enviro i outline

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Outline: Environmental Law and Policy I Professor HarleyFall 2010 Kyle Carlson

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Administrative Law Principles in Environmental Law and Policy

Administrative Procedures Act (APA)

y 90% of environmental law takes place w/out court participation.y The most important procedural code for environmental law is not the Code of CivilProcedure.y Instead, Environmental Law Relies on the Administrative Procedures Act (APA)

o How law turned into technical regulationo How regulation turned into facility, site, or activity specific rules

y Major Environmental Laws (e.g. Clean Air Act) are broad-mandate blueprints.o Architecture of General Structure of Ruleso Mandates to the Administrator of the US EPA to do certain things i.e. turn goals

into technical requirements

Chapter 40 of the Code of Federal Regulations (40 CFR __ )

o US EPA Administrator promulgates mandate-required regulations Emission guidelines, compliance time period, penalties, monitoring &

reporting protocols, etco Takes a lawyer or engineer to understand the dictates for the various source

categories of facilitieso 3 reasons CFR important to enviro law practitioners:

1) Compliance Counseling = Obligation to know the regulations;ignorance is no legal defense

2) Practitioners Handbook = Violation of regulations incurs samepenalties as prescribed for violation of the main, enabling law

3) APA Rulemaking Process = Opportunity for notice/public commentallows atty to advocate for a position and create the record required forjudicial review after final agency action

APA Rulemaking Process

I. Provision of Adequate Notice: Nearly every day, the US EPA announces intention toengage in regulatory activity

A. This initiates the rulemaking processB. Regulations areproposednot imposed.C. Notice placed in the Federal Register

i. Highly specific legal documentii. Identifies the federal official responsible for the rulemaking & thestatutory basis for the rule

iii. Announces opportunities for public comment and public hearing info (ifany set up yet)

iv. Explains EPAs initialtake on what final version of proposed regulationwill resemble


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II. Opportunity for Public Comment: Usually hearings around affected region ornationwide + submission period for written comments

A. Goal for clients enviro atty representative = Dominate the Recordi. Record is a transcriptii. Fact-Gathering Exercise, not a referendum, up or down vote, town-hall

meeting, gauge of public sentimentB. EPA must respond to substantive comments from public hearings when issuingfinal rule

i. No requirements on weight of evidence in decision, just that a weighingand consideration of offered evidence occurred.

III.Judicial Review of Rulemaking: Rulemaking is Administrative Agency process, notJudicial process

A. Ripeness No judicial review until completion of final agency actioni. Generally, when releasing the final rule w/responses to substantive public

commentsii. Or when rule already released and agency (dis)approves permits

B.

Standard of Reviewi. See Chevron belowii. Not De Novoiii. Limited to the 4-Corners of the Record == The information the agency

had available at the time of the final agency action.IV.Adjudication Process Permitting: Distilling statutory and regulatory reqs to apply to

ONEregulated facilityA. Commonly for construction permits, operation permits, or demolition permitsB. Obligation to know an entity needs a permit and to maintain that permit is

imposed on the regulated entityC. Notice and Comment

i. Notice in paper of general circulation w/in area of proposed constructionor activity

a. Summarizes the project; lists permits to be issuedii. Comment = Public Hearings + Period for Accepting Written Commentsiii. Why Notice and Comment for every individual project?

a. Too Many Regs: every citizen cant monitor every federal regb. Prevent Fundamental Mistake: A particular facility could be

extremely dangerousc. Info-Gathering: Agency may not have local, relevant infod. Legitimacy public check on executive branch admin-created

legislatione. Who speaks for nature? The people who appreciate it in closest

proximity orhighest interestf. Industrial Competitors: Want to ensure uniform application of

costs/standardsV. Judicial Review of Statutory Implementation see above and Overton below.


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Judicial Review of Administrative Statutory Interpretation (Rulemaking):

Chevron Deference Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984)

y The Agency Clearly Holds the Advantage on Appeals to the Judiciary.y NOT De Novo Review Reviewing Court bound by record in front of agency at the time

of the agencys decision.

o In very rare circumstances its possible to consider new evidenceTwo-Step Process Question of Congressional Intent1. If intent of congress is explicit delegation of authority to agency to fill in gaps in

law/make regulations, then such legislative regulations are given controlling weightunless they are arbitrary, capricious, or manifestly contrary to the statute.

a. the court is not empowered to substitute its judgment for that of the agencyb. How to determine statutory intent? Ordinary Rules/Doctrines of Statutory

Construction (Case Footnote 9)i. FDA v. Brown & Williamson Tobacco Corp. (2000) = S.Ct. says

reviewing court should not confine itself to examining a particularstatutory provision in isolation. The meaning or ambiguity of certain

words or phrases may only become evident w

hen placed in context.1. Context agencys past interpretations of the scope of its own

authority, adoption of other tobacco-regulating statutes, economic& political magnitude of the policy decision at issue.

c. See Factors in 5 USCA 706(2) [Scope of Review]i. E.g. Most common agency violation the agency fails to consider all

factors required by congress, or considers factors other than those in anexclusive list by congress.

ii. E.g. Less Common = Procedural Flaws wrong # of days forcomment/compliance period too short

d. Judicial Remedy under 5 USCA 706(1) = compel agency action unlawfullywit

hheld or unreasonably delayede. Statistics in 1990s in cases decided under step 1, EPA lost ~ 60%

i. Interestingly, anti-EPA judges are looking to legislative history to justifyplain meaning

2. If legislative delegation of authority to the agency is implicit, then the administrativeagency is permitted any reasonable interpretation.

a. Unreasonable basically = Irrational.b. Statistics in 1990s in cases decided under step 2, EPA won > 92%

Scope ofChevron Deference Sliding Scale, Fallbacks, and Ambiguity

y USv. MeadCorp (2001) = Chevron Deference owed when it appears that Congressdelegated authority to the agency generally to make rules carrying the force of law, and

that t

he agency interpretation claiming deference was promulgated in exercise of t

hatauthority.

o Shown by agencys power to engage in adjudication or notice-and-commentrulemaking, or some indication of comparable congressional intent

o Fallback = still some deference Depending on degree of the agencys care, its consistency, formality, and

relative expertness, and the persuasiveness of the agencys position.


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y Barnhart v. Walton (2002) = S.Ct. (arguably dicta) saysMeadstands for deferencedepends in significant part upon the interpretive method used and the nature of thequestion at issue.

o Factors for Chevron Deference here were: interstitial nature of the legal question,related expertise of Agency, importance of the question to administration of the

statute, complexity of that administration, and t

he Agencys careful considerationof the question over a long period of time

y Gonzales v. Oregon (2006) = may stand for: more limited agency authority to promulgaterules narrows application of Chevron Deference

Judicial Review of Agency Statutory Implementation (APA Informal Agency Actions)

Citizens to Preserve Overton Park, Inc. v. Volpe (1971)

y Rule (1):Quasi-Legislative, Informal agency decisions can be challenged. Standard ofReview for "informal" agency decisions (i.e. informal rulemaking/N&C rulemaking orinformal adjudication) is

o arbitrary and capricious if based in fact and see Rule (2) the court is not empowered to substitute its judgment for that of the

agency A&C Factors fromMotor Vehicle Mfrs. Assn v. State Farm Mutl. Auto.

Ins. Co. if the agency has relied on factors which Congress has notintended it to consider, entirely failed to consider an important aspect ofthe problem, offered an explanation for its decision that runs counter to theevidence before the agency, or is so implausible that it could not beascribed to a difference in view or the product of agency expertise.

Sometimes considered to be equivalent to std for formal decisions =Substantial Evidence Review

Overlapping, but not considered to be identical to Chevron step-2.

o de novo if question of law.y Rule (2): Hard Look Review: Courts applying the arbitrary and capricious standard

must engage in a searching and careful inquiry of thefull administrative recordat thetime of the agency decision. Must make sure the agency has taken a hard look at thesalient issues (used if public interest is at issue).

o Usually avoid requiring testimony for inquiry into the mental processes ofadministrative decisionmakers

o But affidavits w/ post hoc rationalizations of a decision are and inadequate basisfor review

o Judiciary must ensure balancing of factors/interests occurred, not rebalance themExceptions to

Judicial Review of Final Agency Action:

5USC

A 701(a)1. Statutes preclude judicial review2. Agency action is committed to agency discretion by law

a. Existence of agency discretion is not enoughb. Congressional intent must be demonstrated by clear and convincing evidence std.c. Courts rarely have a problem finding law to apply that removes full agency

discretion in the delegating statutes or the agencys own regs or plansd. Often refuse to reach merits if agency challenged on decision to not enforce rule


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National Environmental Policy Act of 1969

NEPAGenerally; EA/EIS Process; EA/EIS Substantive Requirements

NEPA Congressional Purpose and Judicial Enforcementy Passed 1969; environmental Magna Carta

NEPA Goals:

y 1) Articulate a National Environmental Policyo see handout of purpose statement

y 2) ID Worst environmental entity in America = the Federal Govto Bipartisan Congressional opinion that Fed Govt funding for projects w/ no enviro

standards causing the majority of environmental damageo NEPA designed to change way govt does business/approves contracts or projects

y 3) To insure high quality information is available to public officials and citizens beforedecisions are made or actions are taken.

o Stop and Think Statute orHard Look Statuteo Agency Action-Forcing statute = binding on every agency of the Fed Govt in

terms of their primary activities.o ALSO a Paper Tiger mandatesgathering of information and considering that

info, but does notmandate action favorable to the environment. Characterizations: Huge loop-hole vs. public pressure against polluters

strengthened vs. playing to better angels of Fed. Officials 102(C) Core Mandate of NEPA

y all agencies of the federal govt shall include in every recommendation or report ofproposals for major federal action significantly affecting the environment

Does NEPA/102(C) apply? See CEQ section below + flowchart + pg. 238

y 1) Threshold Federal Action Requiremento not just states or private parties actingo although many states have their own version ofNEPA SEPAs

y 2) Significantly Affecting the Environment Requirementy 3) IfBoth Yes, then Detailed Environmental Statement In Consultation Required

Judicial Enforcement of Agency Duties under NEPA Calvert Cliffs Coordinating Comm.,

Inc. v. US Atomic Energy Commn (D.C. Cir. 1971)y First majorNEPA case in courtsy RULE:NEPA does in fact require a good faith balancing of environmental factorsy Reviewing Court just ensures that balancing occurred, cannot rebalance enviro factorsy Most common violations

o 1) Bad Scientific Environmental Data and/or Lies, oro 2) The Agency Refuses to Listen = sticks head in sand


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Administering NEPAs Requirements: The Council on Environmental Quality (CEQ)

y Created to oversee NEPA, guidelines for preparation of EIS.o See CalvertCliffs Agency duties underNEPA become judicially enforceable

y Designed 40 CFR 1500 = highly specific, legally binding regulations for federalofficials that make NEPA requirements concrete

o See: Nepanet online.

1) Federal Action? any 1 of below satisfies

y Federal Approvalo Low std; can be minimalo E.g. permits and approvals even w/ no federal funding after

y Federal Fundingo Extent?o Funding preliminary studies usually not final enough

y Federal Govt Conducting the Projecto Includes contractors under federal control

y EXCEPTED: Categorical Exclusions (CATX)o Automatically skip EA process. Never get EIS.o CATX can be pretty specific; basically for routine matters.o Agency deeming an action as CATX = final agency action

Can be challenged in federal court.y Defenders of Wildlife v. Andrus (D.C. Cir. 1980):Inaction is not a final agency action

where the agency was not compelled to act.

y Small Handle Problem:private or state actions w/ tenuous Federal link can fall outsideofNEPA depends on the judge

o E.g. Winnebago Tribe v. Ray (8th Cir. 1980) = EA along w/ federal permit forpower line to cross a river for river crossing area, but not enough connection torequire EIS for the other 65 miles of power line.

y 40 CFR 1508.18(b)(2) lists some Federal Actions:o 1. Adoption of policy, rules, regulations, interpretations.o 2. Adoption of formal plans prepared or approved by federal agencies, which

guide use of federal resources.o 3. Adoption of programso 4. Approval of Scientific projects

y When do Proposals become actions? Ambiguouso How specific must it be before requiring EIS, and when in the agencys

decisionmaking process did the proposal occur?o 40 CFR 1508.23: a proposal == that stage in the development of an action

when an agency subject to [NEPA] has a goal and is actively preparing to make adecision on one or more alternative means of accomplishing that goal and theeffects can be meaningfully evaluated.

y Dept. of Transportation v. Pub. Citizen (2004): Ministerial, Nondiscretionary Actionsdo not require NEPA application.


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2) Significant Environmental Effects?

y If thru step 1, must conduct an Environmental Assessmento EA = gatekeeper functiono

30,000/yr @ 10-15 pgs eac

h

o usually w/ letter of consultation of agencies from agencies w/ expertisey EA finds Significance?

o No = FONSI = Finding of No Significant Impact Still forced a federal agency to review environmental impacts This determination counts as a final agency action

y Can be challenged in federal court.o Yes, but able to mitigate into insignificant impacts = Mitigated FONSI

Not provided for by statute or CEQ regs. Cabinet Mountains Wilderness/Scotchmans PeakGrizzly Bears v.

Peterson (D.C. Cir. 1982) Generally OKd by CEQ & courts if the

Mitigated FONSI is detailed and includes enforceable mitigation measuresthat makes impacts minor to the environment

o Yes = Need a EISy Significance Factors Defined by 40 CFR 1508.27 & NEPA 102: Requires

consideration ofo (1) Context (society as a whole, affected region, affected interests, the locality,

long term v. short term)

o (2) Intensity (severity of the impact / significant effect) Impacts may be beneficial and adverse; Degree of effect on public health

and safety; Unique characteristics of the area; Controversial aspects ofeffects; Uncertainty of effects; Precedent for future actions; Impact on

historic places or cultural resources; Significance of cumulative impacts;Impact on endangered species; Potential for violation of state or Fed law

y National Parks & Conservation Assn v. Babbit(9th Cir. 2001): EIS is mandated whereuncertainty may be resolved by further collection of data.

o CEQ regs say agencies are to consider the degree to which the effects on thequality of the human environment are highly uncertain.

y Endangered Species Its possible to triggerNEPA EIS requirements without triggeringseparate, Endangered Species Act legislation requirements.

y Hanley v. Mitchell(2d Cir. 1972): Urban Environment includes noise, traffic,overburdened mass transit, crime, congestion, and even availability of drugs.

o EIS probably not necessary where project complies with local zoningy 40 CFR 1508.3(b) Indirect Impacts must be considered, defined as caused by theaction and are later in time or further removed in distance.

o Classic Example: New federal highway thru rural town must have EIS thatincludes discussion of inevitable industry, commerce, & population increases

y Metropolitan Edison Co. v. People Against Nuclear Energy (1983) NEPA limited toimpacts on the physical environmentonly, ignore abstract risk and psychological stress.


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3) Detailed Environmental Statement In Consultation

y Environmental Impact Statement = EISo Hundreds to thousands of pgso No time deadlines, usually ~ 1yr.

y EIS Processo Must Determine Lead Agency 40 CFR 1501.5 That mustrequest cooperation of other agencies 40 CFR 1501.6o (Optionally) Prepare EAo NOI = PublishNotice of Intent in Fed. Reg.

Briefly: Proposed action, possible alternatives, proposed scoping process,name of lead agency contact

40 CFR 1508.22o Scoping Process

To eliminate from detailed study the issues which are not significant orwhichhave been covered by prior environmental review. 1501.7(a)(3)

o DEIS = Draft EIS

Circulate DEIS for Review (to basically anyone who requests a copy)

File DEIS w/ EPAo Notice-and-Comment including a public hearingo FEIS = Final EIS

Circulate FEIS for Review File FEIS w/ EPA 40 CFR 1503.4(a) Must respond to comments on the DEIS by

y 1) Modifying the proposed action or alternatives, 2) proposing anew action or alternatives, 3) develop or evaluate new alternatives,4) supplement, modify, or improve its analysis, 5) make factualcorrections, or 5) explain why the comments dont warrant further

response.y #5 must be substantive, not perfunctory

o Adopt FEISo Agency Decision

approving/disapproving the project or picking an alternativeo Prepare Record of Decisiono SEIS = Supplement EIS

When significant new circumstances or info or substantial changesaffect the proposed action or its environmental impact. 1502.9(c)

Same process except no scoping required.y EIS Structure

o Cover Sheet,o Summary,o Purpose & Need,

Broader goal, e.g. NOT to expand # of runways, but YES to develop theeconomy and allow for increased regional transportation

o Alternatives (to Primary Proposal) The Core of an EIS


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Must assess enviro impact of reasonable alternatives as deeply as mainproposal

At least two alternatives:y Primary Proposal being evaluatedy Alternative No Action (Disapproval of Entire Project)y Any Other Reasonable Alternatives IDd

o Affected Environment Broad definition, see NEPA Policies and Goals handout

o Environmental Consequenceso List of Preparerso Appendices

Challenging the Sufficiency of an EIS

y Procedural Flaw note:NOT the term Procedural usually used inNEPA contexto E.g. someone not given opportunity to put (written) testimony into the recordo California v. Block(9

th

Cir. 1982): failure to amend DEIS w/ subsequent changesin enough time to allow for comment

o EPA Review from 309 of the Clean Air Act Broadly grants EPA additional enviro review authority over merits of

agency proposals themselves, not just impact statements But bad EPA review is referred to CEQ w/ possibly no consequences

courts seem to say the agency must just come back w/ articulable reasonsfor ignoring EPA and going forward

Normal Commenting usually substitutes for 309 review, and the EPAlimits itself to most severe environmental cases

o Delegating Preparation of EIS Greene County Planning Bd. v. FPC(2d 1972): may not be prepared byApplicants for federal permit or other approval.

y Sierra Club v. Lynn (5th Cir. 1974) + 40 CFR 1506.5(b):Applicants for federal permit or other approval may submit enviroinfo needed for EIS or participate in enviro studies.

40 CFR 1506.5(c): Contractors may prepare EIS, but submit disclosureof lack of conflicts of interest. Also, agency must guide, participate,evaluate independently, and is responsible for scope & content

y Federal Highways specially authorized to delegate to StateAgencies (NEPA 102(2)(D))

y Housing & Comm. Develop. Act is also specialy Substantive Flaw

o Generally, alternatives not considered on equal basis w/ main proposalo See the 3 cases below

y Std. of Reviewo Under 706 arbitrary and capricious

NOT De Novo no trial; limited to the 4-corners of the record before the agency at time of decision

y Judicial Remedy


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o for failure to properly conduct EIS = forced to cure the inadequate EISo But that can often de facto kill the agencys project

y Statistics on Challengeso 10% = No EA; 22% = Inadequate EAo 5% = No EIS; 8% = Inadequate EISo

5% = No SEIS

o 31% = OtherScope of an EIS esp. Alternatives

Vermont Yankee Nuclear Power Corp. v. NRDC, Inc. (1978): Energy Conservation

y Federal Agency = Atomic Energy Commission Advisory Committeey Federal Action? = Approval, Licensing forNuclear Power Plant Constructiony Who Challenged? = NRDC jumped into bed w/ stupid local organization, Saginaw, while

attempting to get impact litigation for energy conservationo Saginaw was rude, just made manifesto list of complaints, and generally just

didnt play well with the agency.

o Challengers wanted to examine energy conservation as an alternative to the newnuclear power planto The new CEQ regs requiring examination of energy conservation were

promulgated after the FEIS in this case and were explicitly not retroactive

y Threshold Test for EIS Alternatives:To force an agency to consider alternatives, theymust be 1) Reasonably Available and 2) Susceptible to a reasonable degree of proof.

o Burden of Proof: The showing [of these requirements] should be sufficient torequire reasonable minds to inquire further.

o Key Phrase: To make an impact statement something more than an exercise infrivolous boilerplate the concept of alternatives must be bounded by some notionoffeasibility.

In-depth review of fewer, more likely alternatives vs. inch deep review ofthousands of alternativeso Novel Science Sliding Scale: We think the facts amply demonstrate that the

concept of alternatives is an evolving one, requiring the agency to explore moreor fewer alternatives as they become better known and understood.

o Arbitrary and Capricious Standard of Review under 706. Limited to 4-corner record.

Sierra Club v. J. Marita (for US Forest Service) (7th

Cir. 1995): Conservation Biology

y Federal Agency = USFSy Federal Action = Conducting planning to develop an area of Forest Management Preservey Who Challenged? = Sierra Club

o Various problems w/ Agencys scientific theory quality in EIS. Argue need hugeclumps of old-growth forest to ensure old forest biodiversity rather than apatchwork quilt of the same forest spread around.

Court points out mandate was for diversity, not just old forest biodiversity,so under Agencys discretion

Court deems the In-use Management Indicator Species methodology as apartial, realistic gauge of diversity as opposed to new proposed methods


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Adequacy of an EIS upon Judicial Review

y Policy Question: Assuming that decisionmakers will seriously read and react to theinformation in the impact statement, is the statement likely to further the basic goal ofNEPA, which is the promotion of more environmentally enlightened decisions?

y Agency Duties during EISo Procedural Duty = the duty to comply sufficiently with the NEPA procedures, sothat the EIS will contain a reasoned analysis on which the decision maker canbase her decision = hard look. (Not referring to procedural notice/comment reqs.)

Have all enviro impacts and alternatives been considered? Have these impacts and alternatives been adequately discussed/evaluated? What rules should the agency apply in discussing and evaluating

alternatives/impacts?o Substantive Duty = reject or modify a proposal if unsatisfactory EIS

SeeMethow Valley below & Other casesy 3 Possible Challenges to an EIS

o 1) EIS needs to be performed. Challenging a (mitigated) FONSI from the EA usuallyo 2) EIS is Inadequate Procedural Duty

EIS Minimum = Legal Full Disclosure Document: environmental impactsof the proposed action.

o 3) Merits of the EIS decision were Arbitrary and Capricious Substantive Duty SCt: Not Winnable i.e. Given the unsatisfactory EIS, an informed decisionmaker could reach

no other conclusion but that the proposed action should be rejected ormodified.

y Remedies to EIS Challengeo Preparation of initial, new, or supplemental EISo Injunctions

Usually plaintiffs ask for a preliminary injunction to preserve status quo. Pmust show

y 1) probable success on the merits,y 2) irreparable injury, and

o some tit-for-tat in the courts, but not too high a std hereo basically, some courts presume irreparable injury

y 3) that the injunction is in the public interest.y Some courts employ NEPA Exception for injunctions and just

grant them w/out this showing

Failure to get preliminary case and project go forward if project atpoint of no return, then case may become mooty Standard of Review for adequacy of EISs

o Not entirely standardized, Expanded version of Arbitrary and Capricious Std.o Rule of Reason (enables Hard Look): The EIS must set forth sufficient

information for the general public to make an informed evaluation, . . . and for thedecisionmaker to consider fully the environmental factors involved and to makea reasoned decision after balancing the risks ofharm to the environment against


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the benefits to be derived from the proposed action. The EIS gives assurance thatstubborn problems or serious criticism has not been swept under the rug.

Baltimore Gas & Elec. Co. v. NRDC, Inc. (1983) = Court must reviewunder the APA to ensure that the agency has adequately considered anddisclosed the environmental impact of its actions and that its decision is

not arbitrary and capricious. Sylva v. Linn (1st Cir. 1973) = 3 part testy 1) EIS must allow court to determine if agency made good faith

effort to account for enviro values

y 2) EIS must provide environmental full disclosure to public thrubalance of nontechnical and scientific info. No vague, general, orconclusory reasoning.

y 3) EIS must ensure decision integrity by preventing problems andcriticisms from being swept under the rug

Robertson v. Methow Valley Citizens Council(1989): Mitigation of Enviro Impacts; Scope of

Affected Enviro = USFS authorized big recreational ski resort; issued a permit as final actiony Rule (1): SCt clearly established that NEPA hasno substantive requirement, only

procedural requirements =

o AlthoughNEPA procedures are almost certain to affect substantivedecisions, it is now well settled that NEPA itself does not mandate particularresults, but simply prescribes the necessaryprocess.

o Not referring to notice/comment/public hearing procedural; see abovey Rule (2): NEPAs action-forcing function, implicit statutory demands [42 USCA

4332[2](C)(ii)], and CEQ regulations all require an EIS contain a detailed discussionof possible mitigation measures.

o No substantive requirement: NEPA does not require a fully developed plandetailing what steps will be taken to mitigate adverse enviro impacts.

o just consider options, get some cost estimates for decisionmakersy Rule (3): An EIS need notcontain a worst case analysis of potential environmental

harm even ifrelevant info concerning significant environmental effects is unavailableor too costly to obtain.

o Apparently confusing CEQ regs were cleared up right before this case.y Adequacy of Mitigation Measures upon Judicial Review

o Courts usually OK them, but fact-specifico Neighbors ofCuddy Mountain v. USFS (9th Cir. 1998) = broad

generalizations and vague references to mitigation measures in relation to thestreams affected did not satisfy the hard look required by NEPA.

o Laguna Greenbelt, Inc. v. USDOT(9th Cir. 1994) = EIS held OK thatdiscussed mitigation plans but admitted they might not succeed Mitigation + Scientific Uncertainty = also held that no EIS

requirement that scientific uncertainties in mitigation measures bediscussed. possibly not reconcilable w/ other cases

y Adaptive Management see pg. 319 note 3.y Enviro Justice Executive Order see pg. 320 note 4.


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Endangered Species Act (ESA)

Endangered Species Act (1974 Nixon)

y Focus on biodiversity conservation, mainly individual species extinction, but oftenrequires habitat conservation

y Similar issues raising obligations underNEPA (i.e. habitat conservation), can raiseobligations under ESA

o Still appealing final agency and now privateaction = funding/approval/proposaly 16 USC 1530 and following sectionsy Classic Cases:

o Once 60 million buffalo in North America, destroyed mostly for sport andagriculture and train route development

o Spotted Owl, Heinz Emerald Dragonfly, Snail Darter, California Condor, etcy Bruce Babbitt Sec. of Dept of Interior famous quote

o Most effective environmental protection lawo Most innovative, aggressive in the world

y Limits private property rights, states rights, sends federal govt intoy Why did this law get (almost pure consensus) get passed?

o 1) Undeniable congressional endorsement of national values i.e. do we want to have the blood of species on ourhands

o 2) Congress had no idea the extent of what it was doingPrecursors

y Lacy Act of 1900o Commerce Clause exerciseo Ask then: Who owns wildlife? Answer then: Not the federal govt, rather the

states.

o States were trying to create state-based biodiversity protection statuteso This law made it a Federalcrime to violate State species protection laws

y Federally Protected Landso Forest, Parks, Monuments = Noahs Arc approach to species protectiono Didnt really help migratory or wide-ranging animals that crossed to state land

Then only state protections mattered farmers hate bears/wolves, etcy Piecemeal Federal Statutory Protection

o Migratory Bird (1913); Seal Treaty; Bald Eagle (1926); (1971); etco Focused on a specific species. Problem never be able to handle the 1000s of

endangered species

y Convention on International Trade in Endangered Specieso Started in 1960s, finished in 70s. Really pushed by the US.o Attempted an international Lacy Act if 1 country protects a species, then illegal

to trade in that species w/ convention signatories unless both countries consentedo Required govts designate a responsible agency to deal with these issues may

have been final prompt for ESA getting passed Fish and Wildlife is in charge in US


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Focus on 4, 7, 9, and 10 see handout

y 4 Listing Authorizationo Authorizes Dept. of Interior (terrestrial animals) or Dept of Commerce (Marine

life/Anadromous Fish) to create list of threatened/endangered species by

rulemaking process

can also De-Listo congress doesnt need to pass species-specific legislationo Any citizen may petition for a species to be listed typically Fed. Agency tho.

Secretary of Dept. of Interiorhas nondiscretionary 1 year to respond:y reject or accept and move to rulemaking

o Federal RegisterNotice & Comment In Consultation w/ States ofhabitat Listing = Final Agency Action

5 Reasons Species Get Listed as Threatened/Endangered:y 1) Habitat Destruction orModification most commony 2) Overutilization overhunting, overharvestingy 3) Disease or Predation even non-human extinction protectedy 4) Inadequate Protections population/subspecies w/in asignificant portion of its range threatened by human activity

o e.g. snake hunt in TX or wolfhunt in MTy 5) OtherNatural orManmade Factors catch-all

o Defines Endangered:Any subspecies of fish, wildlife, or plant that is endangerof extinction throughout all or a significant portion of its range

Subspecies = small variations in species gets more protection Significant Portion of its Range = e.g. 50,000 grizzlies in Alaska, 20,000

in Canada, but b/c only several hundred left in Yellowstone (compared toMississippi to Pacific as previous range) listed; receive protection

o Defines Threatened: Likely to become endangered in the foreseeable futurey 7 Restriction/Limits on Federal Action; seems like NEPA

o Fed. Agencies must not jeopardize continued existence of listed species(including protecting critical habitat)

o Consult w/ Fish and Wildlife Service (sub-agency in Dept of Interior)o Differs w/ NEPA dramatically:

If Fed. Activity willjeopardize continued existence = Agency BARREDfrom acting (TVA v. Hill).

Note not just a procedural requirement substantive prohibition!o Procedural Obligations of Federal Agencies

1) In Consultation Requirement Parallel to NEPA; The federal agencyproposing to take action must inquire to Dept of Interior/Dept of

Commerce to determine if final action would adversely impactthreatened/endangered species

2) Biological Assessment must complete if may destroy/adversely effect(sub)species or critical habitat

3) US Fish & Wildlife/Dept ofCommerce Issue BiologicalOpinionthe biologists results can shut down the entire project


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y 9 Restrictions/Limits on Private Actiono unlikeNEPA, ESA regulatesprivate actiono Exponentially grows Fed. Govts ability to regulate private propertyo 70-80% of endangered/threatened species were on private land at ESA passageo

Term of Art take = any activity in w

hich

one harasses,

harms, pursues,

hunts, shoots, wounds, kills, traps, captures, or collects, or attempt to engage inany such conduct. 16 USC 1532(19).

Includes: significant habitat modification or modification where itactually kills or endangers wildlife by threatening essential behavioralpatterns such as breeding, feeding, or sheltering

Taking Plants: slightly different, entering a property you do not own(including Federal Land) for the purpose of taking plant species. However,the property owner can take the plant.

Obligation toKnow: imposed upon the private party lots of biologist &atty compliance consultants

y 10 Incidental Taking of Specieso Added by amendment in 1982.o The Sec. may (discretionary) issue a permit for an activity that would otherwise

be a prohibited taking ifo An individual member or individual members may be harmed as a result of an

activity, but the activity is done in a context where the overall viability of thespecies is not affected, or may in fact be enhanced.

E.g. killing more endangered dragonflies through special bridgeconstruction now, and this special elevated bridge will mean fewerendangered dragonflies die over long-term = OK!

o When US FWS issues its biological opinion, can say we will approve this projectift

hese conditions are met

this is an Incidental Taking Statement.

o Private parties obligated to proactively apply forIncidental Taking Permits Centerpiece of Application = Habitat Conservation Plan

y On-site + off-site measures that the private developer will committo, in perpetuity, that will raise the overall, long-term viability ofthe protected (sub)species.

Decisions on Permits = Final Agency Action NEPA triggered too!o 10 has defused a lot of economic vs. environmentalist tension.

Tennessee Valley Authority v. Hill(1978) First ESA in SCt; ESA 7 Gets Teeth = ESA

Substantive Requirements!y Hill = 2nd year law student at U ofTN, suspended from law school, hangs out w/ biologist

students at U ofTN hippy lib scientists. Prof. Platner finds fish. Hill gets back to school comes up w/ this case as a seminar paper topic. Petitioned for listing; 1st petition ever!

y Strong regional support for a power generating damn vs. economically dubiouso Initially inadequate EIS, remedied, continual fighting over this damo Congress continued to fund the project to the tune of tens of millions of $s.

y Newly discovered Perch: Snail Darter not listed as endangered/threatened


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o Unique to Little Tennessee, requires fast-flowing water, would be adverselyaffected by dam and lake creation

y District Ct found adverse modification or destruction of critical habitat, but we wontstop a substantially completed project

y 6th Circuit reversed: we dont weigh there are substantive reqs in the ESAy SCt under Chief Justice Berger (Conservative)

o Thinks ESA is stupid, but looks at Plain Meaning and Legislative Record of Intento Very clear ESA language + uncontested facts + no exceptions = stop the dam!

Injunctive relief stopping constructiono He was trying to force Congress to clean up its own mess rather than the Cts

1 million lawsuits w/ complex factor weighing is too burdensomeo Gives 7 of ESA real power and meaning for separation of powers purposes

y Hank Hill becomes a legend!y Post-Decision

o TN Senator gets a rider in budget exempting the TVA Teleco Dam from ESAo Also, turns out snail darters are EVERYWHERE not a critical habitat!!!

Lecture

y Determining Critical Habitato Note it is much easier to designate a (sub)species as threatened or endangered

than figuring out what is a threatened/endangered species critical habitat.

o Standard for Designating Critical Habitat = to the extent prudent anddeterminable.

o Really controversial w/ rural, large area, private property owners.y Development of a Recovery Plan

o Goal = getting threatened/endangered animals back to unprotected viabilityo These are becoming more common b/c habitat designation is so complex that its

scope of protection has become more modest than a robust recovery plan.y Delisting

o Declaring victory!o Extremely controversial usually.o Must show the causes of listing have been removed/amelioratedo EPA: Still keep a bunch of protections, not just a hands off approach

y US FWS does excellent job or chronicling their activity w/ regard to a given species.

Gibbs v. Babbitt(4th

Cir. 2000) ESA 9 Constitutional under Commerce Clause Analysis

y Challenge constitutionality of a Fish and Wildlife Service reg that limits the taking of redwolves on private land.

y Held: The regulation prohibiting taking of endangered species is a valid exercise offederal power under the Commerce Clause.

y Factso FWS was introducing experimental populations of red wolves into new rural areas

and some people there (ranchers) were shooting them and getting generallypissed.

Wolves entirely intrastate = North Carolina


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o FWS responded by allowing private landowners to kill the red wolves if self-defense etc if they notify FWS w/in 24 hours

o N. CA law: the farmers can 1st requested that FWS remove the red wolves fromthe private land and if FWS failed to do so in 24 hrs, the farmer can take the wolf.

Well see the feds/states have concurrent regulator Jx, so fed trumps.o

Challenge from 2 counties + farmer w

ho s

hot wolf t

hathe feared wouldthreaten his cattle

y Reasoningo Lopez/Morrison framework judicially enforceable outer limits on CC:

Goes thru Commerce Clause historical jurisprudence, skip ahead Under the 3rd Lopez test, regs have been upheld when the regd activities

arise out of or are connected w/ a commercial transaction, viewed in theaggregate, substantially affects interstate commerce.

o How does this reg economic activity substantially affecting interstate commerce? Red Wolves = tourism, scientific research, commercial trade in pelts

y Tourism = $30/billion annual national wildlife recreation industryy $100,000,000s /yr expected for the experimental pop. host statesy Science: Value of this genetic heritage is, quite literally,

incalculable potential resources [undiscovered] cures [fordiseases] etc

y Trade in pelts. a little bit of a stretch May aggregate effects of individual Red Wolves for CC analysis to get to

substantially affects interstate commerceo Also, the regulation is sustainable as an essential part of a larger regulation of

economic activity, in which the regulatory scheme could be undercut unless theintrastate activity were regulated.Lopez; see also Hodel v. Indiana (test appliedto total reg framework, individual regs that are integral to framework also pass)

o More stuff on area of traditional state concern CC jurisprudence. Talk aboutconcurrent state + federal jurisdiction. Historical examples and precedent. E.g. SweetHome below.

y Conclusion: Of course natural resource conservation is economic and commercial. [dont want to] open the door to standardless judicial rejection of democratic initiatives ofall sorts [court not weighing the wisdom, just constitutionally allowed + deferring toseparation of powers] The political, not the judicial, process is the appropriate arenafor the resolution of this particular dispute.

Babbitt v. SweetHome Chapter of Communities for a Great Oregon (1995) ESA 10;

Habitat Modification Included in Harm for Concept of ESA Takingy Interior Department/US FWS RegulatoryDefinition of Harm = Harm in the definition

of take in the Act means an act which actually kills or injures wildlife. Such act mayinclude significant habitat modification or degradation where it actually kills or injureswildlife by significantly impairing essential behavioral patterns, including breading,feeding, or sheltering. 50 CFR 17.3 (1994).

o Note US FWS is sub-part of Interior Dept.


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y Limitation on 9 take Prohibition: 10(a)(1)(B) = the Sec. can grant a permit for anytaking otherwise prohibited by 9(a)(1)(B) if such taking is incidental to, and not thepurpose of, the carrying out of an otherwise lawful activity. 16 USC 1539(a)(1)(B)

y Factso A logging company doesnt want to comply w/ ESA: incidental permits,NEPA

triggered (EA/EIS), etco This challenge is 20 years after the reg definitions have been promulgated.o US SCt took this case b/c of circuit split over time.o Basis of argument: interpretation of congressional record/intent + point out 5 th

amend authorization for govt to buy private land to prevent habitat degradationo Protected species = red cockaded woodpecker + spotted owl

y Reasoning (Stevens):o Looks to Websters, harm = to cause hurt or damage to: injureo Textual canons.o Broad purpose of ESA.o Later Congressional Action: 10 passage implies Congress intended 9 to apply

to indirect as well as deliberate takingso Chevron Deference Applies

Lecture ESA Practice Exam Question

y Start w/ 4 7 9 10y 4: Exam is not explicit that Black Crown Night Heron is listed for protection

o the fundamental question is whether so we must turn to the US FWS publicnotice to determine.

o Facts contain woman from US FWS indicates probably listed, so continueanalysis (its a freaking exam)

y 7: Is there federal action that could jeopardize? Yes Federal Fundingo biological assessment + biological opinion reqd

y 9: Any taking going on? Yes look at the broad definition; shooting BB guns, HWsy 10: Advise the uncle to go for an incidental taking permit.

o make a note about NEPA possibly applying either way, this is safest legal strategy


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o 4 General Types of Pollutants 1) Conventional Pollutants. (EPAs top 5 hit list.)

y Substances whichhave a high biological oxygen demand,o E.g. nitrogen & phosphorous

y Suspended solids,y Fecal Coliform,

o Indicator of pathogens rather than disease carrier itselfy Non-Neutral PH, and

o Bases and acidsy Oil & Petroleum Products.

2) Toxic Pollutants. (120+)y Metals, Organics, and Pesticides.

3) Unconventional Pollutants.y Ammonia,y Chlorine,y Iron,y Byproduct of wastewater treatment, some are just aesthetic

problems, but still regulated 4) Storm Water Drainage

y Often picks up a lot of other pollutants on its way thru the drains 5) Thermal Discharge

y usually utilities, can be lethal to temp-sensitive fishy NPDES Permitting Jurisdiction: 1) Addition 2) of a Pollutant 3) from a Point Source 4)

into a Navigable Water of the US. See CWA 502(7), (12), (14).

y 4 Permitting Categories (Soon to trade Generalized forTMDL): Direct/NPDES,Indirect/POTW, Generalized Runoff, Filling, TMDL

y #1: Direct Dischargers: NPDES Permittingo Permits needed for new construction or ongoing useo Authority to issue permits has been delegated to the stateso Obligation to know placed on regulated entityo Step 1 regulated entity must apply for a permito Step 2 circulate draft permito Step 3 notice + comment periodo 40 CFR 400: NPDES permits require

The Magic Box: Pollution Controls e.g. Wastewater treatment unitbetween wastewater and discharge, operational standards, best practices.

Monitoring Unit: must test and keep records of levels of pollutantconcentrations in the discharged wastewater

o New vs. Existing (as of late 1970s) Facilities Old facilities get grandfathered in until they all just die out New facilities easier to build right that upgrade CWA = technology-forcing

y reqs use best availabley w/ moving goal posts


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Common Problem: When does upgrading/refurbishing an existing facilitychange it to a new facility? fact-sensitive determination

y #2: Indirect Dischargers = Sewer Discharge Permito Anyone who dumps into the citys sewer systemo Permits issued by the operator of the Publicly Owned Treatment Works (POTW)

a unit of local govt The city itself is still a direct discharger and needs NDPES permits

o 40 CFR 400 requires the indirect discharge to engage in categorical pretreatment w/ a

monitoring programo 3 Categories of Requirements for Indirect Dischargers: BAT; BDT; BCT

see 40 CFR 400 below.y #3: Generalized Runoff

o No defined point of discharge; no point sourceo Farms, subdivisions, roads, airports, malls, parking lots, etco Currently ~ 70% of US water pollution from nonpoint sourceso

40 CFR 319 Best Management Practices Program (BMP) Responsibility to develop and implement BMP delegated to states

y BMPs tend to be advisory, educational, outreach not coercive,not legally binding

y Dismal Failures This is all likely to change during our careers

y #4: Filling-in or Dredging of Riverso Where you raise the riverbed by throwing so much crapo Rivers and Harbors Act of 1899 Army Corp of Engineers has responsibility to

oversee activities w/ potential to obstruct free navigability of US waterso CWA just expanded that responsibility

Except Michigan is specialo Huge (open) legal problem what if filling occurs in adjacent wetland to water?

y (Soon #5) TMDL Total Maximum Daily Load Programo According to primary purpose of a given waterway, Water Quality Standards

(WQS) waterway must be kept suitable for that primary purpose Purposes e.g. fishing, recreation, drinking

o States must survey each body of water and do testing on their WQS (nitrogen levels, oxygen levels, etc) determine sources of pollutant loading

o Uses predictive modeling to ID pollutant sources & determine max. daily loadingo The surveys are currently underway across the USo Likely outcome = Generalized Dischargers will face mandatory, not advisory,BMP

US v. Plaza Health Laboratories, Inc. (2d Cir. 1993) This case does NOT give a

precedential normative rule of law. It is more of an illustration of theScope of the CWA.


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y Owner of blood testing lab in Brooklyn took a bunch of Hepatitis B blood home and setthe blood vials in a below-tide crevice. The tide would come up and take care ofhisproblem.

y Prosecutors chose to bring criminalchargesy Basic CWA Rule: Absent a permit, the discharge of any pollutant by any person is

unlawful. 33 USC 1311(a).o Definition Pollutant: (in part) biological materials. . . dischargedinto water.

1362(6).o Definition Discharge: any addition of any pollutant to navigable watersfrom any

point source 1362(12).

y Issue: was this a discharge i.e. is this from any point source?o Definition Point Source: any discernible, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel, tunnel, conduit, well,discrete fissure, container, rolling stock, concentrated animal feeding operation, orvessel or other floating craft, from which pollutants are or may be discharged.This term does not include agricultural stormwater discharges and return flows

from irrigated agriculture. 1362(14).y Defense Argument (successful)

o Congress didnt intend to criminalize individual acts/human behavior, ratherindustrial, municipal, and commercial point sources

Language of CWA and EPA regs in various areas refer to structures andowners of point sources not humans as point sources

Goes through legislative history point source = legislative history Goes through case law basically not having the issue of individual human

acts come up and hewing more closely to the definition of point sourceo EPA Regulations EPA focused on discharges through pipes, sewers, or other

conveyances

o Parade of Horrible Results Finding against D would criminalize littering, peeingin water, etcy Hole in Reasoning container is w/in the definition of point source.y Rule of Lenity Criminal provisions of CWA did not clearly proscribe Ds conduct and

did not accord him fair warning of sanctions rule of lenity = no crime.

y Takeaway Courts tend to disfavor the criminalization of environmental lawviolations.

40 CFR 400 et seq. = Point Sources Lecture

y See handouty Includes: BCT, BAT, BDT, Pretreatment

o BCT: Best Control Tech; BAT: Best Available Tech; BDT: Best DemonstratedTech.

y NOTE: Individual Control Strategies limitations may be altered to reflect thesensitivity (i.e. level of contamination) of the receiving waters

y Mandate to US EPA Administratoro Develop effluent limitations for difference source categories based on the best

available technology for that (sub-)category.


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o Impose these effluent limitations and reductions through permitting.y Important Distinctions

o Existing vs New Sources cutoff typically March31, 1989. Existing can be so significantly modified as to constitute a new source. Cutoff = day US EPA finished new regulatory stds took much longer

than planned

o Existing Sources Much more lenient Existing Conventional Pollutants: EPA may use cost-benefit analysis

o New Source Variances = Optional for EPA: Source can show fundamentally different

situation and regulation should not apply. EPA has discretion to issuevariance to requirements.

y DuPont lack of variance option is not legally inappropriateo Obligation to know is on new facility owners

No Cost-Benefit AnalysisE. I. Du Pont De Nemours & Co. v. Train (1977) Du Pont Assaults EPAs EffluentLimitation Authority

y EPA Rule Effluent limitations standardized for all sources by categoryy Du Point Alternative EPA cant make categorical rules that apply effluence limits. EPA

must tailor the regulations to each entity.o Would effectively kill EPAs ability to mandate effluent limits w/ the extra work.o Also, each permit would be a rulemaking/final agency action that is subject to

judicial challenge

y Issues: 1) whether EPA has authority under 301 of CWA to issue industry-wide regslimiting discharges by existing plants; 2) whether Court of Appeals has Jx under 509 toreview the regs concerning existing plants; and 3) whether the new-source stds issued

under 306 must allow variances for individual plantsy Held:

o 1) EPA clearly has the authority and responsibility to issue industry-wideregulations limiting effluent discharge of specific plants.

o 2) not important to us.o 3) Variances are optional for new plants obligation to know is on the new plant

owner.Association of Pacific Fisheries v. EPA (9

thCir. 1980) Effluent Limitations: Studies

y Challenge to regs establishing effluent guidelines for Canned and Preserved SeafoodProcessing Point Source Category

y Court reviewing EPAs decision by the record before the agency at time of final agencyaction (promulgation) under Arbitrary and Capricious Std.

y Held:y 1) EPA may base effluent limitation regulations on only 1 study on a given technology

for a given point source category, but the study must demonstrate the effectiveness of therequired technology.

o Most CWA control technologies, including air-floatation units here, are not rocketscience.


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y 2) EPA cost-benefit analysis based on only 1 model plant must not reflect costs that aresite-specific where other sites may experience significant differences in cost estimates.

o Aerated Lagoons take a lot of land; cost varies by locationo Agency required to determine economic impact, set forth amount of land needed

for various sized plants, avg. cost of land for IDd facilities, and whether it is

reasonable to assume there is available land for t

he lagoons

y Note that air-floatation unit vs. Aerated lagoons are very similar. The lawyering here wasreally good to get the court to accept distinctions (apparently).

40 CFR 400 Continued Indirect Discharger: Pretreatment

y See the handout (separate sheet from BCT, BAT, BDT).y This applies to water discharged into a sewer system

o Publicly Owned Treatment Works (POTW)y Units of Local Govt may impose/preempt w/ more stringent, specific standards and may

impose additional requirementsSouth Florida Water Management District v. Miccosukee Tribe of Indians (2004)

y See scanned diagram.o Pump (S-9) keeps developed agriculture from flooding by emptying polluted

(phosphorous fertilizer) generalized runoff canal thru 60 feet

y Issue: whether the pumping thru S-9 of the already polluted generalized runoff waterconstitutes an addition of pollutants to navigable waters from a point source.

o If a point source must get NPDES permit that would probably requirecontrolling the phosphorous (really expensive)

S. FL Mgmt doesnt want to have to retrofit their 1000s of pumps.o S FL says, merely conveying generalized runoff through a pump does not turn it

into a point source.

y Reasoningo Point Source definition under CWA includes conveyance = just like pump S-9.o All sorts of centralized water treatment/conveyance activities need NPDES

permits and pollution control equipment to meet stds in their source categoryo S. FL Mgmt argues non-point source pollution = 319 best mgmt practices: BMPo OConnor response = it can be both a nonpoint and also a point source

Suggests: nonpoint source pollution that is aggregated becomes a pointo Unitary Waters Approach: Govt argues S. FL is scooping up a ladle of soup

and dropping it in the same pot b/c the water systems are united as 1 body. Tribeargues the govt is ladling from 1 pot to another pot b/c 2 water systems.

Could be a get out of jail free card for a ton of polluting situations OConnor says this would be a fact-intensive, scientific inquiry

y Vacated and remanded for further argument.Achieving Water Quality Standards: TMDLs and 401.

y TMDL = Total Maximum Daily Loads; pg. 663y States have huge influence in approach called cooperative federalism.y 50 states and 7 territories have authority to be implementing agency throughNPDES

permitting program.o State in charge of issuing permits, monitoring, enforcement


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y TMDL Process: Under archaic and modern CWA, it is up to states too 1) inventory all water bodies w/in the state,o 2) designate the primary purpose of a waterway,

Each state can create its own classification program.y E.g. primary vs secondary; general vs secondary; drinking,

recreational, fishing, industrial, agricultural Interstate Waters US EPA intervenes if there is a difference of opinion

o 3) ID water quality stds necessary to sustain the primary use,o 4) test the waters,o 5) list all impaired waters (dont meet WQS) o 6) non discretionary duty on states to ID sources of impairment and

pretty hard to do; have to rely on computer modelingo 7) ID best mgmt practices to reduce contributions to impairment from each source

Pronsolino v. Nastri(9th

Cir. 2002) TMDL: Nonpoint Source Pollution Politics

y WaterBody = Garcia River in CAy Pollutant = sediment loading from timber industry (Pronsolino), roads, & erosiony EPA mad at CA impaired waters list: CA is omitting waters that failed to meet waterquality standards due to nonpoint sourcesy EPA to CA: 1) List allthe impaired waters and attempt to get control over the nonpoint

sources of impairment or 2) EPA steps in and take control of the aspect of CAs TMDLo Pronsolino would have to undertake mitigation and comply w/ timber restrictions,

estimate $750,000.o Mailliard Mendocino County Farm Bureau cost estimate = $10 million.

y Pronsolino & Mailliard says nonpoint source impairment not w/in authority of US EPAo Have a point: States Best Management Practice programs tend to be non-

coercive, more convincing

y Ct: Water Quality Stds reflect a states designated use for a water body and are notdependent in any way upon the source of the pollution plenty of statutory support

y Held: Nonpoint sources that contribute to water body impairment (of WQS) are w/inscope ofTMDL & EPAs authority. (Just like point sources).

o Just b/c the EPA now has the judicially-recognized power to regulate nonpointsources of impairment, doesnt mean theyll be able to politically take on specialinterests: farming, construction, chemical mfg, timber, etc

o But TMDL is mandatory under the act. Well see how this plays out soon!y 401 Certification

o Apex of state authority under CWAo When a regulated entity applies to any federal agency for a license or permit: as

part of obtaining the license or permit, the entity must provide proof of 401

certification from the state in which they will be located.o Contents of 401 Certification:

State says applicants project or activity will not harm the water qualityS.D. Warren Co. v. Maine Board of Environmental Protection (2006)

y See Harvard Environmental Law Review Articley SD Warren has hydroelectric dams on the Presumpscot River in Maine since 1935.y The federal operation licenses are potentially subject to section 401 b/c the dams, mainly

in the impoundment stage, cause changes to the Presumpscots rate of flow, temperature


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stratification, nutrient content, sedimentation patterns, and oxygen concentration thatcontribute to the rivers failure to reach relevant WQSs.

o SD Warren argues, CWA doesnt apply b/c no discharge into river!y Maine is willing give certification, but needs conditions to meet WQS: 1) must have

minimum stream flow for the bypassed portion 2) must have alternative path for eels and

fish

rather t

han t

hru turbines

y Under CWA, Fed Agency cant give licenses w/out 401 certification from Maine.Inversion of normal Federalism.

y Justice Souter, writing for the Court, held that the meaning of the term discharge in 401 cannot be contained to the bounds of discharge of a pollutant as used in 402,since discharge is deemed separately as merely includ[ing] the discharge of apollutant.

o In lieu of any specific definition of discharge itself, Souter interpreted the termin accordance with its dictionary meaning.

o Define Discharge for 401: flowing or issuing out.y Effects: Now states may impose certification limitations on such dams that will address

water quality for the next thirty to after years, the usual time-span for FERC licenses.This is especially important because dams are often cited as one of the largest remainingcontributors to water pollution problems in the United States. A range of measures, fromash passages to adjustments of water flow patterns, can be employed by dam owners toimprove water quality. On the other side of the scale, the effects of this decision may notbe entirely positive if regulation adversely affects electricity prices.

y Note: This gives the political leaders of a state or state enviro agency a huge club forgood or ill purposes &

y Note: Could be the future of nonpoint source discharge regulation!

Dredge and Fill Permits What Constitutes Navigable Waters of the US?y This section applies to physical, solid, tangible material that fills in a waterway by

elevating the depth.

y 404 Command:Thou shall not fill or dredge flowing, navigable waterways (or theirtributaries) of the US unless thou obtain a 404 permit from the Army Corp of Engineers

o Rivers & Harbors Act of 1899 prevented construction of physical structures inwater bodies to ensure navigability

Broad authority given to US Army Corp of Engineers over wetlands Notion ofPublic Interest Review introduced Ironic b/c USACE originally charged w/ filling in USs wetlands

o Dont confuse other water dumping permits weve studied: NPDES issued by State; Sewer = unit of local govt

y Stage 1: Basis for USACE Denial of a 404 Permit Request handouty 404 Permitting Triggers

o Permit decisions = Final Agency Action NEPA trigger: almost always EISo Stage 2: Public Interest Review (handout): must consider fish & wildlife ESA

triggero Filling Affects WQS state 401 certification trigger

Filling Affects Impaired WaterBody WQS TMDL trigger


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o Public Process: opens up suits by 3rd parties not being paid attention to.y Stage 3: Mitigation See handout.

o Feel-good measures: cement ponds, Wetland banking credits, etcy Army Corp began to think its broad mandate extended to wetlands.

o Not necessarily flowing, not necessarily something you could drive a boat thru.o Not necessarily continuously covered by water seasonal.o This expansive view of the Army Corps permitting authority scared the absolute

living shit out of land developers. (see triggers above).

y 404 Statutory Exemptions Exampleso Farmers acting in regular farmer wayso Temporary sediment basino Construction of farm or forest roadso State approved nonpoint source mgmt programs

y General 404 Permits Exampleso Typically nationwide, but possibly regional/stateo Developers use at their own risk

Must defend decision/assessment of the seriousness USACE Enforcement or citizen suitso Minor road activitieso Utility line backfillo Shoulder or bank repair

y Letters of Permissiono Minor projects w/ no significant or cumulative impact and no appreciable

opposition to them and mitigation undertaken

o Developer can request (alternative to permitting) district engineer akasuperintendent who has sole discretion

o Analogize to EA light review, no public involvement3 404 Cases: See Drawing Summary

US v. Riverside Bayview Homes, Inc. (1985) 404 Permitting Scope: Wetlands

y Relic [Aquatic] Vegetation Test for 404 Jx: Whether there exists a hydrologic orhydrogeologic connection to a navigable water such that the adjacent wetland can supportaquatic vegetation.

o AKA: Prevalence of aquatic vegetation that could not grow but for, time-to-time,that ground is inundated. doNOTuse this language: flooding test

o Obligation to Know: developer must determine if their site is a wetland Biologist consulting firms do testing

y Riverside owned 80 acres of wetland in Michigan. They began dumping fill materialsfrom housing construction into the wetland. The particular wetland in question was near a

lake, but didn't feed directly into the lake, so Riverside felt that they did not need apermit.

y The USACE felt that the wetland met the definition of an adjacent wetland.y The 6th Circuit found that the wetlands were "not subject to flooding by adjacent

navigable waters" and so weren't covered.o Basically, the Appellate Court said that polluting a body of water is only covered

if that pollution can move into a navigable water. In this case, the pollution


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Riverside was dumping would likely stay in the wetland and not seep into thenearby lake, so it was not covered.

y The US SCt reversed and held that a permit was required.y Chevron Deference = Arbitrary and Capricious Std.y The US SCt found that it is difficult to define where "water" begins and "land" ends, so it

is a challenge for the USACE to determine where their authority ends.o The Court decided to interpret the term "waters of the United States" broadly, and

found that the USACE's ecological judgment about the relationship betweenwaters and their adjacent wetlands provides an adequate basis for legal judgmentthat adjacent wetlands may be defined as waters under the act.

y Basically, the Court said that waters covered under the act include any waters that theUSACE reasonably concludes may affect the water quality of adjacent lakes rivers andstreams, even when the waters of those bodies do not actually inundate the wetlands.

o Basically, the Court said that since it is difficult to define jurisdictionalboundaries with precision, it's best to leave it up to the scientists to use afunctional approach to the jurisdictional reach of the Clean Water Act.

Solid Waste Agency of Northern Cook County (SWANCC) v. US Army Corp ofEngineers (2001) 404 Permitting Scope: Seasonal Quarry Ponds; Wholly Isolated

y Cook County had an abandoned open pit mine. The mine had flooded with water andhad become a de facto lake. Cook Country decided to fill the pit up with trash. The USArmy Corps of Engineers (USACE) sued for an injunction.

o Cook County argued that they did not need a permit because the de facto lake wasnot connected to any other body of water.

1986 & 1987: USACE assured Cook County it had no Jx b/c watersisolated, intrastate, seasonal, no hydrogeologic connection

Senate Majority Leader Hastert had a NIMBY problem w/ the trasho (Failed) MigratoryBird Theory: USACE argued that even though the lake was

unconnected (and wasn't even a natural lake), it was now home to 100 species ofmigratory waterfowl, and since the birds fly across State lines while migrating,they are interstate commerce and therefore covered under CC Federal jurisdiction.

y The US Supreme Court reversed and found against USACE.o Chevron Deference not appropriate b/c of plain meaning: violated A & C std.o The US Supreme Court looked to their previous decision United States v.

Riverside Bayview Homes, Inc.which said that the word "navigable" was of"limited effect" and found here that "limited" didn't mean "zero."

Basically, Congress' use of the word "navigable" must be construed tomean that they did not intend for the CWAto cover completely isolated,intrastate bodies of water.

"Where an administrative interpretation of a Statute invokes the outerlimits of Congress' power, we expect a clear indication that Congressindented that result."

y Note: States Can Still Regulate Completely Isolated Intrastate Waters!o The Court further found that permitting the USACE to claim Federal jurisdiction

over ponds and mudflats would result in a significant impingement of the States'traditional and primary power over land and water use.

y Post Court the land appreciated in value so much that it got used for other purposes.


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Rapanos v. US(2006) 404; SCt has a fistfight. See Handout of USACE reaction

y Rapanos owned some wetlands that were isolated and 20 miles away from the nearestnavigable waterway. Trying to play by the rules, but failed the consultants relicvegetation test. Got super pissed and cranky. In open defiance of the law, he filled thewetlands with sand in order to build a shopping mall without getting a permit.

y The US Army Corps of Engineers (USACE) fined Rapanos for not getting a permit.y Rapanos was convicted in a criminal trial and was forced to pay millions of dollars in

civil penalties. He appealed the civil penalties.o Rapanos argued that since the wetlands were not connected to a navigable

waterway, they were not covered under the CWA.o USACE argued that, based on the ruling in United States v. Riverside Bayview

Homes, Inc.,any waters that USACE said were covered were covered.

y The Appellate Court affirmed. Rapanos appealed.y At the same time, a developer named Carabell had sought a permit to build

condominiums on 19 acres of wetlands, but the request was denied by the USACE.o Carabell sued, arguing that the Federal government did not have jurisdiction.

y The Trial Court found that the Federal government had jurisdiction. Carabell appealed.y The Appellate Court affirmed. Carabell appealed.y The US Supreme Court combined the two cases.y The US Supreme Court overturned the Appellate Court decisions and ruled that the

USACE did not have jurisdiction.o The US Supreme Court was extremely sharply split. While they were able to

come to a 5-4 decision about reversing the judgments against Rapanos andCarabell, they were unable to come to a majority decision on the details of wherethe jurisdictional limits should be drawn.

o The plurality of Justices looked to the plain language of the CWA found that theterm "navigable waters" in the CWA could be extended to waters which were

connected to navigable waters, but not isolated bodies of water that were notdirectly connected.

"The only plausible interpretation of the phrase 'the waters of the UnitedStates' includes only those relatively permanent, standing or continuouslyflowing bodies of water 'forming geographic features' that are described inordinary parlance as 'streams, oceans, rivers, and lakes."

The plurality looked to their decision in SWANCC and recognized that ifthere were a significantnexus between the wetland and a navigable bodyof water, it could be covered under the CWA, but in the present cases, thewetlands were well isolated.

y A wetland that is adjacent to a navigable water, or connected by acontinuous surface flow would constitute asignificant nexus, inScalia's opinion.

y In a concurring opinion, Justice Kennedy disagreed with the plurality on what exactlyconstitutes asignificant nexus.

o Kennedy felt that the USACE should be allowed to go back to the lower courtsand introduce evidence that could establish that there was a significant nexus.

y In a concurring opinion, Justice Roberts suggested that the USACE go back and issued aregulation clarifying exactly how far they felt that 404 reached. If they did that, then the


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courts would have to give USACE deference.o Since there were no published regulation or guidelines, the courts did not have to

defer to USACE's case by case analysis.

y In a dissent, it was suggested that the Courts go back to the deference they used inRiverside, which basically said that waters covered under the act include any waters that

the USACE reasonably concludes may affect t

he water quality of adjacent lakes riversand streams, even when the waters of those bodies are not directly connected to a

navigable waterway.

y Modern Test for USACE 404 [Filling] Jx Under the Clean Water Act: SeeHandout from US EPA & USACE w/ Summary of Key Points in a big box.

Exam Question Review Categories ofDischargers + Requirements + Process + Entities1) Came in Late discussingNPDES/Direct Dischargers

Falls under conventional pollutants, but Smelcos biodegradable fertilizer also couldrun afoul Total Suspended Solids, Pathogens, Fecal Coliform, etc

New facility vs. existing facility UnderNPDES program, new facilityhas muc

hmorestringent controls. No variances available. The facts are somewhat ambiguous old facility vs

new owner = ?. This is a chance to show that you can analyze it both ways.Main Discussion: Direct point source discharger of regulated pollutants into navigable

waters of US must have NPDES permit. Key Aspects of Permit Process: Achieve rate ofreduction of concentration of regulated pollutants to meet the regulatory standards for effluentlimitations in 40 CFR 400. Discuss Monitoring/Reporting Requirements. States issue the[renewal or new] permits (see beautiful table in the book). Operating w/out a permit = violationof CWA.2) Indirect Dischargers: Sewers/POTW/Pretreatment

discuss the three categories: BDT, BCT, BAT; and pretreatment

3) 319 Generalized runoff is probably not ahuge issue on t

hese facts.4) 404 filling permitting required. 3 levels of inquiry: basis for denial, public interest review,

mitigation. Issuing permits triggers opportunity for public comment NEPA, ESA, citizen suits,etc


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Resource Conservation and Recovery Act

RCRA (AKA the Clean Land Act)

Generally; Subtitle C; Subtitle D; Underground Storage Tanks

Note:y Air Pollutants = Clean Air Act Chapter 6 1.1y Water Pollutants = Clean Water Act Chapter 7 Dy Hazardous Waste Land Disposal Management = RCRA

o Largely a groundwater protection problemPollution Prevention Act (PPA)

y Three Basic Strategies1. Treatment, Storage, or Disposal;

a. Primary current strategy, worst long-term strategy, least long-term cost efficient2. Process Changes to Reduce Waste Stream Volume;3. Resource Recovery (e.g. Recycling) often energy intensive4. 4. Recovery Fuel Value (Incineration) fallen out of favor b/c of air pollutiony Pollution Prevention Act (PPA) = 1990; 42 USC 13101-13109.

o National Policy 1) Prevent or Reduce Pollution at the Source Whenever Feasible 2) Recycle Remaining Pollutants in an Environmentally Sound Manner 3) Dispose of or Release Pollution into the Environment as a Last Resort

o Created EPA Pollution Prevention Office Matching grants to states for pollution source reduction by businesses Better data collection and source reduction tracking

y EPA published Pollution Prevention Strategy 1991o Spread knowledge on how biz can profit by pollution preventiono Regulation & Enforcement add more incentiveo Impossible to treat dispersed, nonpoint sources, e.g. waterwayso No significant litigation yet

Monsanto Co. v. EPA (7th Cir. 1994) EPA granted biz 2-yr extension toinstall water-scrubbers. Times up, they dont work. EPA denies furtherextensions for new scrubbers. Judge says give extension, new extension +good scrubbers better than quick fix that transfers pollutants toair/ground

Summary of RCRA

y Before RCRA local, state, federal piecemeal HW control methodso E.g. public nuisance laws, emergency health measures, toxic torts

y 1970s = Congress passed Solid Waste Disposal Act, aka RCRA, 42 6901-6991io Prompted by Love Canal Disaster. GAO: 400k-500k other suspect sites. Damn!o Note: HazardousWastes are a subset of solid wastes. 1004(5).

y Subtitle D = Non-HWso EPA establishes guidelines for reg of non-H solid waste disposal by the stateso Initially envisioned federal and financial assistance to the states, minimum fed reg


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y Subtitle C = HWso Perhaps furthest developed paradigm for pollution controlo 1000s of pgs of Cradle to Grave regs

E.g. ID (non-listed) HW characteristics, recordkeeping, reporting, labelingo Waste Transporters = RCRA + Haz Materials Trasptn Uniform Safety Acto

Special focus

TSD = treatment, storage, disposal facilities

o Subtitle C is the floor for state regsy 1003(a)(4), (6)

o Encourage the recovery of useful materials through process substitution andproperly conducted recycling and reuse = minimize waste generated + properlymanage HWs

o Often conflicts with 1003(b)y 1003(b)

o National policy to reduce or eliminate the generation of HWs as expeditiously aspossible, wherever feasible, and manage generated HWs to reduce threat tohealth and environment

o Often conflicts with 1003(a)(4), (6)Summary of EPAs Regulatory Authority underSubtitle Cof RCRA

Source of

Regulatory

Authority

Nature of Regulatory Authority

3001 y Identify and listhazardous wastes (HWs) 3002 y Promulgate standards applicable to HW generators as may be necessary

to protect human health and the environment

y 3002(b)(1) Require HW generators certify in the required shipmentmanifest that they have established a program to reduce the volume ortoxicity of their HW to the extent economically practicable

3003 y Promulgate standards applicable to HW transporters as may benecessary to protect human health and the environment

3004 y Promulgate performance standards applicable to facilities that treat, store,or dispose of HW (TSD facilities) as may be necessary to protect humanhealth and the environment

y Implement land disposal restrictions (LDRs) on particular HWsy Issue treatment standards for HWs subject to LDRsy Require corrective action for releases of HWs or their constituents

3005 y Require permits forTSD facilitieso TSDs must annually certify that they have established a program toreduce the volume or toxicity of their HW to the extent

economically practicable

y Issue TSD facility permits 3006 y Authorize states to issue TSD facility permits 3007 y Inspect and obtain samples from sources that generate, transport, treat,

store, or dispose ofhazardous waste


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3008 y Pursue civil or criminal enforcement of Subtitle CRCRA Prima Facie Claim: plaintiff must allege

y (1) that defendant has generated solid orhazardous waste,y (2) that defendant is contributing to orhas contributed to handling of this waste, andy (3) that this waste may present imminent and substantial danger to health or environment.

o does not require an existing harm, only an ongoing threat of future harmy Solid Waste Disposal Act, 7002, as amended, 42 U.S.C.A. 6972.

RCRA Remedies: RCRA offers a private citizen a choice of two remedies:

y a mandatory injunction, i.e., one that orders a responsible party to take action byattending to the cleanup and proper disposal of toxic waste, or

y a prohibitory injunction, i.e., one that restrains a responsible party from further violatingRCRA

Distinguishing Waste vs Useful Materials: Legitimate vs Sham Recycling

y Waste reuse can thwart safe HWs mgmt objectivesy Main Questions:

o Is it a (solid) waste? (not a product, commodity, raw material, or ingredient).o Is it a HW? = Subtitle Co Is it a non-HW? = Subtitle D

y Note:Neither Subtitle applies unless the waste qualifies as solid waste. 1004(5).y Definition of Solid Waste

o RCRA 1004(27) The term solid waste means any garbage, refuse, sludge from a waste treatment plant,

water supply treatment plant, or air pollution control facility and otherdiscardedmaterial, including solid, liquid, semisolid, or contained gaseous material resulting fromindustrial, commercial, mining, and agricultural operations, and from community

activities, but does not include solid or dissolved material in domestic sewage, or solid ordissolved materials in irrigation return flows or industrial discharges which are pointsources subject to permits under section 402 of the Federal Water Pollution Control Act,as amended (86 Stat. 880), or source, special nuclear, or byproduct material as defined bythe Atomic Energy Act of 1954, as amended (68 Stat. 923).

o EPA/CEQ 40 CFR 261.2 even more complex,pg. 839Owen Electric Steel Co. of South Carolina, Inc. v. Browner(4

thCir. 1994)

y QP: Whether the slag produced as a byproduct of steel production isdiscarded, and therefore constitutes a solid waste under 42 USC 6093(27)

o EPA need only find slag = solid waste under 1004(27), see abovey Std. of Review = Abuse of Discretion (Arbitrary & Capricious)y Holding: EPA did not abuse discretion by deeming the 6 month cured slag

discarded; hence, RCRAs TSDF requirements apply (>90 day curing = storage).

y Slag = limestone & dolomite (magnesium carbonate) + trace metal oxideso Floats to surface of molten metal, skimmed off, cured outside 6 monthso Reused as construction aggregate road base material etc

y Owen got a TSDF permit that IDd the slag processing area as solid waste mgmtunit (SWMU), Owen protests, EPA sticks to guns

y Precedent


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o American Mining Cong. V. EPA (D.C. Cir. 1987) (AMC I) Defineddiscarded = disposed of; abandoned (look to intent)

rather the a broader definition: no longer useful in original capacitythough destined forimmediate reuse in another phase of theindustrys ongoingproduction process

see the updated rule below Relied on statutory unambiguous plain meaning + legislativehistory + policy of RCRA

But this case subsequently read narrowlyo American Petroleum Inst. v. EPA (D.C. Cir. 1990) held: AMC I does

not mean slag delivered to a new plant for metal reclamation cant be HW. Unlike AMC I, this slag is indisputably discarded before

reuse/recycling. Consequently, it has become part of the wastedisposal problem discarded, SW, HW subject to RCRA C.

o American Mining Cong. v. EPA (D.C. Cir. 1990) (AMC II) held:EPA OKd for deciding 3 HWs were in fact discarded, solid wastes; not

exempted b/c stored in surface impoundments and may (uncertain) later bereused/recycled. Surface impoundments are part of wastewater treatment, hence

part of waste disposal problem and not part of ongoing industrialprocess.

o US v. ILCO, Inc. (11thCir. 1993) held: spent batteries from varioussources purchased for recycling purposes were discarded, solid waste.

Somebodyhas discarded the battery, doesnt change just b/c areclaimerhas purchased or finds value in components.

y RULE Define Discarded (Solid) Waste:Ask whether the byproduct is (1)immediately (2) recycled (vs. sham recycled) for (3) valuable use (from class) (4)

in th

esame industrys (5) ongoingproduction process. If not = part of th

e wastedisposal problem i.e. discarded, solid waste.

o Association of Battery Recyclers, Inc. v. EPA (D.C. Cir. 2000) Immediate does not mean at once, rather Immediate = direct, as inthe immediate cause of the accident

American Petroleum Institute v. EPA (D.C. Cir. 2000) (API II)

y Oil refiners and chem. mfgers challenge EPAs classification of petroleumrefining wastewater as discarded, HW, solid waste, under RCRA Subtitle C.

y Wastewaterhas a little oil left over in it, goes thru 3 stages of treatment, 1st stage= primary treatment = skim

enviro i outline

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