy their property

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Civil Action for Tort

v A lawsuit to remedy environmental harm may be based on negligence or strict liability

v A person may be liable for in tort if they failed to use reasonable care toward a party whose injury was foreseeable and caused by the lack of reasonable care

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Demanding Compensation for Exposure to Agent Orange

v Federal environmental policy is achieved by statutes that are implemented through federal and state agencies and supporting environmental programs

v Litigation, injunction, and penalties (civil & criminal) are possible consequences of violating environmental laws

Federal Regulation

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v In the 1970s, in response to citizen demands for environmental protection, Congress began to enact numerous environmental laws, including: v National Env’tl Policy Act (1969)v Clean Air Act (1970)v Clean Water Act (1972)v Endangered Species Act (1973)

Federal Regulation

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v In the 1970-80s, additional laws enacted:v Resource Conservation and Recovery Act

(RCRA, 1976)v Toxic Substances Control Act (TSCA, 1976)v Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA, 1980, including Superfund program)

Federal Regulation

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Agency Enforcement

v The EPA, Occupational Safety & Health Admin. (OSHA), and Dept. of Justice (DOJ) work together to implement & enforce lawv Agencies issue regulations pursuant to

Administrative Procedure Act to support and implement federal laws

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State & Tribal Regulation

v States and Tribes may enact laws to regulate the environment within their jurisdictionv State laws implemented by state agenciesv State law may not conflict with federal law

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Muscogee Nation Tribal Police Officer

Local Regulation

v County and municipal governments regulate some aspects of the environmentv Location and conditions of parks, streets and

other public areasv Methods of waste and garbage removalv Local zoning laws

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Zoning

v Purpose is to ensure orderly physical growth and development of regulated area

v Generally, based on a municipal ordinance

Urban sprawl surrounding habitat of threatened California

gnatcatcher

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Nature of Environmental Law

v Most environmental laws are implemented through permitting programs that establish pollution limits for air emissions or effluent discharge into waterways by businesses or governmental entities

v Environmental laws do not prevent pollution, but merely set pollution limits and establish a system to compensate for environmental harm

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Test Your Knowledge

v True=A, False = Bv Pollution is any substance in the environment

that endangers human welfare.v States and Indian tribes may enact and

enforce environmental laws that do not conflict with federal environmental laws.

v Environmental law prevents pollution.v Violating an environmental law may result in a

civil penalty, but cannot be a crime.

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Test Your Knowledge

v Multiple Choicev The sources of environmental law include:

(a) Federal legislation enacted by Congress

(b) Federal agency regulations

(c) State and tribal environmental law enacted pursuant to state and tribal legislative bodies

(d) All of the above

(e) All of the above plus international treaties

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Thought Questions

v Why is environmental law necessary? Is environmental health a human right?

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OVERVIEW OF FEDERAL ENVIRONMENTAL LAWS

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National Environmental Policy Act (NEPA)

v The first modern environmental law, NEPA does not deal with pollution controlv Applies only to government agenciesv Created the Council on Environmental

Quality

v Requires federal agencies to prepare an environmental impact statement (EIS) for major Federal actions significantly affecting the quality of the human environment

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NEPA

v NEPA applies to states and private parties when actions are planned and subject to (at any point) federal approval of permits, loan guarantees, federal loans or insurance, or other federal involvement

v Eighteen states, Guam and Puerto Rico have enacted environmental planning laws similar to NEPA

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The EIS

v An Environmental Impact Statement must analyze the:v Impact of proposed action on the

environmentv Any expected adverse effects of the actionv Practical and feasible alternative methodsv Any irreversible effects the action might

generate

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MEDIA SPECIFIC LAWS

v Air Pollutionv Water Pollutionv Land Pollution

v Hazardous Wastesv Toxic Chemicals

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Acid leachate pond near mining operation

Air Pollution Programs

v Toxic air pollutantsv Acid rainv Indoor air pollution v Ozone-depleting

substancesv Greenhouse gases

and global warming

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“End-of-pipe” air emissions at paper mill

v Goal of the Clean Air Act is to improve National Ambient Air Quality through standards (NAAQS)

v Focus of the law is controlling pollution from mobile sources and stationary sources by issuing permits to polluters

v http://www.epa.gov/air/oaqps/peg_caa/pegcaain.html

Primary Statute: Clean Air Act

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Primary Statute: Clean Air Act

v Implemented by agency standards or rulesv Air quality standards remain unchanged since

1978 when standards established for six criteria pollutants: lead, CO, VOCs, SO2, particulates, and NO2

v Act enforced by agency action and citizen suits against polluters who failed to obtain a permit or violated their permit limitations

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v Each state is required to develop a state implementation plan for meeting national ambient air quality standards

v Consequently, major emitters of pollutants within the state must reduce their emissions to a level that ensures that state overall air quality meets national standards

Clean Air Act Implementation

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v State environmental agencies issue permits to companies that emit pollutantsv Permits specify type of pollutants allowed

and amount for each typev New sources treated more stringently than

older facilities

Clean Air Act Implementation

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Mobile point sources

v Facts:v The Sammis Plant, an Ohio Edison coal-fired

electric generating plant, required substantial renovation

v Ohio Edison intended and achieved a significant increase in operational output, but emissions of sulfur dioxide, nitrogen oxides, and particulate matter also increased

v Ohio Edison denied needing a new permit

U.S. v. Ohio Edison Company

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v Procedural History and Ruling:v U.S. and some states brought suit against

several operators of coal-fired power plants to gain compliance with the Clean Air Act New Source Review provisions

v By failing to obtain a permit for increased emissions related to renovations of the Sammis plant, Ohio Edison violated the Clean Air Act

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v Result:v In March 2005, EPA agreed to a consent

decree by which Ohio Edison agreed to reduce emissions at an expected cost of approximately $1.1 billion, pay a $8.5 million civil penalty, and spend $25 million to perform environmentally beneficial projects related to air pollution within the affected states

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International Environmental Law

v The Clean Air Act specifically supports U.S. obligations under the Montreal Protocol, an international agreement to reduce air pollution and ozone-depleting substances

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Pulp and paper mill

v Facts: w 19 private organizations filed a rulemaking petition in

1999 asking EPA to regulate “greenhouse gas emissions … under § 202 of the Clean Air Act”

wEPA requested and received public comment for years, yet denied the petition in 2003 for two reasons:w (1) Clean Air Act did not authorize EPA to issue

mandatory regulations to address global climate change; and (2) even EPA had authority to set greenhouse gas emission standards, it would be unwise to do so

Massachusetts v. Environmental Protection Agency

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v Facts: w The original 19 organizations, 12 states, and local

governments sought review of EPA’s order denying the petition in the U.S. Court of Appeals, which deferred to the EPA’s decision

wU.S. Supreme Court granted the petitioners’ request for certiorari


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v Supreme Court’s Decision by Justice Stevens: w Court discussed standing of litigants, especially

sovereign status of states such as Massachusettsw “The harms associated with climate change are serious

and well recognized…EPA has refused to comply with [a] clear statutory command…EPA [cannot] avoid its statutory obligation by noting the uncertainty surrounding various features of climate change.”

w On remand, EPA must ground its reasons for action or inaction, but Court did not order EPA to make an endangerment finding and issue a rule


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Water Pollution Programs

v Wetlands, Ocean, and Coastal Zone Pollution

v Groundwater & Drinking Water Protection

v Wastewater

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Holding a dead sea otter killed by oil from the

Exxon Valdez

Primary Statute: Clean Water Act

v Clean Water Act (CWA) goals:v Ensure that navigable water

is safe for drinking, fish & wildlife protection, and recreational use

v Eliminate or limit discharge of pollutants into coastal and inland waterways

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Point source pollution

v For non-point and point sources, EPA sets CWA water quality criteria or standards based upon:v Designated Use of Water Body

v Fishable/Swimmable Qualitative Criteria v Total Maximum Daily Loads (TMDLs)

v Specific limits on pollution for particular water body, included in pollution permits

Clean Water Act Standards

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NPDES Permit Program

v Every industrial or municipal facility must apply for a National Pollutant Discharge Elimination System (NPDES) permit to discharge pollutants into inland waterways or oceans

v Pollution control is largely achieved through requirement that a polluter use specific technologies to reduce effluent

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State Implementation

v Most states have taken primacy (primary authority) for Clean Water Act enforcement for their jurisdiction

v A state environmental agency issues NPDES permits based on state determinations about the quality of specific water bodies

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Wetlands

v Section 404 of the Clean Water Act (CWA) protects wetlands by requiring a permit from the Army Corps of Engineers before dredged or fill material may be discharged into waters of the United States

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Endangered green pitcher plant found in some southern wetlands

Definition of Wetlands

v Wetlands refers to "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." See EPA wetlands page.

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Violating Water-Related Laws

v Federal and state environmental agencies may enforce the Clean Water Act and water-related programs with civil fines and/or criminal penalties, including prison for those who knowingly violate the lawsv See U.S. v. Hopkins

v Citizens also may file suits to remediate or compensate for environmental harm

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v Primary Laws: v FIFRAv TSCAv RCRAv CERCLA

Land Pollution Programs

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Iron Mountain Superfund site in California caused by acid mine drainage

Pesticide Regulation

v The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates use of pest control chemicals in process of food growth through food packaging, to minimize presence in consumable foods

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Toxic Substances Control Act

v The Toxic Substances Control Act (TSCA) requires anyone planning to sell or market chemicals to first determine effect on human health and the environment

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v Gives EPA authority to track, investigate, or ban industrial chemicals currently produced or imported into U.S.

v In a cradle to grave regulatory system, RCRA and CERCLA regulate storage, disposal, and remediation of toxic and hazardous substances on land

Waste Disposal Laws

Toxic waste, bankrupt company

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RCRA

v The Resource Conservation and Recovery Act authorizes EPA to regulate monitoring, transporting, storage, treatment, and disposal of solid waste and hazardous waste v Tracking from creation of waste through

disposal or treatment (cradle to grave)v Any person who fails to follow regulations

strictly violates RCRA

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United States v. Dean

v Facts: v Dean was production manager at a metal

fabricating plant that violated permitting, storage, treatment, and disposal rules of RCRA

v Dean, plant owners, plant manager, and parent company were indicted

v Owners and parent company of the plant pled guilty to a felony and paid a fine

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v Facts: v Dean was convicted – and his conviction

was affirmed – because he dumped and buried 55 gallon drums of hazardous waste on land for over five years

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United States v. Dean

CERCLA

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v Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, or Superfund, authorizes EPA to ensure the clean-up and remediation of hazardous waste sites

v Also authorizes EPA to assign liability for clean-up costs to any potentially responsible party (PRP) or all PRPs

Potentially Responsible Party

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v A PRP is defined as:v Current owners or operators of facility or vessel;v Former owners or operators of facility or vessel,

if they owned the property at time of disposal;v Those who arrange for treatment or disposal of

hazardous substances at a facility (usually the generators); and

v Transporters of hazardous substances who selected the disposal site

Retroactive Nature of CERCLA

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v In general, a law may not be retroactivev However, CERCLA liability is retroactive,

meaning that parties may be held liable for releases that occurred prior to the enactment of the statute in 1980v See U.S. v. Domenic Lombardi Realty

v Reason: entire purpose of law is to clean up past mistakes and protect human health

Conservation Efforts

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v A number of laws, such as the Endangered Species Act, attempt to identify, list, and protect threatened or endangered speciesv See U.S. Fish & Wildlife Service webpagev 398 U.S. species of animals are listed and

599 U.S. species of plants are listed

v The ESA provides for habitat recovery plans and species recovery plans

Endangered Species Act

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v The ESA began and remains in controversy despite the obvious need for and apparent success of the law

Bald eagle, California gnatcatcher, Florida panther

International Wildlife Law

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v The Convention on International Trade in Endangered Species (CITES) prohibits trade in threatened and endangered species, whether animal, plants, or parts of animals or plants

Illegal wildlife parts and products

confiscated by U.S. agents

Environmental Management

v Partly because of the regulatory web and partly for corporate social responsibility, many companies implement an environmental management system (EMS)

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v Examples include ISO 14001, Responsible Care, and Smart Wood

Test Your Knowledge

v True=A, False = Bv NEPA applies only to federal agencies.v The Clean Air Act applies to mobile and

stationary sources of pollution.v One goal of the Clean Water Act is to

eliminate or limit discharge of pollutants into navigable waterways.

v Section 404 of the Clean Water Act (CWA) protects wetlands.

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Test Your Knowledge

v True=A, False = Bv Both RCRA and CERCLA establish a cradle to

grave regulatory system for hazardous waste.v Retroactive laws are always unconstitutional.v Only the U.S. EPA may enforce the Clean Air

Act or Clean Water Act.v RCRA requires companies to track and

monitor hazardous waste from creation through disposal or treatment.

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Test Your Knowledge

v Multiple Choicev An environmental impact statement must

analyze: (a) The impact of the proposed action on the

environment

(b) Any expected adverse effects of the action

(c) Practical and feasible alternative methods

(d) All of the above

(e) Both A and B only

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Test Your Knowledge

v Multiple Choicev A potentially responsible party may be:

(a) A current owner of the facility

(b) A former owner of the facility

(c) The plant manager who arranged for the disposal of hazardous substances from the facility

(d) The company that operates the facility

(e) All of the above

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Thought Question

v Given technological improvements in alternative energy (wind or solar power, biofuels), does a company have a social responsibility to use the best available technology?

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Anaerobic bioreactors for sludge digestion and methane production in Kiel, Germany

Education

Chapter 52 – Environmental Regulation